ALLOWANCE OF WILLS (PROBATE)
KINDS OF PROBATE:
What will you do if you find a will? What are
the steps that we should do with respect to
this will?
PROBATE
1. A special proceeding mandatorily
required for the purpose of establishing
the validity of a will.
2. An act of proving before a competent
court the due execution of a will by a
person possessed of testamentary
capacity, as well as approval thereof by
said court.
PURPOSE AND SCOPE
To secure a final decree on the:
a) Testamentary capacity of the testator
(at least 18;sound mind);
b) Due execution (formalities and absence
of any grounds for disallowance)
Once you have the decree, that decree will
prove that the will is duly executed in
accordance with the law.
NECESSITY OF PROBATE
1) No will shall pass either real or personal
property unless it is proved and allowed
in accordance with the Rules of Court.
(Art. 838)
2) It is a proceeding in rem which cannot
be dispensed with without offending
against a public policy designed to
effectuate the testator’s right to
dispose of his property by will in
accordance with law and to protect the
rights of the heirs, legatees and
devisees under the will through the
means provided by law.
“When there’s a will, there’s paybtawsan.”
1) ANTE MORTEM – during the lifetime of
the testator
But the testator can always execute another
one.
Advantage:
The testator will file the probation thus, if
there are defects, he can still correct. The
court can readily determine if the testator is
of sound mind.
2) POST MORTEM – after the death of the
testator
IMPRESCRITIBILITY OF PROBATE
Primarily for the express wishes of the
testator.
Situation:
If the testator died today, 10 or 20 yrs
therafter, the heir discovers the will, that heir
can file petition for probate.
The oppositors cannot raise the real defense
of prescription.
REMEDY
1. To petition for the production of the will
and for its probate
2. To inflict upon the guilty party the
penalties prescribed by Rule 75 of the
Rules of Court.
3. To declare the unworthiness of the heir
under Art. 1032 for concealing or
suppressing the will.
COURT WHICH HAS JURISDICTION OF
SETTLEMENT OF ESTATE:
It depends on the gross value of the estate:
1. MTC – gross value does not exceed
Ph300k (outside metro manila) or does not
exceed Php400k (in Metro Manila)

2. RTC – if the gross value of the estate

exceeds the abovementioned amounts.

VENUE IN JUDICIAL SETTLEMENT OF

ESTATE

It depends:

1. If the decedent is an inhabitant of the

Philippines (whether citizen or alien) at the
time of his death – court of the province or
city where he resides at the time of his
death.

2. If the d

Residence – actual or physical place of

abode of the deceased.

NATURE OF PROBATE PROCEEDINGS:

1. In rem
2. Mandatory
3. Imprescriptible
4. Doctrine of estoppel does not apply

WHO MAY FILE A PETITION FOR

PROBATE?

1. Executor named in the will

2. Devisee or legatee named in the will
3. Any other person interested in the
estate; or
- an interested party is one who
would be benefited

Once you file the petition for probate, the

next thing is to prepare your petition.

“When there’s a will, there’s paybtawsan.”