Probate is a court case that proves that a last will and ensures that it is followed.

Probate is required for all wills to be executed based on Civil Code of the Philippines, specifically Article 838:

Under Philippine law, probate proceedings are generally initiated after the testator’s death. However, the law allows for a ‘living probate’ in specific cases where the testator wants to ensure the will’s validity beforehand.”

Probate may be the only way to get an inheritance when:

• A compulsory heir is validly disinherited
• A non-compulsory heir is added
• There are specific provisions that might only be followed if the will is proved.

Probate has the effect of making sure that the division of the estate can be executed as specified in the will, and of making sure that that division is actually recorded in the land or asset registries that are affected. This then makes it much, much more likely that the Will is followed.

There are 2 types of probate:

• Probate filed after death of the will maker or testator
• Probate filed before death of the will maker

Either way, a last will and testament must be probated.

Probate confirms the will’s validity and ensures the will is not fraudulent or questionable.

It is only after probate that a will can be used to transfer either real or personal property.

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.  

After the trial, the decision is then used to execute the will’s provisions.

People assume that probate is done after a testator has passed.

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 Philippine Rules of Court actually allow a will to be probated while the testator – the person who made it – is still alive.

Rule 76, Section 1 of the Rules of Court allows any person interested in the estate of a deceased person or in the will of a living person to file a petition to have the will allowed, provided it’s a notarial will.

Thus, a last will and testament can be submitted for probate even while the person who made it is still living.

There are many benefits of probating while alive:

1. Clear proof that the will really belongs to the testator

Probating the will while the testator is alive obviously renders it beyond doubt that the will thus filed in court is really belongs to the testator.

The testator himself swears to the petition for probate prepared by counsel, submits an affidavit with the petition, and testifies to the will’s authenticity in court.

Anyone seeking to oppose the will shall therefore have far less ground to do so.

2. Procedural Advantages

A testator who files the petition for probate himself has several advantages:

• Among these is that newspaper publication will not be required in such cases.
• Streamlined service since 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.

3. Payment is done while the estate is not frozen

An estate is often frozen when the testator passes away, meaning that the funds that could be used to settle the estate come from the heirs.

Often the heirs simply do not have the cash to settle the estate since probate is expensive, with court filing fees at about 2% of the value of the estate.

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.

The benefits of probating while alive are clear.

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.  A such, it prevents possible inheritance disputes among the heirs and gives the testator control over the distribution.

The testator can also still modify or revoke the Will even after it has been probated by way of executing another Will revoking the previous one either expressly or implicitly.

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 after the testator passed away

It is here that the wisdom of having done probate ahead is borne out.

Here are the basic requirements for filing a Petition for Probate of Will:

1. The Petition Itself

Must be written, verified (sworn), and filed with the Regional Trial Court (RTC).

2. Contents of the Petition

• Full name, age, and address of the testator
• A statement that the will exists and is genuine.
• The names and addresses of the heirs, legatees, and devisees.
• The executor or administrator named in the will (if any).
• A general description of the estate (assets, properties).
• A prayer that the will be allowed (approved) and admitted to probate.

3. Attachments and Supporting Documents

• Original copy of the will
• Affidavit(s) of the subscribing witnesses (for notarial wills)
• Affidavits or documents proving mental capacity and due execution
• Sometimes, ID of the petitioner and certificates of property ownership
• Property documents proving ownership of the properties such as the Land Title and Tax Declaration
• PSA Family Documents proving the family relationship of the heirs such as Birth Certificates. Adoption papers as applicabl

4. Witnesses

• There must be several witnesses to attest to the testator’s wishes who must be able to go to court and who must be able to work with lawyer.
• If the testator is alive, then he should also present his testimony.

Step 1: Draft a legally sound will.

• It should be a written document, vetted by a Philippine lawyer with details of the testator’s heirs and beneficiaries, those of the estate’s intended executor or administrator, and the scope of the estate.
• A notarized will is preferred since it allows for multiple valid copies.

Step 2: File a petition for probate

• 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. A copy of the will should be submitted, along with the affidavits of intended witnesses (at least three credible individuals) 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.

Step 3: Court Trial and Hearing

• 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. 

Step 4: Court decision

• After the judge’s thorough adjudication, if approved, the will is officially recognized.
• The court will then release a decision which can be registered with the concerned asset registry bodies when it is Final after going through the estate settlement process at the BIR.

During probate, various challenges may arise, which is not uncommon in estate proceedings.

It is advisable to anticipate these potential issues to prepare appropriate solutions.

Below are some of the most common challenges that may need to be addressed during the probate process.

Challenge 1: Legal Disputes from Heirs

The heirs may contest the will, arguing influence or lack of mental capacity.

The solution for this is to ensure the will is notarized and reviewed by a lawyer.

Another is also to probate the will while the testator is still living and is of good health.

Challenge 2: Non-compliance with Philippine Law

So many Wills cannot be executed, because the testator did not obey Philippine law – there are limits as to how much you can give to an heir, improper compliance with how to disinherit.

In general, the reasons that Wills that are invalid are due to:

• Lack of knowledge
• Non-compliance with Legal formalities
• Misinformation from Non-Lawyers

The solution for this is to work with an experienced estate lawyer to ensure compliance and proper guidance.

Challenge 3: Will revocation Issue

For some cases, testators will change of heart that greatly affects the will authenticity.

The remedy for this is to clearly state the conditions for amendments or revocation in the will.

Q: Can I distribute my assets before death if my will is probated?

No, living probate only validates the will. Asset distribution happens after death.

Q: Can a probated will still be changed?

Yes, a testator can modify or revoke a will any time before passing.

Q: What happens if an heir contests the will during probate?

The court will evaluate the claim and determine if the contest has legal merit.