Saturday, June 18, 2011

Will America Be Kinder To My Children?

As I sit here now with the knowledge that I am almost 6 weeks with child, I wonder to myself about the choice I have been failing to make or the direction I have not taken yet, or whether that option will close finally and open only when we re-file all the papers or when the option to relocate becomes open as a widow.  I wonder if by my indecision I am foreclosing choices even for my unborn child.

But really, will the America we know now be kinder to my children? With the healthcare "reforms", higher retirement age and proposed cuts on food assistance to women and children, does my child even stand the chance? Will he/she get a "better" education?  Won't he/she be saddled down with student loans just to get this "better" education?  Do they REALLY have a better education? Or is that something they just want us to believe?

Here in the Philippines, I got my education in the early 90's at barely P2,000 to P3,000 per semester! I even started out my first semester paying a miserly P800.  Of course even the U.P. system has costed more now, but they hardly cost the P100,000 per year on an Ateneo education.

Am I to think that the school system here is not as good as the one over there? When my Aunties who got their medical education here from the best medical and science schools in the Philippines - University of Sto. Tomas and University of the Philippines - are themselves employed by the best hospitals in the US (Mt. Sinai and John Hopkins).  How about Engineering? My sister graduated from the best Engineering college (Mapua Institute of Technology) in the country and is now enjoying a gainful employment as a programmer.  My Uncle (the first of our clan to get to America) was also a Mapua graduate who went on to own his own construction company in the US.

Over here, my child will never have to fear being bullied as ruthlessly as over there.  Nerds are not vilified but respected.  They may not be popular but they never belong to the outcast. Over here there is no fear of being gunned down because you can hardly hear of any incident of a kid carrying a gun in the private schools.  Over here, I will make sure he/she gets the best education and discipline in any field he/she wants, and I will make certain he/she has a fighting chance for a better life in the future, if that better life ever means going to America (of his/her own choice).

Maybe being here would keep him/her from being such a weakling.  He/she should not rely on the government for food, healthcare or unemployment benefits.  Over here you just either sink or swim.  And  I would do everything within my power to make sure he/she has all the potential in the world to do more than just swim.

What does America have to offer really that is better than what we can offer ?  Do I really want my children to grow up relying on the government? Is their education really better? Maybe in the next nine months I can really answer those questions with concrete facts, and then I can make the choice.

Thursday, June 9, 2011

13 (a) Visa Finally Acted On

As you very well know getting the 13 (a) Permanent Visa took a longer time than it should have.  We filed it on April 11, 2011 and we were scheduled for a hearing on April 15, 2011.  But I was scheduled for an operation on the 15th and we didn't get a notice for the hearing until April 14, 2011 noon, on the way to the hospital nonetheless.  The only way I could have made that hearing was to physically pull the IV off from my wrist, tell the attending nurses and the guards that I will be back in 2 to 3 hours  to settle my bill and be formally discharged from the hospital.

So to make a long story short, we didn't make it for the April 15, 2011 hearing, although I did call the Bureau of Immigration in Makati (BI Makati) ahead of time that we couldn't make it.

The Monday after my operation (April 18, 2011), I called BI Makati to schedule a hearing.  They said they would call me whenever a lawyer becomes available for a hearing.  Sadly, I never heard from them and I called them at least once a week, only to be told to wait for a phone call.

Finally, just days before the supposed expiration of the 13 (a) probationary (May 20, 2011), I texted and introduced myself FOR THE FIRST TIME as Atty. Claudette Agatep - Granville!  Finally a more positive response came to call them up for the scheduled hearing.  The next day we came, and everything was short and curt.  We were asked to have something notarized upstairs and signed a few papers. (May 18, 2011)

Fast forward, the second week of June and I haven't heard from them.  I called the lawyer's assistant a couple of times and all I got was a curt "she is busy, could you please call again some other time."  I try to be as patient as I could with my fellow civil servants for the very simple reason that I know how overwhelming government work can sometimes be.  Most people want to dispense most civil servants as lazy or bumming on their job, but some of us really do work our ass off. As I used to say in my former job, I have worked for both the private and the public sector; but I have never worked as hard as I did when I was Chief of Legal of another government office.  So I tried my best to be patient.  But on the side I was already calling a lawyer-classmate from the BI-Main to ask if it was "normal" that it takes this long and if there would be a possible problem.  She asked for my husband's name and for the name of the hearing officer.  For the likes of me, I couldn't remember the name of the hearing officer, but I gave her my husband's name. I asked my friend if there would be a problem if the visa approval came after the expiration of the 13 (a) probationary, she said that is not a problem as long as you submit the petition for conversion days before the expiration of the original visa.  So I relied on her word, as she works there after all.

Today, I decided to google my name for no apparent reason really,  just that I do that a great once in awhile to see what I have done in my life.  Aside from seeing my blog, and various other articles pertaining to previous jobs and my eligibility, I saw the action on our visa.  In Item 212 I saw my name and my husband's name.  I just wonder why BI-Makati hasn't called us yet.  I can't imagine that the action can be anything other than an approval.  So next week, after our Veteran's Affair appointment we are going to BI-Makati hopefully for visa implementation.

