Splitting Heirlooms Without the Drama

Divvying up stuff among heirs can turn into a battle, but it doesn’t have to.

There are many ways to go wrong: writing vaguely worded wills, putting sticky notes on items around the house as bequests and counting on heirs to work it out. Missteps can cost an estate thousands of dollars, and disputes over heirlooms can grow ugly, dragging out the estate process and leading to lingering resentments, estate administrators say.

Helping to clear out a high-rise apartment, David Kantrowitz, an appraiser and art dealer in Boston, found a diamond wedding ring and band in a hazardous-waste bag in the back of a closet. The apartment owner’s heirs were thrilled but couldn’t agree over who should get the find. The lawyer handling the estate drew a name from a hat to pick the winner. “Many attorneys gloss over personal property,” said Jennifer Galvagna, head of trusts, estates and tax at Bank of America Private Bank. Baby boomers handling their parents’ estates and assessing what they have amassed are having more conversations around inheritance and heirlooms, she said.

There are better—and often more creative—ways to plan and divide that can avoid family squabbles over cars, jewelry, furniture and household items.

Designate a representative

The person you choose to handle your estate typically distributes the personal property, so pick carefully and specify how much power they have. “Are they going to hear everybody out and help the family move on?” said Kristin Shirahama, an estate lawyer with Bowditch & Dewey in Framingham, Mass. Jason Sloman from Williamsville, Ill., has been working on settling his dad’s estate for almost two years. His father, a large-machinery mechanic, had more than a dozen vehicles, a homemade water- well drill rig, two semitrailers of car parts and guns dating to the Civil War. The elder Sloman listed 19 heirs in a trust he drew shortly before his death in 2021. “He said, ‘I know you can handle everyone I want to help and the stress of dealing with people who aren’t going to be happy,’ ” Sloman said.

Spell out bequests

If you want a particular item to go to a certain someone, make it clear in your will or trust, Galvagna said. Describe the item in detail and name who should get it. Just putting a sticky note on something— or telling a family member it is theirs after you are gone— doesn’t make it legally binding. Sloman’s dad left his Buick Roadmaster with a Corvette engine to a friend who could use that engine for her hot-rod car. Another friend inherited his Ford work truck. His guns went to his son. For the most part, Sloman’s father told him to liquidate everything, put the money in the trust and distribute it to heirs as cash. “He knew what was precious to him might not mean anything to other people,” Sloman said.

Give a distribution method

Paul Lyon’s parents left it to him and his sister to distribute everything in their estate among their children after the parents’ death in 2020. The five siblings met at their parents’ townhome in Minnesota to sort through the belongings and choose things wanted. For items that more than one sibling liked, the kids pulled out a deck of cards and played high card wins. “I lost at every card draw,” Lyon said, noting he lost out on a TV, a set of dishes and a drill press. Spelling out the distribution method in the will or trust can help prevent conflicts. Rolling dice works, too. Or drawing straws. When labeling items to distribute among heirs, keep in mind that sticky notes fall off. Color-coded stickers work better.

Get creative

In one estate, two sisters wanted the same ring that wasn’t left to anyone specifically, Galvagna said. An estate-settlement officer at the bank got a duplicate ring made, mixed it up with the original and gave one to each daughter. In another estate, three children fought over a cookbook with handwritten notes by family members, she said. The personal representative had them draw straws. The child with the large straw got the original cookbook. The other children got photocopies.

Write a property memo

In most states, you can draft a personal- property memo listing what you want to give and to whom. If the memo is incorporated in a will or trust, it is legally binding. If not, the personal representative can take your wishes into consideration. Sign and date it.

Get heirlooms appraised

Families who get appraisals can use that information to decide how to divide up items equitably, what to sell and what to donate. If the heirs don’t want stuff left to them, they can donate it and use the appraisal to substantiate a tax deduction for the donation, Galvagna said. Appraisals are also needed for estate-tax and capital gains tax purposes.

Source: Washington Post

Being declared in default does not automatically mean defeat

If there is a pending court dispute, you will receive a notice from the court requiring you to submit an answer to the complaint of the plaintiff . If you do not comply and submit your answer. it does not automatically result in a decision in favor of the complainant.

The rules governing the declaration of default of a party in a case and its effects are specifically found in Section 3, Rule 9, of AM 19-10-20-SC or the "2019 Amendments to the 1997 Rules of Civil Procedure." which provide that:

"If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his or her pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court."

Correlative thereto, one of the effects of the default was also particularly mentioned in Section 3 (a) of the same rules:

"A party in default shall be entitled to notice[s] of subsequent proceedings but shall not to take part in the trial."

As one can see, the above-mentioned rules do not provide for the automatic defeat of the defaulting party. This finds support also in Sioland Development Corporation v. Fair Distribution Center Corporation, GR 199539, Aug. 9, 2023, where Chief Justice Alexander Gesmundo stated:

"The mere fact that a defendant is declared in default does not automatically result in the grant of the prayers of the plaintiff. To win, the latter must still present the same quantum of evidence that would be required if the defendant were still present.

A party that defaults is not deprived of its rights, except the right to be heard and to present evidence to the trial court. If the evidence presented does not support a judgment for the plaintiff, the complaint should be dismissed, even if the defendant may not have been heard or allowed to present any countervailing evidence.

"Also, it was explained in Gajudo that:

"[A] defaulted defendant is not actually thrown out of court. While in a sense it may be said that by defaulting he leaves himself at the mercy of the court, the rules see to it that any judgment against him must be in accordance with law.

