Probate proceeding establishes validity of will

Dear PAO,

I am a real estate agent with a permit from PRC. I want to assist my godfather’s extra-judicial settlement with last will. May we know the legal procedures and requirements to apply for probate of his documents. Does he need to have a private legal counsel? My godfather is a Filipino-American citizen. We hope that you can give us a hand. Thank you and God Bless.

Carolina Dear Carolina,

To answer your query, it is important that we first clarify the nature of an extra-judicial settlement. You mentioned that you intend to divide the estate of your godfather through an extra-judicial settlement. However, considering that your godfather left a will, the option of extrajudicial settlement is not possible. There are conditions set by law before one can resort to an extra-judicial settlement. Among these conditions is that there should be no will left by your godfather as the decedent (Rule 74, Section 1, Rules

of Court). Thus, the presence of a will disallows that possibility of an extra-judicial settlement.

The proper action is for the probate of your godfather’s last will. Probate proceeding is a special proceeding mandatorily required for

the purpose of establishing the validity of the will. The law requires that no will shall pass either personal or real property unless it is proved and allowed in accordance with the Rules of Court (Civil Code of the Philippines, Article 838). According to the Supreme Court, probate of a will cannot be dispensed with and substituted by another proceeding, judicial or extra-judicial, without offending public policy (Guevara vs. Guevara, G.R. No. L

48840, December 29, 1943). Thus, extra-judicial settlement cannot prevail over a probate proceedings.

With regard the procedure for the probate of a will, the Rules of

Court provides that 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 (your godfather), petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed

(Rule 76, Section 1, Rules of Court). The venue for filing of the petition for probate is in the Regional Trial Court of the place where your godfather resides at the time of his death (Rule 73, Section 1, Id).

The court shall then fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published in a newspaper of general circulation in the province. The court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator resident in the Philippines at their places of residence, and deposited in the post office

(Rule 76, Section 3,4, Id.).

If the court is later satisfied, upon proof, that the will was duly executed, and that your godfather at the time of its execution was of sound and disposing mind, and not acting under duress, menace, and undue influence, or fraud, a certificate of its allowance, signed by the judge, and attested by the seal of the court shall be attached to the will and the will and certificate filed and recorded by the clerk of court. Attested copies of the will devising real estate and of certificate of allowance thereof, shall be recorded in the register of deeds of the province in which the properties lie (Section 13, Id).

With regard the need for a private legal counsel, you may seek assistance from either private or public legal counsel considering the probate proceeding requires petition to be filed in court.

Lastly, since your godfather is a Filipino-American citizen, he may have executed a will outside the Philippines. In this case, the will must first be allowed and proven in our courts by showing that the will was validly executed in accordance with the laws of the country where it was made. Upon compliance with the foregoing, a certificate of allowance shall be issued by the court and the will shall have the same effect as if originally proved and allowed in such court (Rule 77, Section 3, Rules of Court).

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.