Chapter 3 LEGALOR INTESTATE SUCCESSION ART. 960.

Legal or intestate succession takes place : (1) If a person dies without a will, or with a void will, or one has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed;

Q: A government employee died intestate leaving retirement benefit, salary adjustments and unused vacation and sick leaves. Who are entitled to get them? A: (1) The salary adjustments, and the unused vacation and sick leaves are part of the salary, and therefore conjugal. Half goes to the surviving spouse, and the other half goes to the intestate heirs (including the wife); and (2) The retirement benefits are gratuitous, and in the absence of designated beneficiaries, the benefits (like insurance indemnities) belong to the estate of the deceased, and must therefore be distributed to the intestate heirs. Q: May intestate heirs be disinherited? A: (a) if the intestate heirs are also compulsory heirs YES. (b) if the intestate heirs are NOT compulsory heirs (like brothers) NO. however, such intestate heirs may be excluded, expressly or impliedly. Principles for the exclusion of an intestate heir (a) The excluded heir must not be a compulsory heir. (b) The State, as legal heir must never be excluded expressly because if there be no relative left, a case might arise when no one will succeed to the property. Such eventuality must not be allowed to happen. (c) When a person is excluded, it is he alone who is excluded and not his own descendants or other heirs. (d) Express exclusion of one intestate heir makes the property go to the heirs of the same degree, if any; if none, then to the heirs of the next degree. ART. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. Relatives in the same degree shall inherit in equal shares, subject to the provisions of Article 1006 with respect to relatives of the full and half blood, and of Article 987, paragraph 2, concerning division between the paternal and maternal lines. Q: D is survived by a grandfather and a brother. Will both inherit? A: although it is true that both are just as near in degree, still it is the grandfather alone who should inherit because the direct line is preferred over the collateral line.

(3) If the suspensive condition attached to the

institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding except in cases provided in this Code. Q: Can an intestate court declare that the discovered will had already been previously revoked? A: No, because a court before whom the intestate case has been filed has no jurisdiction in matters of probate. The allegation that this is a valid will to consider is a matter over which only a probate court had jurisdiction. The court must order that a separate case be filed in a probate court. Q: A has a brother B. In his will, A gave a house to C provided C passes the bar in 2003; and a car to D. E was designated as Ds substitute in case of predecease. In 2003, D dies. In 2004, A dies. In 2005, C flunks the bar exam. Who get s the properties? A: The house goes to B, the intestate heir, because the devise to C has become ineffective. The car goes to E, because he is the substitute of D. Example: A instituted B as heir, but B is incapacitated. The estate descends by intestate succession unless there is a substitute or unless the right of accretion exists.

ART. In default of testamentary heirs, the law vests the inheritance, in accordance with the rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State.

RELATIONSHIP ART. 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. ART. 964. A series of degrees forms a line, which may be either direct or collateral. A direct line is that constituted by the series of degrees among ascendants and descendants. A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor. (like brothers and sisters) ART. 965. The direct line is either descending or ascending. The former (descending) unites the head of the family with those who descend from him. The latter (ascending) binds a person with those from whom he descends. ART. 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor. In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandfather, and three from the great-grandparent. In the collateral line, ascent is made the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth. ART. 967. Full blood relationship is that existing between persons who have the same father and the same mother. Half blood relationship is that existing between persons who have the same father, but not the same mother, or the same mother, but not the same father.

ART. 968. If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to succeed, his portion shall accrue to the others of the same degree, save the right of representation when it should take place. Refers to accretion in intestate succession

Example: 1. A decedent leaves 3 first-cousins and an estate of P300, 000. If one of the cousins is incapacitated or repudiates, the P100, 000 which should have gone to him will accrue to the other two, who will each get P150, 000. Each therefore gets P100, 000 in his own right, and P50, 000 by virtue of accretion. 2.

A, B, and C are legitimate children of D. X and Y are As legitimate children. D leaves P300, 000 intestate. If A is incapacitated, and Y will each get P50, 000 by the right of representation, but if A repudiates, X and Y will each get nothing. --- An heir repudiating cannot be represented. Therefore, B and C will each get P150, 000. ART. 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the nearest relatives called by law to succeed, should there by several, those of the following degree shall inherit in their own right and cannot represent the person or persons repudiating the inheritance. Q: Intestate estate of 1.2 million. A, B and C are the legitimate children of D. X and Y are the legitimate children of A; W, the legitimate child of B; and Z, the legitimate child of C. (a) If A, B, and C repudiate the inheritance, the estate will be divided among the four grandchildren (X, Y, W, and Z), and so each gets P300, 000 in his own right. Remember, in case of repudiation, there is no right of representation. If only C repudiates, how will the estate be divided? A: A and B will each get P600, 000. X and Y are excluded, because the nearer excludes the farther. Z is also excluded because there is no right of representation in case of repudiation. W is excluded by B.

