Author Topic: Last Will and Testament  (Read 9591 times)

Offline meylou

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Re: Last Will and Testament
« Reply #15 on: May 03, 2015, 11:56:22 PM »

http://www.abogadomo.com/law-professor/law-professor-archives/making-a-last-will-and-testament

Making a Last Will and Testament

    The making of a will can never be over-emphasized. It prevents conflict and controversy regarding the remaining estate of a deceased person and fully addresses certain issues with regard to disposition and handling of the same.

   What is a will anyway? Under Article 783 of the Civil Code, a will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. Further, under Article 784, the making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney.

    Under the Civil Code, there are two kinds of wills which a testator may execute. The first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Civil Code, namely:

Art. 804.  Every will must be in writing and executed in a language or dialect known to the testator.

Art. 805.  Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testators name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.  The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.

Art. 806.  Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.

Art. 807.  If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof.

Art. 808.  If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.

Art. 809.  In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805.

     In a case, the Supreme Court succintly discussed the foregoing provisions, it held that:

In addition to the requirements under Article 805, the ordinary will must be acknowledged before a notary public by the testator and the attesting witnesses (Art. 806, Civil Code), hence it is likewise known as a notarial will. Where the testator is deaf or a deaf-mute, Article 807 requires that he must personally read the will, if able to do so. Otherwise, he should designate two persons who will read the will and communicate its contents to him in a practicable manner. On the other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is acknowledged (Art. 808, Civil Code).

     The other kind of will is the holographic will, under Article 810 of the New Civil Code:

A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.

    This kind of will, unlike the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of wills is that they should be in writing and must have been executed in a language or dialect known to the testator (Art. 804, Civil Code).

     However, before a person may execute a will, he or she must possess the following:

a. That the testator must must be at least eighteen years of age, and;
 b. That he must be of sound mind.(Article 797 and 798, New Civil Code)

     To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (Article 799, New Civil Code)
What we think we become... Buddha
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Offline hitekcountry

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Re: Last Will and Testament
« Reply #16 on: May 04, 2015, 02:56:27 AM »
2.   Holographic wills are valid in the Phl and in California in the U.S. 

Yes, but I wouldnt count on it. Ive seen them shot down in court.

Offline Art, just a re(tired) Fil-Am

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Re: Last Will and Testament
« Reply #17 on: May 04, 2015, 03:10:23 PM »
Would anyone living in the Philippines bother making a will of any kind if one has already transferred his/her assets to their selected heirs, with all taxes paid for and only maintains a small amount of money in one's bank account, but still has fast access to them to withdraw everything out in a moments notice before his/her account are frozen in the event of his/her demise? Just saying...........  Here's an old post not my own I saved long ago.

Report of Death and the Legalities

This is one aspect to life that we really need to have organized before it happens.

What happens when we die?

Although we have everything fairly well organized for my wife and family if I died in Australia, dying in the Philippines adds a whole new world of complexity to the situation my wife would then face. And she will need to face this at exactly the time when she will feel least able to deal with things.

However, it will be crucial that she handles all of our affairs properly and well, in order to gain everything she is legally and financially entitled to, and well deserves, for the remainder of my dear wife's life.

It's so important that we have our affairs in order. Personally I'd rather be buried than cremated, but I'm not convinced that any Philippines funeral company and also our lawyer and other family members still in Australia could properly handle everything necessary.

It does seem very complicated, as the following post from another forum demonstrates. Are others here properly organized? Opinions and experiences?

Recently i had a good friend die all of a sudden who had no girlfriend or wife, his name was Howard 60 years of age and lived in Dalaguete Cebu. We thought it would be a good idea to share the information that i learnt from death to burial so if any other member finds that they are in the same position, they will have some idea of procedures and costs.

Howard died at 7:45 am fortunately i was by his side at the time so he was not on his own. First thing i learnt is that they will not move the body to the morgue unless there is a friend or relative present. I then had to aquire his Philippines death certificate which a friend or relative has to sign.

They will want to know about his occupation, birth date, full name, current address and whether they are to be buried or cremated, so have these facts in hand when you go back to the hospital to acquire the death certificate. I wanted Howard moved to a funeral home asap, so had to pay his medical bill that morning before they would release his body.

After i received the death certificate i had to take it to another medical center where another doctor signed it off, then i had to go to the local municipality hall and register his death there at a cost of 200 pesos.

I went back then to the funeral home and was offered packages from 32,000 pesos for cremation and starting at 45,000 pesos for burial, though i had to pay 50,000 pesos because he was over 6ft tall and had to get a slightly larger coffin. The package included embalming, coffin, a week period of stay at the funeral home and transporting the body around. As Howard was non religious we had him buried in the municipality grave yard, at a cost of 1000 pesos for the plot. If he was Catholic the church would want 5000 pesos for the plot.

I then had to arrange for someone to dig the grave and put a slab of concrete over the top. That came to 900 pesos but i had to supply the cement which was two bags in total. I also got Howard a plaque to go on top i choose a concrete one for 600 pesos, though there was a mable one for 1500 pesos. Then there was the food and drink after the burial i brought 100 cokes and 100 pieces of bread for the Filipinos and a round of beer at Charitos in Dalaguete for the foreigners.

As he was renting the owner of the house was unwilling to have him there until the burial so I had no choice but to leave him at the burial home until the day of his burial, where i then moved him to where i am staying for the afternoon so people could come and pay their respects and sign the condolence book..

