| Legal procedures in the probate of a last will: Rule 75 Production of Will; Allowance of Will Necessary Rule 76 Allowance or Disallowance of Will Rule 77 Allowance of Will Proved Outside of Philippines Rule 78 Letters Testamentary and of Administration of Estate Thereunder Rule 79 Opposing Issuance of Letters Testamentary; Petition and Contest for Letters of Administration Rule 80 Special Administrators Rule 81 Bonds of Executors and Administrators Rule 82 Revocation of Administration, Death, Resignation and removal of Executors and Administrators Rule 83 Inventory and Appraisal; Provision for Support of Family Rule 84 General Powers and Duties of Executors and Administrators Rule 85 Accountability and Compensation of Executors and Administrators Rule 86 Claims Against Estate Rule 87 Actions by and against Executors and Administrators Rule 88 Payments of the Debts of the Estate Rule 89 Sales, Mortgages, and Other Encumbrances of Property of Decedent Rule 90 Distribution and Partition of the Estate |
Sec. 1. Allowance necessary; Conclusive as to execution. - No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.The Register of Deeds will not transfer the titles of lands to the persons named in the will unless they submit the court order approving the will.
The Regional Trial Court of the place where the testator (the person who executed the last will) died has jurisdiction over the probate of the will.
Within twenty days after knowing of the testator's death, the person who has custody of the will must deliver the will to the court or to the person named in the will as executor. In case of that person’s refusal to deliver the will, the court can impose a fine or order that person’s imprisonment until it is delivered.
Who may petition for the probate of the will?
Section 1 of Rule 76 states:
Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed.What if a compulsory heir is omitted in a last will?
This situation leads to what is called in law as “preterition.” It is covered by Articles 854 and 855 of the New Civil Code of the Philippines.
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.Simply stated, the law protects the right of the omitted compulsory heirs. The heirs can ask the court to annul the institution of heirs in the will. As Article 855 states, their share will be taken first from the so-called free portion; if that is not sufficient to complete their legitimes, the deficiency will be taken proportionally from the shares of the other heirs.
If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.
Art. 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs.
No preterition if compulsory heirs are mentioned in the will but get less than what they are entitled to under the law
Preterition does not occur if the testator mentions the compulsory heirs in the last will but assigns to them an amount less than what they are entitled under the law. In this situation, the disadvantaged heirs can compel the other heirs to contribute until their legitimes are satisfied.
Depriving compulsory heirs of their inheritance
The only way for compulsory heirs to be deprived of their inheritance is through a valid disinheritance. Please read my posts:
