special civil action_special proceedings-2

7/29/2019 Special Civil Action_Special Proceedings-2

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locatedNote: All banks located in 1province where the court islocated may be made party-defendant in 1 action.

Rule 98 Trustees

RTC-Gross value of theestate exceeds

300,000/400,000MTC- does not exceed300,000/400,000

Where the will was allowed orwhere the property or portion

thereof affected by the trust issituated

Rule 101Hospitalization ofinsane person

RTCWhere such insane personmay be found

Rule 103 Change of name RTCWhere petitioner resides for 3years prior to the filing of thepetition

Rule 108Cancellation orcorrection of entriesin the civil registry

RTCWhere the corresponding civilregistry is located

Rule 107Declaration ofabsence and death

RTCWhere the absentee residedbefore his disappearance

A.M. No.00-8-10-

SC

Corporate

rehabilitation

RTCWhere principal office of the

corporation is situated

Rule 104Voluntarydissolution ofcorporation

SECWhere principal office ofcorporation is situated

RA 9048

Administrativecorrection ofentry/change of firstname or nickname

Local civil registry/Consulgeneral

Local civil registry officewhere the record iskept/where the interestedparty is presently residing ordomiciled

Rules 92-97; A.M.No. 03-

02-05-SC

Guardianship

Family Court In case ofminorsRTC In cases other thanminors

1. If resident- place whereminor/ incompetentresides

2. If non-resident- placewhere minor/ incompetent

has propertyA.M. No.02-06-02-

SCDomestic Adoption Family Court Where the adopter resides

A.M. No.02-6-02-

SC

Rescission ofAdoption

Family Court Where the adoptee resides

A.M. No.02-6-02-

SC

Inter-countryAdoption

Family Court or the Inter-Country Adoption Board

Where the adopter resides

Rule 99 Custody of Minors Family CourtWhere petitioner resides or

where the minor may be found

Rule 105

Judicial Approval ofVoluntaryRecognition of

Minor NaturalChildren

Family Court Where the child resides

FamilyCode

SummaryProceedings

Family CourtWhere the petitioner residesor where the child resides if itinvolves minors

R.A.8369

Actions mentioned in the Family Courts Act

1. Petitions onFoster care andTemporaryCustody

Family Court

Where petitioner orrespondent has been residingfor at least 6 months prior tothe date of filing


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2. Declaration ofNullity ofMarriage

3. Cases ofDomesticViolence

Against Women

and Children

In case of non-residentrespondent, where he may befound at the election of thepetitioner

Rule 102 Habeas Corpus

SC, CA, RTC, MTC in theprovince or city in casethere is no RTC judge; SBonly in aid of its appellate

jurisdiction

Where the aggrieved party isdetained (RTC)

A.M. No.03-04-04-SC

Habeas Corpus inRelation to Custodyof Minors

Family Court, CA, SCWhere the petitioner residesor where the minor may befound

A.M. No.07-9-12-SC

Writ of AmparoRTC, SB, CA or SC or any

justice thereof

Where the threat, act oromission was committed orany of its elements occurred

A.M. No.

08-1-16-SC

Writ of habeas data RTC, SB, CA or SC or anyjustice thereof

Where the petitioner orrespondent resides, or thatwhich has jurisdiction over the

place where the data orinformation is gathered,collected or stored, at theoption of the petitioner

A.M. No.09-6-8-SC

Writ of Kalikasan SC or any stations of CAWhere the unlawful act,omission or threat wascommitted

A.M.No.02-11-10-SC

Declaration of nullityof voidmarriage/Annulmentof marriage

Family Court

Where petitioner orrespondent has been residingfor at least 6 months prior tothe date of filingIn case of non-residentrespondent, where he may befound at the election of the

petitioner

A.M. No.02-11-11-SC

Legal Separation Family Court

Where petitioner orrespondent has been residingfor at least 6 months prior tothe date of filingIn case of non-residentrespondent, where he may befound at the election of thepetitioner

Q: What is the publication requirement in special proceedings?A:Special Proceeding Publication of Order of Hearing

Administrative change of first name or nicknameOnce a week for 2 consecutive weeks

Corporate rehabilitation

Settlement of estate of deceased persons

Once a week for 3 consecutive weeks

J udicial change of nameJ udicial cancellation or correction of entries inthe civil registryDomestic adoptionInter-country adoptionVoluntary dissolution of corporation(Except shortening of corporate term)

Declaration of absenceOnce a week for 3 consecutive weeksNote: The declaration of absence shall not take


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effect until six (6) months after its publication in anewspaper of general circulation.

