Probate: Meaning
Quick answer
Probate is the court case in which a will is proved and allowed. Until a court allows it, a will cannot pass any property, even if everyone in the family agrees with it. Probate looks mainly at whether the will was properly made: whether it is genuine, follows the required form, and was made freely by a person able to make a will.
Also called: Allowance of a will
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 same article lets the testator ask the court to allow the will during his lifetime, and says that once allowed, subject to appeal, the allowance "shall be conclusive as to its due execution." See Article 838 for the full explanation.
What does the probate court decide?
In Gaspi v. Pacis-Trinidad (2020), the Supreme Court said that "the probate of a will only involves its extrinsic validity and does not delve into its intrinsic validity, unless there are exceptional circumstances". Extrinsic validity is about form and execution. Intrinsic validity is about whether the gifts in the will are allowed by law, such as whether they respect the legitime of compulsory heirs.
Under Article 839, a will is disallowed if the formalities were not followed, if the testator was insane or mentally incapable when making it, if it was made through force, duress, fear or threats, if it was procured by undue and improper pressure and influence, if the signature was procured by fraud, or if the testator acted by mistake or did not intend the document to be his will.
Who starts probate, and what must the person holding the will do?
Under Rule 76, Section 1 of the Rules of Court, any executor, devisee or legatee named in the will, or any other person interested in the estate, may petition the court after the testator's death. The testator may also petition while alive. Under Rule 75, Section 2, the person who has custody of a will must deliver it to the court or to the executor named in the will within twenty days after learning of the testator's death. Notice of the hearing is published in a newspaper, except when the testator himself filed the petition (Rule 76, Section 3).
What if there is a will and also a case without a will?
In Seangio v. Reyes (2006), the Supreme Court said that "the law favors testacy over intestacy" and that testate proceedings take precedence over intestate proceedings for the same estate. If no will is allowed, the estate passes under the rules of intestate succession.
Example
Made-up illustration: Lito's notarial will leaves his house to his daughter Ana. Until a court allows the will, the house does not pass under it. Lito's brother, who keeps the will, must deliver it to the court or to the named executor within twenty days after learning of Lito's death. Lito could also have asked the court to allow the will while he was alive.
For the form of each kind of will, see Notarial will requirements and Holographic will requirements. See also the inheritance topic.
For an overview, see wills and probate in the Philippines.
Which provisions use this term?
Frequently asked questions
What is probate in simple words?
It is the court process that proves that a will is genuine and was made with the formalities required by law, so that it can take effect. Under Article 838 of the Civil Code, no will passes real or personal property unless it is proved and allowed in accordance with the Rules of Court.
Can a will be followed without probate?
No. Article 838 says no will passes property unless it is allowed. In Seangio v. Reyes (2006), the Supreme Court said the probate of a will cannot be dispensed with.
Can a person have his own will probated while alive?
Yes. Article 838 lets the testator petition the court having jurisdiction for the allowance of his will during his lifetime.
What does the probate court check?
As a rule, only the extrinsic validity of the will: whether it is genuine, made with the required formalities, and by a person with capacity acting freely. In Gaspi v. Pacis-Trinidad (2020), the Supreme Court said the court looks at intrinsic validity only in exceptional circumstances.
When is a will disallowed?
Article 839 lists the cases: missing formalities, an insane or mentally incapable testator, force, duress, fear or threats, undue and improper pressure and influence, a signature procured by fraud, and mistake or lack of intention to make a will.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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