Do you need a will to protect your estate?

9 min read
man in suit showing where the testator must sign in a last will and testament document
man in suit showing where the testator must sign in a last will and testament document

Do you really need a will? What can it do for you? Would having a will make a difference for your estate?

A will is a legal document that let’s you direct, to a certain extent, how your estate will be dealt with after you pass on. Even if you've never thought about a will before, consider this article as a chance to consider it.

Now, there are many reasons why a person may want to have a will:

  1. Making sure your loved ones, such as your spouse and children, are cared for;
  2. Excluding undeserving heirs from your estate; and
  3. Dealing with any special circumstances.

Let’s discuss each in turn so you can get some ideas.

Making sure your family is cared and provided for

The primary reason for writing a will is to enumerate your properties and leave directions on who gets what. You are given the latitude by the law to assign properties to each of your heirs.

For example, you want your eldest to have the property in Quezon City? Done. You want your wife to keep the one in Paranaque? Done. You want the youngest to keep the business? Done.

The will is the best way you can ensure that the distribution schemes you have in mind can be implemented. They are enforceable under the law, and a judge will help your estate implement it (within the bounds of law).

Is this privilege absolute?

You may be thinking, “Is this power to designate who gets what absolute? Do I have any restrictions when doing this?”

This is a good question. There are two restrictions to take into account.

Restriction 1: Who is included?

The first restriction deals with who is required to be included in the inheritance. These people are called compulsory heirs and whether you like it or not the law requires that we should be included in any plans that you make. For more details on compulsory heirs, I would suggest that you take a look at The VIPs of Estate Law.

Restriction 2: What is the minimum to be given?

The second restriction that you should be aware of is the minimum percentage of the estate that the compulsory heirs are entitled to. These shares are called the “legitime” and the law requires you to allot them as minimum shares to the heirs from your estate.

What if I disregard the rules?

What will happen if you disregard any of these two requirements? What will happen if you exclude one of the heirs or give one of them less than what they are guaranteed under the law? That is something you should avoid as much as possible because it may affect the will’s validity.

Worst case scenario is that the law may invalidate the distribution scheme that you came up with and redistribute it based on the default rules under the civil code. You can check out our article titled What Happens if you Exclude Heirs in the Will where we discuss this more in detail.

Here’s a tip. If you're planning to create a detailed distribution team please talk to a qualified professional to make sure that you're compliant with the two restrictions I mentioned above.

Excluding undeserving heirs from your estate

This is a very touchy topic, but nonetheless, it happens. It occurs so much that it got it’s own provision in the Civil Code.

Technically, this is called disinheritance under the Civil Code. And guess what... if you want to disinherit, you have to do it through a will:

Article 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified. (849)

The law takes disinheritance very seriously. The heir must do something really despicable to merit this. They can’t be disinherted just because you had a fight or nagkatampuhan. No, it has to run deeper. That’s because it serves as an exception to the general rule that heirs are supposed to receive something.

Disinheritance of Children and Descendants

Let me give you some examples of how badly heirs, particularly children and descendants, have to mess up for them to be eligible for disinheritance under Article 919 of the Civil Code:

  1. When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;
  2. When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;
  3. When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;
  4. When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;
  5. A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;
  6. Maltreatment of the testator by word or deed, by the child or descendant;
  7. When a child or descendant leads a dishonorable or disgraceful life;
  8. Conviction of a crime which carries with it the penalty of civil interdiction.

Disinheriting Parents and Ascendants

Are children and descentants the only people that can be disinherited? No, you can also have parents and ascendants (Article 920)

  1. When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life or attempted against their virtue;
  2. When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;
  3. When the parent or ascendant 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 false;
  4. When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator;
  5. When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;
  6. The loss of parental authority for causes specified in this Code;
  7. The refusal to support the children or descendants without justifiable cause;
  8. An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them.

Disinheriting Spouses

Oh, let’s not forget the last classification of compulsory heirs which can be affected... spouses! Let’s take a look at the different acts which may merit disinheritance for spouses:

  1. When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants;
  2. When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false;
  3. When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made;
  4. When the spouse has given cause for legal separation;
  5. When the spouse has given grounds for the loss of parental authority;
  6. Unjustifiable refusal to support the children or the other spouse.

As you can see, these are really messed up. And if you were the one writing the will, why would you want to leave anything to these kinds of heirs? The law recognizes the abnormality of the relationship and allowed people to exclude these heirs legally. You just have to follow the rules, and do it through your will.

Dealing with any special circumstances

I mentioned that the law requires a minimum amount to be given to each compulsory heir. Depending on the number of heirs and types of heirs involved, there will be cases where there will be a portion of the estate left over.

This is what we call the free portion. As the name suggests, you have a choice of where this share can be given to or used for. This free portion is something you designate for certain people, causes, foundations or churches that are meaningful for you. For example:

  • for the kasambahay who stuck with you throughout your last sickness, you can allot a portion of the free portion for that person.
  • for the Church which you supported in your lifetime.
  • for the foundation which fights for the rights you strongly believe in.

Again, you can use the free portion for these things. As long as they don’t impede on the legitime of the compulsory heirs, there shouldn’t be any issues.

Are there restrictions for the disposition of the free portion?

Article 1027 states particular persons who are disqualified with respect to the testator:

  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;
  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;
  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 when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid;
  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;
  6. Individuals, associations and corporations not permitted by law to inherit.

For number 6, this makes the restriction in Article 739 (prohibitions on donations inter vivos or “between the living”) applicable to testamentary provisions:

  1. Those made between persons who were guilty of adultery or concubinage at the time of the donation;
  2. Those made between persons found guilty of the same criminal offense, in consideration thereof;
  3. Those made to a public officer or his wife, descendants and ascendants, by reason of his office.

In addition, Article 1031 embodies the aphorism that what cannot be done directly, cannot be done indirectly. It states that 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.

Conclusion

So these are the 3 big reasons I think you should consider making a will. If you decide to do so, just be sure to get a family or business lawyer to draft the document, even if you think you are competent at drafting your own. A professional can help keep the will updated as you change your family and personal situations.

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I hope you enjoyed this article. If you have questions, please let me know in the chat box so I can consider it for future articles. If you want to get in touch with me, use the chat box as well.

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