Escheat Once a week for 6 consecutive weeksGuardianship

None

TrusteesCustody of minorsHospitalization of insane person

Rescission of adoptionAdministrative cancellation or correction ofentriesHabeas corpusWrit of amparoWrit of habeas dataWrit of kalikasan1. Petitions on foster care and temporary

custody2. Cases of domestic violence against women

and childrenSummary proceedings

Note: In declaration of nullity or annulment of marriage or legal separation, service of summons may bethrough publication once a week for 2 consecutive weeks.

Q: Who should be notified in special proceedings?A:

Special proceeding To whom notice must be givenSettlement of estate of deceased persons Executor/administrator/any interested partyTrustees All persons interested on the trust

Hospitalization of insane personOn the person alleged to be insane and to the onehaving charge of him or any of his relatives

J udicial change of name Interested parties/Solicitor GeneralJ udicial cancellation or correction of entries inthe civil registry

Persons named in the petition/SolicitorGeneral/Civil Registrar impleaded as respondent

Declaration of absence and deathHeirs/legatees/devisees/creditors/other interestedpersons

Corporate rehabilitation Creditors/DebtorsVoluntary dissolution of corporation Creditors

Administrative correction of entry/ change offirst name or nickname

Interested parties

GuardianshipThe minor if above 14 years of age/incompetenthimself/Interested parties on the property of theward. General or special notice may be given.

Domestic Adoption Biological parents/Solicitor GeneralRescission of Adoption AdopterInter-country Adoption Biological parents, if any/guardianCustody of Minors Biological parents/guardian if anyHabeas corpus To the person to which the writ is directedWrit of amparo RespondentWrit of habeas data Respondent

Writ of kalikasan Respondent

Summary proceedings Respondent and interested party

1. Petitions on foster care and temporarycustody

2. Cases of domestic violence against womenand children

Solicitor General/Public Prosecutor

Declaration of nullity of void marriage /Annulment of marriage

City/Provincial Prosecutor/ Respondent

Legal separation City/Provincial prosecutor/ Respondent

Escheat None

A. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESSES


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1. WHICH COURT HAS JURISDICTION

Q: Which court has jurisdiction over the estate of the deceased?A:

Regional Trial CourtMetropolitan Trial

Court

Gross value of theestate exceeds400,000 (within MetroManila) or 300,000(outside Metro Manila)

Gross value of theestate does notexceed 400,000(within Metro Manila)or 300,000 (outsideMetro Manila)

Q: State the rule on venue in judicial settlement of estate of deceased persons.

A:

Resident Non-Resident

Court of theprovince/city wherethe deceased residedat the time of death,

whether a citizen oralien

Court of theprovince/city wherein

he had estate

2. VENUE IN JUDICIAL SETTLEMENT OF ESTATE

Q: What is the venue?A: Under the Rules of Court, it is the province where the estate of the deceased shall be settled (Cuencov. CA, G.R. No. L-24742, October 26, 1973).

Resident Non-Resident

Court of theprovince/city wherethe deceased resided

at the time of death,whether a citizen oralien

Court of theprovince/city wherein

he had estate

Q: Is venue waivable?A: Yes. Wrong venue is a waivable procedural defect, and such waiver may occur by laches where aparty had been served notice of the filing of the probate petition for a year and allowed the proceedingsto continue for such time before filing a motion to dismiss.

Note: Jurisdiction under Rule 73 does not relate to jurisdiction per se but to venue. Hence institution inthe court where the decedent is neither an inhabitant nor had his estate may be waived (Uriarte v. CFI,G.R. Nos. L-21938-39, May 29, 1970).

Q: What constitutes residence?

A: It is the personal, actual, physical habitation, his actual residence or place of abode (Fule v. CA, G.R.No. L-40502, Nov. 29, 1976) and not his permanent legal residence or domicile.

Note: MTC jurisdiction is exclusive of interest, damages of whatever kind, attorneys fees, litigationexpenses and costs.

