It’s all over the news lately — the untimely death of Kobe Bryant. Who doesn’t know Kobe Bryant? He was a basketball legend, a loving husband, a doting father, a good friend, and a positive inspiration to many. Who would have thought that in a snap, he would be gone… for good. No one anticipated it. No one.
I am sure Kobe Bryant’s sudden death made many of us realize how fragile life truly is. No one knows how long we will stay here on earth. Only HE knows. That is why it is important to live our life to the fullest. As they always say, “Live each day as if it’s your last.” And part of that is making preparations each day until that last day finally comes.
This may not be a concern to all, but for those who are blessed with profitable businesses, multiple properties and a lot of money to spend, like Kobe Bryant, thinking of the ones who will be left behind after one’s death, is inevitable. The last thing anyone would want to happen is for the family to fight over these properties. To avoid this sad but real-life situation, having a last will and testament or simply, a “will”, is highly recommended.
Having a will allows you to dictate which properties go to each of your family members. You can even give properties to friends or non-relatives, subject to certain limitations. The real purpose of this article is to spread awareness to all and share basic information to those who desire to make a will, but still do not know where and how to start. Let’s start with the basics, shall we?
What is a will?
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. (Art. 783, Civil Code of the Philippines)
What are the kinds of wills?
There are two (2) kinds of wills – the notarial will and holographic will. Both have different requirements and formalities, which must be followed in order to be considered a valid and enforceable will.
What is a notarial will?
A notarial will must comply with the following requirements:
(1) It must be subscribed at the end thereof by the testator* himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.
*Testator – the deceased person and owner of the will.
(2) The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.
(3) The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the said witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.
(4) If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (Article 805, Civil Code of the Philippines)
(5) It must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. (Article 806, Civil Code of the Philippines)
What is a holographic will?
It is a will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed”. (Article 810, Civil Code of the Philippines)
While notarization is required in a notarial will, this is not the case for a holographic will.
What are the prohibitions in a will?
(1) While a testator can freely choose his/her heirs, he/she cannot ignore/leave out/disinherit (without any valid cause) the rightful heirs, a. k. a. compulsory heirs. The compulsory heirs are the following:
(a) Legitimate children and descendants, with respect to their legitimate parents and ascendants;
(b) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;
(c) The widow or widower;
(d) Acknowledged natural children, and natural children by legal fiction;
(e) Other illegitimate children. (Article 886, Civil Code of the Philippines)
If the testator has no compulsory heirs, he/she may dispose by will of all his/her estate or any part of it in favor of any person having capacity to succeed. (Article 842, Civil Code of the Philippines)
(2) Every disposition in favor of an unknown person shall be VOID, unless by some event or circumstance his/her identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. (Article 845, Civil Code of the Philippines)
(3) The dispositions of the testator declaring all or part of the estate inalienable* for more than twenty years are void. (Article 870, Civil Code of the Philippines)
*Inalienable – cannot be sold or transferred to someone else
(4) A testator cannot impose impossible conditions and those contrary to law or good customs. (Article 873, Civil Code of the Philippines)
(5) An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the latter’s ascendants or descendants. (Article 874, Civil Code of the Philippines)
(6) Any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person shall be VOID. (Article 875, Civil Code of the Philippines)
(7) Joint wills are prohibited.
Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (Article 818, Civil Code of the Philippines)
What is a probate proceeding?
A probate is a special court proceeding to determine the validity of a will. Before any disposition stated in a will is effected, the will must first be probated, as it is a mandatory requirement. Once the will is declared as valid by the probate court, settlement of claims will follow before the heirs get their respective shares.
What happens if a person dies without a will or with an invalid will?
Legal or intestate succession takes place if a person dies without a will, or with a void will, or one which has subsequently lost its validity. It will be the law that will decide who will get what and how many or how much.
I wonder if Kobe Bryant left a will. I hope he did. He had amassed a big fortune during his lifetime. It would be awesome if the truly deserving (apart from his compulsory heirs) gets a fair share of that wealth, especially if that is what Kobe Bryant really intended.
Hope you find this post useful. Until next time! This is Attorney Mommy, at your service!
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