Dear PAO,
My father died last year and he currently has three properties in his name. My question is, how will his properties be divided amongst his heirs after the taxes have been paid? My father did not leave a will.

The only heirs left are me, my two siblings and my mother. My parents did not agree on how they would divide their properties. Please help.
Ben

Dear Ben,
Under Article 960 of the Civil Code, legal or intestate succession shall take place if a person dies without a will.

Thus, the estate of your father will be divided accordingly under Section 1, Rule 74 of the Rules of Court, which provides that if the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition . . . The parties to an extrajudicial settlement, whether by public instrument or by stipulation in a pending action for partition . . . shall file, simultaneously with and as a condition precedent to the filing of the public instrument, or stipulation in the action for partition . . . in the office of the register of deeds, a bond with the said register of deeds, in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment of any just claim that may be filed under Section 4 of this rule. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent.

The above-mentioned rule is called the extrajudicial settlement by agreement between heirs. Now you may ask, who are the heirs of your father? Under Article 887 of the Civil Code, the following are the compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in Article 287. Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another. On the basis of Article 887 of the Civil Code, your mother, you and your two siblings are the compulsory heirs of your father.

Under Article 996 of the Civil Code, if a widow or widower and legitimate children or descendants are left, the surviving spouse has in succession the same share as that of each of the children. As such, the estate of your father must be divided equally among your mother, your two siblings and you.

Before proceeding with the extrajudicial settlement of the three properties under the name of your father, there must first be a determination of the extent of his estate. Just because the three properties are in the name of your father does not mean that they are all his. You must be guided by the Rules on Property Relations between Husband and Wife under the Family Code.

It should be noted that Article 75 of the Family Code provides that “[i]n the absence of marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern.” Thus, pursuant to this provision of law, the regime of absolute community of property would govern the property relations of your parents.

Under Article 91 of the Family Code, it is stated: “the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.” However, pursuant to Article 92 of the same Code, the following properties are excluded from the community property:

(1) Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they shall form part of the community property;

(2) Property for personal and exclusive use of either spouse. However, jewelry shall form part of the community property;

(3) Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such property.

The death of your father terminates the absolute community, pursuant to Article 99 of the Family Code. Under Article 102 of the same Code, which provides for the procedure upon dissolution of the absolute community regime, it is provided that “[t]he net remainder of the properties of the absolute community shall constitute its net assets, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements, or unless there has been a voluntary waiver of such share as provided in this Code.”

Applying the aforementioned rules, you must determine whether those three properties of your father are excluded from the absolute community property. If not, these properties would be considered as part of the absolute community property. Assuming that the three properties are the net remainder of the absolute community regime upon its dissolution, then all the three properties, being part of the community property of your parents, have to be divided equally so that 50 percent goes to your mother and 50 percent to your father. The 50 percent that goes to your father will be divided equally among your mother, your two siblings and you after payment of the taxes, debts, and other charges.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.