My father's will only disposes of some of his properties — how is the rest of his estate divided among us?

Two regimes, running side by side

Article 960 lists partial disposition as a trigger for intestacy: legal succession takes place When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed. Nothing about the will is defective — Article 841 expressly validates a will that does not cover the whole estate. The settlement simply has two halves, and confusion comes from treating it as one: the properties the will names are distributed as it directs, and everything else as though there were no will at all.

Identifying 'the rest' is the real work

The residue is not a figure in the will; it is the difference between what your father actually owned at death and what the will disposed of. So the first task is an honest inventory of the estate, and Article 1078 sets the order of operations by holding the whole estate in common among the heirs before partition, subject to the payment of the debts of the deceased. Where he was married, the couple's property regime is liquidated first, so that only his own share enters the estate. Assets people overlook — a lot registered in one name only, an unregistered vehicle, receivables — belong in that inventory.

Who takes the remainder

Article 961 vests the inheritance, in default of testamentary heirs, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State. Which of them take, and in what proportion, depends on who survived your father. One point runs across both halves of the settlement: Article 904 provides that The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law. — so the legitime is tested against the estate as a whole, not against the leftover.

The trap of being an heir twice over

In a partly testate estate the same child is often both a testamentary heir, as to what the will gives him, and an intestate heir as to the rest. Article 1055 governs what happens if he wants out: If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both capacities. The reverse is gentler: someone who repudiates as an intestate heir without knowing he was also named in a will may still accept in that capacity. Read the will before renouncing anything: order and knowledge both matter.

Cases citing this provision

These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.

• In the matter of the petition for the probate of the will of Consuelo, G.R. No. 204793, June 8, 2020 — read the decision on LawPhil →
• Hilarion, Jr. and Enrico Orendain, represented by Fe Orendain vs. Trusteeship of the Estate of Doña Margarita Rodriquez, G.R. No. 168660, June 30, 2009 — read the decision on LawPhil →
• Alberto Herbon, et al. vs. Leopoldo T. Palad, G.R. No. 149542, July 20, 2006 — read the decision on LawPhil →
• Lourdes L. Dorotheo vs. Court of Appeals, et al, G.R. No. 108581, December 8, 1999 — read the decision on LawPhil →

Related provisions

• Civil Code, Article 1055 — Called Both by Will and by Law
• Civil Code, Article 960 — When Intestate Succession Applies
• Civil Code, Article 961 — Who the Law Calls
• Civil Code, Article 841 — A Will Is Valid Even Without an Institution
• Civil Code, Article 904 — The Legitime Cannot Be Taken Away
• Civil Code, Article 1078 — Co-Ownership Before Partition