Philippine inheritance and foreign wills

by | Mar 6, 2018 | Estate Law, Wills & Inheritance

A keyring with three keys symbolizing an inheritance.

Some things to think about in a cross country inheritance.

The interplay of Philippine and foreign laws with regard to inheritance deserves more attention.

What follows are introductory considerations for estate or succession cases involving both Philippine and foreign elements.

How do people inherit property in the Philippines?

Inheritance can be testate, intestate, or mixed.

Inheritance is testate if it occurs through a valid will.

A house to symbolize inheritance and succession.

An inheritance can be testate, intestate or mixed.

Inheritance is intestate if:

(1) A person dies without a will, or with an invalid will, or one which has subsequently lost its validity;

(2) When the will does not institute an heir to or dispose of all the property of the testator. In this case, legal succession shall take place only with respect to the property not disposed;

(3) If a condition for an heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance without a substitute stepping into the heir’s place;

(4) When the heir is disqualified from inheriting.[1]

Inheritance is mixed if only part of the property has been disposed of in a will. In this case, the rules of legal or intestate succession shall be applied with regard to those properties not disposed of.

How is the property divided if there is no will?

In the absence of testamentary heirs, the law vests inheritance in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State.[2]

Inheritances such as farm land are divided according to guidelines in Philippine law.

The law provides guidelines for how property is divided if there is no will.

The shares of these heirs are allotted by default according to the portions set by the Civil Code of the Philippines.

What is a last will and testament?

A will is an act by which a person is permitted, after following the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death.[3]

In the Philippines, a valid will must always be in written form. The will must be either signed and witnessed before a notary or be entirely handwritten and signed by the testator.

A hand written will by the testator or one written and notarized is required for a will to be valid.

A valid will has several conditions.

Testate inheritance is not considered a natural right.[4] Rather, it is a right granted by law. For this reason, the exercise of this right is subject to the conditions set by law.

One of those conditions is that the will must be probated for it to have legal effect.

What is probate?

Probate is a court proceeding to establish the validity of the will.

Before any will can have force or validity, it must be probated in court. To probate a will means to prove to the court that the document offered really is the last will and testament of the testator.

Gavel on top of law books to symbolize the court process of probate.

Probate is a court hearing confirming a will is valid.

The presentation of the will for probate is mandatory and is a matter of public policy. It must be proven that the will was executed, attested, and has been published as required by law, and that the testator was of sound and disposing mind.[5]

Can a will be the basis for transferring ownership of property before probate?

Paper cut outs of furniture and personal effect laid out on a wooden desk to show property to be distributed before probate.

Probate is required before any property can be distributed.

No. Until admitted to probate, a will has no effect whatever and no right can be claimed under it. No will shall pass either real or personal property unless it is first proved and allowed in accordance with the Rules of Court.[6]

How is probate initiated?

A petition for probate should be filed with a Regional Trial Court. If the deceased was an inhabitant of the Philippines at the time of his death, it should be the RTC of the city/province where he resided at the time of his death. If the deceased was an inhabitant of a foreign country, the RTC of any city/province in which he had estate.

The entrance to a house which is a likely part of an estate's inventory.

Include an inventory of property in your petition to the court.

A petition for the allowance of a will must show, so far as known to the petitioner:

a The jurisdictional facts;

b The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent;

c The probable value and character of the property of the estate;

d The name of the person for whom letters are prayed;

e If the will has not been delivered to the court, the name of the person having custody of it.

The court shall calendar the probate for hearing so that all concerned may appear to contest the allowance of the will. Notice of the time and place of the hearing will be published in a local newspaper for three (3) weeks prior to the hearing date.

A coffee cup over a newspaper to indicate that publication in a newspaper is one of the requirements of probate.

You’ll need to publish the hearing’s time and date 3 weeks before.

(But no newspaper publication need be made where the petition for probate has been filed by the testator himself while still alive.)

The court shall also cause copies of the notice of the hearing to be sent to the designated or other known heirs, legatees, and devisees of the testator resident in the Philippines at least twenty (20) days before the hearing. Personal service of copies of the notice at least (10) days before the day of hearing shall be equivalent to mailing.

