PROVISIONS COMMON TO TESTATE

AND INTESTATE SUCCESSION

A. RIGHT OF ACCRETION

Accretion is a right by virtue of which, when two or more persons are called to the
same inheritance, devise or legacy, the part assigned to the one who renounces or
cannot receive his share, or who died before the testator, is added or incorporated to
that of his co-heir, co-devisees, or co-legatees.1

In order that the right of accretion may take place in a testamentary succession, it
shall be necessary:

(1) That two or more persons be called to the same inheritance, or to the same
portion thereof, pro indiviso, and
(2) That one of the persons thus called die before the testator, or renounce the
inheritance, or be incapacitated to receive it.2

Requisites:

1. Two or more heirs, devisees and legatees are called to the same inheritance,
devise or legacy pro-indiviso.

Pro indiviso means without designation of parts or the portions are

undivided.

2. One of the persons called:

a. Die before the testator

b. Renounce the inheritance
c. Be incapacitated to receive it.

 Accretion takes place in testamentary and intestate succession, but not with
respect to the legitimes.3

 Accretion takes place only if there is NO substitution or the right of

representation will NOT apply.

o In renunciation, there is always accretion because the right of

representation will not apply.
o In intestacy, apply representation first, if possible. If not, accretion will
take place.
o In testamentary succession, apply substitution first if so provided by the
testator. If not, then accretion will apply.

ACCRETION SUBSTITUTION REPRESENTATION

1
Civil Code, Article 1015.
2
Id., Article 1016.
3
Art. 1021. Among the compulsory heirs the right of accretion shall take place only when the free portion is left
to two or more of them, or to any of them and to a stranger.
Should the part repudiated be the legitime, the other co-heirs shall succeed to in their own right, and not by the
right of accretion.
Provisions Common to Testate and Intestate Succession 2

R – enunciation R – enunciation D – isinheritance

I – ncapaity I – ncapaity I – ncapaity
P - redecease P - redecease P - redecease

Illustration 1:
Illustration 2:
I give P5,000.00 to A and B. If A dies and does not have any children or
descendants,
The decedentaccretion
has fourwill take place.
legitimate B will get
children, P5,000.00,
Anna, P2,500.00
Bea, Carla and by his
Dana.
own right and P2,500.00 by accretion.
Anna predeceased the decedent but is survived by two legitimate children,
Ara and Ava. Bea renounced her inheritance. The decedent left an estate
worth P600,000.00. Distribute the estate.

If all heirs are present and capable of succeeding from the decedent, their
shares will be:

Anna – P150,000.00
Bea – P150,000.00
Carla – P150,000.00
Dana – P150,000.00

Ara and Ava will inherit Anna’s share by right of representation; hence,
each of them will receive P75,000.00 per stirpes, or a total of P150,000.00.

Carla and Dana will each receive P150,000.00 per capita, or in their own right.

Bea’s share will accrue to the other heirs as a result of her renunciation;
accordingly, her share (P150,000.00) will be distributed as follows:

Ara – P25,000.00
Ava – P25,000.00
Carla – P50,000.00
Dana – P50,000.00

In sum, the estate will be distributed as follows:

By
Own Right By Accretion Total
Representation
Ara P75,000.00 P25,000.00 P100,000.00
Ava 75,000.00 25,000.00 100,000.00
Carla P150,000.00 50,000.00 200,000.00
Dana 150,000.00 50,000.00 200,000.00
TOTAL P300,000.00 P150,000.00 P150,000.00 P600,000.00
Provisions Common to Testate and Intestate Succession 3

 The heirs to whom the portion goes by the right of accretion take it in the same
proportion that they inherit.4

 The heirs to whom the inheritance accrues shall succeed to all the rights and
obligations which the heir who renounced or could not receive it would have
had.5

B. CAPACITY TO SUCCEED BY WILL OR BY INTESTACY

 Succession opens upon the death of the decedent. 6 The heir, or his
representative, must be alive when succession opens. A child already conceived
at the time of the death of the decedent is capable of succeeding provided it be
born later under the conditions prescribed in article 41.7

 A testamentary disposition may be made to the State, provinces, municipal

corporations, private corporations, organizations, or associations for religious,
scientific, cultural, educational, or charitable purposes.
4
Civil Code, Article 1019.
5
Id., Article 1020.
6
Id., Article 777.
7
Id., Article 1025.
Provisions Common to Testate and Intestate Succession 4

All other corporations or entities may succeed under a will, unless there is a
provision to the contrary in their charter or the laws of their creation, and always
subject to the same.8

o Testamentary provisions can be made in favor of juridical persons

provided:

 It is allowed by their charter.

