Tl1e
f
ollo\'Jing pieces of it1fi.J'" 11ation a1·l! t1eedecl irt l'repari11g anestate plan:
1 . Property Composit:o11
What are the pro}Jerties of the estate owner? Talte note that
properties that v.;ill form part of the gross estate include all proper!)' and propert)' rights - real or personal; ta11gible or intangible, \vl1erever situated.
It is also it11portant to kno.,v the JJroperty regime that go..,'erns
the marriage of the estate O\\.'I1er. Conjugal partnership of gains? Absolute com1nunity of }Jroperty? Separation of Propert_y? (See next chnptC'r- for a discussio11 of these property regimes.)
It is essential to lc110\v all tl1ese because under O\.tr laws, an estate ()\Vllt'r can write a ,.,.rill j)ertaining only to pro1Jerties tl1at he O\\'llS. Those O\Vnecl b)' his spouse are hers and hers alone for \Vl1ich a separate will needs to be written -by her.
A husband cannot '""'rite a will fOr his \Vife. Neitl1er can they write a joint will. This is allov\"ecl in some cot1ntries, but not
P R. F l 'r\ R.I N G AN ESTATE PLAN
_ CHAPTERS
in our jurisdictio11. Propei·ties ar(' to be treated each to l1is or her own insofar aR vvriti11g a \\'ill is concerned.
Equally important are ducun1t•nts evi<lenci11g o'\vnership. There have been cases \vhcre f�1111ilies sitnjJl_y as:>tt1ned that titles to properties the.y are using are in order - only to
belatedly realize tl1at the titles are still i11 the na111es of some other people like relatives \v]10 ha\'e long died. �rhis may cause nnor111ous problen1s for the supJJOsed heirs. It is impe:-ative t11erefore that an inventory of all present assets
and liabilities be done the soone.'>t possible time.
Lil{e\\'ise, all titles and docu1nents pertainil1g:--to property ownership sl1ould be µroperl.Y �·hecl{ed, i11clu<ling transfer docu1nents and tax receijJts. Stock certificates, insu.rance policies, banl{ accou11ts, a11cl even !oan docume11ts shoulcl also
be accounted for i11 tl1e in''entory.
Whenev·er the estate owner l1as so111e apprehensions regarding legal documents like titles, stock certificates or tax declarations, it is recommended that 11e enlists the services of a good lawyer to assist hi.in in tile transfers (for exa111ple, updating or regularizatiotl of pertine11t docu111ents). 'I"his is crucial since government agencies lik.e tl1e BIR \1ave prescripti,•e periods ii,
\vhich to process transfers of this i1ature.
2. Family Composition
!'\.novving v-.•ho the legal !1eirs of th<.:' estate owner < ·-e is equally important. Who are .your co111I::ulsory heirs? Family
WILL B E D O N E
ATTY. ANGELO Iv\ CABRERA
composition i11cludes all h e 1 1·s considered by la'v as compulsor.y heirs - people who cannot be disregarded in . handi11g out inl1eritance. As discussed earlier, this necessarily includes sl<eletons in the closet - illegitimate children. A cl1apter on Family Con1position will give a detailed discussio11 on this.
:J , Desires and Wisl1es of tll.e Estate Owner
The executio11 of a \.Vill is considered to be the last act of a }Jerson si11ce tl1is is execute<l after his deatl1, yet a will is the physical manifestatio11 of his desires and v-.'isl1es v·:hen he \vas still living.
What good is a plan if it does 11ot take into co11sideratior1 the desires and wishes of tl1e estate ov-'ner? An estate o\v11er is given this chance to express h i s \vi.shes concerr1i11g the disposition of his estate if he \�·rites a \Vill.
If
l1e does 11ot,his wishes shall be buried vvith hin1 in his grave.
In \.Vriting a \vill, an estate 0\�'11er rr1ay decide to gi·ve one of
11is children a little 1nore tha11 tl1e others, fur whate,'er reason -
from
economic (as in to help a l1a11dicapped child) or sheerfavoritisn1. No la\V will bar !1im fron1 doing that for as long as the require1nent as t() t h e 111ini1num sl1are of each compulsory heir is satisfied.
