In the absence of a marriage settlement or father or any other heir, may waive his or her respective

prenuptial agreement, the provisions of the Family Code shares in the inheritance.
will apply with regard to the property regime of the Unfortunately, you may not claim the whole vehicle as
spouses.  If the marriage was contracted before the Family your own property and sell it without first settling the
Code (before 03 August 1988), then the conjugal estate of your deceased mother. The moment your mother
partnership of gains (CPG) will govern. However, if the died, all her properties, rights and obligations which are
marriage was contracted after 03 August 1988, then the not extinguished by death are transferred to her heirs
absolute community of property (ACP) will apply. (Articles 776 & 777, Civil Code of the Philippines). At
Upon your grandfather’s death, all his properties, that point, a co-ownership is formed among the heirs of
rights and obligations to the extent of his inheritance shall your mother, with respect to the estate she left. The co-
be transferred to his heirs through succession (Article ownership will subsist until the estate of the decedent is
774, Civil Code of the Philippines). A person’s settled.
compulsory heirs are the following: 1) legitimate children During the co-ownership, a co-owner has full ownership
and descendants, with respect to their legitimate parents only with respect to his proportionate share in the whole
and ascendants; 2) in default of the foregoing, legitimate property and he may sell or dispose of it without the
parents and ascendants, with respect to their legitimate consent of the other co-owners except when personal
children and descendants; 3) the widow or widower; and rights are involved (Article 493, Ibid.). Hence, your
4) acknowledged illegitimate children (Article 886, Civil attempt to sell the whole property will not be possible as
Code of the Philippines). you are only allowed to dispose of your share. At best,
The children of the heirs of your grandfather your plan to sell the whole property will only be valid as
cannot make an agreement on behalf of their parents to your proportionate share. The other co-owners or heirs
regarding the settlement of the land left by your who withheld their consent shall retain their claim over
grandfather. The settlement of the estate of your the property.
grandfather shall be undertaken by his children who are As mentioned, to end the co-ownership among the heirs,
his compulsory heirs. His grandchildren may only the estate of the deceased person must first be settled.
participate in the settlement of the estate if they are This may be made judicially or extra-judicially.
exercising their right of representation. This is a right Extrajudicial settlement of estate is only allowed in case
created by fiction of law, by virtue of which the the decedent left no will and no debt, and all the heirs,
representative is raised to the place and the degree of the including minors who must be represented by their
person represented, and acquires the rights which the judicial or legal representatives, agree to divide the estate
latter would have if he were living or if he could have among themselves by means of a public instrument (Rule
inherited. Right of representation exists in the following 74, Section 1, Rules of Court). In other cases, the estate
instances: 1) if the heir dies before the decedent or the must be settled with the intervention of the court. The
testator; 2) if the heir is incapacitated to receive the public instrument containing the agreement of the heirs as
inheritance; and 3) disinheritance in case of testamentary to the division of the estate, or the order of the court with
succession (Edgardo L. Paras, Civil Code of the respect to partition and distribution of the estate, as the
Philippines Annotated, Vol. 3 (15th Ed.), page 464). case may be, will serve as authority to transfer the title to
Hence, your father and his siblings who are still other persons.
alive and the children of his siblings who predeceased The verbal agreement between you and your siblings that
your grandfather may settle the properties left by your the vehicle will belong to you does not comply with
grandfather either judicially or extrajudicially. Judicial prescribed procedure for settlement of estate mentioned
settlement is done by filing a petition before the Regional above. Hence, you may not use it to support your claim
Trial Court of the place where your grandfather resides at that you alone own the vehicle and is entitled to sell it.
the time of his death (Section 1, Rule 73, Rules of Court). Pending settlement of the estate of your mother, the
However, if your grandfather did not leave debts and all vehicle and all other properties left by your mother shall
his heirs are all of age, or the minors are represented by be co-owned by her heirs. As it appears that your mother
their judicial or legal representatives duly authorized for did not leave a last will and testament, it is safe to say that
the purpose, the heirs, including the grandchildren her heirs will be you, your siblings, and your father if he
exercising their right of representation, may, without is alive.
securing letters of administration, divide the estate among “Legal or intestate succession takes place:
themselves as they see fit by means of a public instrument (1) If a person dies without a will, or with a void will, or
filed in the office of the register of deeds, and should they one which has subsequently lost its validity;
disagree, they may do so in an ordinary action of partition (2) When the will does not institute an heir to, or dispose
(Section 1, Rule 74, Rules of Court). In either case, your of all the property belonging to the testator. In such case,
legal succession shall take place only with respect to the However, if you disagree with the division of the
property of which the testator has not disposed; property, you must settle his estate by means of an
(3) If the suspensive condition attached to the institution ordinary action of partition. Publication of the settlement
of heir does not happen or is not fulfilled, or if the heir of your deceased father’s estate will also be required.
dies before the testator, or repudiates the inheritance, After proper filing and notice, a transfer certificate title
there being no substitution and no right of accretion takes will be issued under your names and an annotation of the
place; two-year lien on the real property will be made. The lien
(4) When the heir instituted is incapable of succeeding, is for the protection of creditors, if any, and heirs who
except in cases provided in this Code.” may have been denied of their inheritance.
