My father left a will naming us as heirs — can we just divide his property among ourselves without going through court first?

The will is inert until it is allowed

No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. This is not a filing formality that can be caught up later. Until allowance, the instrument transfers nothing, which is why a registry will not act on it and a buyer's counsel will not accept it. Families often assume the opposite because the will reads like a deed and everyone agrees with what it says. Agreement among the heirs is worth a great deal, but it does not supply the one thing the article makes indispensable, and it does not bind a creditor or a relative who was left out.

What allowance settles, and what it leaves open

The same article ends by providing that, subject to appeal, the allowance of the will shall be conclusive as to its due execution. Read that limit carefully. Due execution means the will was validly made — the formalities, the capacity, the absence of the vitiating circumstances Article 839 lists as grounds for disallowance. It does not decide who owns each asset, whether a particular disposition is lawful in substance, or how the estate's debts are to be met. Those questions remain, which is why an allowed will is the beginning of a settlement rather than the end of one.

Probate while the testator is alive

Article 838 also permits something families rarely use: the testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. The advantage is obvious once stated. The one witness who can speak to his own capacity and intentions is available, and the allowance is conclusive as to due execution just as it would be after death — which forecloses the capacity and formalities arguments before anyone has a motive to raise them. Where a parent is elderly, unwell, or expects the will to be resented, this is worth raising with counsel while there is still time.

What the heirs may do in the meantime

They are not in limbo. Article 1078 provides that Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. So the property can be preserved, maintained and administered as common property while the settlement runs. What should not be done casually is dividing it, because Article 1082 treats Every act which is intended to put an end to indivision among co-heirs and legatees or devisees as a partition whatever the paper calls itself. Establish the debts, secure the original will, and take advice before signing anything that allocates assets.

Cases citing this provision

These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.

• Spouses Ricardo Pascual and Consolacion Sioson vs. Court of Appeals, et al, G.R. No. 115925, August 15, 2003 — read the decision on LawPhil →
• In the matter of the petition for the probate of the will of Consuelo, G.R. No. 204793, June 8, 2020 — read the decision on LawPhil →
• Dolores L. Hacbang and Bernardo J. Hacbang vs. Atty. Basilio H. Alo, G.R. No. 191031, October 5, 2015 — read the decision on LawPhil →
• Alejandra Arado, et al. vs. Anacleto Alcoran and Elenette Sunjaco, G.R. No. 163362, July 8, 2015 — read the decision on LawPhil →

Related provisions

• Civil Code, Article 838 — No Will Passes Property Until Probated
• Civil Code, Article 839 — Grounds to Disallow a Will
• Civil Code, Article 1078 — Co-Ownership Before Partition
• Civil Code, Article 1082 — Any Act Ending Indivision Is a Partition