Q: What is the remedy if Venue is improperly laid?A:

GR: ORDINARY APPEAL should be filed, not certiorari or mandamus.


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XPN: CERTIORARI OR MANDAMUS should be filed when want of jurisdiction appear on the recordof the case.

Q: What is the Principle of Preferential Jurisdiction?A:

GR: The court first taking cognizance of the settlement of the estate of the decedent shall exercisejurisdiction to the exclusion of all other courts (Sec. 1 of Rule 73).

The probate court acquires jurisdiction from the moment the petition for the settlement of estate isfiled with said court. It cannot be divested of such jurisdiction by the subsequent acts of the partiesas by entering into extrajudicial partition of the estate (Sandoval v. Santiago, L- 1723, May 30,1949); or by filing another petition for settlement in a proper court of concurrent venue ( De Borja v.Tan, 77 Phil 872).

XPN: Estoppel by LachesNote: The rule applies to both testate and intestate proceedings (Intestate Estate of Wolfson, 45 SCRA381 June 15, 1972).

3. EXTENT OF JURISDICTION OF PROBATE COURT

Q: May probate courts determine issues of ownership in a proceeding for the settlement of estateof decedent? Explain.A:

GR: No, because probate courts are courts of limited jurisdiction.

XPNS:1. Provisionally,for the sole purpose of including the property in the inventory, without prejudice to

its final determination in a separate action;2. When all the parties are heirs of the decedent and they agreed to submit the issue of ownership

to the probate court, provided that no rights of third persons are prejudiced;3. If the question is one of collation or advancement; or4. If the parties consent to the assumption of jurisdiction by the probate court and no rights of third

parties are prejudiced (Agpalo, Handbook on Special Proceedings, pp. 10-12, 2003 ed.).

Note: The intestate court may pass upon the title to a certain property for the purpose of determiningwhether the same should or should not be included in the inventory but such determination is notconclusive and is subject to final decision in a separate action regarding ownership which may beconstituted by the parties [Reyes v. Mosqueda, 187 SCRA 661, (1990)].

Q: The probate court ordered the inclusion of a parcel of land registered in the name of Richard

in the inventory of the properties of the deceased Anna. Richard opposed the inclusion arguingthat the probate court cannot determine the issue of the ownership of the parcel of landinasmuch as the same was registered in his name. Is Richard correct?A: Yes. In probate proceedings, if a property covered by Torrens title is involved, the presumptiveconclusiveness of such title should be given due weight, and in the absence of strong compellingevidence to the contrary, the holder thereof should be considered as the owner of the property incontroversy until his title is nullified or modified in an appropriate ordinary action, particularly, when as inthe case at bar, possession of the property itself is in the persons named in the title (Luy Lim v. CA, G.R.No. 124715, Jan. 24, 2000).

Q: What may the court do in the exercise of its probate jurisdiction?A: It may issue warrants and processes to compel the attendance of witnesses or carry into effect theirorders and judgments and all other powers granted them by law (Sec. 3, Rule 73).

Q: May the probate court issue a writ of execution?A:

GR: No, because its orders usually refer to the adjudication of claims against the estate which theexecutor or administrator may satisfy without the necessity of resorting to a writ of execution.XPNS:

1. To satisfy the contributive share of the devisees, legatees and heirs when the latter had enteredprior possession over the estate (Sec. 6, Rule 88);

2. To enforcepayment of the expenses of partition (Sec. 3, Rule 90); and3. To satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13,

Rule 142; De Valera v. Hon. Ofilada, G.R. No. L-27526, Sept. 19, 1974).


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4. To satisfy the claim in a summary proceedings of creditors or heirs who appear within two yearsfrom distribution. (See Herrera, Remedial Law, Vol. III-A, pgs. 222-223, 2005 ed.)

Q: Can a declaration of heirship be made in an independent action?A:

1. If the special proceedings are pending, or if there are no special proceedings filed but there is aneed to file one, then the determination of heirship should be raised and settled in said special

proceedings.2. If the special proceeding had been instituted but had been finally closed and terminated, or if aputative heir has lost the right to have himself declared in the special proceedings as co-heirand he can no longer ask for its re-opening, then an ordinary civil action can be filed for hisdeclaration as heir in order to bring about the annulment of the partition or distribution oradjudication of properties belonging to the estate of the deceased (Portugal and Portugal, Jr. v.Portugal-Beltran, G.R. No. 155555, Aug. 16, 2005).