(But if the testator filed for the probate of his own will, notice shall be sent only to his compulsory heirs.)

What are the grounds for disallowing a will?

A signature on a will must be one created without trickery.

A valid signature is required.

The will shall be disallowed:

a If not executed and attested as required by law;

b If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;

c If it was executed under duress, or the influence of fear, or threats;

d If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit;

e If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto.

Can a foreign will be given effect in the Philippines?

A foreign will can be given legal effect here. This requires proving in court that the will was made in accordance with the formalities and law of the place where the testator resided or those of his country.[7]

Additionally, a foreign will can be directly submitted for probate in a Philippine court. It does not need to be first probated in the foreign country.

A rule to the contrary would be fraught with impracticality.

Does a last will and testament executed abroad need to first be proved at the foreign court before it can be given effect in the Philippines?

A foreign will need to be taken to a Philippine court for it to have effect in the Philippines.

Yes, a foreign will can have effect in the Philippines and it can be submitted directly to a Philippine court for probate.

If the instituted heirs do not have the means to go abroad for the probate of the will, it is as good as depriving them outright of their inheritance, since our law requires that no will shall pass either real or personal property unless the will has been proved and allowed by the proper court.[8]

However, the foreign probate of a will can also be given recognition and effect and in the Philippines.[9] This is called reprobate. In reprobate, the local court acknowledges as binding the findings of the foreign probate court provided its jurisdiction over the matter can be established.[10]

Which country’s law will govern the estate of a deceased foreigner?

What if a foreigner dies leaving property in the Philippines?

The foreign citizen’s national law governs both intestate and testate succession. This is with respect to the order of succession, and also as to the amount of successional rights, as well as the intrinsic validity of the testamentary provisions.

Texas court cases as an example of foreign law that may govern the estate of a foreigner.

A foreigner’s law will determine how his estate is divided.

This means that who gets to inherit, in what order, and how much, as well as the legality of the provisions of the will, are all referred by the Philippine court to the national law of the foreigner.

Article 16 of the Civil Code provides:

Several necklaces and small pieces of jewelry symbolizing the personal property of an estate.

For all items in an estate – even jewelry – the foreign law on inheritance governs.

Article 16. Real property, as well as personal property, is subject to the law of the country where it is situated.

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

This provision is reinforced by Article 1039:

Article 1039. Capacity to succeed is governed by the law of the nation of the decedent.

The estate of the foreign decedent or testator will be governed by his national law. For this reason, dissatisfied heirs of a foreign citizen generally cannot assail a will or its provisions for being violative of Philippine law.

Different national flags to illustrate different national laws on succession.

A foreigner’s estate will reference his national law.

The Philippine system of legitime (the legitime is that part of the testator’s estate which the law reserves to certain heirs) was not intended by Congress to extend to the succession of foreign nationals.[11]

Which court will give effect to or enforce the foreign law in the Philippines?

This is where it gets tricky. It is still a Philippine court which has to rule on these issues even though foreign laws on inheritance will be referred to.

But a Philippine court cannot be expected to know foreign laws.

An American courtroom as an example of a foreign court.

It is the Philippine court and not the foreign court that will give effect to a foreigner’s will.

For this reason, the foreign law in question will need to be properly submitted in evidence at the Philippine court case. Otherwise, it cannot be given effect.[12]

Proving a foreign law for purposes of enforcement by a Philippine court can be an arcane process which requires a lawyer to be versed in its particular complications.

 

