People who have acquired a bit of treasure have a recurring nightmare—that when they’re gone, their lovable children would turn into snarling monsters clawing at each other over money that they didn’t work for, but to which they believe they are entitled by virtue of being heirs.
It is impossible to anticipate every situation and to take all the necessary steps to prevent family feuds over inheritance. However, it is possible to pass on an estate to one’s heirs without damaging family harmony, but it requires awareness, fairness and planning.
Two parts
Generally, the estate of a person who executes a will consists of two parts: the legitime, which is reserved by law for compulsory heirs and divided according to ratios set by the Civil Code; and the free portion. The free portion may be given to anyone, provided the recipient is not prohibited by law from receiving an inheritance or a donation.
A single person has no compulsory heir in the absence of legitimate parents or ascendants; or descendants, i.e., children, whether illegitimate or legally adopted. Thus there are no legitimes and the whole estate is considered the free portion. It is possible, on the other hand, for the estate of a married person to have no free portion, such as when there are legitimate children, a spouse and numerous illegitimate children.
The estate of each decedent, i.e., deceased person, that is being passed on to his/her heirs is unique, depending on the status of the parent and the kind and number of surviving heirs.
Compulsory heirs
The compulsory heirs are the spouse, legitimate children and their legitimate descendants, and proven illegitimate children and their descendants, whether legitimate or illegitimate. In the absence of legitimate children, the legitimate parents/ascendants become compulsory heirs.
For purposes of simplicity, let us assume that the parents of the owner of the estate are deceased and that there are only legitimate children and no illegitimate children. A parent can opt to make a will or not to make one. If a will is not made, the properties of the parent will be distributed upon his death according to the provisions on intestate succession in the Civil Code.
Atty. Maria Victoria Rotor-Hilado, in the book “Laws for Life,” which she co-authored with Atty. Gianna Reyes Montinola, suggests that a parent who wants to avoid the expenses associated with making a will should consider the practical and economical alternative of writing a letter to the children.
This is viable only if the parent is 100 percent confident that the heirs will follow his/her wishes even if there is no legally binding force behind the letter. In the letter, the parent should give express instructions to the children on the preferred division and distribution of the estate. The letter should not comply with the formal requisites of a will, otherwise it shall be considered a will and probated in court.
Only viable option
The book posits that in certain situations, a will may be the only viable option if the parent’s dictates are to be strictly followed. This is particularly true if the directives are controversial and the parent is not certain the children will follow them. If the likelihood is high that the letter will not be followed, it is best to execute a will, notwithstanding the attendant costs.
As a general proposition, the properties of the parent should be distributed equally among the children to preserve family accord, unless there are valid reasons to do otherwise. The equal distribution of properties is important, for a simple reason: Children equate the equal distribution with equal love for each of them. Unequal distribution leads to a realization that a particular child was loved less than the other siblings.
Level playing field
Any resentment against favoritism harbored by a child may be disguised while the parent is alive, as the parent is a formidable defender of the favored child. However, when the parent dies, everyone is now on a level playing field.
Whether opting for a letter or a will, a wise and loving parent will realize that, though he/she may love a child more than the rest, it is best to equalize their inheritance. There should be an inventory of what has already been given each child, with an accurate valuation of the donations and gifts. Under the law, the value of inter vivos donations, which are made during the lifetime of the donor-parent, are be collated to determine the legitime. These may include real property and cash. However, the parent should also include other valuable items given to the favored child over the years, e.g. shares of stock, cars, valuable jewelry, artwork, because for sure the other siblings have kept track of these.
Donations previously given to all children are treated as advances of their reserved shares of the inheritance. If the advances of the favored child do not prejudice the legitime of the others, the parent may specify that the donation should not be collated.
Having completed the inventory, the parent should ensure that all the children’s portions in the legitime are of equivalent value. If the parent decides to allot the free portion of his estate to his children, it would still be a good idea to distribute it equally, even if the disposition of the free portion follows the parent’s wishes.
Ideally, each child’s share of the inheritance should be whole and entire. Joint ownership and sharing of a property should be avoided. Even among siblings well-disposed towards each other, friction arises from time to time, but irritants are exacerbated in a joint ownership of property when there is long-standing animosity.
If an estate is to be distributed unequally, it should be for some compelling reason, e.g. an incapacitated child, for which no other solution is possible. But the parent should give an explanation to the other compulsory heirs.
No one can predict with absolute certainty that one’s estate will pass without conflict to one’s heirs, especially when in-laws enter the picture. But the fact remains that, in planning the transfer of an estate, transcending partiality and treating all children fairly are the keys to harmony. After all, no right-thinking parent wants the family to break apart after he/she has departed the earth.