Q: Where should the estate be settled if the marriage is dissolved by death of either spouse orboth?A: When the marriage is dissolved by the death of the husband or wife, the community property shall be

inventoried, administered and liquidated, and the debts thereof paid, in the testate or intestateproceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall beliquidated in the testate or intestate proceedings of either(Sec. 2, Rule 73).

Note: If separate proceedings have been instituted for each estate, both proceedings may beconsolidated if they were filed in the same court.The rule on consolidation in settlement proceedings for husband and wife exclusively applies to them. Itdoes not apply to siblings, parents and child or other relatives no matter how close (Benigno v. de laPea, G.R. No. L-38036, Oct. 15, 1932).Notes:

1. The jurisdiction of a court as well as the concomitant nature of the action is determined by theaverments in the complaint and not by the defenses contained in the answer ( Vda. De Manalov. CA, 349 SCRA 135).

2. The residence of the deceased or the location of his estate is not an element of jurisdiction overthe subject matter but merely of venue (Cuenca v. CA 53 SCRA 360, 1973).

4. POWERS AND DUTIES OF PROBATE COURT

Q: What are the powers and duties of a Probate Court?

A: In probate proceedings, the court:1. Orders the probate of the will of the decedent2. Grants letters administration3. Supervises and controls all acts of administration4. Hears and approves claims against the estate of the deceased5. Orders payment of lawful debts6. Authorizes sale, mortgage or any encumbrance of real estate7. Orders the payment of taxes and other charges8. Directs the delivery of the estate to those entitled thereto.

Note: The court acts as a trustee and as such must jealously guard the estate and see to it that it iswisely and economically administered, not dissipated (Timbol v. Cano, 111 Phil 923, 926).

Q: What are the specific powers and duties of a probate court?A:

1.To pass upon the issue regarding the validity of the will (i.e. formalities required by law)2. Distribute shares

3. Determine who are the legal heirs4. Issue warrants and processes to secure attendance of witnesses5. Determine and rule upon issues relating to settlement of the estate, such as administration,

liquidation, and distribution of the estate6. Determine the following:

a. Heirs of the decedent;b. Recognition of natural child;c. Validity of disinheritance effected by testator;d. Status of a woman who claims to be the lawful wife of the decedent ;


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e. Validity if waiver of hereditary heirs;f. Status of each heir;g. Whatever property in the inventory is conjugal or exclusive property of deceased spouse; orh. Matters incidental or collateral to the settlement and distribution of the estate.

Note: The trial court sitting as a probate court, has limited and special jurisdiction, and cannot hear anddispose of collateral matters and issues which may be properly threshed out only in an ordinary action(Vda. de Manalo v. CA, GR 129242, January 16, 2001).

B. SUMMARY SETTLEMENT OF ESTATES

Q: What are different modes of settlement of estate of a deceased person?A:

1. Extrajudicial settlement Where the decedent left no will and no debts and heirs are all of age,or the minors are represented by their representatives duly authorized for the purpose (Sec. 1,Rule 74).

2. Judicial settlementa. Summary settlement of estate of small value Whenever the gross value of the estate of a

deceased person, whether he died testate or intestate, does not exceed P10,000, the courtmay proceed summarily, without the appointment of an executor or administrator (Sec. 3,Rule 74).

b. Testate proceedings When the decedent left a last will and testament (Rules 75-79).c. Intestate proceedings When the decedent died without a will, or died with a will but was

found invalid and thereafter disallowed (Rule 79).d. Partition When there is no will and the parties entitled to the estate would then agree on

the project of partition (Rule 69).

1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS, WHEN ALLOWED

EXTRA JUDICIAL SETTLEMENT BYAGREEMENT BETWEEN HEIRS

SUMMARY SETTLEMENT OF ESTATE OFSMALL VALUE

No court intervention Requires summary adjudicationThe value of the estate is immaterial Gross value of the estate must not exceed

P10,000Allowed only in intestate succession Allowed in both testate and intestate successionThere must be no outstanding debts of theestate at the time of the settlement

Available even if there are debts, it is the courtwhich will make provision for its payment

Resorted at the instance and by agreement of

all heirs

May be instituted by any interested party even a

creditor of the estate without the consent of all theheirs

Amount of bond is equal to the value ofpersonal property

Amount of bond is to be determined by the court

Q: Distinguish the procedure in extrajudicial settlement from summary settlementA:

A. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN THE HEIRS


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B. SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE

Q: When is extra judicial settlement by agreement between the heirs allowed? (SubstantialRequisites)

A:When the decedent:

1. Left no will and no debts; and the heirs are all of age; and2. The minors are represented by their judicial or legal representatives duly authorized for the

purpose (Sec. 1, Rule 74).