The evidence to support the plaintiff's cause is, of course, presented in his absence, but the court is not supposed to admit that which is basically incompetent. Although the defendant would not be in a position to object, elementary justice requires that only legal evidence should be considered against him. If the evidence presented should not be sufficient to justify a judgment for the plaintiff, the complaint must be dismissed. And if an unfavorable judgment should be justifiable, it cannot exceed in amount or be different in kind from what is prayed for in the complaint."

Applying the aforecited decision, even if you were declared in default, the same would not necessarily mean that the court will automatically grant whatever relief the plaintiff wants. Neither does it automatically mean that you have already lost the case.

While the defaulting party is generally deprived of their right to be heard and present evidence, the decision of the court must still be based on the ex-parte evidence of her neighbor and should still be in accordance with the law.

Source: Manila Times

Judicial Titling of Alienable Lands Simplified

The judicial titling of alienable and disposable agricultural lands was simplified by R.A. No. 11573, which took effect on 1 September 2021. Specifically, R.A. No. 11573 streamlined the procedure and the requirements for judicial confirmation of imperfect title under Section 48 of the Public Land Act and Section 14 of the Property Registration Decree. The salient features of R.A. No. 11573 are as follows:

1. Section 6 of R.A. No. 11573 shortens the period of possession required under the old Section 14(1) of the Property Registration Decree. Instead of requiring applicants to establish their possession from “June 12, 1945, or earlier”, the new Section 14(1) only requires proof of possession “at least 20 years immediately preceding the filing of the application for confirmation of title except when prevented by war or force majeure.”

2. The presentation of the approved survey plan bearing a certification signed by a duly designated DENR geodetic engineer stating that the land subject of the application for registration forms part of the alienable and disposable agricultural land of the public domain shall be sufficient proof of its classification as such, provided that the certification bears references to the documents or information stated in Section 7 of R.A. No. 11573.

Section 7 does away with the stringent documentary requirements of a certificate of land classification status issued by the CENRO or the PENRO of the DENR, which must be approved by the DENR Secretary, and supported by a verification survey by the CENRO or PENRO.

Under Section 7, the certification by the DENR geodetic engineer “shall be sufficient proof of its classification” as alienable and disposable agricultural land. Nonetheless, the Supreme Court en banc in the recent case of Republic v. Pasig Rizal Co., Inc., held that “[t]he DENR geodetic engineer must be presented as witness for proper authentication of the certification in accordance with the Rules of Court.” The rationale for this according to the Court is that the certification of the DENR geodetic engineer is not a public document under Rule 132 of the Rules of Court.

Holding that DENR geodetic engineer’s certification is not a public document should be re-examined

The requirement that the DENR geodetic engineer must be presented in court to authenticate the certification should be re-examined. It is submitted that such a certification is a public document as provided for in Section 19(a), Rule 132 of the Rules of Court. Section 19(a) states that “[t]he written official acts, or records of the official acts of … public officers” are considered as public documents which do not require authentication to be received in evidence.

The Court based its holding on the case of Republic v. Galeno, which held that such certifications issued by the DENR with respect to land classification status “do not fall within the class of public documents contemplated in the first sentence of Section 23 of Rule 132.” The first sentence of Section 23 reads as follows: “[d]ocuments consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts stated therein.” Hence, the Court held that a DENR certification is not prima facie evidence of the facts stated therein.

No clear explanation was given in Galeno as to why the DENR certification did not fall within the first sentence of Section 23. The statement appears to be self-levitating or cryptic. In fact, with the passage of R.A. No. 11573, it becomes clearer that such a certification is made in the performance of a duty by the DENR geodetic engineer.

A public document is defined not in Section 23 but in Section 19(a) of Rule 132. The certification of the DENR geodetic engineer is doubtless a written official act or a record of an official act of a public officer under the terms of Section 19(a).

Moreover, Section 23 of Rule 132 should be read in conjunction with Section 46 on the official records exception to the hearsay rule. Section 46 provides that “[e]ntries in official records made in the performance of his or her duty by a public officer of the Philippines … are prima facie evidence of the facts stated therein.” A perusal of these provisions, as well as the relevant jurisprudence, shows that the term “public record” in Section 23 of Rule 132 is interchangeable with “official record” used in Section 46 of Rule 132 and “official acts or records” found in Section 19(a) of Rule 132.

In fine, a certification by the DENR geodetic engineer as to the land classification status is a public document under Section 19(a) of Rule 132 which does not need to be authenticated. It is also an official record exempted from the hearsay rule under Section 46 of Rule 130. Hence, there is no need to present in court the geodetic engineer and such a certification is considered as prima facie evidence of the facts stated therein under both Section 46 of Rule 130 and Section 23 of Rule 132.

Being a public document, specifically an official or public record, the certification may as a rule be safely relied upon by the court as proof of its contents, especially taking into account Section 8 of R.A. No. 11573 which imposes criminal sanctions upon a geodetic engineer who prepares, willingly or through gross inexcusable negligence, a projection map that contains false, fraudulent, or incomplete data or information, and the DENR official who shall certify and approve such protection map.

Dispensing with the need for the geodetic engineer’s testimony in court will simplify the process of titling alienable and disposable lands and greatly advance the objective of R.A. No. 11573 to aid landowners unlock the economic potential of their lands. It will also relieve the DENR geodetic engineers of the burden of appearing in court and allow them to concentrate on their core functions.

Source: Legisperit