• 3D Legal Solutions

Making a Will during Quarantine

Updated: Mar 31, 2020



Philippine citizens and foreigners residing in the Philippines may write their will even without any assistance from a lawyer or notary public, as long as it is written in the form required by law. Principles of private international law recognize wills drafted using the form allowed by the country where the person resides.

In the Philippines, there is only one type of will which does not need the seal of a notary public to make it valid and binding. This is the "Holographic Will.”


This step-by-step guide is only for Filipino citizens and foreigners residing in the Philippines . If the person has properties abroad, then there may be laws from that jurisdiction that may apply. In those cases, consult a lawyer.

THE FORM OR FORMAT

A Holographic Will must be entirely handwritten, dated, and signed by the person making the will – called the “testator.” If it is not dated or signed at the end, then it is not valid as a will. There is no need to get witnesses or notary public.


There is no requirement to put it in long bond paper. Any clean sheet of paper will do, for as long as anyone can see that the testator clearly intended to give his heirs their inheritance. For this reason, be sure to destroy any other initial drafts which were made in case they might be found.


There is no format with regard to the way the will should be written. It just has to be clear that the document is a last will and testament. It can be written in plain language. In fact, it is better to use plain language to avoid any confusion. Make sure that you describe the property you are giving. Here is a simple format that is legally binding and straightforward:


LAST WILL AND TESTAMENT


This is my last will and testament. I give A my car with plate number CAR123. I give A, B, and C, my house and lot located at 1 Dela Cruz St., Malate, Manila I give C the land located at 2 Rizal St., Sta. Cruz, Manila (TCT No.67890). I give A the cash in my bank account amounting to P1,000,000 (ZZZ Bank Acount no. 222-2222-22). I give B condominium unit 10-B at XYZ Condominium, 3 Rizal St., Sta. Cruz, Manila.

[DATE] [Printed name and signature]


Sometimes, the testator might change his mind. Or sometimes, he realizes that he has other properties than he could give to others after he had already signed his will. In cases like those, the testator can write any other provision or changes AFTER his written signature. But the changes or additional dispositions are only valid if he signs again at the end of the new provisions.

The rule is to ALWAYS sign at the end of the Holographic Will.


If the testator decides to make changes, erasures, or alterations in the Holographic Will, he may do so. BUT, he must sign his FULL SIGNATURE at the area where he made the change, erasure, or alteration. Note that the law requires the testator’s full signature, not just initials.

Upon the testator's death (or even before it), the heirs must file for probate proceedings. In the probate proceedings of a Holographic Will, the heirs must present at least one witness who knows the handwriting and signature of the testator. The witness will testify that the will and the signature are in the testator’s handwriting. If the will is contested, the heirs will need to present three witnesses.


The next rules are only for Philippine citizens.

Legal Rules in giving away inheritance (For Philippine citizens only)

The law requires the testator to give a share of his estate (inheritance) to certain persons. These persons are called Compulsory Heirs. The rest of the property, called the “free portion,” may be given to other persons. If a testator has no compulsory heirs, then the entire property is considered a free portion which he can give away to any person.

The share of the inheritance which is reserved for the compulsory heirs is called the “legitime.” The legitime depends on how many the compulsory heirs are and their relationship to the testator. They are:

  1. Legitimate children and descendants (if the legitimate children has died, then the grandchildren inherit the share of their respective parent); and if there are no legitimate descendants, then the testator’s parents inherit the property (or if the parents have died, then their respective shares goes to the grandparents)

  2. The spouse of the testator

  3. Illegitimate children (they only get half of whatever a legitimate child gets)

COMPLETE LIST OF LEGITIME SHARES


The following are the different permutations for the legitime and free portion, if any. Only one of these choices will apply to the testator. Select the which one applies:

  1. Only legitimate children. If the testator has no spouse and has only legitimate children left to inherit his property, the legitime consists of half of the entire estate of the testator. The testator can dispose of the other half is considered the free portion, which he could dispose of as he pleases. The same rule applies if he has no legitimate children, but still has parents. Note that if the testator has BOTH legitimate children and parents, then the parents get nothing. The legitime is for the children.

  2. 1 legitimate child and 1 illegitimate child. If the testator has 1 legitimate child, and 1 illegitimate child, then the legitimate child gets ½ of the entire estate. The illegitimate child gets ¼ of the estate. The testator is left with ¼ of the estate as the free portion to give away.

  3. 1 legitimate child and 2 or more illegitimate children. If the testator has 1 legitimate child and several illegitimate children, then the legitimate child gets ½ of the estate. The illegitimate children will share in the rest of the estate. There will be no free portion.

  4. 2 or more legitimate children and 1 illegitimate child. If the testator has several legitimate children and 1 illegitimate child, then the legitime of the legitimate children is half of the entire estate. The legitimate children will share equally in that half. The illegitimate child is entitled only to ½ of what a legitimate child will get. The remainder is the free portion which the testator can dispose of as he wishes.

