RULE 77

Allowance of Will Proved Outside of Philippines and Administration of Estate Thereunder

A will allowed or probated in a foreign country, must be re-probated in the Philippines. If the decedent owns properties in different countries, separate administration proceedings must be had in said countries.

TWO TYPES OF ESTATE PROCEEDINGS:

1. Domicilliary administration - the proceeding instituted in last residence of the decedent.

2. Ancillary administration - the administration proceedings where he left his estate.

REQUISITES OF ANCILLARY ADMINISTRATION (Sec.2)

1. there must be a will (inferred from the wordings of Rule 77);2. filing of:a) copy of the will executed in foreign country;b) order or decree of foreign court allowing such will; andc) authentication of requisites a and b above;3. notice of time and place of hearing;4. hearing; and5. certificate of allowance.

Q:Can a will executed and proved in a foreign country be allowed in the Philippines under Rule 77?

Ans. YES. Provided that the following must be proved:

1. foreign court must have jurisdiction over the proceeding;

2. domicile of testator/decedent in the foreign country and not in the Philippines;

3. that the will has been admitted to probate in such country;

4. it was made with the formalities prescribed by the law of the place in which the decedent resides, or according to the formalities observed in his country, or in conformity with the formalities prescribed by our Civil Code; and

5. due execution of the will in accordance with the foreign laws.

Q: Why is it that it is necessary to prove foreign laws in reprobate of the will?

ANs. The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by the fact that our courts cannot take judicial notice of them. (Philippine Commercial and Industrial Bank vs. Escolin, 56 Scra 266 G.R. Nos. L-27860 and L-27896 March 29, 1974).

EFFECTS

1. the will shall have the same effect as if originally proved and allowed in court of the Philippines.

2. letters testamentary or administration with a will annexed shall extend to all estates of the Philippines.

3. Residue of estate after payment of debts, etc. shall be disposed of as provided by law in cases of estates in Philippines belonging to persons who are inhabitants of another state or country.

RULE 78Letters Testamentary and of Administration When and to Whom Issued

PERSONS WHO CAN ADMINISTER THE ESTATE

1. Executor;2. Administrator, regular or special (Rule 80); and3. Administrator with a will annexed (Rule 79, Section 1).

Definition of Terms

Executor - The one named by the testator in his will for the administration of his property after his death.

Administrator - One appointed by the Court in accordance with the Rules or governing statutes to administer and settle the intestate estate or such testate estate, where the testator did not name any executor or that the executor so named refuses to accept the trust, or fails to file a bond, or is otherwise incompetent.

Administrator with a will annexed - one appointed by the court in cases when, although there is a will, the will does not appoint any executor, or if appointed, said person is either incapacitated or unwilling to serve as such.

Letters testamentary - Authority issued to an executor named in the will to administer the estate.

Letters of administration Authority issued by the court to a COMPETENT person to administer the estate of the deceased who died intestate.

WHO MAY SERVE AS EXECUTOR/ ADMINISTRATOR?

Any competent person may serve as executor or administrator.

WHO ARE INCOMPETENT TO SERVE AS EXECUTOR/ADMINISTRATOR?

1. a minor2. a non-resident3. one who in the opinion of the court is unfit to exercise the duties of the trust by reason of:a) drunkennessb) improvidencec) want of understanding and integrityd) conviction for an offense involving moral turpitude

Executor of executor shall not, as such, administer the estate of the first testator. (Sec. 2)

When to appoint an administrator and the courts duty

1. NO executor is named in the will, 2. The named executor or executors are incompetent, 3. The named executor or executors refuse the trust, or fail to give bond, or a person dies intestate.

Duty of the Court: It must appoint an administrator of the estate of the deceased who shall act as representative not only of the court appointing him but also of the heirs and the creditors of the estate. (Gonzales vs. Aguinaldo, G.R. No. 74769 September 28, 1990.)

Q: Can the clerks of court or other court personnel of probate courts be appointed as administrators?

ANS: NO. In the case of Medina, et al vs CA, the SC ruled that clerks of court and other personnel of the probate court are not allowed to be appointed as administrator or receivers of estates of deceased persons in order to maintain and observe their objectivity and impartiality in the performance of their regular functions.

(Sec. 6) ORDER OF PREFERENCE IN THE APPOINTMENT OF REGULAR ADMINISTRATOR

1. The surviving husband or wife or the next of kin, or both in the discretion of the court, or to such person as such surviving spouse or next of kin, request to have appointed, if competent and willing to serve. (SURVIVING SPOUSE OR NOMINEE)

2. If the surviving spouse or the next of kin or the person selected by them be incompetent or unwilling to serve, or if the surviving spouse or next of kin neglects for 30 days after the death of the decedent to apply for administration, ANY one or more of the PRINCIPAL CREDITORS, if competent and willing to serve.

3. If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. (STRANGER)

BASIS FOR THE PREFERENTIAL RIGHT

The underlying assumption is that those who will reap the benefits of a wise, speedy and economical administration of the estate or on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the higher interest and most influential motive to administer the estate correctly. (Gonzales vs. Aguinaldo, G.R. No. 74769 September 28, 1990)

APPOINTMENT OF Co-administrators

The order of preference does not rule out the appointment of co-administrator and the same may be resorted to by the probate court in the exercise of its sound discretion.

Reasons why appointing more than one administrator is allowed:

(1) To have the benefits of their judgment and perhaps at all times to have different interests represented;

(2) Where justice and equity demand that opposing parties or factions be represented in the management of the estate of the deceased;

(3) Where the estate is large or, from any cause, an intricate and perplexing one to settle;

(4) To have all interested persons satisfied and the representatives to work in harmony for the best interests of the estate; and

(5)When a person entitled to the administration of an estate desires to have another competent person associated with him in the office.

----------------------------------------END----------------------------------------Page | 4