The share of the surviving spouse is governed by the On the other hand, if your father left a will, the same must
following provisions of the same law: be submitted to the regional trial court of the province
“Article 996. If a widow or widower and legitimate where your father resided at the time of his death in order
children or descendants are left, the surviving spouse has that said will may be probated and judicial settlement of
in the succession the same share as that of each of the his estate can be undertaken. Upon the allowance of the
children. Xxx will, you and your co-heirs must pay the estate tax and
“Article 999. When the widow or widower survives with debts of your father, should there be any. After the same
legitimate children or their descendants and illegitimate has been paid, the residue of the property shall be
children or their descendants, whether legitimate or distributed among all of you. (Section 1, Rule 90, Rules
illegitimate, such widow or widower shall be entitled to of Court) Please be reminded that the certified copies of
the same share as that of a legitimate child.” the final order and judgment of the court relating to the
The share of the surviving spouse and legitimate children settlement must be recorded in the Registry of Deeds of
was explained also in the case of Cabales, et al. vs. Court the province where the property is situated. Thereafter,
of Appeals, et al. (G.R. No. 162421, August 31, 2007), you may apply for the transfer of title of the property
where the Supreme Court speaking through Honorable concerned under your names. Only after these procedures
former Chief Justice Reynato S. Puno stated that: have been undertaken, can you sell the property
“When Rufino Cabales died intestate, his wife Saturnina abovementioned.
and his six (6) children, Bonifacio, Albino, Francisco, The title of the property left by our deceased parents is in
Leonora, Alberto and petitioner Rito, survived and the possession of my other siblings. The property is still
succeeded him. Article 996 of the New Civil Code registered in the name of our parents and this is their
provides that “[I]f a widow or widower and legitimate only remaining property. I fear that my siblings will sell
children or descendants are left, the surviving spouse has or mortgage the property without my consent because
in the succession the same share as that of each of the they have no regular income. What can I do to protect my
children.” rights?
Applying the above-quoted decision in your situation, the Roselie
claim of your mother her share in the estate left by her Dear Roselie,
husband is one half has no legal basis. The same is true In order to protect your right as an heir to the land left by
with her statement that she will also have her share in the your deceased parents, you may register your claim to the
other half of the estate that you and your siblings will land under the provision of Section 70 of the Property
inherit. Articles 996 and 999 of the New Civil Code of the Registration Decree (Presidential Decree [P.D.] 1529) as
Philippines clearly provide her share in the estate left by an adverse claim. Under this provision the adverse
her husband is the same as that of each of the children. claimant must state in writing his alleged right or interest,
However, certain rules must be followed in order for the how and under whom such alleged right or interest is
heirs to be able to completely transfer the properties in acquired and the description of the land upon which the
their names and have the proper registration, especially if right or interest is claimed and his residence or place to
what is involved is a real property. In your case, the estate which all notices may be served upon him. The said
of your deceased father must first be settled, appropriate statement must be signed and sworn to before a notary
taxes must be paid and proper transfer must be made. public or other officer authorized to administer oath and
If your father did not leave a will, have no outstanding filed at the Register of Deeds where the property is
debts, and you and your other co-heirs are all of age, or registered. The annotation of the adverse claim is a
should they be minor, they are represented by their measure designed to protect the interest of a person over a
judicial or legal representatives, the estate of your father piece of real property and serves as a notice and warning
may be settled through extrajudicial settlement of estate. to third parties dealing with the said property that
Should all of you be in agreement as to the division of the someone is claiming an interest on the same or a better
property, you should file a public instrument containing right than the registered owner thereof (Sanchez, Jr. v.
your intended division with the Register of Deeds. Court of Appeals, 69 SCRA 332).
