Probate is a court case to prove a will. It is the court process through which it is proved that the document offered really is the testator’s valid last will and testament.

A last will and testament must be probated before it can have any force or validity. A will cannot transfer either real or personal property until it has been proved and allowed in accordance with the Rules of Court. Until a court admits it to probate, a will has no effect and no right can be claimed under it.

Probate entails filing a petition in court to allow a will. It requires presenting the will to the court and proving that it was duly executed. As with any court trial, such proof is established by presenting evidence.  

The petition must be filed with the Regional Trial Court of the city or province where the testator lived or where his property is located.

The petition must be sworn to. It should provide the details of the testator’s heirs and beneficiaries, those of the estate’s intended executor or administrator, and the scope of the estate. A copy of the will should be submitted, along with the affidavits of intended witnesses and other evidence intended to prove the will. 

The court shall first confirm the petition’s sufficiency as to form, then calendar the case for its first hearing. The court will order that notice of the hearing be sent to the heirs, other beneficiaries of the will, and other interested parties. The rules also require publication of this notice in a local newspaper. The court will allow the case to go to trial after it confirms that these notice requirements were complied with. 

It is through trial and the presentation of evidence that the due execution of the will shall be proved to the court. At trial, witnesses will testify to the circumstances of the will’s execution, the testator’s mental capacity at the time it was made, and other facts to prove that the document presented really is a valid last will and testament.

The court will also allow interested oppositors to contest the authenticity and due execution of the will. Such oppositors can argue that the will should not be given legal effect because it is not really the genuine will of the testator or because the document suffers from an infirmity that renders it invalid. The oppositors might also question the validity of testamentary dispositions in the will. 

To the extent they think about it, people tend to assume that probate is done after a testator has died. They envision a scenario where the will is found among the deceased’s papers, at which point the executor named in the document then brings the will to the court for probate.

But the Rules of Court actually allow a will to be probated while the testator – the person who made it – is still alive. The last will and testament can be submitted for probate even while the person who made it is still living. 

Probating the will while the testator is alive obviously renders it beyond doubt that the will thus filed in court is really hers. The testator herself swears to the petition for probate prepared by her counsel, submits her affidavit with the petition, and she testifies to the will’s authenticity in court. Anyone seeking to oppose the will shall therefore have far less ground to do so.

The Rules of Court offer further procedural advantages to a testator who files the petition for probate himself. Among these is that newspaper publication will not be required in such cases. Also, when a testator asks for the probate of his own will, notice shall be sent only to his compulsory heirs rather than to all heirs, legatees, and devisees named in the will. These reduce the procedural burdens and their attendant costs.

Submitting a will to probate while the testator is alive simplifies the court process immensely, making the ordeal that much faster and painless. What is more, the court filing fee for probate cases, set at about 2% of the value of the estate, can be paid to the court by the testator himself while still living. This will spare the heirs from having to raise funds to do so after the testator has passed away, by which point the latter’s assets may be frozen and locked away until the estate is settled. 

By filing for probate while he is living, the testator assures that the heirs will need to do and spend far less to settle the estate.  Doing so makes everything simpler after the testator’s death. Instead of having to prove the will in court — which can take years of trial and appeals — the probated will can be put into immediate effect.

It is here that the wisdom of having done probate ahead is borne out. Heirs will not have to suffer proving the will in court, the testator having already done so for them. The executor or his representative will simply need to present the final court decision granting probate to the Bureau of Internal Revenue. The will’s executor can go ahead with the payment of taxes on the estate so that the BIR shall thereafter issue the electronic Certificate Authorizing Registration (eCAR). Armed with the eCAR, title to the properties can be transferred to the heirs right away.

Probating your last will and testament yourself allows your wishes for your family, heirs, and estate to be put into effect quickly instead of years and years later or never.

Atty. Francesco C. Britanico is a family and corporate lawyer. He has taught Property Law and other subjects at the Legal Studies program of the Lyceum of the Philippines University. He is the managing lawyer and founder of FCB Law.