Atty. Francesco C. Britanico

References

[1] Article 960 of the Civil Code
[2] Article 961 of the Civil Code
[3] Article 783 of the Civil Code
[4] Nuguid vs. Nuguid, G.R. No. L-23445, June 23, 1966
[5] Heirs of Lasam vs. Umengan, G.R. No. 168156, December 6, 2006 citing Tolentino, III Civil Code of the Philippines, p. 151.
[6] Heirs of Lasam vs. Umengan, G.R. No. 168156, December 6, 2006 citing Article 838 of the Civil Code.
[7] In re: In the matter of the Petition to approve the will of Ruperta Palaganas with prayer for the appointment of special administrator, Manuel Miguel Palaganas and Benjamin Gregorio Palaganas, G.R. No. 169144, January 26, 2011, citing Article 816 of the Civil Code.
[8] In re: In the matter of the Petition to approve the will of Ruperta Palaganas with prayer for the appointment of special administrator, Manuel Miguel Palaganas and Benjamin Gregorio Palaganas, G.R. No. 169144, January 26, 2011, citing Article 816 of the Civil Code.
[9] Rule 77
[10] In re: In the matter of the Petition to approve the will of Ruperta Palaganas with prayer for the appointment of special administrator, Manuel Miguel Palaganas and Benjamin Gregorio Palaganas, G.R. No. 169144, January 26, 2011
[11] Ancheta vs. Guersey-Dalaygon, G.R. No. 139868, June 8, 2006, citing Bellis vs. Bellis, 126 Phil. 726 (1967).
[12] Noveras vs. Noveras, G.R. No. 188289, August 20, 2014, citing EDI-Staffbuilders International, Inc. vs. NLRC, G.R. No. 145587, October 26, 2007

41 Comments

  1. jenniferparazo

    myfather inherited some properties from my grandparents he died ahead of my mom(she has 2 sons on her prior marriage who already died with surviviing kids- mom grandcildren on first marriage
    my question
    1. are these step grandchildren of my dad entitled to inherit
    from my 2 single sisters and a single brother who also died from what they have inheritedfrom my father to share with my half brothers children. if ever what is the ratio

    Reply
    • Lawyers in the Philippines

      Hi:

      The grandchildren from your mother’s first marriage are not intestate heirs of the deceased single children from your mother’s second marriage.

      Reply
  2. Allan

    Hi,

    My Parents inherited a property from my grandparents on my fathers side who already passed away on which both of my Father and Mother’s names and their children are stated on the will. My father also died in 1988 before his parents died sometime in 90’s leaving my Mother who is still currently alive. I have half sister and half brother from my Dad’s first marriage who demand to share with the inherited property. My Dad did not annul the first marriage when he married my mother. Although he was separated from his first wife, he was technically married to both women at the same time. Does my mother have the right to take over the will or alter it since it is in hers and my Dads name? Are my half siblings entitled to share any part of the property when my Mum whose name is on the will and not my half siblings Mum?

    Reply
    • Lawyers in the Philippines

      Hi Allan:

      This is a complicated situation.

      Much depends on how the grandparents estate was settled. Was there a probate of the will?

      Complex inheritance questions require close scrutiny which is only possible with more information and greater detail.

      Reply
  3. SHERRYL

    can I have a copy of the latest LAST WILL AND TESTAMENT 2018 (TEMPLATE OR FORMAT)

    Reply
    • Lawyers in the Philippines

      Hi Sherryl:

      Although it may be possible to start from a template, wills are generally customized to a person’s particular life situation.

      It must be so to ensure that all assets and the testator’s wishes are considered.

      As such, it would be best to write a personalized will.

      Reply
  4. Betty

    I have a query about my fathers will. He passed in the phillipines 2 years this April. The lawyer won’t give me a copy of his will, and she is also related to my dads wife. I want to attest my fathers will on grounds of fraud. I know she has in excess of 2 millions dollars American.

    Reply
    • Lawyers in the Philippines

      Sent you an email.

      Reply
  5. Muriel

    Hi, what is the alternative to extra judicial settlement if the siblings refuses to sign for extra judicial settlement? Also what would the back taxes be for a 950m2 of land if the estate tax is unpaid for 40 years?

    Reply
    • Lawyers in the Philippines

      Dear Muriel:

      I sent you an email.

      The estate taxes will depend on where the land is located. In addition, it will be necessary to calculate the surcharges and penalties that have resulted from late payment.

      While estate tax penalties would be very high in this case as it was not paid on time, a recent tax amnesty has passed at Senate and is on President Rodrigo Duterte’s desk. It is an ideal opportunity to transfer the property.

      It is also important to work out an accommodation between you and the other heirs.

      Reply
  6. Maria

    Hi, I live in USA and I’m visiting home this March, the reason of my visit is to have my sister to draw a Last testament will and I would like to be the beneficiary or trustee. Not much property but I bought and built the house that she’s living right now so, I wondered how it work. I’m a US citizens. Sincerely Maria

    Reply
    • Lawyers in the Philippines

      Sent you an email.

