How to Probate a Will in the Philippines
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?
- What is probate?
- Does a will have to go to probate?
- Does a foreign will probated abroad still have to be probated in the Philippines?
- Can a foreign will be probated in the Philippines without probate abroad?
- Where is a will probated?
- Can my will be probated while I am still alive?
- What is the process of probating a will?
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.