Barops08 Rem Specpro

8/14/2019 Barops08 Rem Specpro

1/40

1 0 0 % U P L A W1 0 0 % U P L A W1 0 0 % U P L A W1 0 0 % U P L A W U P B A R O P S 2 0 0 8 Page 1111 of 40404040

SPECIAL PROCEEDINGS REMEDIAL LAW

I. PRELIMINARY MATTERSDEFINITION

SPECIAL PROCEEDINGS A remedy bywhich a party seeks to establish a status, rightor a particular fact. [Rule 1, Sec. 3(c)

]

APPLICABLE RULES

If special rules are provided, they shall apply.But in the absence of such special provisions,the rules applicable in special proceedings shallbe applied. [Rule 72, Sec. 2

] There are special proceedings which are not

part of the ROC (e.g. Writs of amparo andhabeas data), as special proceedings are ingeneral cases wherein one seeks to establishthe status/right of a party or a particular fact.

The State has an overriding interest in eachspecial proceeding, and the matter is not acontroversy between private parties purely.[Bautista]

The distinction between final and interlocutoryorders in civil actions for purposes ofdetermining the issue of applicability, is notstrictly applicable to orders in specialproceedings. Rule 109 specifies the orders fromwhich appeals may be taken. [Regalado]

Rule 33 regarding judgment on demurrer toevidence is applicable to special proceedings.[Matute v. CA (1969)

]

ORDINARY ACTIONS VIS--VIS SPECIALPROCEEDINGS

Ordinary action Special proceeding

To protect/enforce a rightor prevent/redress awrong

To establish a right/statusor fact

Involves 2 or moreparties

May involve only 1 party

Governed by ordinaryrules, supplemented byspecial rules

Governed by specialrules, supplemented byordinary rules

Initiated by a pleading,and parties respond

through an answer

Initiated by a petition,and parties respond

through an opposition

VENUES AND JURISDICTIONS FOR

DIFFERENT SPECIAL PROCEEDINGS

Venue Jurisdiction

Estate settlement

Province of decedent'sresidence at the time ofdeath

MTC - If estate's grossvalue does not exceedP300K (P400K in MetroManila)

If non-resident decedent- Province where he had

estate

RTC - If estate's grossvalue exceed MTC's

jurisdictionEscheat

If decedent diesintestate and withoutheirs - Province wheredecedent last resided orwhere estate is

XXXXX

If reversion - Provincewhere land lieswholly/partially

XXXXX

Guardianship

Where ward resides orwhere his property islocated (if non-resident)

Family Court - If minorward

RTC - If other than minorward

Trusteeship

Where the will wasallowed or where the

property affected by thetrust is located

RTC

Adoption

If domestic - Whereadopter resides

Family Court

If inter-country - Whereadoptee resides (if filedwith Family Court)

Family Court or Inter-Country Adoption Board

If rescission of adoption- Where adoptee resides

Family Court

Habeas corpus

Where detainee isdetained (if filed in RTC)

SC (on any day and at anytime, enforceableanywhere in thePhilippines)

XXXXX Sandiganbayan (only in aidof its appellate

jurisdiction)

XXXXX CA (in instancesauthorized by law,enforceable anywhere inthe Philippines)

XXXXXX RTC (on any day and atany time, enforceable onlywithin its judicial district)

Writ of amparo

Where the threat oract/comission or any ofits elements occurred, atany day and time) (iffiled in RTC)

SC, CA, Sandiganbayan,RTC

Writ of habeas data

Petitioner's residence orwhere the place theinformaion isgathered/collected/stored, at the petitioner'soption

RTC

SC, CA, Sandiganbayan -If the action concernspublic data files ofgovernment offices

Change of name

If judicial - Where the

person applying for thechange of his nameresides

RTC

If administrative - Local civil registry orPhilippine consulate

a) Local civil registrywhere the record soughtto be changed is kept

XXXXX

b) Local civil registry ofthe place of residence ofinterested party (only ifpetitioner migrated toanother place in thePhilippines and it wouldbe impractical to file inthe place where records

sought to be changedare kept)

XXXXX

c) Philippine consulates(only for Philippinecitizens who reside inforeign countries)

xXXXX

Cancellation/correction of entries in the civil

registry


2/40



If judicial - Where theconcerned civil registry islocated

RTC

If administrative - Local civil registry orPhilippine consulate

a) Local civil registrywhere the record soughtto be changed is kept

XXXXX

b) Local civil registry ofthe place of residence ofinterested party (only ifpetitioner migrated toanother place in thePhilippines and it wouldbe impractical to file inthe place where recordssought to be changedare kept)

XXXXX

c) Philippine consulates(only for Philippinecitizens who reside inforeign countries)

XXXXX

Declaration of absence and appointment of theirrepresentative

Where absentee residedbefore his disappearance

RTC

II. SETTLEMENT OF ESTATE OFDECEASED PERSONS

A.VENUE AND JURISDICTION Special proceedings for settlement of estate

may be testate (where the deceased left a will)or intestate (if there is no will).

Probate of a will is mandatory and takesprecedence over intestate proceedings.

If in the course of intestate proceedings, it isfound that the decedent left a will, proceedingsfor the probate of the latter should replace theintestate proceedings.

WHERE ESTATE IS SETTLED

1) If decedent is a resident of the Philippines(whether citizen or alien) Court of the placewhere the decedent resided at the time ofdeath.

2) If decedent is a non-resident of the Philippines Court of the place where the decedent hadhis estate.a) RTC if estate is greater than P300K (P400K

in Metro Manila)b) MTC if estate is less than P300K (P400K in

Metro Manila)

Note: Upon dissolution of marriage by thedeath of either the husband or the wife, thepartnership affairs must be liquidated in thein/testate proceedings of the deceased spouse.If both have died, liquidation may be made inthe in/testate proceedings of either. [Rule 73,Sec. 2

] If separate proceedings have been

instituted for each estate, both proceedingsmay be consolidated if they were filed inthe same court [Bernardo v. CA].

RESIDENCE Personal/actual/physicalhabitation, his actual residence or place ofabode [Fule v. CA], and not his permanentlegal residence of domicile [Pilipinas Shell v.Dumlao

]. Wrong venue is a waivable procedural defect,

and such waiver may occur by laches where aparty had been served notice of the filing of theprobate petition for a year and allowed theproceedings to continue for such time beforefiling a motion to dismiss. [Uriarte v. CFI]

Extent of courts jurisdiction: Limited jurisdiction. It may only determine and ruleupon the following issues:1) Administration of the estate;2) Liquidation of the estate;3) Distribution of the estate.4) Other issues that may be adjudicated on:

a) Who are the heirs of the decedent.[Reyes v. Ysip

]b) Recognition of a natural child. [Gaas v.

Fortich]c) Validity of disinheritance effected by

the testator. [Hilado v. Ponce de Leon]d) Status of a woman who claims to be

the decedents lawful wife. [Torres v.Javier]

e) Validity of a waiver of hereditary rights.[Borromeo-Herrera v. Borromeo]

f) Status of each heir.


3/40



g) Whether property in inventory isconjugal or exclusive property ofdeceased spouse.

h) All other matters incidental/collateral tothe settlement and distribution of theestate. Exception: [Coca v. Borromeo]

Where a particular matter shouldbe resolved by the RTC in theexercise of its general jurisdictionor its limited probate jurisdiction isnot a jurisdictional issue but a merequestion of procedure and can bewaived.

DETERMINATION OF OWNERSHIP

General rule: Not allowed. Exceptions:

1) Provisionally, ownership may bedetermined for the purpose of including

property in inventory, without prejudiceto its final determination in a separateaction.

2) If all the parties are heirs and theysubmit the issue of ownership toprobate court, provided that the rightsof 3rd parties are not prejudiced.

3) If the question is one of collation oradvancement.

4) If the parties consent to theassumption of jurisdiction by theprobate court.

EXCLUSIONARY RULE[Rule 73, Sec. 1

]

General rule: The court first taking cognizanceof the settlement of the estate of the decedentshall exercise jurisdiction to the exclusion of allother courts. The probate court acquires

jurisdiction from the moment the petition forthe settlement of estate is filed with said court.It cannot be divested of such jurisdiction by thesubsequent acts of the parties (e.g. if theyentered into an extrajudicial partitionsettlement). [Sandoval v. Santiago] Note: In Rodriguez v. Borja, the SC said

that the delivery of the will is sufficient for jurisdiction to be acquired, even if no

petition is filed. Exception: Estoppel by laches.

REMEDY IF THE VENUE IS IMPROPERLY

LAID

General rule: Ordinary appeal, and notcertiorari or mandamus. Exception: If want of jurisdiction appears

on the record of the case. [Rule 73, Sec. 1;Eusebio v. Eusebio

]

ISSUANCE OF WRIT OF EXECUTION

General rule: Probate court cannot issue writof execution. Rationale: Its orders usually refer to the

adjudication of claims against the estatewhich the executor/administrator maysatisfy without the need of executoryprocess.

Exception:[Vda. de Valera v. Ofilada]

1) To satisfy the contributive shares of thedevisees/legatees/heirs when the latterhad entered prior possession over theestate. [Rule 88, Sec. 6

]2) To enforce payment of the expenses of

partition. [Rule 90, Sec. 3]3) To satisfy the costs when a person is

cited for examination in probateproceedings. [Rule 142, Sec. 13

]

B.PRESUMPTION OF DEATH General rule: A person is dead for the purpose

of settling his estate if he has been missing for10 years. [Art. 390, CC

] However, if the absentee disappeared after

the age of 75 years, an absence of 5 yearsis sufficient for the opening of succession.

