..ang blog ni Yeyen.

curiosity killed a cat

Curiosity killed a cat! Ask me no questions and I’ll tell you no lies. [from the play, “Different”].

Er, but since you’re not a cat, ask away! ^ ___ ^


Comments on: "curiosity killed a cat" (33)

  1. JC Guapo said:

    After 15 years of being a widow who had raised her two children into mature, well-equipped adults (30, 25), Mrs B has now gone into a relationship with her former high school classmate, Mr J. This riled the eldest and said that in the event that Mrs B decides to marry Mr J, the eldest admonished her to turn over all the properties and monies owned by her late father.

    Is it possible for the children to claim all the properties and wealth of a late parent in the event that the surviving parent marries someone else?

    What is the legal right of the mother in the sharing of inheritance (is it called as such – the properties and wealth left by the deceased partner)?

    Thanks.

    • Hi Jas!

      I’m assuming that:
      1. the children are afraid that in case their mother remarries, the latter will be taking with her the properties that were left by their father upon his death to the second marriage.

      2. the estate of their father was left unsettled after his death and the mother became the administrator thereof and now, they want to get what is rightfully theirs as heirs of their father.

      There is really no need to be alarmed because upon the death of their father, the conjugal partnership property of their parents should have been liquidated in the same proceeding for the settlement of the estate of the deceased. Briefly and in the absence of a will and extrajudicial agreement of the compulsory heirs (widow and the children), one half of the gross estate will be given/returned to the mother as her share in the conjugal partnership. The net estate (after deducting the 1/2 share of the surviving spouse and all allowable expenses, e.g. funeral, medical, etc.) will be divided equally between the widow and the children. The widow then, has one half of the properties as her share of the conjugal assets plus another 1/3 thereof as her share being one of the heirs of the husband. On the other hand, each of the children has 1/3 of the net estate of the father representing their share as his heirs too. [Note that in case of agreement, the heirs are absolutely free to decide how the estate will be divided and the provisions of the law as shown above will not be applied ].

      This being, the children have no say on the 1/2 share of the widow of the gross estate as well as her 1/3 share as heir because these are already the properties of the widow alone. Although they may be the heirs of the widow, until she dies, they only have an inchoate right to it and can only hope to receive it. In the same manner, the widow doesn’t have anything to do with the respective shares of her children too.

      As her children who are already of legal age, they can now demand from their mother to settle the estate and divide the properties between them. If they come to an agreement, well and good. If not, they have to go to court to compel her to settle the estate and the same will be divided based on their agreement, if any, or if there is none, then in the manner as illustrated above.

      In the unfortunate event that the widow remarries before the estate of her late husband has been settled, there is no need to fret at all because a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage of the widow (3rd paragraph, Article 130 of the Family Code). Because of the complete separation of property, the widow will not be bringing along with her the properties from her previous marriage to the new one and the properties which are rightfully due to the children will never mix and form part of the properties of the new conjugal partnership.

      comprende? I’m trying my best to avoid technical terms and explain it in layman’s terms ^ ___ ^

  2. madison said:

    in conguent to inheritance– what is the legal rights of a mentally-challenged child? example, a child with a down syndrome? will this child receive an equal share of inheritance when his/her parents pass away?(without leaving any written will). or should the law assign someone to manage child’s share?
    thanks.

    • yenskay said:

      hi!
      the minors and other incapacitated persons are still protected by law. their incapacity will not disqualify them to receive the inheritance. the court will appoint a guardian for them who will hold the inheritance in trust for the latter.
      thanks for dropping by.

  3. madison said:

    thanks for the info. what i was wondering too is that does philippines have the law like what some states of the u.s. have, the common law marriage? it means you are legally married to your partner even if you didn’t marry “by papers” if you and your partner are living together for 5 years or more. the conjugal partnership will commence once they reached this span of time, automatically. well, i don’t really know the accurate details but it do sounds like that.
    funny how laws are evolving and sotomayor can’t even answer straight on a nay or yea question of wether a person has the right to defend him/herself from a direct attack(not verbatim).
    how about you as a female lawyer(sexist me?), how do you find sotomayor for supreme court?
    sorry for the salad-ish topic.

    • hi!
      we have similar laws here but only as to the property relations between the common law spouses is concerned – and there is no creation of a “legal marriage” despite the exclusive cohabitation.

      Here, we have to distinguish whether or not the cohabiting spouses live together and chose not the marry despite being legally free to do so and whether or not they are cohabiting as common law spouses without the benefit of marriage because there is a legal impediment for marriage, e. g. one of them is married to another. Note that we don’t have the five-year requisite period here.

