A Will is a document created according to Philippine Law which determines how a person’s (the Testator) assets are to be distributed to his Heirs.

There are 2 types of Wills in the Philippines.

• A Holographic Will is handwritten

• A Notarial Will is notarized and witnessed.

Each must follow certain requirements so that the Will is valid.

For instance, a Notarial Will must be notarized, signed and dated by the Testator. It must also be signed by 3 witnesses in the Testator’s presence. These are only some requirements. There are several other requirements that must be followed to ensure the Notarial Will is respected.

On the other hand, a Holographic Will must be handwritten, signed and dated.

Both Notarial Wills and Holographic Wills 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 a Philippine Will to be valid.

A couple of important points when making a Philippine Will:

• A Will only disposes of the Free Portion of the Estate. The rest of the Estate must follow the Philippines law on Compulsory Heirs. This law dictates how much and to whom you can give your Properties.

• You can disinherit Compulsory Heirs BUT you have to follow the laws on Disinheritance.

• A Will must go through Probate Proceedings at a Probate Court for you to be able to use it

• A Will has to strictly follow the correct form and rules.

Read More: If you want 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 but it is really best you have a lawyer when making a Will.

Probate Proceedings is a court process to prove a Will is valid. It is required for the BIR, RD, City Assessors or other government agencies to transfer the property to the heirs.

It is important that the Will is validly made and follows Philippine Law (such as the law on Compulsory Heirs.)

Probate Proceedings should be filed at Probate Court in the municipality or city of the deceased persons permanent residence.

Court filing fees will need to be paid when filing for Probate of Will. Court filing fees are a percentage of the Estate and fees can be very large.

Evidence, such as the original Will, must be filed in court during Probate Proceedings to validate the Will.

For the completely handwritten Holographic Will, handwriting samples of the Testator must be submitted.

For a Notarial Will, the three Witnesses who signed the Will usually testify.

While some of the proof needed is standard, other forms of proof may be required depending on the situation especially if someone does not agree with or disputes the Will.

If someone opposes the Will or the court needs more proof, then Probate Proceedings can be long and expensive.

People making a Philippine Will should consider filing Probate Proceedings while alive. They can testify at Probate Court as to their intentions and the validity of the Will.

People should also consider if they really want to make a Will given the high cost of the Probate filing fee.

Yes. A Will must go through Probate Court because government agencies require it before transferring any property to the Heirs.  The Probate Court Decision will be required by officers in each agency before starting on the transfer.

The Probate Court Decision will be inspected at each step and so you must go through Probate Proceedings for any Will to be validated.

So, until the Probate Process is completed, the properties will remain in the name of the deceased.

Yes. A foreign Will must still go through Probate Court in the Philippines so that it can be proven that the Will is valid.

There are some common situations where this applies:

• If the deceased was a foreigner and the Estate includes Philippine property/stock

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

Administrative bodies will not transfer Philippine real property or stocks without the Philippine Probate Court’s decision even if the deceased was a foreigner.

So Probate is necessary step even when there is a foreign Will.

Yes. It is not required for a foreign Will to be Probated abroad before being Probated in Probate Court Philippines. [G.R. 169144, Jan 2011]

As an example, you have an Filipino aunt who died abroad and left you property in a foreign Will.

This Will can be Probated in the Philippines without going through Probate Proceedings abroad.

This will validate the Will and allow transfer of property.

Probate Proceedings in the Philippines stipulate that a Will is Probated in a Probate Court in the city/municipality of the deceased’s permanent residence.

If the deceased’s permanent residence is abroad, then the Will is Probated in the Probate Court where the land or property is located.

The case is filed at the Regional Trial Court.

Yes, you can Probate a Will while you are still alive.

Probating a Will while the Testator is alive can be very effective.

The Probate Court Philippines 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.

I generally urge a person who has a Will to undergo the Probate of the Will while alive as it saves so much trouble later on.

The Probate Proceedings process has several steps including filing, testifying, and presenting evidence at Probate Court. Probate Proceedings can be filed by anyone with an interest in the Estate or even the person who made the Will himself (the “Testator”).

A Probate of Will in the Philippines generally has the following steps:

• File the Will and the Petition in court.

• Pay the filing fee. The filing fee can range based on the table of fees. A good estimate is about 2%.

• Publish a Notice in a Newspaper as per the court order for 3 consecutive weeks with service to all interested parties.

• Testimony will be required and can take a long time if the Will is contested. (i.e. someone objects.)

• The Probate Court Decision is released.

It takes at least 2 or so years. This can be longer if the Will is Contested, in which case the Probate Court will render its decision.

If you have any questions, concerns or wish to engage a lawyer to help you with writing or Probating a Will you may contact us

Atty. Francesco C. Britanico  FCB Law Office