(b) Suppose A, B, and C are all incapacitated, how will the grandchildren inherit? A: By right of representation, (and) not in their own right. Hence, X and Y will each get P200, 000. W gets P400, 000 and Z gets P400, 000. (c) Suppose A, B, and C all predeceased D, how will the grandchildren inherit? SAME AS IN (b). --- By right of representation, (and) not in their own right. Hence, X and Y will each get P200, 000. W gets P400, 000 and Z gets P400, 000.

The representation is degree by degree. Of course,

two, three, or more degrees nearer may be reached, thus, it is possible for a person and his greatgrandnephew to inherit together, but the reaching of the nearer degree must be step by step or degree by degree. This rule, however, applies only to representation in the direct line. RULES IN ADOPTION 1. An adopted child cannot represent. Because there is no filiation between the adopted child and the parent of the adopter. o The legal filiation is only between the adopted child and the adopter. o Ex. If the adopter dies ahead of his parents, the adopted cannot represent the adopter.

RIGHT OF REPRESENTATION ART. 970. Representation is a right created by fiction of law, by virtue if 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 would have if he were living or if he could have inherited. Right of Representation o Representation exists in case of:

2. Neither may an adopted child be represented.

because of the non-legal relationship between the adopter and the children of the adopted. Q: An adopted child died intestate survived by his wife and by 5 legitimate children. If the estate is 1.2 million, how should it be distributed? A: the wife shall have the same right as each of the 5 legitimate children. Hence, the estate will be divided into 6 equal shares with each child inheriting P200, 000. The wife shall also inherit P200, 000. Q: X and Y are the parents by nature of Z, who is eventually adopted by A. if Z dies intestate leaving an estate of P1.8 million, how will the estate be divided? A: half will go to the legitimate parents, so X and Y will get a total of P900, 000 (that is half of the estate). So X and Y will get P450, 000 each. A, the adopter will inherit P900, 000.

a. Predecease (testate and intestate)

b. Incapacity (testate and intestate) c. Disinheritance (this happens only in the case of testate succession) In intestate succession, the right of representation when the proper covers all that the person being represented would have inherited.

Example: T A E Estate is P900, 000. T gave each child P300, 000. But A is incapacitated. Divide the estate. A: E gets P150, 000 (the legitime of A); B and C get P375, 000 each. Reason: E is not allowed to get the extra P150, 000 because in this respect, his father, A was a voluntary heir. Said extra amount will go by accretion to B and C, who will then receive a total P375, 000 each. By virtue of representation, the farther becomes just as near as the nearer. B C

The right of representation does NOT APPLY to

othersi.e., collateral within the 5th civil degree who are 6th in the ORDER OF PREFERENCE, to wit: o Firstly, the legitimate children and descendants; o Secondly, the legitimate parents and ascendants; o Thirdly, the legitimate children and descendants; fourthly, the surviving spouse and o Fifthly, the brothers and sisters/nephews and nieces, of the decendant. In collateral line, the Right of Representation takes place only in favor of the children of brother and sisters

(nephews and nieces) cannot be exercised by grandnephews and grandnieces. ART. 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded. Q: T has two children, A and B. A has two children, C and D. B has a child E. A dies after giving C 2/3 of his estate and D 1/3. If later T dies, C and D will inherit from T in representation of A. Will they get equal shares? A: Yes, since their right to represent depends not upon As will, but upon the provisions of the law. (in the problem given, if E will also represent B, it is understood that E will get more than C or D individually, for after all, E gets the share of B. Thus, the total share of C and D (one group) equals the share of E.

own right, not from Cs estate but from Bs estate (which in the meantime is still included in Cs estate). Q: if a person dies intestate survived by a nephew (child of a brother), a grandniece, and great grandnephews, who will inherit? A: only the nephew, since in the collateral lines, representation takes place only in favor of the children of brothers and sisters, whether they be of the full or half blood. The nephew excludes a grandniece or great grandnephews.

ART. 973. In order that representation may take pace, it is necessary that the representative himself be capable of succeeding the decedent. Q: A has a child B, who has a child C. If B disinherits C, is it still possible for C to represent B in the succession from A? A: Yes, so long as C is not incapacitated to inherit from A. For after all, all we have to determine is Cs capacity to succeed from A, not from B. ART. 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such manner that the representative or representatives shall not inherit more than what the person they represent would inherit, if he were living or could inherit. Per stirpes means inheritance by group, all thise within the group inheriting in equal shares. Two Ways of Inheriting 1. Per stirpes or per capita answers the question: HOW MUCH? 2. By representation or by ones own right. answers the question: HOW?