      Reply
  7. Liza

    I live in California and have property in the Philippines. What do I need to do in California to make sure my Will is valid in the Philippines?

    Thank you. Looking forward to your response

    Reply
    • Lawyers in the Philippines

      Sent you an email.

      Reply
  8. Lorna

    Good day! My aunt who became a US citizen and has died a few months ago left a will which she made in California and had it notarized there. It was not probated there. After she was buried all concerned heirs who can make it was called and will was read by a cousin. She left behind jewelries and one small piece of real estate property here which she left to me as stated in the will. She doesnt have any children; parents are deceased. Only 3 surviiving siblings are left and a lot of nephews and nieces.

    Reply
    • Lawyers in the Philippines

      Sent you an email.

      Reply
  9. R. Lozano

    Dear Sir,
    I am Australian citizen, born in the the Phils, both of my parents were Pilipino. My Father passed away in 2009 and my mum in 2017.
    Mum & Dad raised 6 children and 4 are deceased as well before my mum passed away. My question is my mom dont have a will but verbally she left me the house and lot measured 1000m2. I just found out that my sister sold few blocks out of my mom estate without my permission.
    My second question, what are the rights of my parents grand children when there parents died before my mom and there is no will? I am travelling to the Philippines soon to sort out the mess, hopefully something left for me to claim.

    Reply
    • Lawyers in the Philippines

      Sent an email.

      Reply
    • Rachel

      Dear Sir,
      I have received your email, I went back to the Philippines last 19th of February. I stayed for 10 days to find out more info about our land. My sister sold few parcel but I found out that there is no Deed of Sale, as I didn’t sign any documents when she receive the money from the sale and didn’t
      share any money to all the heirs of the property. Buyers cant transfer in the names as we all probably have to sign.
      One of the parcel that sold , buyer already built the house. My question is where do I go from here?
      Can I take buyer to court?

      Reply
      • Lawyers in the Philippines

        Dear Rachel:

        The sale can be challenged if you are a legal heir who did not receive her share of the inheritance.

        However, to do so, you must be prepared to go to court.

        I suggest that you formally consult with a lawyer to see what can be done, if you are determined on this path.

  10. DT

    Hello, My mum’s uncle passed away recently. He was single and didn’t have a family of his own. We would like to know if he left a will. If he did and was probated by the court, can you please advise the steps we need to do in order to gain access to it?

    Thank you.

    Reply
    • Lawyers in the Philippines

      Sent you an email.

      Reply
  11. Aquilia

    My sister died twelve years ago in Australia leaving property to my youngest brother nephews and nieces thought it unfair and it ended up being taken beforehand barangay captain who ruled the will valid the contestants each signed an agreement that they would no longer contest the decision However now TWELVE years later they are argueing yet again and wish to contest the will claiming it as a fake. what chances do they have of succeeding. ?

    Reply
    • Lawyers in the Philippines

      Sent you an email.

      Reply
      • J Miller

        Hi, I live in USA and I’m visiting home this March, the reason of my visit is to have my father to draw a Last testament will and I would like to be the beneficiary or trustee. Not much property but I bought and built the house that she’s living right now so, I wondered how it work. I’m a US citizens.

      • Lawyers in the Philippines

        Sent an email.

  12. Lucy Gomez

    Hi, me and my husband live in California and both have dual citizenship, (U.S. and Filipino). We have properties in the Philippines. Can our will and testament notarized here in U.S. vallid there.? Thank you.

    Reply
    • Lawyers in the Philippines

      Sent you an email.

      Yes, but a US will must comply with Philippine laws on succesion, probate, etc.

      My email explains in more detail.

      Reply
  13. Alan

    My father (British citizen) lived for the final 20 years of his life in the Philippines where he had his main bank account. He travelled to the UK in October 2018 where he died leaving a will that was not probabted by the UK or Philippines – he has no estate in the UK. Does the will need to be probabted the an English Court or can it just be probabted by the Philippines?