      Particularly, the Family Code of the Philippines provide among others:

      Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

      In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the household.

      Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.

      When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.

      Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit.

      If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article.

      The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.”

      Article 147 above covers that kind of cohabitation where neither of the parties has legal impediment/s to marry the other; the other refers to the situation in which the parties cannot marry because it is legally impossible for them to marry (like a previous marriage).

      Regarding Sotomayor, I’m sorry I’m not familiar with her story – I haven’t been watching CNN or Fox lately : ) Here, I believe that the lady lawyers are in equal standing with the opposite sex – sometimes, the men are even generous enough to let us get our ways because we are women, hahaha.

  4. mackenzie said:

    this is very interesting.since we are talking about realationships/family, what is really the legal way in giving an illegitimate child a surname? will it be a mother’s decision to have her issue obtain the surname of the father?and, is it lawful to have the child’s last name of the dad without the dad’s knowledge? i’m getting old=) yet i’m ignorant on matters such as this.
    thank you again atty. i hope you can peek cnn/fox sometimes. sotomayor is the first latina woman to get this high position that’s why the stereotype-chauvinist pigs are fretting. haha.

  5. mackenzie said:

    in addition, what will be the rights of illegitimate children in regards to inheritance from their father?

    • hi.

      the mother does not have discretion what surname her child shall carry; she has to follow the law governing surnames.

      before 2004, all illegitimate children do not have any right to use the surname of their father, even if the fathers allow them to use it. however, even before, the illegitimate children have always been entitled to inherit from their fathers, one-half of whatever the legitimate children are entitled.

      fortunately, when Republic Act No. 9255 was enacted in 2004, all illegitimate children can now use their fathers’ surnames, PROVIDED THE FATHERS ACKNOWLEDGE THEM AS THEIR OWN. Because of this prerequisite acknowledgment , it’s not possible that the father will not know about his child carrying his surname.

      Section One of Republic Act No. 9255 states:

      Article 176 of Executive Order No. 209, otherwise known as the Family Code of the Philippines, is hereby amended to read as follows:

      “Article 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.”

  6. thanks a heap for all the helpful info you gave me.
    i need to ask you a few more questions that’s been bugging my cranio lately:
    1. how long will it take to annul a marriage? is there a usual time frame and how much does this usually cost?
    2. would it be possible to create a will and disinherit(?) your husband from the property you owned when you were still single and name the property directly to your children?
    3. what is really the legal ways in obtaining properties if you are not a filipino citizen anymore and what will happen to the properties you owned prior to becoming a non-filipino citizen?
    4. curious me. are there also “specialization” in law profession like in medicine: cardiology, neurology, et al? they have this in the u.s. but i don’t know specifically what.
    thank you again and pardon my ignorance.

  7. hi!

    1. there’s no definite time frame. it depends on whether or not the respondent will care to answer the petition and oppose the petition – that will take longer than when he/she will simply waive his/her right to oppose or present evidence. then, the calendar of the court is another thing, and the presence of the Solicitor General (through the prosecutors)…we are so lacking with prosecutors here that they only allot one day a week of theirs skeds for family court cases. then, it depends if the Solicitor General will appeal the decision of the trial court to the higher courts — it could drag on for yearsssss.

    2. yes, one has a right to make his/her will. yes, a compulsory heir may be disinherited on certain grounds provided by law. er, properties acquired before the marriage could also be considered exclusive properties thus, there’s no need to disinherit the husband to give it to the children. in the property relations of spouses, there are certain properties which remain exclusive. i need exact facts to answer appropriately, hehehe.

    3. hmmm, those properties which one acquired as a Filipino citizen, will remain his or hers and he/she can dispose it through any means, donation, sale, etc… by properties, you must be referring to real properties and yes, a foreigner cannot legally own any in the philippines. there’s only ONE WAY — the FORMER FILIPINO CITIZEN can own real properties through SUCCESSION (or inheritance).

    4. our lawyers here do not have a formal specialization like that of the doctors. we are free to practice whatever branch of law – civil, criminal, etc…but what usually happens is that, the lawyer would eventually prefer to just practice one particular branch — as he gains his expertise in the field in that way. like criminal law for prosecutors, etc.
    but yeah, even if he has been a prosecutor (criminal law) for many decades, he is equally qualified to practice any branch of law because lawyers here have mandatory continuing legal education every year to keep abreast with current laws and jurisprudence.

    i just got back from out of town. sorry for superficial answers, hehehe.