However, the following persons would beconsidered absent even for the purpose ofopening succession after just 4 years: [Art.

391, CC

]1) A person on board a vessel lost during

a sea voyage, or an aeroplane which ismissing.

2) A person in the armed forces who hastaken part in war.

3) A person who has been in danger ofdeath under other circumstances.

If the absentee turns out to be alive, shall beentitled to the balance of his estate afterpayment of all his debts. The balance may berecovered by motion in the same proceeding.[Rule 73, Sec. 4

]

C.WAYS OF SETTLING THEESTATE

General rule: Estate settlement should be judicially administered through anadministrator/executor. Exceptions:

1) Extrajudicial settlement by agreementbetween/among heirs. [Rule 74, Sec.1

]2) Summary settlement of estates of small

value. [Rule 74, Sec. 2

]

1. EXTRAJUDICIALSETTLEMENT BY

AGREEMENTBETWEEN/AMONG HEIRS

PROCEDURE IN EXTRAJUDICIAL

SETTLEMENT BY AGREEMENT BETWEEN/

AMONG HEIRS

Death of the decedent

Division of estate in public instrument or affidavitof adjudication

The public instrument or affidavit of adjudicationmust be filed with the proper Registry of Deeds


4/40



REQUISITES

A. Substantive1) The decedent left:

a) No will.b) No debts.

It is sufficient if any debts that thedecedent incurred has been paid atthe time of the extra-judicialsettlement. [Guico v. Bautista]

There is also the disputablepresumption that the decedent left

no debts if no creditor files apetition for letters of administrationwithin 2 years after the death ofthe decedent.

2) The heirs are all of age If there are minors, they should be

represented by their judicial or legalrepresentatives duly authorized for thepurpose.

B. Procedural1) Division of estate must be in a public

instrument or by affidavit of adjudication inthe case of a sole heir Private instrument is valid. The

requirement of a public instrument inRule 74, Sec. 1 is not constitutive ofthe validity but is merely evidentiary innature. (Hernandez v. Andal)

However, reformation of the instrumentmay be compelled. [Regalado

]2) Filed with proper registry of deeds.3) Publication of notice of the fact of

extrajudicial settlement at least once aweek for 3 consecutive weeks. An extrajudicial settlement, despite the

publication thereof in a newspaper,shall not be binding on any person whohas not participated therein or who had

no notice thereof. [Rule 74, Sec. 1

]4) Bond filed equivalent to the value of the

personal property. The bond is required only when

personalty is involved. If it is a realestate, it shall be subject to a lien infavor of creditors, heirs or otherpersons for the full period of 2 yearsfrom such distribution and such liencannot be substituted by a bond.

The bond is the value of the personalproperty certified by the parties underoath and conditioned upon payment of

just claims filed under Rule 74, Sec. 4.

2. SUMMARY SETTLEMENT OFESTATES OF SMALL VALUE

PROCEDURE IN SUMMARY SETTLEMENTOF ESTATES OF SMALL VALUE

REQUISITES

1) Gross value of the estate must not exceedP10K.

2) Application must contain allegation of grossvalue of estate.

3) Date of hearing:a) Shall be set by court not less than 1 monthnor more than 3 months from date of lastpublication of notice.

b) Order of hearing published once a week for3 consecutive weeks in a newspaper ofgeneral circulation.

4) Notice shall be served upon such interestedpersons as the court may direct. A summary settlement is not binding upon

heirs/creditors who were not parties thereinor had no knowledge thereof. [Sampilo v.CA

]5) Bond in an amount fixed by the court (not

value of personal property) conditioned uponpayment of just claims under Rule 74, Sec. 4.

REMEDIES OF AGGRIEVED PARTIES

AGAINST EXTRAJUDICIAL SETTLEMENT /

SUMMARY SETTLEMENT

1. CLAIM AGAINST THE BOND OR REALESTATE OR BOTH [Rule 74, Sec. 4

]

Publication of notice of the fact of extrajudicialsettlement once a week for 3 consecutive weeks

in a newspaper of general circulation

Filing of bond equivalent to the value of personalproperty

Hearing to be held not less than 1 month normore than 3 months from the date of the last

publication of notice


An application for summary settlement with anallegation that the gross value of the estate does

not exceed P10K

Publication of notice of the fact of extrajudicialsettlement once a week for 3 consecutive weeksin a newspaper of general circulation (the court

may also order notice to be given to otherpersons as such court may direct

Court to proceed summarily, without appointingan executor/administrator, and to make orders

as may be necessary such as:

Grant allowance of the will, if any

Determine persons entitled to estate

Pay debts of estate which are due

Filing of bond fixed by the court

Partition of estate


5/40



Remedies:1) If there is an undue deprivation of lawful

participation in the estate2) The existence of debts against the estate or

undue deprivation of lawful participationpayable in money

This remedy can be availed of only within 2years after the settlement and distribution ofthe estate.

Such bond and such real estate shall remaincharged with a liability to creditors/heirs, orother persons for the full period of 2 years aftersuch distribution, notwithstanding any transfersof real estate that may have been made.

Period for claim of minor or incapacitatedperson: Within 1 year after the minority orincapacity is removed.

2. PETITION FOR RELIEF [Rule 38]

Grounds for petition for relief: FAME fraud,accident, mistake, excusable negligence. Period: 60 days after the petitioner learns of

the judgment, final order or other proceedingto be set aside, and not more than 6 monthsafter such judgment or final order was entered.

3. REOPENING BY INTERVENTION WITHINREGLEMENTARY PERIOD

Who is allowed to intervene with leave of court:A person who either:1) Has a legal interest in the matter in

litigation;

2)

Has such legal interest in the success ofeither of the parties, or an interest againstboth;

3) Is so situated as to be adversely affectedby a distribution/disposition of property inthe custody of the court or of an officerthereof.

Period: Anytime before rendition of judgmentby the TC. As long as within reglementaryperiod of 2 years.

4. NEW ACTION TO ANNUL SETTLEMENTWITHIN REGLEMENTARY PERIOD

Reglementary period: The2 years, and not theprescription period.

5. RESCISSION IN CASE OF PRETERITION OFCOMPULSORY HEIR IN PARTITION TAINTEDWITH BAD FAITH [Art. 1104, CC

]

6. ACTION TO ANNUL A DEED OFEXTRAJUDICIAL SETTLMENT ON THEGROUND OF FRAUD WHICH SHOULD BEFILED WITHIN 4 YEARS FROM THEDISCOVERY OF FRAUD [Gerona v. DeGuzman]

EXTRAJUDICIAL SETTLEMENT VS.SUMMARY SETTLEMENT

Extra-judicial

settlement

Summary settlement

No court intervention Requires summaryjudicial adjudication

Estate's value isimmaterial

Gross estate value mustnot exceed P10K

There must be nooutstanding debts at thetime of settlement

Available even if thereare debts (since thecourt will makeprovisions for payment)

Resorted to at theinstance and byagreement of all theheirs

May be instituted by anyinterested party, evenby a creditor of theestate, without the

consent of all the heirsAmount of bond is equalto the value of thepersonal property

Amount of bond is to bedetermined by the court

3. JUDICIAL SETTLEMENTTHROUGH AN

ADMINISTRATOR/ EXECUTOR

PROCEDURE IN JUDICIAL SETTLEMENT

THROUGH AN ADMINISTRATOR/

EXECUTOR

Special proceedings for estate settlement maybe testate (where the deceased left a will) or

intestate (if there is no will). There must be judicial settlement through an

administrator/executor if it does not fall underthe 2 exceptions, regardless of the existence ornon-existence of a will.

The allowance of the will shall be conclusive asto its due execution. [Rule 75, Sec. 1

]

a. VENUE ANDJURISDICTION

Petition for probate of the will, if any

Issuance of Letters Testamentary/Administration

Filing of Claims

Payment of claims: sale/mortgage/encumbranceof estate properties

Distribution of remainder, if any(but can be made before payment if a bond is

filed by the heirs)


Court order fixing the time and place for probate

The court shall cause notice of such time and

place to be published 3 weeks successively in anewspaper of general circulation. Notice shallalso be given to the designated/known heirs,

legatees and devisees, and the executor if the onepetitioning for allowance of the will is not the

testator


6/40



RTC if estate is greater than P300K (P400K inMetro Manila).

MTC if estate is less than P300K (P400K inMetro Manila).

AS TO THE INTRINSIC VALIDITY OF A WILL General rule: No. The probate courts

authority is limited to:1) Extrinsic validity of the will.2) Due execution thereof.3) Testators testamentary capacity.4) Compliance with the requisites or

solemnities prescribed by law. Exception:

PRINCIPLE OF PRACTICALCONSIDERATION Waste oftime/effort/expense plus added anxietyare the practical considerations thatinduce us to a belief that we might aswell meet head-on the issues of the

validity of the provisions of the will.[Nuguid v. Nuguid

] If there is a defect that is apparent on

the face of the will. [Nepomuceno v.CA

]

b. ALLOWANCE/DISALLOWANCE OF THE

WILL

PERSONS WHO MAY FILE PETITION[Rule 76, Sec.1

]1) Executor;2) Devisee/legatee named in the will;3) Person interested in the estate;4) Testator himself during his lifetime;5) Any creditor as a preparatory step for filing of

his claim therein.

