How to Probate a Will in the Philippines

by | Feb 12, 2019 | Estate Law, Wills & Inheritance

When you inherit Philippine property through a will, you will need to go through to court in a process called “probate”.

Probate is a court process that authenticates the will.

Probate then allows the properties to be distributed.

People have often asked me if there is a way to avoid probate.

This is not possible since any kind of will – be it a foreign will, a holographic will or notarial will – all require probate for the properties to be transferred to the heirs.

So, I decided to write a comprehensive guide on probate in the Philippines to help guide people on the way and to answer common questions regarding the process.

 

What is a will?

A will is usually a written document created according to law that determines how his assets are to be distributed to his heirs.

There are 2 types of wills in the Philippines.

One is completely handwritten and is called a holographic will. The other is a notarized will with witnesses which is called a notarial will.

Each must follow certain requirements for it to be valid.

For instance, a notarial will has to be notarized. It must be signed and dated by the testator. It must also be signed by 3 witnesses in the testator’s presence. There are other requirements – which are often quite specific and must be followed to ensure that the will is respected.

In addition, a Philippine will must comply with the law on legitimes or compulsory heirs. This law mandates who inherits and the amount they inherit. This law must be obeyed for the will to be valid.

Read More: If you are interested in how to make a will, you must be careful as to the form of the will. This can be very important and I give practical advice here. Note that it is always best to consult with a lawyer to ensure correctness.

What is probate?

Probate is a court process that ensures that the wills follow the law in such things as compulsory heirs in addition to the actual form of the will.

It requires filing the will in court.

It also requires filing evidence of the validity of the will.

For the completely handwritten or holographic will, handwriting samples must be submitted.

For a notarial will, the witnesses may be called.

While some of the proof needed is standard, others may depend on the situation and whether or not someone does not agree with the will (i.e. the will is contested).

Does a will have to go to probate?

Yes, a will must go through Probate before any assets are transferred. In the Philippines, the court decision is a necessary requirement by government bodies or companies to transfer real property or stocks in the names of the heirs.

The properties cannot be transferred without this process.

The properties would remain in the name of the deceased until this process is completed – and this can lead to serious issues down the road.

 

Does a foreign will probated abroad still have to be probated in the Philippines?

Yes. The foreign will must still go to Philippine courts so that it can be proved that the will is valid.

There are some common situations where this applies:

  • If the deceased was a foreigner regarding Philippine property/stock
  • If the deceased was a Filipino/dual citizen who created a will abroad regarding Philippine property/stock

Administrative bodies will not transfer Philippine real property or stocks without the Philippine court’s decision, so probate becomes a necessary step before transferring inherited property or selling it.

Can a foreign will be probated in the Philippines without probate abroad?

Yes. It is not a requirement that a foreign will be probated abroad before being probated in the Philippines. [G.R. 169144, Jan 2011]

So, say you have an Filipino aunt who died abroad and who left you property in a will.

This will can be probated in the Philippines without probate abroad.

This will validate the will and allow transfer of property.

Where is a will probated?

A will is probated in the city/municipality of the deceased permanent residence.

If he has permanent residence abroad, then the will is probated where the land is located.

The case is filed at the Regional Trial Court.

Can my will be probated while I am still alive?

Yes, a will can be probated while you are still alive.

Probating a will while the testator is alive can be very effective.

The court can see for itself that the person creating the will is of sound mind.

The court can also more easily ensure that the will really comes from the testator and that it faithfully explains his wishes.

What is the process of probating a will?

Probating a will can be filed by anyone with an interest in the estate, or even the person who made the will himself (the “testator”).

Publication for 3 consecutive weeks is required and notice shall be delivered to the known heirs, legatees and devisees.

Testimony will be required to prove the will.

Should the will be uncontested it is of course much faster than when a will is contested, in which case the court will render its decision.

12 Comments

  1. JACQUELINE

    Hello I would like to know what to do My Mom and Dad owns a land and house. My Dad pass away long time ago then my Mom pass away Dec. 15, 2010.
    My question is 7 of us their children are all US citizen we are upto date of paying the real property tax but we did not know that there is penalty by not transferring the estate right away..It’s a family house we only visit when we go on vacation in the Philippines.
    What are our steps in transferring the estate among us.

    Reply
    • Lawyers in the Philippines

      I have sent you an email.

      Reply
  2. Elle

    Hello! My father suppose to received a land inheritance from his mother through verbal promise however the land title is still under his mother. Now, my uncle is currently living on that land and wanting to own it. Not sure what to do? Both my grandmother and father are already dead and there’s no will left on what to do on the land. Thank you so much for your help.

    Reply
    • Lawyers in the Philippines

      I assume that your grandmother and grandfather are Filipino and both have no will?

      If such, then the inheritance will fall under Philippine intestate laws. These dictate who inherits and the amount of the inheritance.

      In addition, an extrajudicial process must be followed to transfer the property to the heirs’ names.

      Reply
  3. Lauren

    How do attorneys in the Philippines handle fees? For example, in the states, probate attorneys are paid out of a bank account opened under a tax ID number created for the estate and there is often a delay until assets are deposited into this account. Our client has land titles he would like to sell and is wondering if the attorney fees can be paid after the properties have been sold.

    Reply
    • Lawyers in the Philippines

      Sent an email.

      Reply
  4. Katherine

    My sister who died years ago left a holographic will. She has two properties. An agri land and the residential house at antipolo. We had a buyer who is interested to buy the agri land asap so i and the other heirs decided to produce an extrajudicial settlement of estate of my sister to be able to sell the agri land left by my sister. The process was smooth and we are just waiting for the transfer of title to the buyer. What is left is the property at Antipolo. The title was mortgaged, we have paid it completely but the Company is requiring a court order since they knew about the Last Will, before they release the title of the House to us. Now, we have to probate the last will to get the title and we are worried of the extrajuducial process we made on the agri land. Can you please advise me what to do about this. Will there be a problem on the aold agri land?

    Reply
    • Lawyers in the Philippines

      Sent an email.

      Reply
  5. Dina

    Hi,

    I have a friend who passed a way about a year ago, she is naturalized citizen to the city where she reside upon her death.
    She has will probated in the city where she reside., she is single and no sibling nor parents living. She has a property in the philippines. how will the executor proceed with the process.

    thanks

    Reply
    • Lawyers in the Philippines

      Sent an email.

      Reply
  6. Patrick

    My friend’s parents both passed away within one year and they left a notarized will naming him as executor. He wants to know if he can probate the will without getting the services of a lawyer. In other words, can a person probate a will on their own without the help of a lawyer? Thanks so much.

    Reply
    • Lawyers in the Philippines

      Your friend will need a lawyer.

      Reply

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