Dear PAO,
My father died last year. My parents were married in 1978 and have acquired some parcels of land here in Bulacan and some personal properties during their marriage. Am I also entitled to my father’s properties even if my mother is still alive? My father has no last will and testament. Do we have to go to court for the distribution of his properties?
RN
Dear RN,
Before the effectivity of the Family Code, the regime of conjugal partnership of gains governs the property relations between the spouses. Marriages which took place before August 03, 1988 will have the said partnership as their property relations in the absence of marriage settlement between the spouses. We would assume that your parents did not execute a marriage settlement when they were married and that they are governed by the conjugal partnership of gains. Hence, the properties which they acquired during their marriage are considered as their conjugal or common properties. Their share in these properties shall be presumed equal unless they have agreed on a different partition. Half of these properties shall belong to your father as his share and the other half shall belong to your mother as her share. Since your father already passed away, his share will be given to you and your mother as his legal heirs (Article 887, Civil Code of the Philippines).
The estate of your father may be settled and distributed to you and your mother without going to court by means of an extrajudicial settlement. Section 1, Rule 74 of the Rules of Court 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. You need to file a bond with the said register of deeds in an amount equivalent to the value of the personal property left by your father as certified to under oath by you and your mother, and conditioned upon any just claim that may be filed against the property (Section 4, ibid.). The certificates of title of the parcels of land left by your father shall also contain an annotation regarding the two-year lien previously mentioned. This may be cancelled by the register of deeds after the lapse of two years without need of court order (Regalado, Remedial Law Compendium Book II (10th ed.), page 23, citing LRC Circular No. 143, dated January 28, 1964). You also need to cause the publication of the fact of the extrajudicial settlement of your father’s estate for three (3) consecutive weeks in a newspaper of general circulation in your province. You and your mother then may divide among yourselves the properties left by your father as you see fit provided that neither you nor your mother is deprived of your respective lawful share in the inheritance.
Please be reminded that this opinion is solely based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added or elaborated.
We hope that we were able to address your concern.
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