Our parents would like to distribute their properties to us, their children, while they are still alive, to avoid problems when they have already passed away. What is the best way to do it?
Dear Robert Ray,
The best manner to distribute the property of a person to his heirs is through the execution of a last will and testament. A last will and testament is a document that reflects the act of the testator in distributing his estate in accordance with the formalities prescribed by law, which shall only take into effect after his death (Article 783, Civil Code). However, the estate of the deceased shall only pass to the named heirs, legatee and devisees after it has been probated or allowed by court. The execution of a last will and testament will afford your parents the opportunity to control the manner of the distribution of their properties to their children. It is however possible that the heirs would question the execution of the document after their death, making the same ineffective for any of the grounds for disallowance of will: (1) the formalities required by law have not been complied with; (2) the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) it was executed through force or under duress, or the influence of fear, or threats; (4) it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) the signature of the testator was procured by fraud; (6) the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. In order to avoid the disallowance of the will, it is suggested for your parents to file a petition for the probate of the will while they are still alive. The filing of the said petition is allowed under Section 1, Rule 76 of the Rules of Court, which states that any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of a testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed; the testator himself may during his lifetime, petition the court for the allowance of the will.
However, it is to be reminded that the provisions in the last will and testament distributing the properties to the heirs shall only take effect after the death of your parents, even if the same was already allowed in court. This only means that the ownership of those properties shall only pass to the heirs upon their death.
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have presented. The opinion may vary when other facts are stated.