Q: What are the requisites before an extrajudicial settlement of estate could be resorted to asevidence of its validity? (Procedural Requisites)A:

Personal property- file a bond equivalent to its

amount.Real property- subject to a lien in favor of the

creditors, heirs or other persons for the full periodof 2 years from such distribution and such lien

cannot be substituted by a bond

Publication of notice of the fact of extrajudicial

settlement once a week for three consecutiveweeks in a newspaper of general circulation

Filing of the public instrument or affidavit of

adjudication with the proper Register of Deeds

Division of estate made through a public

instrument or affidavit of adjudication

The court proceeds summarily without the

necessity of appointing an executor oradministrator; and to make orders as may be

necessary

The court may also require a bond in an amount

fixed by the court (not value of personal property)

conditioned upon payment of just claims under

Section 4

Hearing to be held not less than 1 month nor more

than 3 months from the date of last publication ofnotice

Publication of notice once a week for 3 consecutive

weeks; court may likewise order that notice begiven to persons as the court may direct

Petition for summary settlement to be filed in the

MTC with an allegation that the gross value of theestate, whether he died testate or intestate does

not exceed P10,000


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1. Settlement is made in a public instrument or by affidavit of adjudication in the case of a soleheir;

Note: In case of disagreement of heirs, they may state their oppositions in an ordinary action ofpartition.

2. Filed with the Register of Deeds;

3. Fact of settlement must be published in a newspaper of general circulation once a week for 3consecutive weeks; and4. Bond filed equivalent to the value of personal property (Sec. 1, Rule 74).

Note: While the Rules of Court provide that the decedent must not have left any debts, it is sufficient ifany debts he may have left have been paid at the time the extrajudicial settlement is entered into (Guicov. Bautista, G.R. No. L-14921, Dec. 31, 1960). It is a disputable presumption that the decedent left nodebts if no creditor files a petition for letters of administration within two years after the death of thedecedent.

Q: What is a bond?A: It is the value of the personal property certified by the parties under oath and conditioned uponpayment of just claims against the estate under Section 4, Rule 74.Note: The amount of bond required under Section 2 is determined by the COURT whereas in Section 1the amount is EQUAL TO THE VALUE OF THE PERSONAL PROPERTY as established by

adjudication.

Q: When is a bond required to be filed in extrajudicial settlement of estate?A: When personal property is involved, a bond is required. On the other hand, if it is a real property, it issubject to a lien in favor of a creditor for 2 years from distribution and such lien cannot be substituted bya bond (Sec. 1, Rule 74).

Note: The same provision on the bond and lien also applies in summary settlement of estate (Sec. 2,Rule 74).

Q: Is a public instrument necessary for the validity of the extrajudicial settlement?A: No, the requirement of public instrument is not constitutive of the validity but is merely evidentiary innature (Hernandez v. Andal, G.R. No. L-273, Mar. 23, 1947) . Even a private instrument, oral agreementof partition or compromise agreement entered into without previous authority from the court is valid.However, reformation of the instrument may be compelled (Borja vs. Vda. De Borja, 46 SCRA 577).

Note: Public instrument is required in transfer and registration of title to the heirs.

Q: What is the effect of an extra-judicial partition executed without the knowledge and consent ofthe other co-heirs?A: It shall not prejudice the co-heir who had no knowledge nor consented to the same. He shall have theright to vindicate his inheritance. Such heir or such other person deprived of his lawful participationpayable in money may compel the settlement of the estate in courts for the purpose of satisfying suchlawful participation (Sec. 4, Rule 74).

Q: Why is publication of the extrajudicial settlement necessary?A: To notify and bind the whole world of the extrajudicial settlement and give the concerned parties achance to come forward and challenge the same (Sec. 1, Rule 74).Note: Publication alone does not suffice to bind the excluded heirs to the extrajudicial settlement unlesshe did not participate in the proceedings.