Wednesday, June 8, 2011

Who Shall Inherit

A marriage involving individuals who are citizens of two different countries can be quite perplexing.  But the important rule of thumb here is to determine who had just died, and what the law of his country says (nationality).  In some instances, the domicile (where the deceased resided) may apply if the national law of the deceased says that the law of his country of domicile shall apply.  This is called renvoi

To give an example, Mr. Smith died in the Philippines and he is a national of country X.  The laws of country X says that the law governing succession shall be the country of domicile (residence) of Mr. Smith.  The law of country X states that all of the property shall go to the surviving spouse regardless if there are surviving descendants (children).  Philippine law says if there is a surviving spouse and surviving descendants (children), each shall inherit from the estate equally.  What law do you think shall apply?

The answer is Philippine law because the law of country X states that the law of Mr. Smith's domicile shall apply.

Why is it important to have a will? Well simply because if you don't have one, probate proceedings will be much more complex and will enrich not your heirs, but lovable professionals like myself -- lawyers. If you have a will, all that will be proven in Court is the extrinsic validity of the will.  Another very convincing reason to draft a will (if you don't have one yet), is that it will save your relatives the angst of fighting over your estate.  Instead of your death becoming a time of mourning, it can be a time of conflict amongst your family members.

Another alternative I have just recently learned is from a book I was reading by an American lawyer (Madeline Gauthier, "Where there's a Will, There's a Way") is to make use of a Living Trust.  It allows certain benefits not available in a Will, which I may discuss in some future time once I have finished my reading in full. :p

In Philippine jurisdiction, other things that may complicate probate proceedings are: 1) if you have properties not within the Philippines, 2) if the will was contested; 3) if you have creditors or 4) a compulsory heir was not included therein.

So who are compulsory heirs? Compulsory heirs are those heirs you cannot leave out in a will or in intestate succession, except in exceptional circumstances.  These can be your parents, if you don't have a spouse or children or it can be the spouse and children.  In Philippine jurisdiction, the presence of descendants excludes the ascendants.  That means if you have children, your parents do not inherit unless you provide a legitime for them from the free disposable portion of your estate.

At this point I will cut it short.  The discussion on compulsory heirs is a very long discussion by itself.  :)  Till next time.

Saturday, June 4, 2011

Estate Planning

In the last month, I have come to realize the value of estate planning, and preparing for ones death, even when one is perfectly healthy in the present times.  The death of three different individuals and the legal problems caused by their death was brought to my attention.

Scenario number one involved a very close friend of mine who just recently died of pancreatic cancer.  Perhaps holding on to the very last minute that she would live, she did not consider to express her intention (on paper) under what law she wishes to retire.  Pass forward a few days after her death, her husband filed in her behalf for retirement under Republic Act 1616. Unfortunately, by then it was too late and all that the husband was entitled to was survivorship benefit and the proceeds of the life insurance.  Certainly no longer the lump sum that she could have been entitled to had she decided to prepare on paper that she wished to retire under R.A. 1616.  It was difficult to break it to the husband, but I somehow skirted the issue and just granted the request for terminal leave by reason of separation by death.

Scenario number two, an employee had retired (prior to her death) and filed for retirement benefits under R.A. 1616.  She filed it before her death, but she died just before she was able to receive it. There was no named beneficiary in the retirement benefit, so her siblings (she having no parents nor children left) went after the P2.5 million worth of lump sum benefit she was entitled to.  Now, considering she died intestate (without a will), after satisfying the share of all compulsory heirs (under Philippine law these are the heirs you CANNOT deprive except in exceptional circumstances), the remaining part of the estate would have to be distributed in probate courte.

Scenario number three, my husband's cousin has been living and doing business in Saipan for years.  In 2009 he died quite suddenly of a heart attack, leaving no children and an ex-wife.  Although I do not know the law in Saipan, I can bet that just like here, considering he died intestate, everything has to go to probate court.  His relatives, worried about the business and all its assets going to the wrong person inquired from me what they could or needed to do.  I suggested they go to Saipan to oversee the actions of the lawyer who was appointed as Administrator of the estate.  They said they can't because they have limited means and are just living off retirement income.  Sadly, that case will go on without them and possibly at loss to them, because it will be distributed (if ever) without their knowledge or consent to whoever poses as a creditor.  I think my husband's cousin would have been better off preparing a Will to ensure that his estate will not be butchered off between the creditors and other "interested parties" upon his death.

The foreigner here with assets locally (in the Philippines) and abroad (in their home countries) would do well to think about how to plan the disposition of their properties upon their death. It must be emphasized that under Philippine law, "intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found."   This simply means that in regard to how to "apportion" the property, the national law of the person concerned shall be what governs.  This becomes especially problematic in the case when there are real properties situated in one place, and personal properties (e.g. stocks, 401 (k)) acquired somewhere else.

It is a long story I cannot write about in one sitting. :) I will try to sit down to write about it in greater length in some future time when time permits me. :)  In the meantime, anyone can pose queries regarding it in order for me to come up with something more succinct. :)