ART. 972. The right of representation takes place in the direct descending line but never in the ascending. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of full or half blood. Q: S and T were Ds sisters; N is the child of S; X is the child of T; G, the child of X. D died intestate. S, T, and X are all dead. G claims a share by the right of representation. N says G can have no share. Decide. A: G cannot inherit by right of representation, because she is only a grandniece. Hence, only N gets the estate. In the collateral line, the right of representation takes place only in favor of the children of brothers or sisters (nephews and nieces).

Q: A has a child B who has a child C. C dies. One day later, B dies. Can A share in the estate of C? A: A can intervene in the adjudication of Cs estate, not because he represents B, but because A can get his share in the estate of B. B did not predecease C. B died later, hence B really inherited. It is this portion that A can get. Hence, also, A does not inherit by representation here; he inherits in his

ART. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. Q: B and C are As brothers: X is the child of B; Y and Z, the child of C. Estate is P900, 000. A is the decedent. If C predeceases A, divide the estate. A: B get P450, 000; and Y and Z each gets P225, 000.

Q: if B and C predecease A, divide the estate. A:X, Y, and Z each get P300, 000. They inherit in their own right, and therefore per capita and not by right of representation. BAR Q: A died intestate leaving an estate worth P240, 000. He is survived by his wife S; his nephew T, a son of his full blood brother B; and his nieces X and Y, children of another full blood brother C. Determine the share of those who are entitled to participate in the estate of the deceased. A:

An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child. ART. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares. -- inheritance by children Q: Estate is 1 million. There are 5 legitimate children. Each gets P200, 000.

ART. 976. A person may represent him whose inheritance he has renounced. ART. 977. Heirs who repudiate their share may not be represented. Q: A has 2 children B and C. B has 2 children, D and E. D has a child F. B dies in 2002 but repudiates his share. Later, A dies in 2004. D can still inherit from A by representing B. F cannot represent D in the inheritance from B because heirs who repudiate their share (like D) may not be represented. Principle A RENOUNCER MAY REPRESENT BUT MAY NOT BE REPRESENTED. o A renouncer for motives of his own, does so voluntarily. His act of repudiation takes away his right to dispose of the property dispossess indeed his children of that which could have gone down to them. Repudiation is an act of disposition. In cases of incapacity or disinheritance, the loss is involuntary. the children of the incapacitated or disinherited person should not be deprived of the right of representation. They should not suffer for having an unworthy parent.

ART. 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall inherit in their own right, and the latter by right of representation. Also applies to cases of incapacity.

Example: Estate is P1 million. Surviving relatives are A, a legitimate child; B and C, legitimate children of X, a deceased legitimate child of the decedent. A gets P500, 000. B and C each gets P250, 000. ART. 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions. Inheritance by grandchildren

o o

Example: A.) A is the decedent. B, C, D are his children. E, F, G, H and J are the grandchildren. K and L are Js children. Estate is P900, 000. B, C, D, and J predeceased A. Divide the property. Answer: (a) E, F and G will each get P100, 000 (a total of P300, 000 which would have been Bs share). (b) H gets P300, 000 (which would have been Cs share). (c) K and L will each get P150, 000 (a total of P300, 000 which should have been Js share had J been alive to represent D). B.) When the children are all dead, the grandchildren inherit by right of representation, provided that representation is proper. C.) when all the children repudiate, there is no right of representation; and therefore the grandchildren inherit in their own right, per capita and in equal portions.

ORDER OF INTESTATE SUCCESSION ART. 978. Succession pertains, in the first place, to the descending direct line. ART. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages.

- Inheritance by Nephews and Nieces When nephews and nieces alone survive (to the exclusion of brothers and sisters), they inherit in equal portions, that is per capita and in their own right.

Example: A died intestate leaving 1M. Surviving him are his father, B; his grandfather, C (the father of B); and his grandfather, C, (father of B); and his grandfather, D (the father of As mother). Divide the estate. Answer: B gets the whole 1M.

ART. 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by Article 895. Rules: (a) Follow the proportion of 10-5 (10 for every legitimate child, 5 for every illegitimate child), PROVIDED that the legitime of the legitimate children is NOT IMPAIRED.