The adverse claim is effective only for a period of thirty personal rights are involved. But the effect of alienation
(30) days from the date of registration. After the lapse of or the mortgage, with respect to the co-owners, shall be
the said period, the annotation of adverse claim may be limited to the portion which may be allotted to him in the
cancelled upon filing of a verified petition therefor by the division upon termination of the co-ownership.”
party in interest (Section 70, P.D. 1529). Thus, after the In a similar situation, the Supreme Court through
annotation of your claim, we suggest that you initiate an Associate Justice Estela Perlas-Bernabe said in the case of
extrajudicial or judicial partition. In extrajudicial Magsano, et al. vs. Pangasinan Savings and Loan Bank
partition, or settlement, you and your siblings may divide Inc. and Spouses Manuel, et al., (GR 215038, Oct. 17,
the property left by your parents based on an amicable 2016):
agreement. The register of deeds shall cancel the title “Besides, the fact that the respondent bank succeeded in
registered under the name of your parents and shall issue consolidating ownership over the subject property in its
separate titles for each of the heirs upon registration of the name did not terminate the existing co-ownership
deed of extrajudicial settlement. However, if one of the between it and petitioners. In Nufable v. Nufable, the
heirs refused to have a partition, you may file for a Court had the occasion to rule:
judicial partition. Here, the court shall appoints not more “A co-owner does not lose his part ownership of a co-
than three commissioners to make partition if efforts for owned property when his share is mortgaged by another
amicable settlement failed. Thereafter, it may order co-owner without the former’s knowledge and consent as
partition in accordance with the report of the in the case at bar. It has likewise been ruled that the
commissioners or set it aside and appoint new mortgage of the inherited property is not binding against
commissioners or accept the report in part and reject it in coheirs who never benefitted.
part and may make such order and render such judgment “x x x When the subject property was mortgaged by
as shall effectuate a fair and just partition of the real estate Angel Custodio, he had no right to mortgage the entire
(Rule 69, Rules of Court). property but only with respect to his ¼ pro indiviso share
My father died in July 2009. In August of the same year, as the property was subject to the successional rights of
my mother obtained a loan from a certain bank and the other heirs for the late Esdras. Moreover, in case of
mortgaged a farmland which they bought during their foreclosure, a sale would result in the transmission of title
marriage. My mother failed to pay her obligation, so the to the buyer which is feasible only if the seller can be a
bank foreclosed the mortgage in 2011. The property was position to convey ownership of the things sold. And in
sold in a public auction and the bank emerged as the one case, it was held that a foreclosure would be
highest bidder. After one year, the certificate of title over ineffective unless the mortgagor has title to the property
the property was canceled and a title was issued in the to be foreclosed. Therefore, as regards the remaining ¾
name of the bank. I learned about the transaction when I pro indiviso share, the same was held in trust for the party
went home to the province because I was the one who rightfully entitled thereto, who are the private respondents
received a notice from the bank demanding my mother to herein.”
vacate the property. May I know if I have any right over Applying the above-quoted decision in your situation, the
the farmland which was already registered in the name of mortgage entered by your mother involving the entire
the bank? property is void. Your mother can only dispose or
Erwin mortgage her proportionate share in the farmland.
Dear Erwin, Therefore, the bank merely stepped into the shoes left by
The property relation of your parents was dissolved upon your mother; hence, a co-ownership exists between you
the death of your father in July 2009. This is in and the bank. The bank held in trust your proportionate
accordance with Article 99 (1) of the Family Code of the share over the farmland even if the whole property is
Philippines. Correlative thereto, Article 777 of the New covered by a certificate of title issued to its name.
Civil Code of the Philippines states that “the rights to the My brother Julio and I inherited 1,000 square meters of
succession are transmitted from the moment of the death residential land. The property was titled in the name of
of the decedent.” our parents who passed away last year. We have not yet
Thus, you became a co-owner of the farmland upon your executed an extra-judicial settlement of the estate since
father’s demise in July 2009. Your mother cannot validly we do not have any money to defray expenses for
enter into a transaction involving your share in the said partition and transfer of the property. I am intending to
property. This finds support under Article 493 of the said sell my share from the land. A prospective buyer,
law which states: however, would like a portion of the property where our
“Each co-owner shall have the full ownership of his part old house was erected since this is nearer the highway.
and of the fruits and benefits pertaining thereto, and he My brother objected to the proposal of the buyer because
may therefore alienate, assign or mortgage it, and even he is the one occupying the house. Can I sell the portion
substitute another person in its enjoyment, except when of the land that the buyer wants?
Celso Generally, debts do not die with a person. For one, a
Dear Celso, party’s contractual rights and obligations are transmissible
Based on the facts you have provided, your parents died to the successors barring those rare cases where the
without a will. Hence, the rule on legal or intestate obligation is strictly personal, i.e., is contracted intuitu
succession pursuant to Article 960 (1) of the New Civil personae, in consideration of its performance by a specific
Code shall apply to your situation. Under this provision of person and by no other.
law, “legal or intestate succession takes place: (1) if a Under Article 774 of the Civil Code, through succession,
person dies without a will, or with a void will, or one the property, rights, and obligations (including debts) to
which has subsequently lost its validity.” Relative thereto, the extent of the value of the inheritance  are transmitted
Article 980 of the same code also states that “the children from a decedent to another. That means that debts survive
of the deceased shall always inherit from him in their own death; however, it does not follow that creditors may go
right, dividing the inheritance in equal shares.” after the decedent’s heirs’ in their personal capacity.