  5. 2 or more legitimate children and 2 or more illegitimate children. If the testator has several legitimate and illegitimate children, then the legitime of the legitimate children is half of the entire estate. The legitimate children will share equally in that half. The illegitimate children will be ½ of what each legitimate child will get. The remainder shall be the free portion. However, if it turns out that there is a large number of illegitimate children that the share goes beyond the designated portion, then the shares of the illegitimate children are reduced equally. For example, if an estate worth ₱1 million has 2 legitimate children and 10 illegitimate children, then the division will be as follows: ₱500,000 as share of the legitimate children (at ₱250,000 per legitimate child). Normally, an illegitimate child would be given half of what a legitimate child would get (₱125,000). However, that amount would go beyond the remaining ₱500,000. The 10 illegitimate children would have to share in the remaining ₱500,000. That would leave them with ₱50,000 each. There is no remaining free portion.

  6. No legitimate children but with illegitimate children. If the testator has no legitimate children but has illegitimate children, then the legitime for the illegitimate children is ½ of the entire estate. The remaining ½ of the estate is the free portion which the testator can dispose of to whom he wishes.

  7. Legal spouse and 1 legitimate child. If the testator has a surviving legal spouse and 1 legitimate child, the child gets half of the estate. The surviving legal spouse gets ¼ of the estate. The remaining ¼ is the free portion which the testator can give to whom he pleases.

  8. Legal spouse and several legitimate children. If the testator has a legal spouse and several legitimate children, the legitimate children get half of the estate, divided equally amongst themselves. The surviving legal spouse gets the same share as that of the legitimate children. The remainder is the free portion which the testator can distribute as he wishes.

  9. Legal spouse, 1 legitimate child, and 1 illegitimate child. If the testator has a legal spouse, 1 legitimate child, and 1 illegitimate child, the legitime of the legitimate child is ½ of the entire estate. The spouse gets 1/4 of the remainder of the estate. The illegitimate child gets the remaining ¼. There is no free portion.

  10. Legal spouse, 1 legitimate child, and 2 or more illegitimate children. If the testator has a legal spouse, 1 legitimate child, and several illegitimate children, then the legitimate child gets ½ of the entire estate. The legal spouse gets ¼ of the estate. The illegitimate children share in the remaining ¼. There is no free portion.

  11. Legal spouse, 2 or more legitimate children, and 2 or more illegitimate children. If the testator has a legal spouse, several legitimate children, and several illegitimate children, then the legitimate children get half of the entire estate, divided equally among them. The legal spouse gets a share equal to one legitimate child. The illegitimate children get ½ of the share of a legitimate child to be taken from the remainder of the estate. If there is anything left, then this is a free portion which the testator can give to whomever he wants. However, if there is a large number of illegitimate children, that the remaining portion is not enough, then the share of the illegitimate children shall be reduced. For example, if an estate worth ₱1 million has 2 legitimate children, a legal spouse, and 10 illegitimate children, then the division will be as follows: ₱500,000 as share of the legitimate children (at ₱250,000 per legitimate child). The legal spouse will get the same share as a legitimate child (₱250,000). Normally, an illegitimate child would be given half of what a legitimate child would get (₱125,000). However, that amount would go beyond the remaining ₱250,000. The 10 illegitimate children would have to share equally in the remaining ₱250,000. That would leave them with ₱25,000 each. There is no remaining free portion.

  12. Legal spouse, no legitimate children, and with illegitimate children. If the testator has a legal spouse and illegitimate children, then the illegitimate children get 1/3 of the entire estate. The spouse gets 1/3 of the estate. The testator has a free portion of 1/3 of the estate to give as he pleases.

  13. Legal spouse and legitimate ascendants (parents or grandparents) and illegitimate children. If the testator has a legal spouse, legitimate ascendants (parents or grandparents) and illegitimate children, then the legitimate ascendants get ½ of the estate. The spouse gets 1/8 of the estate. The illegitimate children get ¼ of the estate which they will share equally. The remaining 1/8 of the estate is a free portion which the testator can give away as he pleases.

  14. Legitimate ascendants (parents or grandparents) and illegitimate children. If the testator has legitimate ascendants (parents or grandparents) and illegitimate children, then the legitimate ascendants get ½ of the estate. The illegitimate children get ¼ of the estate, which they shall divide equally among themselves. The remaining ¼ of the estate is a free portion which the testator may distribute as he pleases.

  15. Legal spouse and legitimate ascendants. If the testator has a legal spouse and legitimate ascendants (parents or grandparents), then the legitimate ascendants get ½ of the estate. The legal spouse gets ¼ of the estate. The remaining ¼ is a free portion which the testator may distribute as he pleases.

  16. Legal spouse only. If the testator has a legal spouse, then the spouse gets ½ of the entire estate. The other half is a free portion which the testator may distribute as he pleases.

  17. Legal spouse and illegitimate parents. If the testator has a spouse and illegitimate parents (meaning that the testator is an illegitimate child), the illegitimate parents get ¼ of the estate. The legal spouse gets ¼ of the estate. The remaining ½ of the estate is a free portion which the testator may distribute as he pleases.


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Author: PM Dizon

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