Q: What is the effect if the provisions on notice or participation requirement under Sec. 1, Rule 74has been strictly complied with?A: It bars distributees or heirs from objecting to an extra-judicial partition after the two-year prescriptiveperiod to question such partition (Sec. 4, Rule 74).

2. TWO-YEAR PRESCRIPTIVE PERIOD

Q: When does the two year period rule apply?A:After the expiration of two years from the extrajudicial partition, distributees or heirs are barred fromobjecting to an extrajudicial partition. The two year prescriptive period applies only:


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1. To persons who have participated or taken part or had notice of the extrajudicial partition; and2. When all the persons or heirs of the decedent have taken part in the extrajudicial settlement or

are represented by themselves or through their guardians.

Note: It is only a bar against the parties who had taken part in the extrajudicial proceedings, but notagainst third persons not parties thereto (Herrera, Remedial Law, Vol. III-A, p.39, 2005 ed.).

Q: Does the two-year period apply for a claim of minor or incapacitated person?A: If on the date of the expiration of the period of two years prescribed, the person authorized to file aclaim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present hisclaim within one year after such disability is removed (Sec. 5, Rule 74).

3. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR

Q: What is an Affidavit of Self-Adjudication by sole heir?A: It is an affidavit required by Sec.1, Rule 74 to be executed by the sole heir or a deceased person inadjudicating to himself the entire estate left by the decedent.

4. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUEQ: What is summary settlement of estate?A: It is a judicial proceeding, without appointment of executor or administrator, and without delay,wherein the competent court summarily proceeds to estimate the value of estate of the decedent; allow

his will if any; declare his heirs, devisees, and legatees; distribute his net estate among them, who shallthereupon be entitled to receive and enter into the possession of the parts of the estate so awarded tothem, respectively.

Q: When is summary settlement of estates of small value allowed?A: Only when gross estate does not exceed P10,000. Amount is jurisdictional (Sec. 2, Rule 74).Notes:

1. Amount is jurisdictional;2. Summary settlement of estate of small value is allowed in both testate and intestate estates;3. Available even if there are debts as the court will make provisions for the payment thereof.4. In accordance with B.P. Blg. 129, the jurisdiction is vested to the Municipal Trial Courts.5. Instituted by any interested party and even by a creditor of the estate, without the consent of all

the heirs.6. The date for hearing, shall be set by court not less than 1 month nor more than 3 months from

date of publication of last notice and the order of hearing be published once a week for 3

consecutive weeks in a newspaper of general circulation.7. Notice shall be served upon such interested persons as the court may direct.8. Bond in an amount fixed by the court (not value of the personal property) conditioned upon

payment of just claims under Sec. 4.

Q: When can settlement of estates in courts be compelled?A:

1. If there is undue deprivation of lawful participation in the estate;2. The existence of debts against the estate;3. If there is undue deprivation of lawful participation payable in money (Sec. 4, Rule 74).

5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE

Q: What are the remedies of the aggrieved party in summary or extrajudicial settlement of theestate?A:

CLAIM AGAINST THE BONDOR REAL ESTATE

GROUNDS: (Section 4, Rule 74)a. If there is undue deprivation of lawful participation in the estate;b. Existence of debts against the estate.

Should be brought within 2 years after settlement and distribution ofthe estate

COMPEL THE SETTLEMENTOF ESTATE IN COURTS Should be brought within 2 years after settlement and distribution of

the estate


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ACTION FOR RESCISSION If there is preterition of compulsory heir tainted with bad faith (Art1104, NCC).It must be availed of within 5 years from the time the right of actionaccrues (Art. 1149, NCC).

Also applicable in judicial proceedings

ACTION FORRECONVEYANCE OF REAL

PROPERTY

GR: It is based on an implied or constructive trust which prescribesin 10 years from the date of registration or date of issuance of

certificate of title or from actual discovery of fraud if the registrationwas made in bad faith.XPN: If the plaintiff is in possession of the property and did not passto innocent purchaser for value and good faith, action isimprescriptible (Marquez v. CA, G.R. No. 125715, Dec. 29, 1998).

Also applicable in judicial proceedings.