Upon the death of your parents, the property shall be Creditors may only go after the estate of the decedent,
owned in common by you and your brother. This finds effectively reducing the heirs’ shares, if any, in such
support under Article 1078 of the law, which states that estate.
“where there are two or more heirs, the whole estate of A good illustration is found in the case of William Ong
the decedent is, before its partition, owned in common by Genato vs. Benjamin Bayhon, et. al. (G.R. No. 171035,
such heirs, subject to the payment of debts of the August 24, 2009). In that case, respondents Benjamin
deceased.” Bayhon et. al. sought the declaration of nullity of
In the case of Carvajal vs. the Honorable Court of a dacion en pago allegedly executed by respondent
Appeals (G.R. No. L-44426, February 25, 1982), the Bayhon in favor of petitioner Genato to cover a loan. The
Supreme Court through former Chief Justice Claudio trial court upheld the respondent’s liability and ordered
Teehankee stated: him to pay petitioner sums due under his debt. While the
“While under Article 493 of the New Civil Code, each co- decision was pending appeal with the Court of Appeals,
owner shall have the full ownership of his part and of the respondent Bayhon died. The Court of Appeals upheld the
fruits and benefits pertaining thereto and he may alienate, validity of respondent Bayhon’s liability but ruled that the
assign or mortgage it, and even substitute another person death of respondent Bayhon extinguished it.
in its enjoyment, the effect of the alienation or the The Supreme Court eventually ruled that although the
mortgage with respect to the co-owners, shall be limited, loan was by respondent Bayhon and he had died while the
by mandate of the same article, to the portion which may case was pending before the Court of Appeals, the debt
be allotted to him in the division upon the termination of subsists against his estate. While he may no longer be
the co-ownership. He has no right to sell or alienate a compelled to pay the loan, no property or portion of the
concrete, specific or determinate part of the thing in inheritance may be transmitted to his heirs unless the debt
common to the exclusion of the other co-owners because has first been satisfied.
his right over the thing is represented by an abstract or Under Art. 1311, par. 1 of the Civil Code, obligations
ideal portion without any physical adjudication. An derived from a contract are transmissible. Contracts take
individual co-owner cannot adjudicate to himself or claim effect only between the parties, their assigns and heirs,
title to any definite portion of the land or thing owned in except in case where the rights and obligations arising
common until its actual partition by agreement or judicial from the contract are not transmissible by their nature, or
decree. Prior to that time, all that the co-owner has is an by stipulation or by provision of law. The heir is not liable
ideal or abstract quota or proportionate share in the entire beyond the value of the property he received from the
thing owned in common by all the co-owners. What a co- decedent. Citing the earlier case of Estate of Hemady v.
owner may dispose of is only his undivided aliquot share, Luzon Surety Co., Inc. (G.R. No. L-8437, 100 Phil. 388
which shall be limited to the portion that may be allotted (1958)) the Supreme Court said that in our successional
to him upon partition. Before partition, a co-heir can only system the responsibility of the heirs for the debts of their
sell his successional rights.” decedent cannot exceed the value of the inheritance they
Applying the above-cited decision to your situation, you receive from him, the principle remains intact that these
cannot sell a definite or specific portion of the property heirs succeed not only to the rights of the deceased but
like the portion where the old house is located, because also to his obligations.
there is no partition yet or physical division of the The procedure in vindicating monetary claims involving a
property made by agreement or judicial decree. Your debtor who dies before final judgment is governed by
share and that of your brother is ideal or abstract. So, Rule 3, Section 20 of the Rules of Civil Procedure. When
what you are actually selling to the buyer is your the action is for recovery of money arising from contract,
proportionate share, which shall be limited to the portion express or implied, and the debtor dies before entry of
that will be allotted to you after partition. final judgment in the court in which the action was
pending at the time of such death, it shall not be dismissed
but shall instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by the creditor-
plaintiff therein shall be enforced in the manner especially
provided in these Rules for prosecuting claims against the
estate of a deceased person.
Hence, a creditor’s remedy is filing a claim against the
estate of the deceased debtor.
While there is a saying that death is a debt all men must
pay, so too, it appears, is monetary loan to the extent of
the debtor’s estate. However, comfort may be found that
heirs need not be burdened by such debt as the law limits
their “share” to their portion of the properties and assets
left by the decedent-debtor.