  8. thank you very much atty. i owe you a lot for not billing me:) the info you shared are all so helpful.
    in regards to #2, how will i obtain a will? is it expensive in the phil? do i need to be physically present in the country to do it? or will a notarized one do? the properties i’m talking about are the typical ones: house, rice/coco farm. one more thing, if i’ll purchase a house during marriage yet i use my personal money, can i claim the propery mine and not conjugal?(planning to include this on my will).
    sorry for the complicated queries but i just wanted to make sure that all that is mine will go to my children and zero to my husband (mean me?).

  9. hi. are you still a Filipino Citizen? there are different rules if you are a Filipino living abroad who wants to make a will or otherwise. If you are still a Filipino, you can make a will in accordance with the forms and solemnities under Filipino law or the law of the place where you are and where you make the will. However, the provisions in the will or the disposition of the property must be in accordance with Philippine law – regardless of the location and nature of the property whether real or personal.

    If you are a foreigner with properties in the Philippines, you make can make a will accordance with the laws of your nationality or your domicile or Philippines law. The disposition of your properties will be in accordance with the law of your nationality – this is still regardless of the location and nature of the properties.

    when did you marry? where did you marry? what is the citizenship of your husband? these factors are necessary to determine your property relations with your husband. Your matrimonial property regime will be governed by the national law of your husband – and even if you eventually changed citizenship, there shall be no effect of the change in the rules that will govern your property relations.

    if your husband is Filipino, our laws will govern your properties. I need to know the date of marriage because if it is after August 5, 1988, the Family Code of the Philippines already comes to play. Note that it is not “whose money was used in purchasing the property” but “when that property was acquired” which plays a vital role. If that property was purchased after you were married, even if you used your “own” money, it most probably is “conjugal” property and both of you own it.

    • arrgh. i didn’t know it’s so simple yet so complicated as this. haha. thank you so much for this big help atty. i just realized how ignorant can a man(or woman) be. i better pray that my daughter will dream my dream for her and that is to be a lawyer like you(wink). we are starting the college fund. ahem!
      my husband is a filipino. i am not. we got married mid 2000 in the philippines.
      well, i guess this is just what we call “adjustment” phase of marriage.
      i better see some counselor before resorting to the “will” conundrum;)
      thank you again atty. this site is so informative. keep up the excellent work.

  10. nagtayo ako nang bahay sa lupa nang grea great grand father ko, mayron ba ako karapatan magpatayo ng bahay sa lupa?mayroon gustong mag angkin nang lupa isa siyan illigitimate children ng grea great grand father ko. Mayron ba siyang karapatan na e demolish yung bahay ko? anong gagawin ko? gusto nila e go sa court, anong laban ko? pls help…..

    • hi!
      1. are the direct descendants of your great grandfather still alive e.g. his children, your parent?

      2. under what or whose authority did you build the house? did you buy it from any of your great grandfathers direct heirs (his son, etc.)?

      3. upon the death of your great grandfather, was their a settlement of his estate already?

      4. exactly how are you related to your great grandfather? are you the granddaughter of his child?

      please answer the questions above, so that i can make my proper reply.

      • YES I AM A GREAT GREAT DAUGHTER, MY GREAT GRANDFATHER WAS ALREADY DIED. MAY DICISION NA FROM COURT NA MY UNCLE AND MY FATHER AY ONE OF HEIRS SA LAND PERO ANG NASA TAX DECLERATION NAKAPANGALAN SA ILLIGITEMATE CHILDREN. IS TAX DEC PROOF OF OWNER? KASI ANG TITLE AY HINDI NA RAW MAKITA PERO MAYRON KAMING DECREE NUMBER

  11. may right ba yung great great daughter sa lupa? ang ama at uncle ko ay buhay pa sila yung ligitimate great grand son ng may ari nang lupa na patay na may right ba siya na magpatayo sa likoran ng bahay yong anak niya? sa ngayon gusto nila e go sa court anong gagawin sa aking ama at uncle. may habol ba kami?