CONTENTS IN THE PETITION FOR PROBATE [Rule76, Sec. 2

]1) Jurisdictional facts: Death of the testator and

his residence at the time of death or the placewhere the estate was left by the decedent whois a non-resident.

2) Names/ages/residences of the heirs, legatees,and devisees.

3) Probable value and character of the estateproperty.

4) Name of the person for whom the letters areprayed.

5) Name of the person having custody of the will ifit has not been delivered to the court. But no defect shall render void the

allowance of the will, or the issuance ofletters testamentary or of administrationwith the will annexed.

PROCEDURE AFTER WILL IS DELIVERED TO, ORWHEN A PETITION FOR ALLOWANCE OF A WILL ISFILED IN, THE COURT:1) The court shall fix a time and place for proving

the will. Rationale: So that all concerned may

appear to contest the allowance thereof, ifsuch is the case.

2) The court shall cause notice of such time andplace to be published 3 weeks successively in anewspaper of general circulation. This rule onnewspaper publication does not apply if theprobate of the will has been filed by thetestator himself.

3) The court shall give notice of the designatedtime and place to:a) Designated/known heirs, legatees and

devisees.b) Executor and co-executor (if not the

petitioner). The probate court acquires jurisdiction over

the interested persons and the res onlyafter the publication and notices are sent.Also, if the testator himself is the oneasking for the allowance of the will, thenotice shall be sent only to his compulsoryheirs.

MODES OF NOTIFICATION[Rule 76, Sec. 4]1) If by mail 20 days before hearing.2) If through personal notice 10 days before

hearing.

DISALLOWANCE OF WILL[Rule 76, Sec. 9

]1) If the formalities required by law have not been

complied with2) If the testator was insane, or otherwisementally incapable of making a will, at the timeof its execution

3) If it was executed through force or underduress, or the influence of fear, or threats

4) If it was procured by undue and improperpressure and influence, on the part of thebeneficiary or of some other person

5) If the signature of the testator was procured byfraud

6) If the testator acted by mistake or did notintend that the instrument he signed should behis will at the time of affixing his signature

thereto

c. DUTY OF CUSTODIAN/EXECUTOR OF WILL

DUTY OF THE CUSTODIAN OF THE WILL[Rule 75,Sec. 2

] To deliver the will within 20 days after he

knows of the death of the testator to the courthaving jurisdiction or to the executor named inthe will.

DUTY OF THE EXECUTOR NAMED IN THE WILL[Rule 75, Sec. 3

]

1) It is his duty to present the will within 20 daysafter (a) he knows of the death of the testatoror (b) after he knows that he is named theexecutor to the court having jurisdiction, unlessthe will has reached the court in any othermanner.

2) Signify to the court in writing his acceptance ofthe trust or his refusal to accept it.

FAILURE TO FULFILL ABOVE DUTIES Without a satisfactory excuse, they shall be

fined a sum not exceeding P2K. [Rule 75, Sec.4

] If he retains the will and does not deliver it to

the court, he may be committed to prison andkept there until he delivers the will. [Rule 75,Sec. 5

]

d. PROOF OF WILL In the hearing for the probate of a will, the

compliance of publication and notice must firstbe shown before introduction of testimony insupport of the will. [Rule 76, Sec. 5

]


7/40



EVIDENCE REQUIRED IN SUPPORT OF THEWILL

1) Uncontested wills: [Rule 76, Sec. 5

]a) Notarial wills Testimony of at least 1 of

the subscribing witnesses may be allowed,

if such witness testifies that the will wasexecuted as is required by law. If all subscribing witnesses reside

outside the province Deposition isallowed.

If the subscribing witnesses are dead,insane, or if none of them resides inthe Philippines The court may admittestimony of other witnesses to provethe sanity of the testator and the dueexecution of the will; and as evidenceof the execution of the will, it mayadmit proof of the handwriting of thetestator and of the subscribing

witnesses or of any of them.b) Holographic wills The testimony of 1

witness who knows the handwriting andsignature of the testator may be admitted.In the absence thereof, the testimony of anexpert witness may be admitted. If thetestator himself petitioned for theallowance of his holographic will, hisaffirmation is sufficient evidence of thegenuineness and due execution of the will.

2) Contested wills: [Rule 76, Sec. 11

]a) Notarial wills All subscribing witnesses

and the notary public before whom the willwas acknowledged must be produced and

examined. However, the will may be allowed if the

court is satisfied from the testimony ofother witnesses and from all theevidence presented that the will wasexecuted and attested in the mannerrequired by law if any or all of themeither:(1) Testify against the due execution of

the will;(2) Do not remember having attested

to it;(3) Are otherwise of doubtful

credibility.

b) Holographic will 3 witnesses who knowthe handwriting of the testator must beproduced. In the absence thereof, thetestimony of an expert witness may beresorted to.

FACTS THAT SHOULD BE PROVED TO ALLOW ALOST OR DESTROYED WILL[Rule 76, Sec. 6

]1) That the will has been duly executed by the

testator;2) That the will was in existence when the testator

died, or if it was not, that it has beenfraudulently/accidentally destroyed in thelifetime of the testator without his knowledge;

and3) The provisions of the will are clearly established

by at least 2 credible witnesses.

When a lost will is proved, the provisionsthereof must be distinctly stated and certifiedby the judge, under the seal of the court, andthe certificate must be filed and recorded asother wills are filed and recorded.

PROBATE OF LOST/DESTROYED HOLOGRAPHICWILL General rule: Not allowed.

Exception: A lost/destroyed holographicwill could be proved by photostatic or xeroxcopies thereof. [Rodelas v. Aranza]

PROOF OF HOLOGRAPHIC WILL IF TESTATORPETITIONS FOR PROBATE[Rule 76, Sec. 12

] The fact that he affirms that the holographic

will and the signature are in his ownhandwriting shall be sufficient evidence of thegenuineness and due execution thereof.

If contested, the burden of disproving thegenuineness and due execution thereof shall beon the contestant. The testator may presentsuch additional proof as may be necessary torebut the evidence for the contestant.

e. CONTEST TO WILL Procedure: Theperson contesting the will muststate his opposition in writing and serve a copy

thereof on the petitioner and other partiesinterested in the estate. [Rule 76, Sec. 10

]

f. ALLOWANCE OF WILLPROVED OUTSIDE THE

PHILIPPINES

A will allowed/probated in a foreign countrymust be reprobated in the Philippines.

Administration of an estate extends only to theassets of the decedent found within the state or

country where it was granted. Theadministrator appointed in one state has nopower over property in another state orcountry. [Leon & Ghezzi v. Manufacturer LifeInsurance]

Petition to be filed in the RTC. The RTC wheresuch petition is filed shall fix a time and placefor the hearing and cause notice thereof to begiven as in case of an original will presented forallowance. [Rule 77, Sec. 1 and 2

]

PROOF IN THE REPROBATE OF THE FOREIGN WILL[Suntay v. Suntay

]1) The testator had his domicile in the foreign

country;2) The will has been admitted to probate in suchcountry;

3) The fact that the foreign tribunal is a probatecourt;

4) The law on probate procedure of the saidforeign country and proof of compliancetherewith;

5) The legal requirements in said foreign countryfor the valid execution of the will.

EFFECTS OFREPROBATE[Rule 77, Sec. 3 and 4

]1) The will shall have the same effect as if

originally proved and allowed in the Philippines.

2) Letters testamentary or administration with awill annexed shall extend to all estates of thePhilippines.

3) Such estate, after the payment of just debtsand expenses of administration, shall bedisposed of according to the will, so far as suchwill may operate upon it, and the residue, ifany, shall be disposed of as provided by law incases of estates in the Philippines belonging to


8/40



persons who are inhabitants of anothercountry.

g. LETTERS TESTAMENTARY/ADMINISTRATION

QUALIFICATIONS

PERSONS WHO MAY BEEXECUTORS/ADMINISTRATORS1) EXECUTOR The person named in the will to

administer the decedents estate and carry outthe provisions thereof.

2) ADMINISTRATOR (regular or special) Theperson appointed by the court to administer theestate where the decedent died intestate. An administrator may also be one

appointed by the court in cases when,although there is a will, the will does notappoint any executor, or if appointed, saidperson is either incapacitated or unwillingto serve as such.

3) A corporation/association authorized to conductthe business of a trust company in thePhilippines may be appointed as an executor,administrator, guardian of an estate, ortrustee, in like manner as an individual; but itshall not be appointed guardian of the personof a ward. [Art. 1060, CC

]4) The marriage of a single woman also shall not

affect her authority to serve under a previousappointment. [Rule 78, Sec. 3

]

PERSONS WHO ARE INCOMPETENT TO SERVE ASEXECUTORS/ADMINISTRATORS [Rule 78, Sec. 1and 2

]1) A minor.2) A non-resident.3) One who, in the opinion of the court, is unfit to

exercise the duties of the trust by reason of:a) Drunkenness.b) Improvidence.c) Want of understanding/integrity.d) Conviction of an offense involving moral

turpitude.4) The executor of an executor cannot administer

the estate of the first testator.