 They have juridical personality.
 They are existing at the time of death of the testator.

 The following are incapable of succeeding:9

1. The priest who heard the confession of the testator during his last illness,
or the minister of the gospel who extended spiritual aid to him during the
same period;

o “priest or minister of the gospel” – applies to all spiritual ministers,

regardless of religion. It is presumed that the spiritual minister
used his moral influence to induce or influence the sick person to
make a testamentary disposition in his favor.

o Requisites:
(a) The will was made during the last illness;
(b) The spiritual ministration must have been extended during the
last illness;
(c) The will was executed during or after the spiritual ministration.

o The priest is incapacitated to succeed when the confession is made

prior to the making of a will. If simultaneous, the priest is still
disqualified. If the will is made first, the priest can inherit.

o If the confession was made before the will was made and the priest
is the son of the sick person, he can receive his legitime. If the
priest was a brother of the decedent, he can inherit by intestacy.
Disqualification applies only to testamentary dispositions.

2. The relatives of such priest or minister of the gospel within the fourth
degree, the church, order, chapter, community, organization, or
institution to which such priest or minister may belong;

o To disqualify the spouse of the minister of the gospel, apply Article

103110 of the Civil Code. What you cannot do directly, you cannot
do indirectly. Thus, it must be established that the testamentary
benefaction given to the wife was meant to benefit the minister.

3. A guardian with respect to testamentary dispositions given by a ward in

his favor before the final accounts of the guardianship have been
approved, even if the testator should die after the approval thereof;
nevertheless, any provision made by the ward in favor of the guardian

8
Id., Article 1026.
9
Id., Article 1027.
10
Art. 1031. A testamentary provision in favor of a disqualified person, even though made under the guise of an
onerous contract, or made through an intermediary, shall be void.
Provisions Common to Testate and Intestate Succession 5

when the latter is his ascendants, descendant, brother, sister, or spouse,

shall be valid;

o General rule: Disqualification applies when the disposition is made

after the guardianship began (beginning of the guardianship) and
before termination of guardianship (approval of final accounts or
lifting of guardianship.)

Exception: Disposition is valid when the guardian is an ascendant,

descendant, brother, sister or spouse.

4. Any attesting witness to the execution of a will, the spouse, parents, or

children, or any one claiming under such witness, spouse, parents, or
children;

5. Any physician, surgeon, nurse, health officer or druggist who took care of
the testator during his last illness;

o Requisites:
a. The will was made during the last illness
b. The sick person must have been taken care of during his last
illness. Medical attendance was made.
c. The will was executed during or after he was being taken cared
of.

6. Individuals, associations and corporations not permitted by law to inherit.

 The following are incapable of succeeding because of UNWORTHINESS:11

1. Parents who have abandoned their children or induced their daughters to

lead a corrupt or immoral life, or attempted against their virtues;
2. Any person who has been convicted of an attempt against the life of the
testator, his or her spouse, descendants or ascendants;
3. Any person who has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been
found to be groundless;
4. Any heir of full age who, having knowledge of the violent death of the
testator, should fail to report it to an officer of the law within a month,
unless the authorities have already taken action; this prohibition shall not
apply to cases wherein, according to law, there is no obligation to make an
accusation;
5. Any person convicted of adultery or concubinage with the spouse of the
testator;
6. Any person who by fraud, violence, intimidation, or undue influence
should cause the testator to make a will or to change one already made;
7. Any person who by the same means prevents another from making a will,
or from revoking one already made, or who supplants, conceals, or alters
the latter's will;
8. Any person who falsifies or forges a supposed will of the decedent.