REOPENING BYINTERVENTION INSUMMARYSETTLEMENT

Upon motion of a person who either:a. Has a legal interest in the matter in litigation;b. Has such legal interest in the success of either of the parties, or

an interest against both; orc. Is so situated as to be adversely affected by the distribution of

property in the custody of the court or of an officer.

Note: May be availed of after judgment but before its finality or

appeal by the aggrieved party.

PETITION FOR RELIEF(SUMMARY SETTLEMENT)

On grounds of fraud, accident, mistake, and excusable negligencewithin 60 days after petitioner learns of the judgment, final order orother proceeding to be set aside, and not more than 6 months aftersuch judgment or final order was entered (Rule 38).Also applicable in

judicial proceedings.ACTION TO ANNUL A DEEDOF EXTRAJUDICIALSETTLEMENT ORJUDGMENT IN SUMMARYSETTLEMENT

On the ground of fraud which should be filed within 4 years from thediscovery of fraud.

ORDINARY ACTION BUT NOTAGAINST THE BOND

If the order of closure has already become final and executory, theheir must file an independent civil action of accion reinvidicatoria torecover his deprived share.Note: It must be brought within 10 years from the time the right ofaction accrues [Art. 1144(c)].

Also applicable in judicial proceedings.

After the lapse of two years an ordinary action may be institutedagainst the distributees within the statute of limitations but not againstthe bond.


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C. PRODUCTION AND PROBATE OF WILL

1. NATURE OF PROBATE PROCEEDING

Q: What is probate?A: Probate is the act of proving before a competent court the due execution and validity of a will by aperson possessed of testamentary capacity, as well as the approval thereof by said court (also known as

Allowance of Will) (Tabingan, Special Proceedings, p. 75, 2

nd

Ed.).

Q: Why is probate necessary?A: To settle all questions concerning the capacity of the testator and the proper execution of his will,irrespective of whether its provisions are valid and enforceable (Fernandez v. Dimagiba, G.R. No. L-23638, Oct. 12, 1967).

Q: What is the nature of a probate proceeding?A:1. IN REM- It is binding upon the whole world (Tabingan, Special Proceedings, p. 76, 2

ndEd.).

2. MANDATORY- No will shall pass either real or personal property unless it is proved and allowed inthe proper court (Sec 1. Rule 75).

Note:However, a will may be sustained on the basis of Article 1080 of the NCC which states that, if thetestator should make a partition of his property by an act intervivos or by will, such partition shall stand in

so far as it does not prejudice the legitime of the forced heir (Mang- Oy v. CA, L-27421, 1986).

3. IMPRESCRIPTIBLE- because of the public policy to obey the will of the testator4. DOCTRINE OF ESTOPPEL DOES NOT APPLY- the probate of the will is mandatory. Thepresentation and probate of the will is required by public policy. It involves public interest ( Fernandez v.Dimagiba, L- 23638, 1967).

Q: Does the probate court look into the intrinsic validity of the will?A:

GR: No. The jurisdiction of probate court is limited to the examination and resolution of the extrinsicvalidity of a will.

XPNS: Principle of practical considerations wherein the court may pass upon the intrinsic validity ofthe will:1. If the case where to be remanded for probate of the will, it will result to waste of time, effort,

expense, plus added anxiety; as in the case of absolute preterition (Nuguid v. Nuguid, G.R. No.L-23445, June 23, 1966).

2. Where the entire or all testamentary dispositions are void and where the defect is apparent onits face (Nepomuceno v. CA, G.R. No. L-62952, Oct. 9, 1985).

Note: Principle does not apply where the meat of the controversy is not the intrinsic validity ofthe will.

Note: The decree of probate is conclusive with respect to the due execution of the will and it cannot beimpugned on any of the grounds authorized by law, except by fraud, in any separate or independentaction or proceeding [Manahan v. Manahan, 58 Phil 448,451 (1933); Solano v. CA, 126 SCRA 122(1983)].

Note: Testate proceedings take precedence over intestate proceedings for the same estate. If in the

course of the intestate proceedings, it is found that the decedent had left a last will, proceedings for theprobate of the latter should replace the intestate proceedings even if at that state, an administrator hadalready been appointed (Uriarte v. CFI, 33 SCRA 252, 1970).