Executor Administrator

Nominated by thetestator and appointedby the court

Appointed by the court ifthe testator did notappoint, of if theappointee isincapacitated or refused

Duty to present the willto court

No such duty

Testator may providethat executor may servewithout bond (but thecourt may direct him togive bond to pay debts)

Administrator mustalways give a bond

Compensation may beprovided for by thetestator in the will;otherwise, Rule 85, Sec.7 shall apply

Compensation is to begoverned by Rule 85,Sec. 7

SEVERAL CO-EXECUTORS NAMED IN THE WILL BUTNOT ALL CAN ACT If all of the named co-executors cannot act

because of incompetency, refusal to accept thetrust, or failure to give bond, on the part of oneor more of them, letters testamentary may

issue to such of them as are competent, acceptand give bond, and they may perform theduties and discharge the trust required by thewill. [Rule 78, Sec. 5

]

ORDER OF PREFERENCE IN GRANTING LETTERS OFADMINISTRATION1) Surviving spouse or next of kin.

NEXT OF KIN Those persons who areentitled under the statute of distribution tothe decedents property.

2) Any one or more of the principal creditors.3) Stranger. Rationale: The underlying assumption is that

those who will reap the benefits of awise/speedy/economical administration of theestate or those who will most suffer theconsequences ofwaste/improvidence/mismanagement, have thehigher interest and most influential motive to

administer the estate correctly. Letters of administration may be granted to

any person or any other applicant even if thereare other competent persons with a better rightto the administration, if such persons fail toappear when notified and claim the letters tothemselves. [Rule 79, Sec. 6

] If a petition for letters of administration is filed,

such court shall fix a time and place for hearingthe petition and shall cause notice thereof to begiven to the known heirs and creditors of thedecedent, and other persons believed to havean interest in the estate. [Rule 79, Sec. 3

]

OPPOSITION TO ISSUANCE

OPPOSITION OF THE ISSUANCE OF LETTERSTESTAMENTARY [Rule 79, Sec. 1

] Any interested person in the will. He should state the grounds in writing why he

is opposing and he may attach a petition forletters of administration.

CONTENTS OF A PETITION[Rule 79, Sec. 2

]1) Jurisdictional facts.2) Names/ages/residences of heirs and creditors.3) Probable value and character of the estate.4) Name of the person for whom the letters are

prayed for.

But no defect in the petition shall render voidthe issuance of letters of administration

GROUNDS FOR OPPOSING[Rule 79, Sec. 4

]1) in Letters Testamentary:

Incompetence.2) in Letters of Administration:

Incompetence. Preferential right under Rule 78, Sec. 6.

SPECIAL ADMINISTRATORS

Court EEs should not be appointed specialadministrators as their objectivity andimpartiality may be compromised byextraneous considerations.[Medina v. CA]

The order of preference in the appointment ofregular administrators does not apply to theappointment of a special administrator, butsuch order of preference may be followed bythe judge in the exercise of sound discretion.[Matias v. Gonzales]


9/40



Similarly, the grounds for the removal of theregular administrator do not apply strictly tothe special administrator as he may beremoved by the court on other grounds in itsdiscretion. [Junquera v. Borromeo

] The order appointing a special administrator is

an interlocutory and is not appealable. [Garciav. Flores]

WHEN APPOINTED1) Delay in granting of letters including appeal in

the probate of the will. [Rule 80, Sec. 1

]2) Executor is a claimant of the estate he

represents. [Rule 86, Sec. 8

] In this case, the administrator shall have

the same powers as that of a generaladministrator.

Regular administrator Special administrator

Appointment may be thesubject of appeal

Appointment is aninterlocutory order andmay not be the subject ofan appeal

One of the obligations isto pay the estate's debts

He cannot pay the estate'sdebts

Appointed if decedentdied intestate or did notappoint anadministrator, or if theappointee refused or isnot qualified

Appointed if there is delayin granting letterstestamentary or letters ofadministration, or if theexecutor is a claimant ofthe estate he represents

DUTIES AND GENERAL POWERS OF

ADMINISTRATORS AND SPECIALADMINISTRATORS

DUTIES/POWERS OF THE GENERALADMINISTRATOR1) To have access to, and examine and take

copies of books and papers relating to thepartnership in case of a deceased partner.

2) To examine and make invoices of the propertybelonging to the partnership in case of adeceased partner.

3) To make improvements on the properties underadministration with the necessary courtapproval except for necessary repairs.

4) To maintain in tenantable repair the housesand other structures and fences and to deliverthe same in such repair to the heirs or deviseeswhen directed to do so by the court.

5) To possess and manage the estate whennecessary for (1) the payment of debts, and(2) for the payment of expenses ofadministration.

6) Make a true inventory and appraisal of allreal/personal property of decedent within 3months after his appointment (except clothesof family, marriage bed, and other articles forsubsistence of family).

7) To render true an just account of hisadministration within 1 year of appointment.

8)

To perform all orders by the court.9) Discharge all debts/legacies/charges as shall bedecreed by the court.

10)Give allowance to legitimate surviving spouseor children of the decedent if the court decreessuch (grandchildren are not entitled).

DUTIES/POWERS OF THE SPECIALADMINISTRATOR1) Possession and charge of the goods, chattels,

rights, credits and estate of the deceased.

2) Preserve the same.3) Commence and maintain suit for the estate.4) Sell only: (1) perishable property; and (2)

property ordered by the court.5) Pay debts only as may be ordered by the court.6) Make a true inventory and appraisal of all

real/personal property of decedent within 3months after his appointment (except clothesof family, marriage bed, and other articles forsubsistence of family).

7) To render true an just account of hisadministration within 1 year of appointment.

8) To perform all orders by the court.9) Give allowance to legitimate surviving spouse

or children of the decedent if the court decreessuch (grandchildren are not entitled).

10)Deliver property he received to personappointed as executor or administrator or tosuch other person as may be authorized by thecourt.

RESTRICTIONS ON THE POWER OF ANADMINISTRATOR/EXECUTOR1) Cannot acquire by purchase, even at public or

judicial auction, either in person or mediationof another, the property under administration.

2) Cannot borrow money without authority of thecourt.

3) Cannot peculate with funds underadministration.

4) Cannot lease the property under administrationfor more than 1 year.

5) Cannot continue the business of the deceasedunless authorized by the court.

6) Cannot profit by the increase/decrease in thevalue of the property under administration.

POWERS OF A NEW EXECUTOR/ADMINISTRATOR(AFTER THE FIRST RESIGNS, IS REMOVED, ORREVOKED)1) Collect and settle the estate not administered.2) Prosecute/defend actions commenced by or

against the former executor/administrator.3) Recover execution on judgments in the name

of former executor/administrator.

BOND A bond is necessary. Even if the testator

provides that the executor shall serve without a

bond, the court may still require the executorto give a bond, but the only condition whichattaches to the bond is the payment of thedebts of the testator. [Rule 81, Sec. 2

] Additional bond may be required:

1) When there is a change in circumstances ofthe executor/administrator or for othersufficient cause. [Rule 81, Sec. 2

]2) In case of sale/mortgage/encumbrance of

the property of the estate conditioned thatthe administrator/executor account for theproceeds of the sale or encumbrance. [Rule89, Sec. 7(c)

] For joint executors and administrators: The

court may take separate bonds from each or ajoint bond from all. [Rule 81, Sec. 3

]

ACCOUNTABILITY AND COMPENSATION

OF EXECUTORS AND ADMINISTRATORS

ACCOUNTABILITY FOR THE ENTIRE ESTATE: The executor/administrator is accountable for

the entire estate of the deceased. However, he


10/40



is not accountable for properties which nevercame to his possession. [Rule 85, Sec. 1

] However, he would still be liable for properties

which never came to his possession if throughunfaithfulness to the trust or his own fault orlack of necessary action, theexecutor/administrator failed to recover part ofthe estate which came to his knowledge.

Generally, the executor/administrator is notliable for debts due the estate which are notyet paid; unless it remained uncollectedbecause of his fault. [Rule 85, Sec. 1

] Income from realty when used by the

administrator/executor: The administrator shallaccount for it as may be agreed upon by himand the parties interested, or adjusted by thecourt with their assent. If the parties do notagree upon the sum to be allowed, the samemay be ascertained by the court whosedetermination shall be final. [Rule 85, Sec. 4

] Neglects or delays to raise or pay money: The

administrator shall be liable therefore on hisbond. [Rule 85, Sec. 5

]

EXPENSES OF ADMINISTRATION Expenses necessary for the management of the

property, for protecting it against destructionor deterioration, and possibly for theproduction of fruits.

COMPENSATION TO EXECUTOR/ADMINISTRATOR[Rule 85, Sec. 7

] That provided by the will is controlling. However, if there is no compensation provided,

the compensation shall be either:

1)

P4/day for the time actually and necessarilyemployed;2) Commission upon the value of so much of

the estate as comes into his possession andfinally disposed of by him;

3) 2% of the first P5K, 1% in excess of P5K upto P30K, % in excess of P30K up toP100K, and % in excess of P100K.

For 2 or more executors/administrators: Thecompensation shall be apportioned amongthem by the court according to the servicesactually rendered by them respectively.

Charge of legal fees rendered byexecutor/administrator to the estate: Not

allowed.

RENDER OF ACCOUNT Within 1 year from receiving letters

testamentary/letters of administration. [Rule85, Sec. 8

] The court also may examine the

executor/administrator upon oath as to anymatter relating to the account rendered by him.[Rule 85, Sec. 9

] Before the account is allowed, notice shall be

given to interested persons in order for themfor examination. [Rule 85, Sec. 10

]

REVOCATION OF ADMINISTRATION;DEATH/RESIGNATION/REMOVAL OF

ADMINISTRATORS AND EXECUTORS

ROLE OF ADMINISTRATOR IF A WILL ISDISCOVERED If the letters of administration have been

granted because of the belief that the decedenthad died intestate, and then a will is discoveredand allowed by the court, the administration

shall be revoked and the administrator shallsurrender the letters of administration to thecourt and render his account of administration.

