Making a Will in the Philippines

Who Can Make a Will

Under the Civil Code, anyone the law does not bar may make a will. You must be at least 18 years old and of sound mind when you make it, meaning you know what property you have, who your family members are, and what the will does.

Each person makes their own will. The Civil Code prohibits two or more people, including spouses, from making a joint will in one document.

The Notarial Will

A notarial (attested, meaning witnessed) will must follow Articles 804 to 808 of the Civil Code strictly:

• It is in writing and in a language or dialect you know.
• You sign it at the end (or someone signs your name in your presence and at your clear instruction), in the presence of at least three credible witnesses, who also sign in your presence and in the presence of each other.
• You and the witnesses sign every page on the left margin (except the last), and the pages are numbered in letters on the upper part.
• It has an attestation clause (a closing paragraph signed by the witnesses) that states the number of pages and that the signing happened the way the law says.
• You and the witnesses go before a notary public and confirm that you signed it (this is called an acknowledgment). The Supreme Court has held that the notary cannot also count as one of the three witnesses, since a person cannot confirm a signing before themselves.

Witnesses must be of sound mind, 18 or older, able to read and write, and not blind, deaf or mute. A witness who is also given something in the will may lose that gift, so choose witnesses who will not inherit. If you are blind, the will must be read to you twice, once by a witness and once by the notary.

A lawyer should draft a notarial will. A defect in the attestation clause or the page signatures can make the whole will void. See what notaries charge for a will.

The Holographic Will

Under Article 810, a holographic will must be entirely written, dated and signed by your own hand. Nothing else is required: no witnesses, no notary, and it can be made in or out of the Philippines.

• Do not type or print any part of it. A typed holographic will is not valid.
• Write the full date.
• Sign it at the end. Sign or initial any later additions or corrections you make by hand.

The catch comes later: at probate (the court case that approves a will), people who know your handwriting must testify that it is yours. If someone challenges a holographic will, more witnesses or a handwriting expert may be needed. Keep it somewhere safe and tell someone you trust where it is.

Compulsory Heirs and the Legitime

You cannot give away all your property (your estate) as you wish if you have compulsory heirs (family members the law protects). The Civil Code reserves a share, called the legitime, for:

• your legitimate children and descendants (grandchildren and so on);
• your legitimate parents and ascendants (grandparents and so on), if you have no legitimate children;
• your surviving spouse; and
• your illegitimate children.

For example, legitimate children together get half of the estate as their legitime. The spouse's and illegitimate children's shares depend on who else survives you. Only the part left after the legitimes, the free portion, can go to anyone you choose.

You can only disinherit (cut out) a compulsory heir for a cause the law lists, stated in the will. Leaving out a child entirely, by mistake or on purpose, can upset the whole distribution. These rules are where a lawyer's help matters most.

Probate: Why a Will Needs a Court

Article 838 says no will passes any property until it is proved and allowed in court. This is probate. After death, the person holding the will must deliver it to the court or to the executor (the person named to carry out the will), and the court checks that it was properly made and that you were legally able to make it. Only then are the debts paid and the property divided.

You can also ask a court to probate your will while you are alive, which settles questions about how it was made early.

Probate is a court case and needs a lawyer. If you cannot afford one, the Public Attorney's Office (PAO) helps people who qualify. Estate tax is a separate matter: see settling an estate and the estate tax calculator.

Changing or Revoking a Will

You can cancel (revoke) your will at any time before death. The Civil Code allows this:

• by a later will or a codicil (an addition) signed with the same formal steps;
• by burning, tearing, cancelling or blotting it out, by you or by someone in your presence and at your clear instruction, meaning to cancel it; or
• in cases the law itself provides.

Do not write changes on a notarial will. Make a new will or a proper codicil instead.