You also need to speak to the Barangy Captain to organize the Barangy Tanod to help with the traffic on the way to the cementary, that cost 500 pesos also. Flowers came to 5000 pesos. I sold of his possessions in the house he was renting as it was unfurnished, and raised enough money to pay half the funeral home to get his body released from there and for the other items i have already mentioned. I of course kept his personal possessions and sent them back to the UK for his son to keep.

I had the full authorization from his only son Tony to make all the arrangements and to get him buried, unfortunately he could not make his father's burial. Though he will be out here sometime soon.

The next step after he was buried was to get a British death certificate from the British embassy in Manila. This is no simple feat. I had to get Tony to sign an application death form and send it over to me. Then i had to send that with his passport and Philippine death certificate to the embassy to get the British one, this cost 12.750 pesos. It took them 5 working days to do their own investigation and send the British death certificate back to me. I then had to FedEx that back to the UK to Tony, so he could give it to his lawyer to have the Will read out.

I managed to persuade his bank here in the Philippines to give me his account balance, but i will need a letter of authorization from Tony with a copy of Tony's birth certificate to allow me to draw out the funds. Though when Tony comes here he can do that himself.

Well thats about all i have learnt in a very short time. I hope no one will have to go through this, but if they do i hope this helps in some way to point you in the right direction and have some idea what the procedure is. Thanks for reading. (End quote)
« Last Edit: May 04, 2015, 03:17:38 PM by Art, just a re(tired) Fil-Am »
"Life is what we all make it to be"!
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Offline jjcabgou

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Re: Last Will and Testament
« Reply #18 on: May 04, 2015, 04:04:18 PM »
Would anyone living in the Philippines bother making a will of any kind if one has already transferred his/her assets to their selected heirs, with all taxes paid for and only maintains a small amount of money in one's bank account, but still has fast access to them to withdraw everything out in a moments notice before his/her account are frozen in the event of his/her demise? Just saying...........  Here's an old post not my own I saved long ago.

 (End quote)
Some may have a 401k and/or some assets in their home country, I want to try to provide as much as I can to my wife after my death, and a detailed Will is probably the only way to make that happen.  I will first check with the US Embassy if I am successful there, I will share my results

Offline suzukig1

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Re: Last Will and Testament
« Reply #19 on: May 04, 2015, 05:16:25 PM »

Some may have a 401k and/or some assets in their home country, I want to try to provide as much as I can to my wife after my death, and a detailed Will is probably the only way to make that happen.  I will first check with the US Embassy if I am successful there, I will share my results

Not really.  In fact if you only have 401ks, IRAs, bank accounts, etc. and you want those to go to your wife you probably don't want to include those in a will.  With a will they will have to go through probate.  You can designate your wife as beneficiary on those accounts and then they would not have to go through probate.  (If you have other heirs that you want to give to from those accounts, then you may need a will.)

The more difficult issues are:

1) How does your wife manage those accounts after you die?  How does she get access to the money?  (Easy if she's in the U.S.  Difficult if she is living outside of the U.S.)
2) Once she starts taking distributions from 401ks or IRAs she will have to file U.S. income tax returns.  (Also, your final tax return will have to be filed after you die.)
3) There are strict rules to follow regarding distributions if she wants to avoid penalties.  Inherited 401ks have different rules (more favorable) compared to inherited IRAs.
4) There are probably many other issues.

Professional estate planning advice is the way to go in cases like this.
« Last Edit: May 04, 2015, 05:27:05 PM by suzukig1 »

Offline suzukig1

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Re: Last Will and Testament
« Reply #20 on: May 04, 2015, 05:37:15 PM »
Would anyone living in the Philippines bother making a will of any kind if one has already transferred his/her assets to their selected heirs, with all taxes paid for and only maintains a small amount of money in one's bank account...

In some cases that could be a bad idea if your heir is your spouse and is a Phl citizen living in the Phl.  Those transferred assets could be considered community property in the Phl and subject to Phl inheritance laws when either spouse dies.

Phl inheritance laws: P1M plus P1M in a house exempt from estate taxes.  20% estate tax.

U.S. inheritance laws: 5M USD exempt from estate taxes.

Also, you can't transfer assets to heirs to try and by-pass Phl compulsory inheritance laws (in situations where you have compulsory heirs).
« Last Edit: May 04, 2015, 06:34:53 PM by suzukig1 »

Offline jjcabgou

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Re: Last Will and Testament
« Reply #21 on: May 04, 2015, 09:39:20 PM »

Some may have a 401k and/or some assets in their home country, I want to try to provide as much as I can to my wife after my death, and a detailed Will is probably the only way to make that happen.  I will first check with the US Embassy if I am successful there, I will share my results

Not really.  In fact if you only have 401ks, IRAs, bank accounts, etc. and you want those to go to your wife you probably don't want to include those in a will.  With a will they will have to go through probate.  You can designate your wife as beneficiary on those accounts and then they would not have to go through probate.  (If you have other heirs that you want to give to from those accounts, then you may need a will.)

The more difficult issues are:

1) How does your wife manage those accounts after you die?  How does she get access to the money?  (Easy if she's in the U.S.  Difficult if she is living outside of the U.S.)
2) Once she starts taking distributions from 401ks or IRAs she will have to file U.S. income tax returns.  (Also, your final tax return will have to be filed after you die.)
3) There are strict rules to follow regarding distributions if she wants to avoid penalties.  Inherited 401ks have different rules (more favorable) compared to inherited IRAs.
4) There are probably many other issues.

Professional estate planning advice is the way to go in cases like this.

Lots of good info, thanks all... Appears I have some homework to do