It is within the courts discretion on WON theintestate proceeding should be discontinuedand a new proceeding should be constituted.

The discovery of a will does not ipso factonullify the administration unless the will hasbeen proved and allowed. [De Parreo v

Aranzanso] Acts of the administrator done before his

removal/resignation/revocation are valid unlessproven otherwise. [Rule 82, Sec.3

]

GROUNDS FOR REMOVAL OFEXECUTOR/ADMINISTRATOR [Rule 82, Sec. 2

]1) Neglect to render accounts (within 1 year when

the court directs).2) Neglect to settle estate according to the ROC.3) Neglect to perform an order/judgment of the

court or a duty expressly provided by the ROC.

4)

Absconding.5) Insanity or incapacity or unsuitability todischarge the trust

h. CLAIMS AGAINST THEESTATE

STATUTE OF NON-CLAIMS

Definition: Period fixed by the ROC for thefiling of claims against the estate forexamination and allowance. The Statute ofNon-Claims applies only to claims that do not

survive.

PERIOD FOR CLAIMS[Rule 86, Sec. 2

] General rule: Within the time fixed in the

notice which shall not be more than 12 monthsnor less than 6 months after the date of thefirst publication. Otherwise, the claims arebarred forever. Even if the testator acknowledged the debt

in his will and instructed the executor topay such debt, the Statute of Non-Claimsmust still be complied with.

Exception: BELATED CLAIMS Claimsnot filed within the original period fixed by

the court. On application of a creditor whohas failed to file his claim within the timepreviously limited, at any time before anorder of distribution is entered, the courtmay, for cause shown and on such termsas are equitable, allow such claim to befiled not exceeding 1 month from the orderallowing belated claims (the order may bein open court or not).

The Statute of Non-Claims and the Statuteof Limitations must concur in order for acreditor to collect.

A creditor barred by the Statute of Non-Claims may file a claim as a counterclaim in

any suit that the executor or administratormay bring against such creditor.

CLAIMS THAT DO NOT SURVIVE[Rule 86, Sec. 5]1) Money claims, debts incurred by the deceased

during his lifetime, arising from contract:a) Express or implied;b) Due or not due;c) Absolute or contingent.

2) Claims for funeral expenses or for the lastillness of the decedent.


11/40



3) Judgment for money against decedent. However, a creditor barred by the statute of

non-claims may file a claim as a counterclaimin any suit that the executor or administratormay bring against such creditor.

NOTICE REQUIREMENT IN CLAIMING AGAINST THEESTATE:1) The court, after granting letters

testamentary/letters of administration, mayimmediately issue notices to creditors to filetheir claims.

2) This notice must be published for 3 successiveweeks in a newspaper of general circulationand province, and post the same in 4 publicplaces in the province and 2 public places inthe municipality where the decedent lastresided.

3) Within 10 days after the notice has beenpublished and posted in accordance with the

preceding section, the executor/administratorshall file or cause to be filed in the court aprinted copy of the notice accompanied with anaffidavit setting forth the dates of the first andlast publication thereof and the name of thenewspaper in which the same is printed.

SOLIDARY OBLIGATION OF DECEDENT

The claim shall be filed against the decedent asif he were the only debtor, without prejudice tothe right of the estate to recover contributionfrom the other debtor. [Rule 86, Sec. 6

] If the obligation of the decedent is joint with

another debtor:The claim shall be confined tothe portion belonging to him. [Rule 86, Sec. 6

]

MORTGAGE DEBT DUE FROM ESTATE

Remedies of a creditor holding a claim againstthe deceased secured by a mortgage or othercollateral security:[Rule 86, Sec. 7

]1) ABANDON the security and prosecute his

claim against the estate and share in thegeneral distribution of the assets of theestate.

2) FORECLOSE his mortgage or realize uponhis security by action in court making the

executor or administrator a party defendantand if there is judgment for deficiency, hemay file a claim (contingent) against theestate within the Statute of Non-Claims.

3) RELY SOLELY ON HIS MORTGAGE andforeclose (judicial or extrajudicial) thesame at anytime within the period of theStatute of Limitations but he cannot beadmitted as creditor and shall receive noshare in the distribution of the other assetsof the estate.

These remedies are alternative; the availmentof one bars the availment of the otherremedies.

EXECUTORS/ ADMINISTRATORS CLAIM

AGAINST THE ESTATE

If executor/administrator has a claim: He shallgive notice to the court in writing and the courtthereafter shall appoint a special administrator.[Rule 86, Sec. 8

]

PROCESS FOR CLAIMS[Rule 86, Sec. 10

]

1) Deliver the claim with the necessary vouchersto the clerk of court.

2) Serve a copy thereof on theexecutor/administrator.

3) If the claim is due, it must be supported byaffidavit stating the amount due and the factthat there has been no offsets.

4) If the claim is not due or contingent, it must beaccompanied by an affidavit stating theparticulars thereof.

5) Executor must file his answer to the claimwithin 15 days after service of a copy of theclaim. Answer should contain:

Either admit or deny the claim and setforth the substance of the matterswhich are relied upon to support suchadmission or denial.

If the executor/administrator has noknowledge sufficient to enable him toadmit or deny specifically, he shallstate such want of knowledge.

The answer must also set forth claimswhich the decedent has against theclaimant or else it will forever bebarred.

A claim admitted by theexecutor/administrator may be opposed byan heir/legatee/devisee. [Rule 86, Sec. 11

] The court may refer contested claims to a

commissioner. [Rule 86, Sec. 12]

APPEAL FROM JUDGMENT ON A CLAIM

AGAINST ESTATE

Judgment is appealable like in ordinary cases. A judgment against executor/administrator

shall be that he pay the amount ascertained tobe due and shall not create any lien upon theproperty of the estate, or give the judgmentcreditor any priority of payment. [Rule 86, Sec.13

] The mode of appeal is record on appeal and

must be filed within 30 days from notice ofjudgment.

When the executor /administrator admits andoffers to pay part of a claim, and the claimantrefuses to accept the amount offered insatisfaction of his claim, if he fails to obtain amore favorable judgment, he cannot recovercosts, but must pay to theexecutor/administrator costs from the time ofthe offer. Where an action commenced againstthe deceased for money has been discontinuedand the claim embraced therein presented as inthis rule provided, the prevailing party shall beallowed the costs of his action up to the time ofits discontinuance. [Rule 86, Sec. 14

]

i. ACTIONS BY OR AGAINSTEXECUTORS/ADMINISTRATORS

Heirs may not sue the executor/administratorfor recovery of property left by the decedentuntil there is an order of the court assigningsuch lands to such heir or until the time forpaying debts has expired. [Rule 87, Sec. 3

]

CLAIMS THAT SURVIVE


12/40



CLAIMS THAT SURVIVE - Actions that maybe commenced directly against the executorand administrator.[Rule 87, Sec. 1

]1) Recovery of real/personal property (or any

interest therein) from the estate.2) Enforcement of a lien thereon.3) Action to recover damages arising from

tort.

CLAIMS THAT DO NOT SURVIVE [Rule 86,Sec. 5

]

1) Money claims, debts incurred by the deceasedduring his lifetime arising from contract:a) Express or implied;b) Due or not due;c) Absolute or contingent.

2) Claims for funeral expenses or for the lastillness of the decedent.

3) Judgment for money against decedent.PROCEEDINGS ON MORTGAGE DUE

ESTATE

Executor/administrator can foreclose amortgage belonging to the decedent. [Rule 87,Sec. 5

]

PROCEEDINGS WHERE PROPERTY CONCEALED,EMBEZZLED, OR FRAUDULENTLY CONVEYED Concealment/embezzlement/conveyance away

any of the property of the deceased: The courtmay cite such suspected person to appearbefore it and examine him on oath on thematter of such complaint. [Rule 87, Sec. 6

] If the suspected person refuses to appear or to

answer questions asked him during theexamination, the court may punish him forcontempt and may commit him to prison untilhe submits to the order of the court. [Rule 87,Sec. 6

] If even before the granting of the letters

testamentary/letters of administration, suchperson shall be liable for double the value ofthe property sold, embezzled, or alienated tobe recovered for the benefit of the estate. [Rule87, Sec. 8

]If decedent who fraudulently conveys theproperty to defraud creditors and there is adeficiency of assets in the hands of theadministrator: Executor/administrator maycommence and prosecute an action for therecovery of such property for the benefit ofcredits BUT he shall not be bound to commencethe action unless either: [Rule 87, Sec. 9

]1) The creditors making the application pay

such part of the costs and expenses;2) Give security therefore to the

executor/administrator. Requisites before creditor may bring action

[Rule 87, Sec. 10

]1) There is a deficiency of assets in the hands

of an executor/administrator for thepayment of debts and expenses ofadministration.

2) In his lifetime, the deceased had made orattempted to make a fraudulentconveyance of his property or had soconveyed such property that by law, theconveyance would be void as against othercreditors.

3) The subject of the attempted conveyancewould be liable to attachment in hislifetime.

4) The executor/administrator has shown nodesire to file the action or failed to institutethe same within a reasonable time.

5) Leave is granted by the court to thecreditor to file the action.