  12. ANG FATHER KO ANG GUSTO MAGTAYO AKO NG BAHAY SA LIKOD NG BAHAY NILA AT BEFORE AKO NAGBUILD ASK AKO NG PERMISSION SA UNCLE KO AT FATHER KO. ANG NAGREKLAMO AY YUNG ILLIGITEMATE CHILDREN KASI ANG SABI SA KANILA RAW ANG LUPA BINIGAY NANG KANILANG AMA PERO WALANG WILL TESTAMENT SILANG PINAKITA ONLY PETITION PAPER. ANG NAKAPANGALAN SA TAX DEC. AY NGALAN NG MGA ILLIGITEMATE CHILDREN. SAAN PO PWEDE MAKUHA ANG TCT? NASUNOG NA RAW DITO SA CEBU PERO MAYRON KAMING DECREE# SAAN PWEDE MAKITA PWEDE BA SA MANILA?

    • from the great grandfather, the latter’s direct heirs are his legitimate and illegitimate children, if they are no longer living, their legitimate/illegitimate children will represent them in sharing the estate. And if the latter are dead already, then the heirs of the next degree will represent them.

      Since you mentioned your father and an uncle, you as great grandchild has no right to it, since the nearest heirs are them.

      on the issue if the illegitimate children can share in the estate, sad to say, yes they are entitled to 1/2 of the share of the legitimate children.

      they cannot just out right demolish your house, because there needs to be a court order for that.

      since they are also entitled to the estate, they have all the right to file a petition before the court for the partition of the estate of the great grandfather. that proceeding will determine how the properties of the great grandfather will be divided among his nearest heirs.

      you can get a copy of the TCT in the Office of the Register of Deeds of the city or province where the property is located.

      you can likewise check it before the office of the Land Registration Authority.

      good luck!

  13. hello po, question po. If the wife died, can the husband sell the property left without the consent of the children? Thanks.

    • hi leyya!

      upon the death of the wife, by operation of law the husband and the children become co-owners of the remaining properties. they could just agree among themselves how to divide the same. having decided on who gets what, the husband can sell the properties with the consent of the children, if the said properties are his share.

      if they have not settled [or divided] the estate of the wife, the husband needs to get the consent of the others, if it includes the other heirs’ share. like for example, if the property is a parcel of land measuring 500sq meters. if the father wants to sell the whole property, he needs to get the consent of the other heirs, lets say 4 in number [children]. if he only sells his share [1/5 hereof], which is 100sq meters, the consent is not necessary because he has full control of his own undivided share.

  14. dear atty,
    i really thank you for this free advises you have on your blog. it is such a huge help.
    i got questions that are bothering on my mind lately.:
    1. what is the philippines’ law regarding naming the property to our offsprings? how old can a child have his/her name on a property? (land, realty etc.)
    2. how much would it cost me to transfer my name of my property titles to my child?
    3. the reasons behind why i wanted to transfer my properties to my child is that i just don’t want it to have anything to do with my husband (just in case something might happen to me). hala!😀
    i

  15. Hi, sorry for the late reply.

    Properties are either transferred through selling or donating. I guess you mean you want to give the properties to your children, so, it’s going to be via donation.

    You can donate real and personal properties them. If they are already of legal age, they can accept the donation themselves. If they are still minors, they can still be donees, provided they are assisted by their guardian when they accept the donation.

    For donation to your children, you need to pay donor’s tax, which ranges from 2% – 15% of the gift, depending on the value thereof. The first P 100,000.00 is exempt.

    However, please note that if you will be donating conjugal properties, you need to get your husband’s consent and/or your husband should co-donate with you.

    Actually, there’s nothing to be afraid of if you just want to be sure that you might leave your children [die] because under the law, they are your legal heirs. They will definitely acquire your properties — though, conjugal properties will be another matter, because your husband is going to recover his 1/2 interest thereon, and also share in your 1/2 as your legal heir, too.

  16. Hi, I have a question concerning family property disputes. My dad died a 1 1/2 year ago and did not have a will and testament. Our family home land title is still written under his name and we have not settled outside the court the distribution of the property to this date. There is only one Land Title under my father’s name,however, there are two separate houses erected in the same land title. My mother signed a Deed of Sale for one of the houses without me and my siblings consent and we do not have any information on the cost of the sale. Question 1: What is the legal right of my mother to make/close the sale of the property without our consent? Question 2: What is the legal significance of the Deed of Sale my mother signed? Question 3: How can me and my siblings legally prevent the sale of the property? note: 1 sister is on my mother’s side and 4 other siblings including me voted against the sale.