o Grounds 1-3 and 5-6 are the same as in disinheritance. Even if the
testator fails to disinherit an heir, he may still be disqualified under
Article 1032 because the effects are the same.
11
Civil Code, Article 1032.
Provisions Common to Testate and Intestate Succession 6

o Ground No. 4 is actually inapplicable because there is no legal

obligation to accuse, only a civil or moral duty.

o Grounds 6-8 cover cases relating to a will:

a. Causing the testator to make a will
b. Causing the testator to change an existing will
c. Preventing the decedent from making a will
d. Preventing the testator from revoking his will
e. Supplanting, concealing, or altering the testator's will
f. f. Falsifying or forging a supposed will of the decedent.

o The causes of unworthiness shall be without effect if the testator

had knowledge thereof at the time he made the will (testator is
presumed to have pardoned/forgiven the offender), or if, having
known of them subsequently, he should condone them in
writing.12

o The capacity of an heir, legatee or devisee should be determined at

the time of the death of the decedent.

Exceptions:
a. Under grounds 2, 3 and 5 of Article 1032, final judgment of
conviction is necessary.
b. If the institution, devise or legacy should be conditional, the
time of the compliance with the condition shall also be
considered (along with the time of death of the decedent). 13

C. ACCEPTANCE AND REPUDIATION OF INHERITANCE

 No person may accept or repudiate an inheritance unless he is certain of (1) the

death of the person from whom he is to inherit, and of (2) his right to the
inheritance. 14

ACCEPTANCE REPUDIATION
Common  Voluntary and free
characteristics  Rules for acceptance are more liberal than the rules of
renunciation because the former are beneficial to the
heir while the latter is prejudicial to the heir.
 Shall always retroact to the moment of the death of the
decedent.
 Irrevocable once made; except when it was made
through any of the causes that vitiate consent, or when
an unknown will appears.
Modes May be express or tacit: Must be made:

(a) if express – must be (a) in a public or authentic

made in a public or instrument; or
private document (b) by petition presented to

12
Id., Article 1033.
13
Civil Code, Article 1034.
14
Id., Article 1043.
Provisions Common to Testate and Intestate Succession 7

ACCEPTANCE REPUDIATION
(b) if tacit – refer to Articles the court having
1050 and 1057 jurisdiction over the
i. by acts of ownership – testamentary or
sells, donates or intestate proceedings
assigns his rights to a
stranger, or to his co-
heirs, or to any of
them;
ii. renounces in favor of
his co-heir
iii. heir, devisee or
legatee fails to signify
to the court whether
they accept or
repudiate the
inheritance within 30
days from their
receipt of the order
for the distribution of
the estate.

Minors or Thru parents or guardians By judicial authorization

incapacitated
persons
Corporations, Thru lawful representatives Requires court approval
associations,
institutions and
entities qualified to
acquire property
Public official Requires approval of the
establishments government
Married woman of Even without the consent of
age her husband; except if she is
insane
Deaf-mutes who Personally or thru an agent
can read and write
Deaf-mutes who Thru their guardians Needs court approval
cannot read and
write

D. PARTITION AND DISTRIBUTION OF THE ESTATE

Partition – separation, division and assignment of a thing held in common among those
to whom it may belong.

 Partition is relevant only when there are two (2) or more heirs.
 Not a mode of acquiring ownership; it is a special proceeding.
 Modes/Kinds of Partition:

EXTRAJUDICIAL JUDICIAL
 Decedent dies intestate and there are Ordinary action for partition.
no debts;
 All heirs agree among themselves to
Provisions Common to Testate and Intestate Succession 8

partition the estate. Partition is valid

upon agreement of the heirs
 If registered property is included, the
partition must be published in a
public document. Then, the heirs
must proceed to the Registry of
Deeds to have the title transferred in
their names.

 Who may demand partition?

1. a compulsory heir;
2. a voluntary heir;
3. a legatee/devisee; or
4. any person who has acquired an interest in the estate

Exception: The testator have expressly forbidden its partition, in which case the
period of indivision shall not exceed twenty years as provided in article 494. This
power of the testator to prohibit division applies to the legitime.

Even though forbidden by the testator, the co-ownership terminates when

one of the causes for which partnership is dissolved takes place, or when the court
finds for compelling reasons that division should be ordered, upon petition of one
of the co-heirs.15

 Who may effect partition?