    Reply
  14. Grace

    My Aunt died last Oct.2, 2011. She left as a will. Most of what she leftare already gone or sold. Her brothers and sisters didn’t follow the will, they did it extrajudicially. However, as an heir and also her executor, i can’t receive my inheritance, mostly Stocks, because the i can’t just do it extrajudicially, i have to probate the will. How do I do that? Can i still do the probate after all these years? Do I need a lawyer? Can I just go To RTC without a lawyer? And i read the jurisdiction is the place where thr testator died, what if it’s overseas. How much will i cost me? I have no money, and I don’t think my Aunts and Uncles will be able to help me. I need advice.

    Reply
    • Lawyers in the Philippines

      I sent you an email.

      Reply
  15. Christian

    Hello and Good day.
    My father is 76 years old and has gone through really tough times especially with his health. We were left by our mom in 2006 and my dad was living alone since 2011 when I started working abroad in KSA and now here in the UK. Also, my two older brothers have their own families and own homes to tend to thus leaving my father alone in our ancestral home. He recently went for an invasive surgery and became poorly, fortunately he is now recovering. During his confinement at the hospital, one of my brothers asked for my mom’s help for looking after my dad while he was admitted in the hospital. My mom said to my brother she could not be bothered because of some reason and said that she will live in our ancestral house again once my dad passed away, she also hinted that she might sell our ancestral home and other real estate properties that was acquired by my dad through his hard earned savings and earnings. Question: Can we file a case of abandonement against our mother given the fact that she left my dad and moved to another house since 2006? If my dad will execute a last will and testament to the court will it be sufficient to nullify my moms claim to my dads property since those properties are conjugal and they are still married under the law but long been separated?

    Thank you and more power!

    Reply
    • Lawyers in the Philippines

      Sent you an email.

      Reply
  16. Carmen

    Hello, My mother, brother and I are Hong Kong citizens. My mother lived in the Philippines for over a decade and thus still owns an apartment, parking spaces, and bank accounts in the country. Furthermore, she owns an apartment, stocks, bank accounts in Hong Kong, and a single bank account in the U.S. She currently resides in the U.S. She recently expressed interest in having a will made in Hong Kong to declare that her Hong Kong apartment will go to her daughter (me), while anything else under her ownership at the time of death will be equally divided between her daughter and son.

    Question: will this Hong Kong will be recognized in the Philippines in executing her local estate? Thanks much in advance for your advice!

    Reply
    • Lawyers in the Philippines

      Hi Carmen:

      Is your mother a Hongkong citizen?

      Citizenship plays a large role in estate because if she is a Filipino citizen, she must follow the laws on succession and other Philippine requirements.

      In addition, some asset types such as real property have some restrictions.

      In general, a foreign will can be probated in the Philippines and given effect. Still I suggest that a thorough examination of the estate and the family situation be discussed so that the advice is correct for the personal circumstances you are in.

      Reply
  17. pacita

    Hi, My husband and I live in TX, USA. I have dual citizenship (US & Filipino). All of our assets except for 1 property (500m2) are here in the US. We would like to leave the property to a relative in the Philippines and to leave share of the liquid assets to our relatives in the Philippines. What is the best documentation to accomplish these goals? Are there limits on the amount of money that can be transferred to the Philippines from the US?

    Thank you

    Reply
    • Lawyers in the Philippines

      Sent an email.

      Reply
  18. Katie

    Hi, my husband and I are australians living here in the Philippines. We have 2 children and we would like to assign my sister in Australia as their guardian should anything happen to both of us. Would we need an Australian will or a philippines will to make sure our wishes are upheld? Or both?

    Reply
    • Lawyers in the Philippines

      Either will is enforceable.

      However note that probate may be needed to enforce the will.

      Reply
  19. ilovestingray101

    Good Morning!

    I would like to ask if the testator is still alive and he filed a petition for probate of his last will and testament and at the same time wanted to disinherit his children, can the probate court rule on disinheritance? Is it allowed that the court issued/rendered an order/judgment on the extrinsic validity of the will (that makes the will probated/allowed); then, can the court conduct another hearing on the intrinsic validity, specifically on the part of disinheritance?

    Reply
    • Atty. Francesco Britancio

      Yes, that can be within the court’s authority.

      The Supreme Court has said that …” The probate of a will might become an Idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue.”

      Reply

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