Will vs Intestate Succession in the Philippines Compared

Short answer: With a will (testamentary succession), the deceased chooses who receives the estate, but only within limits: the legitime reserved by law for compulsory heirs such as children and the surviving spouse cannot be taken away except by valid disinheritance, and the will must go through probate in court before it can pass any property (Civil Code, Arts. 838, 886 and 904). Without a will (intestate succession), the law decides the heirs and their shares in a fixed order: descendants, ascendants, the surviving spouse, illegitimate children, siblings and nephews or nieces, other relatives up to the fifth degree, and finally the State (Arts. 960 to 1014). An intestate estate with no debts can be settled out of court by agreement of the heirs; an estate with a will cannot skip probate.

The two systems often operate together. If a will disposes of only part of the estate, the rest passes by intestacy, which is called mixed succession (Arts. 780 and 960).

Testamentary vs intestate succession at a glance

Question	With a valid will	Without a will
Who decides the heirs?	The testator, within the limits of the law	The law, in a fixed order (Arts. 978 to 1014)
Can compulsory heirs be left out?	No. Their legitime must be respected (Art. 904); omitting a compulsory heir in the direct line may annul the institution of heirs (preterition, Art. 854)	Not applicable; the law gives each heir a share
What can be freely given away?	Only the free portion left after the legitimes	Nothing; the whole estate follows the legal order
Can someone outside the family inherit?	Yes, from the free portion	Only relatives up to the fifth degree, then the State (Arts. 1010 and 1011)
Can an heir be disinherited?	Yes, but only in a will, for a cause stated in the law (Arts. 915 to 921)	No; disinheritance requires a will
Court process	Probate is mandatory before the will can pass property (Art. 838)	Extrajudicial settlement is possible if there are no debts and the heirs agree; otherwise judicial settlement
Typical time and cost	Longer and more expensive because of probate	Faster if the heirs cooperate
Main risks	Defective form, a contested probate, preterition, legitime impaired	Disputes over who the heirs are and how to divide the property

How testamentary succession works

A will can be notarial, signed by the testator and at least three credible witnesses on every page and acknowledged before a notary (Arts. 805 and 806), or holographic, entirely written, dated and signed by the testator’s own hand (Art. 810). See how to make a valid will.

The testator’s freedom is limited by the legitime. Compulsory heirs, chiefly legitimate children and descendants, legitimate parents and ascendants in their absence, the surviving spouse and illegitimate children, are entitled to fixed fractions of the estate (Art. 887). Only what remains, the free portion, can be left to anyone. See compulsory heirs and legitime.

No will passes property until a court allows it in probate (Art. 838), even if all the heirs accept it. See probate of a will, disinheritance and preterition.

How intestate succession works

Intestacy applies when there is no will, the will is void or has lost its validity, the will does not dispose of all the property, or the instituted heir cannot or will not inherit (Art. 960). The law then distributes the estate among relatives in order of priority: nearer relatives exclude more remote ones, subject to the right of representation (Arts. 962 and 970 to 977). The surviving spouse and illegitimate children concur with other heirs rather than being excluded by them.

Order	Heirs
1	Legitimate children and descendants, concurring with the surviving spouse and illegitimate children
2	If no descendants: legitimate parents and ascendants, concurring with the surviving spouse and illegitimate children
3	If there are no legitimate descendants or ascendants: illegitimate children and the surviving spouse. If there are no children of any kind, the surviving spouse shares with the deceased’s siblings and nephews or nieces (Art. 1001)
4	Siblings and their children (nephews and nieces)
5	Other collateral relatives up to the fifth degree (Art. 1010)
6	The State (Art. 1011)

The exact fractions depend on which heirs survive. See who inherits without a will, how inheritance is divided and representation by grandchildren.

How the estate is settled in each case

If the deceased left no will and no debts, and the heirs are all of age or represented, they may divide the estate by a public instrument filed with the Registry of Deeds and published in a newspaper of general circulation, without going to court; a bond equal to the value of any personal property is also filed (Rules of Court, Rule 74, Sec. 1). For two years after the distribution, an heir or other person unduly deprived of a lawful share can still go after the estate (Rule 74, Sec. 4). If there is a will, the heirs cannot use that shortcut; the will must first be probated. See extrajudicial settlement and judicial settlement. In either case, the estate’s debts and estate tax come before distribution. See the deceased’s debts.

When is a will worth making?

You want to leave the free portion to someone the law would not choose, such as a partner, a stepchild, a friend or a charity.
You want to allocate specific properties to specific heirs to avoid co-ownership disputes.
You have a legal ground to disinherit an heir.
You want to name an executor.

If your wishes match the legal order and your heirs are likely to cooperate, intestacy with an extrajudicial settlement is usually faster and cheaper.

Your options and what to do next

The route depends on two facts: whether there is a will, and whether the heirs agree and the estate has no debts.

Situation	Route	Where	Basis
There is a will	Petition for probate of the will, then settlement under the court’s supervision	Court	Civil Code, Art. 838
No will, no debts, all heirs agree	Extrajudicial settlement by public instrument, publication and, for personal property, a bond	Notary, then the Registry of Deeds	Rule 74, Sec. 1
No will, but debts or heirs disagree	Judicial settlement or an action for partition	Court	Rules of Court on settlement of estates
Heirs who are individuals disagree on partition	Barangay conciliation before a partition case, where the law requires it	Barangay where the property is located	RA 7160, Secs. 409(c) and 412
You are planning your own estate	Make a notarial or holographic will; you may also have it probated during your lifetime	Notary, or your own handwriting; court for lifetime probate	Arts. 805, 806, 810 and 838

Documents to gather after a death

The PSA death certificate.
The original will, if any. Search the deceased’s papers and ask the notary or lawyer who may have prepared it; a copy is not a substitute for the original.
PSA birth and marriage certificates proving each heir’s relationship to the deceased.
Certified true copies of land titles, tax declarations, bank and vehicle records.
A list of the deceased’s debts and the creditors’ contact details.

When heirs disagree: for heirs who are individuals living in the same city or municipality, a partition dispute generally goes to the lupon of the barangay where the property is located before a court case can be filed (RA 7160, Secs. 408, 409(c) and 412). Probate itself is a court proceeding, not a barangay matter. If you cannot afford a lawyer, the Public Attorney’s Office (PAO) assists clients who pass its indigency test.

First action today: find out whether a will exists. If one does, keep the original safe and take it to a lawyer or PAO to start probate; if none does, list the heirs and the property and see whether all heirs will sign an extrajudicial settlement.

Frequently asked questions

Can a parent leave everything to one child in a will?

No. The other compulsory heirs keep their legitimes. The parent may give that child the free portion in addition to the child’s own legitime.

If all the heirs agree with the will, can they skip probate?

No. Probate is mandatory; a will cannot pass property until a court allows it (Art. 838).

What happens to property the will forgot to mention?

It passes by intestate succession to the legal heirs (Art. 960(2)).

Primary legal sources

Sources rechecked as of: October 4, 2026

This guide provides general Philippine legal information and is not legal advice for a particular estate. Shares depend on the exact combination of surviving heirs.

Will vs No Will: Testamentary and Intestate Succession in the Philippines Compared