1. decedent/testator himself;
2. MANDATARY – a third person who is not an heir; has the duty to (a) make
an inventory of the properties comprising the estate; and (b) notify the heirs,
legatees, devisees and creditors of the partition
3. Heirs themselves
4. By a competent court

 Acts which constitute partition:16

1. Physical partition, e.g., actually dividing the land.

2. Constructive partition

Art. 1086. Should a thing be divisible, or would be much impaired by its

being divided, it may be adjudicated to one of the heirs, provided he shall
pay the others the excess in cash.

Nevertheless, if any of the heirs should demand that the things be

sold at public auction and that strangers be allowed to bid, this must be
done.

 Right of redemption of a co-heir:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger

15
Article 1083, Civil Code.
16
Art. 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is
deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other
transaction.
Provisions Common to Testate and Intestate Succession 9

before the partition, any or all of the co-heirs may be subrogated to the
rights of the purchaser by reimbursing him for the price of the sale,
provided they do so within the period of one month from the time they
were notified in writing of the sale by the vendor.

o The right of redemption of a co-heir applies when his co-heir sells

his undivided share, or a portion thereof, in the estate to a stranger.
o The right of redemption of a co-heir under Art. 1088 is similar with
the right of redemption of a co-owner under Art. 1620,17 except that
Art. 1088 applies to the hereditary mass while Art. 1620 applies to a
specific property.
o If only one heir will exercise the right of redemption, he must pay
the purchase price. If more than one heir will redeem, they must
pay the purchase price in proportion to their share in the property.

 Effects of partition:

1. Co-ownership is terminated;
2. Exclusive ownership over property adjudicated is vested.

E. EXECUTORS AND ADMINISTRATORS

Executor Administrator
Appointed by the testator in his will; Appointed if –
issued Letters Testamentary
1. no executor is named in the will;
2. the executor or executors are
incompetent, refuse the trust or
fails to give bond; or
3. a person dies intestate

issued Letters of Administration or

Letters of Administration with a Will
Annexed

 Who may serve as an executor or administrator?

Any COMPETENT PERSON, except:

1. a minor;
2. not a resident of the Philippines; and
3. in the opinion of the court unfit to execute the duties of the trust by reason
of
a. drunkenness;
b. improvidence;
c. want of understanding or integrity; or
d. conviction of an offense involving moral turpitude. 18
17
Art. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-
owners or of any of them, are sold to a third person. If the price of the alienation is grossly excessive, the
redemptioner shall pay only a reasonable one.
Should two or more co-owners desire to exercise the right of redemption, they may only do so in proportion
to the share they may respectively have in the thing owned in common.
18
Section 1, Rule 78 of the Rules of Court.
Provisions Common to Testate and Intestate Succession 10

 Order of preference in granting Letters of Administration

a. To the surviving husband or wife, as the case may be, or next of kin, or
both, in the discretion of the court, or to such person as such surviving
husband or wife, or next of kin, requests to have appointed, if competent
and willing to serve;
b. If such surviving husband or wife, as the case may be, or next of kin, or
the person selected by them, be incompetent or unwilling, or if the
husband or widow, or next of kin, neglects for thirty (30) days after the
death of the person to apply for administration or to request that
administration be granted to some other person, it may be granted to one
or more of the principal creditors, if may be granted to one or more of the
principal creditors, if competent and willing to serve;
c. If there is no such creditor competent and willing to serve, it may be
granted to such other person as the court may select.19

 Appointment of a SPECIAL ADMINISTRATOR:

1. When there is delay in granting letters testamentary or of administration

by any cause including an appeal from the allowance or disallowance of a
will; or
2. When the executor is a claimant of the estate he represents.

 Actions against executors or administrators:

1. recovery of real or personal property, or an interest therein, from the

estate;
2. enforcement of lien;
3. action to recover damages for any injury to person or property, real or
personal (tortuous acts).20

19
Section 6, Rule 78 of the Rules of Court.
20
Section 1, Rule 87 of the Rules of Court.
Provisions Common to Testate and Intestate Succession 11