TRANSMISSION BY DESCENT AND DEVISE

TRANSMISSION BY DESCENT AND DEVISE

WHEN OWNER OF PROPERTY DIES – testate or intestate,

• Administrator shall file with ROD registration of property in his name to be vested with ownership as trustee so he can sell, etc, convey, etc

• Not necessary if already empowered in the will

WHEN JUDICIAL PROCEEDING NOT NECESSARY
• Heirs may partition estate immediately & no need to be burdened with cost/expenses of an administrator

1. In absence of debts

2. Heirs are all of legal age

PARTITION/SETTLEMENT OF ESTATE

1. JUDICIAL
• After entry of final judgment of partition, copy certified by clerk of court to be filed with ROD

• Each owner to give separate certificate of title (duplicate)

• If ordered to be sold, purchaser shall be entitled to a certificate of title entered in his name upon presentment of order confirming sale

2. EXTRAJUDICIAL
a. Decedent died intestate

b. No debts

c. Heirs are all of legal age, or minors represented by guardian

Procedure:
• Heirs to execute public instrument to be filed with ROD

• If disagree with each other, file in court ordinary action for partition

• If there is only 1 heir, may adjudicate to himself entire estate via affidavit to be filed with ROD

• If there are movables involved, bond to be filed equivalent to value of property as certified under oath by parties conditioned upon payment if any just claim which may be filed by creditor within 2 years after distribution

• Publication in newspaper of general circulation for 3 weeks; not binding to those without notice

• Final after 2 years

ORAL PARTITION, WHEN DEEMED VALID
• In provinces when person dies leaving property not covered by Torrens system – to avoid legal expenses, heirs make a list of property, pay off debts & assign to each

• Statute of frauds – do not operate because it is not a conveyance but a separation of property and designation of part which belongs to them

WILLS AND LETTERS OF ADMINISTRATION
• Executor required to file with ROD a certified copy of his letters of administration or the will if there is a will in order that ROD may register upon certificate a memorandum with reference to file no & date of filing

COURT AUTHORITY NEEDED IN ORDER TO SELL
1. May be dispensed with if will empowers him sell

2. Without authority first secured, heir may sell subject to result of pending administration