    • hi!
      without a last will and testament, as heirs of your father, all of you, including your mother, could amicably settle his estate according to any agreement. This you could do by executing a Deed of Extrajudicial Settlement and whatever you agree will be binding. You’re supposed to settle the estate within six months from the death of your father and pay the appropriate taxes therein. The longer you settle, the more you will have to pay for the penalties of late filing and late payment.
      In your case, I gather there’s no amicable settlement and thus, what will prevail will be the provisions of law on intestate succession. Under the law, the surviving spouse gets her share of 1/2 out of the conjugal partnership. The other half will be divided among the remaining heirs of your father, still including your mother, who is also his heir. Thus, since there are 6 heirs [including your mother], each of you gets 1/6 of your father’s share in the conjugal partnership [1/2 of which is returned to your mother].
      Without the actual settlement, you heirs are co-owners of the properties left. As co-owners, you each have a fractional share or interest therein. Thus, your mother and your sister can legally sell their share on the house they sold. Though they sold it without your consent, the sale is valid up to their interest or 2/6th thereof. the deed of sale is then valid to the extent of their interest. in order to prevent the sale, you shall have to file for the annulment of the sale in court, making void your interest therein.
      i advise you to initiate the settlement of the estate of your dad the soonest. instead of voiding the sale on your interest on the house, you can just agree that since they got the house, they will have no interest to the other properties as well equivalent to the 2/6th interest they sold.
      it’s best for you to go and consult a lawyer to guide you properly as this is not sufficient and only for purposes of information.

  17. dear atty,
    i got questions bugging on my head lately regarding my citizenship. i got my u.s.citizenship around few years ago by naturalization. i didn’t apply for a dual citizenship. i’m wondering if i go home and decided to stay in the philippines, what procedure will i get to stay there legally? my daughter got dual citizenship, will she be able to stay there as long as she wanted? she’s a minor.
    pls help.
    thanks,
    soph

    • hi.
      what do you mean, coming home and deciding to stay? you’re coming back permanently? if yes, then just apply for dual citizenship, it’s the status with the most advantage to you. You just need to fill up some forms with the Bureau of Immigration and pay the fees. You can check its website for the detailed procedure.
      as for your child, since he/she is Filipino, then he/she can stay here indefinitely.

  18. Hello:)

    If you could please assist me I would really aappreciate it. My mom wrote up a contract to sell, absolute deed of sale, and gave POA to my cousins in the Philippines to sell her home to them. Since then my mom passed away and they were not successful in transfering ownership due to the title was lost. In the meantime I have learned that the price the quoted my mom in regards to the value of the property was not market value but for tax purposes. The current market value of the property is more than doubled the price that they quoted my mom. I believe they lied to my mom taking advantage of her old age, the fact that she was terminally ill, & that she had been in the US since 1972 and had no idea what property values were in the Philippines. I am the only child (compulsory heir) and my father is deceased. I have a last will and testamnet from my mom listing me as the only heir to inherit all her property & belongings. My cousins are still trying to go through the courts using the POA, deed of sale, contract to sell, to get a new title under their name saying they already paid my mom for the property-which they have not! They were going to get a mortgage on the house in order to pay my mom but, they were not able to do that since the title was lost. Here are my questions: 1)As the compulsory heir,does the property belong to me now if I file for it? 2) Do i need to sell the property still to my cousins at the price stated on the contrat to sell & deed of sale written before my mom passed? 3) Can I just trf the title to my name and sell it to someone else at the current market value?

    • Since your mom already passed away, the Power of Attorney does not have any force and effect. Any incomplete transactions will have to be made through her estate. As the only heir, you have to settle the estate of your mother [and pay for the proper estate taxes] so that all her remaining properties will be passed to you. You mentioned of a will – and before the same can be given effect and distributed, you need to have it probated in the philippines first. On whether or not the Contract to Sell and Deed of Sale are still valid on account of your mother’s death, if the said documents were signed and notarized when she was still living, it is generally valid and binding against you. Of course, you can have it voided in the courts on grounds that your mother was forced, or that there wasn’t any payment yet.
      You need to see and consult a lawyer to talk on the details – since there might be other provisions on the documents you mentioned.
      Thanks for dropping by.

  19. Thank you for all the good advice:) I have a lawyer and will move forward making sure my mom’s dying wishes are carried out and that her grandchildren get what is rightfully theirs.

  20. Is their no expiration of contracts to sell and deed of sales? My mom has been deceased for over a year. Can this documents be valid indefinitely?

    • yenskay said:

      if they are valid contracts, they remain to be enforceable, but since your mom has passed away, her heirs will represent her in the deeds of sale [unless the heirs will question the validity thereof].

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Tag Cloud

%d bloggers like this: