BY CZAR CALABARZARON
A Filipino-Australian couple once asked me a seemingly simple legal question: Can we transfer our land/s in the Philippines using an Australian Will?
The question, at first glance, is seemingly simple yet on a closer analysis becomes complicated when viewed against the procedure and resulting cost of the intended transfer.
The simple answer to the question is that YOU CAN transfer Philippine land provided the Australian will is valid under Australian law (Article 816-817, Philippine Civil Code). The question of whether YOU SHOULD, however, requires careful consideration of several factors:
- OWNERSHIP. Save for acquisition through hereditary succession, a non-Filipino beneficiary in a will cannot own lands under Philippine law.
- PROBATE. Probate proceeding needs to be filed in the Philippines to transfer the land to the heir/beneficiary.
In common law countries (i.e. UK, Australia, Brunei, Malaysia), there is a procedure called “resealing of foreign grant” where separate probate of the foreign will is no longer required if probate has been granted previously in a common law country. The applicant simply applies to “reseal” the original grant of probate in the country where the property is located.
The procedure however does not apply in the Philippines. Notwithstanding probate grant by an Australian Court, the validity of the Australian will and testamentary capacity of the deceased will need to be reestablished and proven in Philippine courts. The applicant may also face delays for a number of reasons (i.e. probate opposed, evidence, appeal).
- TAXES. Estate taxes graduated on the value of the estate are payable to transfer the land to the heir/beneficiary.
- COSTS. The costs of probate, estate taxes and other expenses may be disproportionate to the value of the land.
Given the procedural complexity and possible costs of the transfer, Filipino Australians must carefully consider whether to use an Australian will to transfer Philippine lands. There are other cheaper and less complicated alternatives (i.e. sale, donation, extrajudicial settlement) to transfer Philippine land to the intended heir/beneficiary.
Atty. Czar Calabazaron is a Barrister at Marbury Chambers. He is also a lawyer in the Philippines and a partner/consultant in Salud Calabazaron Del Fierro a law firm in the Philippines. For legal advice on Philippine and Australian matters, you can call Atty. Calabazaron at 0413684330/(02) 80843786, email attyczar@yahoo.com or visit http://czarcalabazaron.com