Article 838 of the Civil Code: Probate is required
Status: In force
What does Article 838 say?
No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator’s death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution.
What does it mean in plain language?
Article 838 of the Civil Code says that a will does not pass any property, land or otherwise, until a court proves and allows it under the Rules of Court. This court process is called probate. The person who made the will may also ask the court to allow it while still alive. Once allowed, and subject to appeal, the will is conclusive as to its due execution.
How does it work in real life?
Lito's house
Lito's will leaves his house to his daughter Ana. After Lito dies, Ana cannot use the will alone to transfer the house to her name. Until a court allows the will in probate, the house does not pass under it.
Probate while alive
Lito wants to avoid a fight among his children later. While he is alive, he may file a petition asking the court to allow his own will. If it is allowed, its due execution can no longer be questioned, subject to appeal.
A will signed under threat
Nora signs a will after a relative threatens her. If this is proved, the will is disallowed under Article 839(3), and her estate is shared under the rules for when there is no valid will.
These are made-up examples to show how the rule works. They are not advice for any real case.
What does this mean in practice?
- Probate is a court case. Which court hears it depends on the value of the estate under the law on court jurisdiction; costs and length vary and are not covered here.
- If a will is not allowed, or there is none, the estate passes under the rules of intestate succession. See who inherits if there is no will?
- When there is no will, heirs may in some cases divide the estate without going to court. See extrajudicial settlement of estate.
- A will that passes probate can still be questioned on what it gives away, for example if it cuts into the legitime. See Article 887 and legitime shares.
- For free or low-cost legal help, see where to find legal help.
- The term is explained in probate. For an overview of wills and probate, see wills and probate in the Philippines.
What does Article 838 say?
No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator’s death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution.
In plain words:
- A will must go through probate. Until a court allows it, the will transfers nothing.
- The testator may ask for probate while alive. The same court rules apply as after death.
- An allowed will is final as to its execution, subject to appeal. Once allowed, questions about whether it was properly signed and witnessed are closed.
Can the family skip probate?
No. In Seangio v. Reyes (2006), the Supreme Court said that because the law favors testacy (following a will) over intestacy, "the probate of the will cannot be dispensed with." The Court also said testate proceedings for the settlement of an estate take precedence over intestate proceedings for the same purpose.
What does the probate court check?
In Gaspi v. Pacis-Trinidad (2020), the Supreme Court said that probate "only involves its extrinsic validity", meaning the formalities and the testator's capacity and free will, and does not delve into whether the provisions of the will are themselves valid, unless exceptional circumstances require it. The Court also said that when there is no will, or a will that does not pass probate, the law provides the order of succession and each heir's share.
In Seangio, the Court listed the questions in probate: whether the document is the deceased's last will; whether it was executed with the formalities required by law; whether the testator had testamentary capacity when it was made; and whether making and signing it were voluntary acts.
When is a will disallowed?
Article 839 lists the grounds:
The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto.
The formalities in item (1) are those of Article 805 for notarial wills and Article 810 for holographic wills.
Frequently asked questions
What is probate?
It is the court process that proves and allows a will. Article 838 says no will passes real or personal property unless it is proved and allowed in accordance with the Rules of Court.
Can the heirs skip probate if everyone agrees with the will?
No. In Seangio v. Reyes (2006), the Supreme Court said that because the law favors testacy over intestacy, the probate of the will cannot be dispensed with.
Can a person have his or her will probated while still alive?
Yes. Article 838 says the testator may, during his lifetime, petition the court having jurisdiction for the allowance of his will.
What does the probate court decide?
As a rule, only the extrinsic validity of the will: whether it was executed with the formalities of law and by a person with capacity. In Gaspi v. Pacis-Trinidad (2020), the Court said probate does not delve into intrinsic validity, unless exceptional circumstances require it.
When is a will disallowed?
Article 839 lists six cases: formalities not followed; the testator was insane or mentally incapable; force, duress, fear or threats; undue and improper pressure and influence; signature procured by fraud; or the testator acted by mistake or did not intend the document to be his will.
Is the allowance of a will final?
Article 838 says that, subject to the right of appeal, the allowance of the will is conclusive as to its due execution.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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