6) A bond is filed by the creditor.7) The action by the creditor is in the name of

the executor/administrator. The last 3 requisites are unnecessary where the

grantee is the executor/administrator himself,in which event, the action should be in thename of all the creditors.

PROCEEDINGS WHERE PROPERTY

ENTRUSTED BY EXECUTOR/

ADMINISTRATION TO 3RD PERSON [Rule87, Sec. 7]

Complaint of executor/administrator againstperson entrusted with estate: The court mayrequire such person entrusted with the estateto appear before it and render a full account ofall property which came into his possession.

Refusal to appear or give an accountingmay bepunished with contempt.

j. PAYMENT OF DEBTS OF THEESTATE

IF ESTATE IS SUFFICIENT

General rule: The payment of the debts of theestate must be taken: (a) from the portion orproperty designated in the will; (b) from thepersonal property; and (c) from the realproperty, in that order. If there is still adeficiency, it shall be met by contributions bydevisees, legatees, or heirs who have been inpossession.[Rule 88, Sec. 2, 3 and 6

] Exception: Instances when realty can be

charged first:1) When the personal property is not

sufficient. [Rule 88, Sec. 3

]2) Where the sale of such personalty

would be detriment of the participants(everyone) of the estate. [Rule 88, Sec.3

]3) When sale of personal property may

injure the business or interests of thoseinterested in the estate. [Rule 89, Sec.2

]4) When the testator has not made

sufficient provision for payment of suchdebts/expenses/legacies. [Rule 89,Sec. 2]

5) When the decedent was, in his lifetime,under contract, binding in law, to deedreal property to beneficiary. [Rule 89,Sec. 8

]6) When the decedent during his lifetime

held real property in trust for anotherperson. [Rule 89, Sec. 9

] Requisites for exception to ensue:

1) Application by executor/administrator;2) Written notice to persons interested;3) Hearing.

The same principles apply if the debt of theestate is in another country.


13/40



The court may authorize anexecutor/administrator tosell/mortgage/encumber real estate acquiredby him on execution or foreclosure sale, underthe same circumstances and under the sameregulations as prescribed in this rule for thesale/mortgage/encumbrance of other realestate.

If testator orders the payment of a debt hebelieves he owes but does not in fact owe: Thedisposition shall be considered as not written. Ifas regards a specified debt more than theamount thereof is ordered paid, the excess isnot due, unless a contrary intention appears.

Order of the sale of personal property: [Rule89,Sec. 1

]1) To pay the debts and expenses of

administration;2) To pay legacies;3) To cover expenses for the preservation of

the estate.

EXCEPTIONS;SALE/MORTGAGE/ENCUMBRANCE OF

REALTY EVEN IF PERSONALTY IS

SUFFICIENT TO PAY DEBTS

WHEN REALTY IS CHARGED FIRST1) When the personal property is not sufficient.

[Rule 88, Sec. 3

]2) Where the sale of such personalty would be

detriment of the participants (everyone) of theestate. [Rule 88, Sec. 3

]3) When sale of personal property may injure the

business or interests of those interested in theestate. [Rule 89, Sec. 2

]4) When the testator has not made sufficient

provision for payment of suchdebts/expenses/legacies. [Rule 89, Sec. 2

]5) When the decedent was, in his lifetime, under

contract, binding in law, to deed real propertyto beneficiary. [Rule 89, Sec. 8

]6) When the decedent during his lifetime held real

property in trust for another person. [Rule 89,Sec. 9

]

REGULATIONS FOR GRANTING AUTHORITY TOSELL/MORTGAGE/ENCUMBER ESTATES[Rule 89,

Sec. 7

]1) The executor/administrator shall file a writtenpetition setting forth the debts due from thedeceased, the expenses of administration, thelegacies, the value of the personal estate, thesituation of the estate to besold/mortgaged/encumbered, and such otherfacts as show that thesale/mortgage/encumbrance is necessary orbeneficial;

2) The court shall thereupon fix a time andplace for hearing such petition, and causenotice stating the nature of the petition, thereason for the same, and the time and place

of hearing, to be given personally or by mail tothe persons interested, and may cause suchfurther notice to be given, by publication orotherwise, as it shall deem proper;

3) If the court requires it, theexecutor/administrator shall give an additionalbond, in such sum as the court directs,conditioned that such executor/administratorwill account for the proceeds of thesale/mortgage/encumbrance;

4) If the requirements in the precedingsubdivisions of this section have been compliedwith, the court, by order stating suchcompliance, may authorize theexecutor/administrator tosell/mortgage/encumber, in proper cases, suchpart of the estate as is deemed necessary, andin case of sale the court may authorize it to bepublic or private, as would be most beneficialto all parties concerned. Theexecutor/administrator shall be furnished witha certified copy of such order;

5) If the estate is to be sold at auction, the modeof giving notice of the time and place of thesale shall be governed by the provisionsconcerning notice of execution sale;

6) There shall be recorded in the registry of deedsof the province in which the real estatethus sold/mortgaged/encumbered is situated,a certified copy of the order of the court,together with the deed of the

executor/administrator for such real estate,which shall be as valid as if the deed had beenexecuted by the deceased in his lifetime.

If sale/mortgage/encumbrance of the propertyof the decedent prevented by an interestedperson: That person can give a bond, in a sumfixed by the court, conditioned to pay thedebts, expenses of administration, andlegacies, and such bond shall be for thesecurity of the creditors, as well as of theexecutor/administrator, and may be prosecutedfor the benefit of either. [Rule 89, Sec. 3

] Effect if the sale, mortgage, or encumbrance of

the decedents property is done without notice:Void. Since the heirs are the presumptiveowners, they succeed to the rights andobligations of the deceased at the moment ofthe latters death, and are the persons directlyaffected by the sale/mortgage and thereforecannot be deprived of the property, except inthe manner provided by law. [Maneclang v.Baun

]

PAYMENT OF CONTINGENT CLAIMS[Rule88, Sec. 4

]

CONTINGENT CLAIM Claim that is subjectto the happening of a future uncertain event.

If the court is satisfied that a contingent claimduly filed is valid, it may order theexecutor/administrator to retain in his handssufficient estate to pay such contingent claimwhen the same becomes absolute, or, if theestate is insolvent, sufficient to pay a portionequal to the dividend of the other creditors.

Requisites for the estate to be retained to meetcontingent claims:1) Contingent claim is duly filed within the 2

year period allowed for the creditors topresent claims;

2) Court is satisfied that the claim is valid;3) The claim has become absolute.

If contingent claim that is not presented afterbecoming absolute within the 2 year periodallowed: The assets retained in the hands ofthe executor/administrator, not exhausted inthe payment of claims, shall be distributed bythe order of the court to the persons entitled tothe same; but the assets so distributed maystill be applied to the payment of the claimwhen established, and the creditor may


14/40



maintain an action against the distributees torecover the debt, and such distributees andtheir estates shall be liable for the debt inproportion to the estate they have respectivelyreceived form the property of the deceased.

CONTRIBUTIVE SHARE OF

DEVISEES/LEGATEES/HEIRS INPOSSESSION OF PORTIONS OF ESTATE

FOR DEBTS

If heirs have taken possession of portions ofthe estate before the debts have been settled,they shall become liable to contribute for thepayment of debts and expenses, and the courtmay, after hearing, settle the amount of theirseveral liabilities, and order how much and inwhat manner each person shall contribute.[Rule 88, Sec. 6

]

PAYMENT IF ESTATE INSOLVENT ORASSETS INSUFFICIENT

If insufficient estate to pay all debts: Theexecutor/administrator shall pay the debtsaccording to the concurrence and preference ofcredits provided by Art. 1059 and 2239-2251,CC. [Rule 88, Sec. 7

] After following the order of preference of

credits, if all the creditors belonging to thatclass cannot be paid in full, then all of them willsuffer a reduction in proportion to that creditorsclaim No creditor of any one class shall receiveany payment until those of the preceding class

are paid. [Rule 88, Sec. 8

] Estate of an insolvent non-resident disposed of:

His estate in the Philippines shall be sodisposed of that his creditors in and outside thePhilippines may receive an equal share, inproportion to their respective credits. [Rule 88,Sec. 9

] Claim proven outside the Philippines against an

insolvent residents estate paid: Claims provenoutside the Philippines where the executor hadknowledge and opportunity to contest itsallowance therein may be added to the list ofclaims in the Philippines against the estate ofan insolvent resident and the estate will bedistributed equally among those creditors. Theclaims of foreign creditors against insolventnon-residents and against insolvent residentswould not be able to recover from the estate ifthere is no reciprocity with that creditorscountry granting the same benefit to Filipinos.[Rule 88, Sec. 10

] However, the benefit of this and the pre-

ceding sections shall not be extended tothe creditors in another country if theproperty of such deceased person therefound is not equally apportioned to thecreditors residing in the Philippines and theother creditors, according to theirrespective claims.

ORDER OF PAYMENT OF DEBTS

Before the expiration of the time limited for thepayment of debts (1 year, but may beextended), the court shall order the paymentthereof. [Rule 88, Sec. 11

]

The court may suspend the order for thepayment of debts or may order the distributionif an appeal is taken, among the creditorswhose claims are definitely allowed, leaving inthe hands of the executor/administratorsufficient assets to pay the claim disputed andappealed. [Rule 88, Sec. 12

]

TIME FOR PAYMENT OF DEBTS AND

LEGACIES; PERIOD FOR SUCCESSOR OF

DECEASED ADMINISTRATOR/EXECUTOR[Rule 88, Sec. 15 and 16

]

Need not exceed 1 year in the first instance;but court may extend on application ofexecutor/administrator and after hearing andnotice thereof.

