To gain shares in estate of deceased, enter into extrajudicial settlement
"My paternal grandmother bought a piece of land after she was married to her second husband. Do my father and his siblings have a share in this land? Can they settle their respective shares in the land out of court? Lastly, since my father is already dead, can my siblings and I represent our father and get his share?ZL
Dear ZL,When your grandmother passed away, the properties which she and her second husband acquired during the marriage shall be liquidated and divided into two (2) shares. Half shall pertain to her second husband as his share. The other half, your grandmother’s share, shall be passed on to her legal heirs namely, her surviving spouse and all her children from her first and second marriages.
Clearly, your father is entitled to a share in all the properties which were left by his mother. However, since he had also died, you and your siblings may represent your father in the estate of your grandmother. The right of representation is one created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited (Article 970, Civil Code of the Philippines).To settle and distribute to your grandmother’s heirs their respective shares in her estate without going to court, you, on behalf of your father, and her other heirs, may enter into an extrajudicial settlement as provided in Section 1, Rule 74 of the Rules of Court, to wit:
“Sec. 1. Extrajudicial settlement by agreement between heirs. - 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. If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. The parties to an extrajudicial settlement, whether by public instrument or by stipulation in a pending action for partition, or the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and as a condition precedent to the filing of the public instrument, or stipulation in the action for partition, or of the affidavit 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 (2) years after the death of the decedent. The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.”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.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to firstname.lastname@example.org"
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"To gain shares in estate of deceased, enter into extrajudicial settlement"
was written by Mary
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comments. The article was created on 15 September 2021
and updated on 15 September 2021