Monday, February 3, 2014

Parents can execute a will, deed of donation or sale in favor of their heirs

Dear PAO,

I would like to make a query on how my parents can transfer to me their properties while they are still living. I want to know the process on how this can be done. What are the documents that need to be prepared?

Thank you.

Dear BRG,
Article 712 of the New Civil Code (NCC) provides for the mode of acquisition of properties, thus we quote as follows:

“Art. 712. Ownership is acquired by occupation and by intellectual creation.
Ownership and other real rights over property are acquired and transmitted by law, by donation, by estate and intestate succession, and in consequence of certain contracts, by tradition.
They may also be acquired by means of prescription.”

Assuming that you are the only child of your parents and you are their only compulsory heir, there are several means wherein they can transfer title to their properties in your name while they are still living. They may opt to execute a Deed of Sale or a Deed of Donation in your favor. They can also make a will and have it probated while they are still living and have their properties partitioned in accordance with what they wish.

Should they desire, they can execute a Deed of Donation in your favor. Under the law, donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it (Article 725, NCC). In donation, the transfer of the property by the donor to the donee is gratuitous and the consideration is the donor’s graciousness, love and affection to the donee or the recipient. There is no monetary consideration for the transfer of the property in donation except for the love and affection of the donor to the donee. It is important however that the requisites for a valid donation be complied with. Article 749 of the New Civil Code provides for the requisites for a valid donation, thus:

“Art. 749. In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy.

The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments.”

If the Deed of Donation provides that the same will take effect during the lifetime of your parents then the title to the property which has been donated to you may be transferred in your name after the appropriate donor’s and transfer taxes have been paid. Aside from the execution of a valid Deed of Donation, the law requires the payment of taxes by the parties to a donation. After the payment of the required taxes, you may go to the Office of the Register of Deeds where the property subject matter of the Deed of Donation is and have the said deed registered and inscribed at the back of the title involving the said property. The registration of the Deed of Donation with the Register of Deeds is very important in order to bind third parties who are not parties to the Deed of Donation. The inscription at the back of the title to the property of the said Deed of Donation is a notice to other parties not involved in the said deed of the transfer of the property to you by your parents through an instrument called Deed of Donation. After the registration and inscription, you may take the appropriate steps so that the title to the said properties be transferred in your name.

We hope that we were able to address your query. We wish to remind you however that our opinion is based on the facts that you stated. Our opinion may vary if other facts are added or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to

source:  Manila Times

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