Extension must not exceed 6 months for singleextension. The whole period allowed to theoriginal executor/administrator shall not exceed

2 years. The successor of dead executor/administratormay be allowed an extension not to exceed 6month.

k. SALES AND CONVEYANCE OFPERSONALTY/REALTY FOR

OTHER REASONS

WHEN BENEFICIAL TO INTERESTED

PERSONS

Authorization of sale as beneficial to interestedpersons: [Rule 89, Sec. 4

]1) Upon application by the

executor/administrator and on notice tointerested persons (heirs/devisees, etc.),the court may authorize theexecutor/administrator to sell the whole orpart of the estate.

2) Authority shall not be granted ifinconsistent with the provisions of a will.The proceeds of such sale shall be assignedto the persons entitled to the estate in theproper proportions.

CONVEYANCE OF REALTY WHICH

DECEASED CONTRACTED TO CONVEY

DURING LIFETIME

AUTHORIZATION OF CONVEYANCE OF REALTYWHICH DECEASED CONTRACTED TO CONVEY [Rule88, Sec. 8

] If the decedent was in his lifetime under

contract, binding in law, to deed real propertyon an interest therein, the court may authorizethe executor/administrator to convey suchproperty according to such contract, or withsuch modifications as are agreed upon by theparties and approved by the court.

If the property is to be conveyed to theexecutor/administrator, it is the clerk of courtwhich shall execute the deed.

PROCEDURE There should be an application for such

purpose and notice should be given to theinterested persons and such further notice, bypublication or otherwise, as the court deemsproper. [Rule 89, Sec. 8

]


15/40



While Rule 89, Sec. 8 does not specify whoshould file the application, it stands toreason that the proper party must be onewho is to be benefited/injured from the

judgment or one who is entitled to theavails of the suit (i.e. even people not theexecutor/administrator can file theapplication). [Heirs of Spouses Sandejas v.Lina

]

CONVEYANCE OF REALTY WHICH

DECEASED HELD IN TRUST

Authorization of conveyance of realty which thedeceased held in trust: Following the noticerequirement required as in the case where thedecedent was under contract to convey realty,the court may allow the executor/administratorto deed such property to the person for whoseuse and benefit the property was held. Thecourt may order the execution of such trust

whether by deed or by law. [Rule 89, Sec. 9

]

l. PARTITION ANDDISTRIBUTION OF ESTATE

WHEN ORDER FOR DISTRIBUTION OF

RESIDUE IS MADE

General rule: Order of distribution shall bemade after payment of all debts, funeralexpenses, expenses for administration,allowance of widow, and inheritance taxes.[Rule 90, Sec. 1

] Exception: If the distributes or any of

them gives a bond conditioned for thepayment of said obligation, the order ofdistribution may be made even before thepayment of the debts and expenses.

Title to the property is vested from the finalityof the order of distribution. An order whichdetermines the distributive share of heirs isappealable. If not appealed, it becomes final.

PROCEDURE[Rule 90, Sec. 1, 2 and 4

]

1) There should be an application by theexecutor/administrator or any personinterested in the estate.

2) The requirements for notice and hearing mustbe fulfilled.

3) Certified copies of final orders and judgmentsof the court relating to the real estate or thepartition thereof shall be recorded in theregistry of deeds of the province where theproperty is situated.

4) The final order of the court as to questions onadvancement shall be binding on the personraising the questions and on the heir.

EXPENSES OF PARTITION[Rule 90, Sec. 3

]

General rule: If there are sufficient effects inthe hands of the executor/administrator, and ifit not inconsistent with the intention of thetestator, then such may be applied for thepayment of the expenses of partition. Exception: If it cannot be paid by the

executor/administrator, it should be paidby the parties in proportion to theirrespective shares or interest in the estate,

and the apportionment shall be settled andallowed by the court.

Person interested in the partition does notpay his proportion/share of the expenses ofpartition, the court may issue an executionin the name of the executor/administratoragainst him.

REMEDIES AGAINST JUDGMENT OFPARTITION

Partition may be set aside only if interestedparty is left out by reason of circumstancesbeyond his control or mistake/inadvertence notimputable to negligence.

Remedies: Motion to reopen within the 30-dayreglementary period; then appeal from theorder of denial (the latter is not an independentaction.

Since it is a proceeding in rem, all interestedpersons have constructive notice, and

jurisdiction of probate court is exclusive. Non-distribution of estate is not a ground for

reopening. Remedy for such case is amotion for execution, or, if beyond thereglementary period, a separate action forrecovery of shares.


16/40



III. GUARDIANSHIPPROCEDURE FOR GUARDIANSHIP UNDERRULES 92-97

DEFINITION

KINDS OF GUARDIANS [Regalado

]1) LEGAL GUARDIAN Deemed as guardian by

provision of law, without need of courtappointment. [Art. 320, CC; Art. 225, FC

]2) GUARDIAN AD LITEM Appointed by the

courts of justice to prosecute or defend aminor, insane or person declared to beincompetent, in a court action.

3) JUDICIAL GUARDIAN Appointed by thecourt in pursuance to law, as guardian forinsane persons, prodigals, minor heirs ordeceased war veterans and other incompetentpersons.a) Guardian over the person;b) Guardian of the property;c) GENERAL GUARDIAN Has custody and

care of the wards person and property.

BASIS It is the States duty to protect the rights of

persons/individuals who because ofage/incapacity are in an unfavorable positionvis--vis other parties. This parens patriae is

inherent in the supreme power of the State. Itis a most beneficent function and oftennecessary to be exercised in the interest ofhumanity and for the prevention of injury tothose who cannot protect themselves. [Nery v.Lorenzo, (1972)

]

NECESSITY Jurisdiction over an incompetents person

cannot be had unless a guardian was appointed

upon whom summons and notice of theproceedings may be served. [Gorostiaga v.Sarte

]

SCOPE AND APPLICABILITY

Rules 92-97 have been amended by AM-03-02-05-SC (April 1, 2003). Guardianship ofincompetents who are not minors continues tobe under the jurisdiction of the regular courtsand governed by Rules 92-97. Guardianship ofminors, however, is now governed by AM-03-02-05-SC. [Regalado

] In a guardianship case, if an issue arises as to

who has the better right/title to the propertiesconveyed in the guardianship proceedings, theissue should be threshed out in a separateordinary action as it is beyond the jurisdictionof the guardianship court. [Parco v. CA (1982)

]However, where the wards right/title to theproperty is clear and indisputable, the

guardianship court may issue an order directingits delivery/return. [Paciente v. Dacuycuy(1982)

]

INCOMPETENTS[Rule 92, Sec. 2]

1) Persons suffering the penalty of civilinterdiction;

2) Hospitalized lepers;3) Prodigals;4) Deaf and dumb who are unable to read and

write;5) Those who are of unsound mind, even though

they have lucid intervals;

6) Persons not being of unsound mind, but byreason of age, disease, weak mind, and othersimilar causes, cannot, without outside aid,take care of themselves and manage theirproperty, thereby becoming an easy prey fordeceit and exploitation.

TRANSFER OF VENUE[Rule 92, Sec. 3

]

The court taking cognizance of a guardianshipproceeding may transfer the same to the courtof another province/municipality wherein theward has acquired real property, if he hastransferred thereto his bona-fide residence. Thelatter court shall have full jurisdiction tocontinue the proceedings, without requiringpayment of additional court fees.

PETITION FOR APPOINTMENT OF A

GUARDIAN

WHO MAY PETITION1) For resident incompetents: [Rule 93, Sec. 1

]a) Any relative/friend/person on behalf of the

incompetent who has no parent or lawfulguardian;

b) Health Secretary, in favor of:(1) an insane person who should be

hospitalized;(2) an isolated leper.

2) For non-resident incompetents: [Rule 93, Sec.6

]a) Any relative/friend;b) Anyone interested in the incompetents

estate. If the interested person is a creditor

and mortgagee of the wards estate, he

Petition for the appointment of a guardian

Court order fixing the hearing of the petition

Notice of the hearing

Hearing and appointment of the guardian

Service of judgment on the local civil registrar

Filing of bond by the guardian

Termination of guardianship


17/40



cannot be appointed guardian of thewards person and property. No mancan serve two masters. [Garchitorenav. Sotelo]

PETITIONS CONTENTS [Rule 93, Sec. 2]1) Jurisdictional facts;2) Incompetency rendering the appointment

necessary/convenient;3) Names/ages/residences of the incompetents

relatives, and of the persons having him intheir care;

4) Estates probable value and character;5) Name of the person for whom letters of

guardianship are prayed.

The petition shall be verified; but no defect inthe petition or verification shall render void theissuance of letters of guardianship. [Rule 93,Sec. 2

]

HEARING

When a petition is filed, the court shall fix atime and place for hearing. The court shallcause notice to be given to the personsmentioned in the petition residing in theprovince, including the incompetent himself.[Rule 93, Sec. 3

] Notice to the wards relatives is a jurisdictional

requirement. [Yangco v. CFI

]

OPPOSITION [Rule 93, Sec. 4] Any interested person may file a written

opposition and pray that:

1) Petition be dismissed;2) Letters of guardianship issue to himself orto any suitable person named in theopposition.

Grounds for opposition:1) Competency of the alleged incompetent;2) Unsuitability of the person for whom letters

are prayed.

