Donating properties

Dear Atty. Shalie,

My father died a few years back and left a residential house and lot to my mother and us, his four children. The same property was already transferred to our names, as the legal heirs. Now that my mother is also starting to get old and sickly, she is scared that one of my siblings would want to claim the entire property for herself and eventually dispose it, to the detriment of the other children. She conveyed to me that she is thinking of donating her share of the property to me, so as to protect it from one of my siblings. Is this plan legal or would it be best for her to just simply make a will, giving to me her entire share of the property?



Dear Reby,

As far as succession law in the Philippines is concerned, a person, with compulsory heirs, could donate his property, only to the extent allowed for him to dispose of the property, and in the same manner that he could leave such property upon his death, without affecting the legitime of his heirs. Under the Civil Code, legitime is the portion of the property that is reserved by law and given to and/or shared by the compulsory heirs of the deceased. The decedent could not part or give away this legitime to anyone, or in any manner, he so chooses. On the other hand, a person could give away or transfer the free portion of his property to anyone, either by donation or by will or even by sale. The free portion consists of half of his property, which he could give or leave to anyone he may please.

As part owners of the property left by your father, all of the legitimate and compulsory heirs, in this case, your mother and the four children, are entitled to equal shares in the said property, which is half of the value of the residential house and lot. Your mother being the owner of the other half, is heir to 1/5 of the other half of the property, upon the death of your father.

Hence, your mother, who became the owner of 6/10 or 3/5 of the residential house and lot, may freely give away to you, or to anyone, by way of donation or by will, only the free portion or one-half of her entire share in the property, which is equivalent to 3/10 of the undivided property. She cannot and has no power to, donate or leave by will, to you or any one of her children, her entire share in the property, to the prejudice of the other three children, or to deprive any of the compulsory heirs their legitimes.

Atty Shalie Lazatin-Obinque

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