What is a last will? Is it necessary?

What is a Last Will? Is it necessary?

By Atty. Nikko G. Lagmay

Most of us have heard about a Last Will, or simply, a will. A will may be defined as a document drawn and signed by a person called the testator, containing his wishes on how his properties existing during his lifetime will be distributed among his heirs upon his death.

Under Article 783 of the Civil Code. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death.

Some of the advantages of executing a will are as follows:

You can decide how your properties shall be divided. Without a will, the government shall dictate to whom your properties shall be given.

You can choose the administrator of your will. An administrator is a person who shall see to it that your will is followed, and the properties are distributed in accordance with your instructions. Without a will, and if your heirs cannot extra-judicially settle your estate, the court will appoint an administrator. Imagine, it is possible that someone you do not know will appoint someone, whom you may also not know, to administer the properties of your estate.

It will avoid conflicts among the heirs. In not a few cases, siblings fight over specific properties, like a certain house. If you clarify in your will who among your heirs will receive said house, this situation may be avoided.

If you do not have a will, your legal heirs shall own portions of your entire estate. In other words, your heirs will be co-owners of your properties. Being co-owners of a property may also cause conflict with its use or disposal.

You can name additional heirs. If you have no will, only the legal heirs as provided under the law may receive your inheritance.

There are two types of wills, the holographic will, and the notarial will. Both have the same effects of disposing the properties of the testator in accordance with his written desire.

A holographic will is basically a handwritten will. For it to be valid, the document must be entirely written, dated, and signed by the testator himself. No witnesses are required to be present. It does not need to be notarized. Obviously, it must be written in a language or dialect known to the testator. The holographic will may be made anywhere in the world.

A notarial will on the other hand is a typewritten or printed will. It has more requisites. As a general rule, a notarial will must be subscribed at the end of the document by the testator himself. In addition, said will must be attested and subscribed by three or more witnesses in the presence of the testator and of one another. The testator is also required to sign each and every page of the will, except the last page, on the left margin. The law is also strict in stating that the pages of the will shall be numbered correlatively in letters placed on the upper part of each page. A notarial will must also contain an attestation clause, and the will must be notarized before a notary public by the testator including his witnesses.

A notarial will may have more stringent requirements and formalities, but its execution is easier to prove compared to a holographic will during probate proceedings.

A Probate Proceeding is a court proceeding wherein the testator, while he is alive, or the heirs, upon the death of the testator, presents the will of the testator before a competent court. The court will determine if the will and the manner of its execution are compliant with the law. Without undergoing probate proceedings, a will cannot transfer real or personal property. To illustrate, the heirs cannot go to the registrar of deeds to cause the transfer of a certain property of the testator without the judgment of the court allowing the will for probate.

An alternative to a will is a living trust.

If you want to prepare for your future and draft your will or a living trust, you may send the author an email at ngl@lordlaw.ph.

Greenhills family / estate planning lawyer.