CONSIDERATIONS IN THE CHOICE OF THEGUARDIAN [Francisco v. CA (1984)

] The court may consider the financial situation,

the physical condition and sound judgment,prudence and trustworthiness, the morals,

character and conduct, and the present andpast history of a prospective appointee, as wellas the probability of his being able to exercisethe powers and duties of a guardian for the fullperiod during which guardianship will benecessary.

The courts should not appoint as a guardianany person who is not personally subject totheir jurisdiction (e.g. non-residents).[Guerrero v. Teran]

The best interests of a ward can overrideprocedural rules and even the rights of parentsto the custody of their children.

A person who is incompetent to act as anexecutor/administrator does not necessarilyneed to be placed under guardianship. But if aperson is incompetent to act as executor oradministrator, then he is not the incompetentperson envisaged in the law of guardianship.[Lopez Vda. De Baluyot v. Ines-Luciano (1976)

]

GUARDIANS APPOINTMENT The alleged incompetent must be present at

the hearing, if able to attend. It must also be

shown that the required notice was given. Thecourt shall then hear parties evidences. If theperson in question is an incompetent, the courtshall appoint a suitable guardian of hisperson/estate/both. [Rule 93, Sec. 5

] The guardians appointment is good until set

aside; and, despite and appeal therefrom, theguardian can do what is necessary (undercourts direction) for the protection of theward/estate. [Zafra-Sarte v. CA (1970)

]

SERVICE OF JUDGMENT The final order or judgment shall be served

upon the civil registrar of the municipality/citywhere the incompetent resides or where hisproperty is situated. [Rule 93, Sec. 8

]

GUARDIANS BOND

Before an appointed guardian enters upon theexecution of his trust, or letters of guardianship

issue, he shall give a bond. [Rule 94, Sec. 1

] Conditions on the bond: [Rule 94, Sec. 1

]1) To make and return, within 3 months, the

estates inventory;2) To faithfully execute the duties of his trust,

to manage and dispose of the estateaccording to wards best interests, and toprovide for the wards propercare/custody/education;

3) To account for the estate and allproceeds/interest derived therefrom;

4) At the expiration of his trust, to settle hisaccounts with the court and deliver theremaining estate to the person lawfully

entitled thereto;5) To perform all court orders.

In case of breach of the bonds conditions, thebond may be prosecuted in the sameproceeding or in a separate action, for the useand benefit of the ward or of any person legallyinterested in the estate. [Rule 94, Sec. 3

]

NEW BOND Whenever necessary, the court may require a

new bond to be given by the guardian. Afternotice to interested persons, the sureties onthe old bond may then be discharged fromfurther liability when no injury will result to

interested parties. [Rule 94, Sec. 2

]

GUARDIANS GENERAL POWERS ANDDUTIES

1) To pay the ward's just debts out of:a) the personal estate and the real estates

income;b) if insufficient, the real estate (upon

obtaining court order). [Rule 96, Sec. 2

]2) To settle all the wards accounts;

demand/sue/receive for all debts due the ward,or for the same and give discharges to thedebtor, on receiving a fair and just dividend ofthe estate and effects; and appear for the wardin all actions/proceedings, unless anotherperson is appointed for that purpose. [Rule 96,Sec. 3

]3) To manage the wards estate frugally and

without waste; apply the income/profits to thecomfortable and suitable maintenance of theward and his family; and if the income/profitsare insufficient, sell/encumber the real estate(upon court authorization). [Rule 96, Sec. 4

]


18/40



If the guardian delegates his duties toanother, he shall be responsible for theothers actions in the premises and for anyresulting loss. [Zubeldia v. Hermanos] Exception: If he shows that he used

reasonable care and discretion in themanner of selecting those whom heemploys.

4) To render an inventory of the wards estatewithin 3 months after his appointment; and aninventory and account annually after theappointment. [Rule 96, Sec. 7

] The inventory and account may be

compelled upon the application of aninterested person.

The inventories and accounts shall besworn to by the guardian.

All the estate described in the firstinventory shall be appraised. The courtmay request the assistance of inheritancetax appraisers.

If any property of the ward not included inan inventory already rendered isdiscovered/acquired by the ward, likeproceedings shall be had for inventory andappraisement within 3 months.

5) The court may authorize the guardian to join inan assent to an estate partition held by theward jointly or in common with others. Theauthority shall only be granted after hearing,notice to the wards relatives, and a carefulinvestigation as to the proposed actionsnecessity/propriety. [Rule 96, Sec. 5

]6) Upon complaint of the guardian/ward or any

person interested in the wards estate, that

anyone is suspected of havingembezzled/concealed/conveyed away any ofthe ward/estates property, the court may citethe suspected person to appear for examinationand may order to secure the estate. [Rule 96,Sec. 6

] Purpose: To secure evidence from persons

suspected of embezzling, concealing orconveying away any property of the wardso as to enable the guardian to institute theappropriate action to obtain possession ofand secure title to the property. [Cui v.Piccio]

7) Upon the expiration of a year from hisappointment, and as often thereafter asrequired, the guardian must present hisaccount to the court for settlement andallowance. [Rule 96, Sec. 8

] A non-parent guardian is allowed the

amount of his reasonable expensesincurred in the execution of his trust, plus

just compensation for his services, notexceeding 15% of the wards net income. Extra allowance may be made in each

case as the importance and difficulty ofthe management of the estate mayrequire. [Ramos v. PNB (1957)

] A guardian may be imprisoned for failure to

render his account and ordered to deliverthe estate to his successor. [Doronila v.Lopez

]

SELLING/ENCUMBERING THE WARDSPROPERTY

PETITION [Rule 95, Sec. 1

] Grounds for the petition:

1) If the estates income is insufficient tomaintain the ward and his family;

2) If it appears that it is for the wards benefitthat his real estate (or part thereof) besold/encumbered and the proceeds put outat interest or invested.

The grounds enumerated in this section areexclusive. No order will be issued for anotherpurpose not found in this rule. Sale of thewards realty without court order is void. [Intonv. Quintana

] The guardian may file a verified petition with

the court which appointed him. The petitionshall set forth the grounds, and pray forauthorization of the sale/encumbrance.

SHOW CAUSE ORDER [Rule 95, Sec. 2

] If it seems probable that the sale/encumbrance

is necessary/beneficial, the court shall directthe wards next of kin and all interestedpersons to appear and show cause why the

petition should not be granted. Next of kin - Relatives whose relationshipsare such as to entitle them to shares in theestate as distributes. [Lopez v. Teodoro]

HEARING [Rule 95, Sec. 3

] At the time and place designated in the show

cause order, the court shall hear evidences andgrant/refuse the petitions prayer as the wardsbest interests require.

ORDER FOR SALE/ENCUMBRANCE [Rule 95, Sec. 4

] After full examination, if it appears that it is

necessary/beneficial to the ward to

sell/encumber the estate (or some portion ofit), the court shall order the sale/encumbrance. Contents of the order:

1) That the proceeds be expended for themaintenance of the ward and his family, orput out at interest, or invested;

2) Specific causes why the sale/encumbranceis necessary/beneficial;

3) May direct that estate be disposed of ateither public or private sale, subject toconditions on time and manner of paymentand security.

The guardians original bond shall stand assecurity for the proper appropriation of the

sales proceeds; but the judge may require anadditional bond as a condition for the grantingof the order of sale.

The order of sale cannot continue in force formore than 1 year without a sale being had.

The court may authorize and require theguardian to invest the sale/encumbrancesproceeds or the ward's money, for the bestinterest of all concerned. The court may makeother orders for themanagement/investment/disposition of theestate and effects. [Rule 95, Sec. 5

] This seeks to protect the wards funds

against imprudent or unsafe investments

by the guardian. [Philippine Trust Co. v.Ballesteros

] The guardian cannot acquire by purchase, even

at a public or judicial auction, the property ofhis ward. [Art. 1491, CC

] If the authority to sell was obtained under

suspicious circumstances indicative of fraudand collusion, the guardians sale maysubsequently be annulled by the court.[Mendoza v. Labrador] However, thecancellation of the guardians authority to sell


19/40



will not affect the buyers rights. [Margate v.Rabacal

] Appeal is the proper remedy against a court

order authorizing the sale of the wardsproperty. [Lopez v. Teodoro (1950)

]

GUARDIANSHIPS TERMINATION

GROUNDS FOR TERMINATION1) If the incompetent is no longer incompetent.

[Rule 97, Sec. 1

] The person who was declared incompetent,

or his guardian/relative/friend, may petitionthe court to have his present competency

judicially determined. The petition shall be verified by oath, and

shall state that the subject person is thencompetent.

Upon receipt of the petition, the court shallfix the time for hearing, and cause notice tobe given to the guardian and the ward.

On the trial, the guardian, the relatives and(courts discretion) any person may contestthe right to the relief demanded. Witnessesmay be called and examined by the partiesor by the court. If it is found that theperson is no longer incompetent, hiscompetency shall be adjudged andguardianship shall cease.

2) If the incompetent dies.3) If the guardian: [Rule 97, Sec. 2

]a) becomes insane or incapable/unsuitable of

discharging his trust;b) wasted/mismanaged the estate;c) failed for 30 days after it is due to render

an account or make a return;d) resigns. Upon notice to the guardian, the court may

remove him and compel him to surrenderthe wards estate to the person

Barops08 Rem Specpro

Documents

Transcript of Barops08 Rem Specpro