ART. 987. In default of the father and mother, the ascendants nearest in degree shall inherit. Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita; should they be of different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be made per capita. Example:

(b) Otherwise, give the legitime of the legitimate children

first, and then whatever is left is given to the illegitimate children. ART. 984. In case of the death of an adopted child, leaving no children or descendants, his parents and relatives by consanguinity and not by adoption, shall be his legal heirs. Example: A has a child B who was adopted by C. If B dies without issue, A will be the legal heir and not C. it goes without saying that had B made a will, he would have been allowed to give something to C.

A and B are the parents of E. C and D are the parents of F. E and F are married to each other, and G is their child. Estate of G who dies without a will is 1M.

(a) If A, B, C, D, E and F survive, how will the estate be

divided? Ans: E and F gets P500, 000 each. The others are excluded. (b) If A, C, D, and F survive, how will the estate be divided? Ans: F gets 1M, A cannot represent E, because there is no right of representation in the ascending line. (c) If A and B survive, how will the estate be divided? Ans: Each gets P500, 000. Should there be more than one of equal degree belonging to the same line, they shall divide the inheritance per capita. (d) If A, B, and C survive, how will the estate be divided? Ans: C gets P500, 000. A and B gets P250, 000 each. Should they be of different lines but of equal, one-half shall go to the paternal, and the other half to the maternal ascendants. In each line, the division shall be made per capita.

ASCENDING DIRECT LINE ART. 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives. Refers to Inheritance by parents and ascendants The parents and ascendants should be legitimate

Example: A died intestate P1M. Surviving relatives are B, his father, and C (As brother). The whole estate goes to B to the exclusion of C. ART. 986. The father and mother, if living, shall inherit in equal shares. - because both are equally entitled to the gratitude of the children. Should only one of them survive, he or she shall succeed to the entire estate if the child. because there is no right of representation in the ascending line.

ILLEGITIMATE CHILDREN ART. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased.

ART. 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation. Illegitimate children concurring with descendants of another illegitimate child The grandchildren inherit by right of representation in order not to prejudice the children left. Applies also in case of incapacity.

Descendants as used in Art. 990 refers to legitimate or illegitimate descendants. Reason: Under Art. 902, rights of illegitimate children are transmitted upon their death to their death to their descendants, whether legitimate or illegitimate. (This is the RIGHT OF REPRESENTATION, among others.) ART. 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children.

Example: A has 3 illegitimate, B, C and D. E and F are the illegitimate children of D. Estate is P900, 000. D predeceases A. Divide the estate. Ans.: B and C each gets P300, 000. E and F each gets P150,000. Another Problem: Suppose E and F were the legitimate children of D, would the answer be the same? Yes. Descendants in this Article refer to legitimate descendants, since the law does not distinguish. ART. 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent. (1) Transmission of hereditary rights of illegitimate children Example:

1. Illegitimate children concurring with legitimate

ascendants Example: A dies leaving B, his legitimate father, and C and D, his (As) illegitimate children. Estate is P1 million. Divide. Ans.: B gets P500, 000. C and D each gets P250, 000. 2. Question on partial intestacy Q: Suppose there is partial intestacy in that a part of the inheritance has been given to strangers, but surviving are legitimate parents and illegitimate children, how should the remainder be disposed of? Answer: Charge the part given to the stranger to the intestate share of the illegitimate children, without however impairing the legitime of the latter. Example: A man had an estate of P1 milliion. He made a will giving a legacy of P200, 000 to a friend. There are NO provisions about the rest of the estate. Surviving are one legitimate father and one illegitimate child. How will the P800,000 left be divided? Ans.: This is a case of partial intestacy. There is no doubt that the legacy is NOT inoofficious. Now then, if following the literal wording of the law we give the P800, 000 equally to the survivors (P400, 000 each), the legitime of the legitimate parent would be impaired. This should NOT be done, otherwise a testator could easily decrease his compulsory heirs legitime by the simple expedient of dying without a will. Hence, the rule is thisL the intestate share is either EQUAL TO, or MORE than the legitime,; it can NEVER be less. Therefore, the proper solution would be this: Give to the father his legitime of P500, 000 (1/2); charge the P200, 000 to the share of the legitimate child, who will now receive only P300, 000. This is all right since after all, he has received even more than his legitime.

B and C are As illegitimate children. D and E are the legitimate children of B. F is the legitimate child of C. B and C predeceased A, who late died leaving an estate of P1 million. Divide the property. Ans.: F gets P500, 000 in representation of C. D and E each gets P250, 000 because together they represent B. NOTE: It is believed that Arts. 990 and 989 apply not only to predecease but also to incapacity and disinheritance. In repudiation, there is no right of representation. (2) Descendants referred to

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