He may also give to a distant relati\'e, his alma 1nater or church, or e\.'en a non-relati·ve or a stranger. The law gives
f'RE J',,\RI NG AN ESTATE PLJ\N
him tl1is leevvay, again for as Jon,� as the rig}1tful shares of his corr1pulsory heirs are not in1p<11red.
A survey done by a co111pan)' among termi11all)' ill patients in
the Unite<l States revealed an i11terL'sting ti11ding-a common
wish to leave behind _so1netl1i11g, a legac)' or a donation, for
the benefit of another, not 11ecessarily a relative. I belie\'e Filipinos would be no difrerent if t11ey had wealtb. to give.
Special Instructions
There are special instructior1s that .\·nu ma,y \Vant i11corporated in your plan, which n1a)' come in tl1e form of a !Jrovision in a
\vill or simply a separate letter tlf instructio11. While the
latter is not legally bind in,?;", it l1el11-> organize )'Our estate plan
b)' separati11g property disposition . .;;, \.Yhicl1 forrn part of the \vill, from other concerns \Vl1icl1 c;1n be contained in a letter of instruction so as not to unnecessarily fill )'Ollr vvill with so many details. Another purjJOSL' of a letter of instruction is to l{eeri sorr1e ver)' private matters vvithin the family, which would otherwise be revealed and j)Ossibly discussed openly
if they were to be included in a \\'ill.
Having said that1 it is al,vays best to seek the advice
of
a trusted lawyer in deciding '.vhich item or concern should be included in _;,rour will.Here are some examples of special ir1structions:
THY WILL B E DONE ATTY. ANGELO /.\ CABRERA,
informed wl1e11 you go. T11is prov·ed very helpful -v:hen my father died because his \vill contained a list of his friends 'A'hom l1e \Vanted to be advised about l1is death, con1plete with tl1eir telepho11e numbers.
2. An in.struction on ho\v )'OU \vou1d like th_e proceecls on
your lite insurance policies to be applied first as payn1ent for estate taxes before distributing the bala11ce, if any; notv.:ithsta11ding the beneticiar.y designations i11 your policii::s.
3. Some have even included sucl1 i11structions as the 1na11r1er b)' \vl1ich they \Vould like their funeral service contJucted,
tl1e nu111ber of da)'S of the \valte, the place of burial, arid,
as you will read in a later chaJJter, even tl1eir preferred obituar)' captio11.
4. It might also be wise to lea\·e i11structions 011 hov• you would like to dispose of j'Ou1· 1)ersot1al items, such as your perso11al documents (letters, etc.), clothes, college ri11g, bool{s, paintings and otl1er ite111� of senti111ental value, V.'l1icl1, i11 the absence of a11y· instructions concerning tl1eir disposition, 111a,}' cause clisagret'111ents a11d quarrels an1ong
l1eirs.
The special instructions sl1ould also include t\1e person or persons '.v\1om you \.vould lil'-e t() act as executor/s of your est.ate.. i'\.n executor ls the peTson who ls given t\1e tasl"- to manage and adm\nlster t1-e estate a11U part\tion and d\stribute
the same in accorda11ce with your \.Vis\1es. In t\1e absen
c
e o "PREPARING AN ESTATE PLAN
a V•'ill or a person namecl in the \\-ill to act as such, t11e cottrt appoi11ts a11 administrator, \\•ho is then give11 the res}Jonsibility
to perform these tasl{s, not r1ect'ssarily in accordance ... vith your \\'ishes. Thus, if you want a rr1easure of s· c:urity that
your \Vishes would be carriL·t! out, an i n d ispensable
requiremet1t is tl1e designation of your executor of choice in your will, This is one instanct· \vhere a mere letter of instruction
\\'ill
not do.Propert)' co1npo.sition, fatnil)' co1111Jn,-;itio11, desires a11d wishes, and special instructions of the estatt" o•v11er - all these are part of the information needed to 111a