What is a last will and testament—and why is it wise to make one? Death is an emotionally charged experience for those left behind. This legal document offers guidance and clarity by stating your bequests, beneficiaries, and the person in charge of carrying out your wishes. This way, you can avoid tireless family arguments. Without a will, the law decides how your assets are distributed, which might not be your desired distribution, resulting in additional stress for your loved ones.
In the Philippines, anyone above 18 and of sound mind at the time of making the will can be a testator or a person who makes a will. The will can simply be handwritten, dated, and signed by the testator, known as a holographic will; or prepared with the help of a lawyer, witnessed, and notarized, known as a notarial or attested will. Married couples can also create a will without the consent of their spouses to express their final wishes regarding the distribution of their free portion of marital properties after their death.
What are the differences between a holographic and a notarial will?
A holographic will and a notarial or attested will are two different types of wills that vary in terms of their legal requirements and execution process. Here are the key differences between the two:
- Legal Requirements
A holographic will is a handwritten will that is entirely written, dated, and signed by the testator. It does not require witnesses or notarization. However, it must meet specific criteria, such as being entirely in the testator's handwriting, the testator knows the nature and bounty of his/her properties, clear in his/her intentions, and showing testamentary capacity.
A notarial or attested will is a will that is typically prepared by a lawyer and witnessed by three or more credible witnesses who are present when the testator signs the will, compliant with the formalities as required by law. The will must also be notarized by a notary public. The witnesses' presence and notarization provide additional legal validity and authenticity to the will.
- Witness Requirements
A holographic will does not require witnesses. It is solely written and signed by the testator.
A notarial or attested will must have at least three credible witnesses who are present during the signing of the will. The witnesses must be competent (not suffering from any disqualification/s) and of legal age. Their role is to witness the testator's signature and confirm the validity of the will.
- Notarization
A holographic will does not require notarization; however, during probate, a witness who knows the handwriting of the testator must be present for the allowance of the holographic will.
A notarial will must be notarized by a notary public. The notary public verifies the identity of the testator, witnesses the signing of the will, and affixes a seal or stamp to validate the document.
- Legal Formalities
A holographic will is less formal and can be created by the testator without the need for legal assistance. However, it must meet specific requirements to ensure its validity and enforceability.
A notarial will requires the involvement of legal professionals, such as lawyers and/or notaries, to ensure compliance with legal formalities and to provide legal advice during the drafting process.
- Probate Process
The probate process for a holographic will can be more complex and time-consuming compared to a notarial or attested will. Since holographic wills lack witnesses and notarization, there may be challenges in proving its authenticity and carrying out the testator's intentions.
For a notarial will, the probate process is typically smoother and more straightforward. The involvement of witnesses and notarization provides additional legal validity, making it easier to establish the authenticity of the will and carry out the testator's wishes.
You may also consider an ante mortem probate, or Probate Proceedings while alive. In this way, the testator can testify at Probate Court as to his/her intentions and the validity of the will.
What are the components of a notarial or attested will?
- Introduction and declaration of capacity
The first part introduces the document as the last will and testament of a particular testator, who states that they are of sound mind and legal age to craft a will.
- Designation of executor
The testator assigns an executor responsible for implementing their instructions in the Will.
- Allocation of assets and other instructions
Here, the testator gives instructions on how his/her estate will be distributed among heirs and beneficiaries for specific bequests like particular asset/s and amount/s of money, as well as other instructions such as fideicommissary, pactum commissorium, and disinheritance.
Fideicommissary is when the testator leaves a property to a beneficiary, with the condition that upon said beneficiary’s death, the property will be passed on to another beneficiary. Pactum commissorium is the automatic appropriation of the things given by way of pledge or mortgage in case of non-payment of principal obligation. Disinheritance is depriving the testator’s legal heir/s from inheriting by excluding them from the will.
- Outstanding balances
Wills can address how the estate can be used to pay unsettled debts, taxes, and funeral expenses.
- Provision of an Executor
An executor must be named.
- Signatures of the Testator
The testator must sign the document in the presence of at least three credible witnesses.
- Attestation
Where the three credible witnesses shall attest to the testator’s capacity and execution of the will in their presence, among others.
- Notarization
The will should be signed, witnessed, and officially acknowledged before a notary public.
Do the heirs automatically inherit the deceased’s estate?
No. For the last will and testament to be carried out, a judicial proceeding, called probate (as discussed above), must be conducted. The probate assesses the validity of the will, particularly its legality and fulfillment of requirements. The testator can initiate the probate while still alive, or it can be done by the heirs, the executor, or interested parties after the testator’s passing.
Can someone challenge a final will and testament?
Yes, anyone who has an interest in the Testator’s estate may oppose. The court may invalidate a will based on the following conditions, among others, to wit:
- It didn’t meet lawful requirements.
- The testator was mentally incompetent at the time they made the will.
- The testator was coerced, threatened, or under duress when making the will.
- The testator’s signature is fraudulent.
- The testator did not intend for the document they signed to be considered their will.
How long is the validity of the last will and testament?
It remains valid unless the testator revokes it or the court disallowed the same.
Is it advisable that you write a last will and testament?
A lot of Filipinos think that wills are only for the wealthy. However, writing one offers several benefits, such as having the power to dictate your property allocation and avoiding possible conflicts among your heirs and beneficiaries. Moreover, you can only exclude a mandatory heir through a will by Disinheritance.
But you may skip writing a will if you possess only a few properties and plan to give them to your compulsory heirs in equal shares.
How do you make a notarial last will and testament?
While holographic wills require pen, paper, and handwriting, notarial wills are a bit more complex. Follow these steps:
- Seek assistance from a counsel or you may search for templates online
You can always secure a template from your lawyer or notary public, or you may search online. There are editable and free templates online, which you can download and serve as your basis in crafting your dispositions.
- Fill out all the necessary details
These typically include your personal information, specific list of your properties, how you want them distributed among your beneficiaries, your executor and their possible substitute, and the personal details of your witnesses.
- Make copies of your will
Doing so ensures that your will is readily accessible to your executor and loved ones. Also, copies serve as backups in case the original copy is lost.
- Sign it
One of the technicalities of a will is it should be signed in front of witnesses and a notary public. It cannot be pre-signed. Sign on the left side of every page, except the last one, where you will sign on a specific portion. Your witnesses will also affix their signatures the same way.
- Have it notarized
Once you’ve signed your will, the notary public will notarize it in accordance with the law.
Crafting a last will and testament is legally sound and shows your care and consideration for your loved ones. By taking the time to document your intentions, you make things easier for those you leave behind. So, embrace this opportunity to shape your legacy and ensure your last wishes are respected.
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