Note: Mere discovery of a document purporting to be the last will and testament of decedent afterappointment of an administrator does not ipso facto nullify the letters of administration already issueduntil the will has been proven and allowed (Advincula v. Teodoro, 99 Phil 413).

2. WHO MAY PETITION FOR PROBATEQ: Who may file a petition for allowance of will?


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A:1. Executor(Sec. 1, Rule 76);2. Devisee or legatee named in the will (Sec. 1, Rule 76);3. Person interested in the estate; e.g. heirs

Note: An interested party is one who would be benefited by the estate, such as an heir, or onewho has a claim against the estate such as a creditor (Sumilang v. Ramagosa, G.R. No. L-

23135, Dec. 26, 1967).4. Testator himself during his lifetime (Sec. 1, Rule 76); or5. Any creditor as preparatory step for filing of his claim therein.

Q: Who are the people entitled to notice in a probate hearing?A:

1. Designated or known heirs, legatees and devisees of the testator resident in the Philippines attheir places of residence, at least 20 days before the hearing, if such places of residence beknown.

2. Person named executor, if he not the petitioner.3. To any person named as co-executor not petitioning, if their places of residence be known.4. If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory

heirs (Sec. 4, Rule 76).

D. ALLOWANCE OR DISALLOWANCE OF A WILL

1. CONTENTS OF PETITION FOR ALLOWANCE FOR WILL

Q: What are the contents of a petition for allowance of a will?A:

1. Jurisdictional facts:I. death of the testator andII. his residence at the time of his death

III. if non- resident, the province where the estate was left2. The names, ages and residences of the heirs, legatees and devisees of the testator or decedent.3. The probable value and character of the property of the estate.4. The name of the persons for whom letters are prayed.5. The name of the person having custody of the will if it has not been delivered to the court (Sec. 2,

Rule 76).

Note: But no defect in the petition shall render void the allowance of the will or the issuance of letterstestamentary or of administration with the will annexed ( Ibid.).

Q: What is the effect of the allowance of a will?A: The judgment or decree of the court allowing the will is:

1. Conclusive as to its extrinsic validity;2. Not subject to collateral attack and it stands as final, if not modified, set aside, or revoked by a

direct proceeding, or reversed on appeal by a higher court; and3. Conclusive on the whole world (Yuseco v. CA, G.R. Nos. L-40719-21, Dec. 29, 1975).

Q: How should a will be proved?A:

Uncontested Contested


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Notarial will

The courtmay grantallowancethereof on thetestimony ofone of thesubscribing

witnessesonly, if suchwitnesstestifies thatthe will wasexecuted asis required bylaw (Sec. 5,Rule 76).

All thesubscribingwitnesses andthe notarypublic must

testify as todue executionandattestation ofthe will (Sec.11, Rule 76).

Holographicwill

At least onewitness whoknows thehandwritingand signature

of the testatorexplicitlydeclares thatthe will andsignature arein thehandwriting ofthe testator(Sec. 5, Rule76).

The will shallbe allowed ifat least threewitnesseswho know thehandwriting of

the testatorexplicitlydeclare thatthe will andsignature arein thehandwriting ofthe testator(Sec. 11, Rule76).

Note: At the hearing, compliance with publication and notice must first be shown before the introductionof testimony in support of the will.

In the absence of competent witness, and if the court deems it necessary, expert testimony may beresorted to (Sec. 5, Rule 76).

Q: What is the remedy if none of the subscribing witnesses resides in the province where probateis being conducted?A: A motion for taking of deposition of one or more of them (Sec. 7, Rule 76).

Note: Court may also authorize photographic copy of the will to be made and to be presented to thewitness on his examination, who may be asked questions with respect to matters pertaining to the will(Sec. 7, Rule 76).

Q: What are the instances when the court may admit the testimony of witnesses other than thesubscribing witnesses?A:

1. The subscribing witnesses are dead or insane; or

2. None of them resides in the Philippines (Sec. 8, Rule 76).

Q: What matters shall be testified on by the other witnesses?A:

1. The sanity of the testator; and2. Due execution of the will (Sec 8, Rule 76).

Note: The court may admit proof of handwriting of the testator and of the subscribing witnesses, or anyof them (Sec. 8, Rule 76).


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Q: What proof is necessary if the testator himself files the petition for probate of his holographicwill and no contest is filed?A: The fact that he affirms that the holographic will and the signature are in his own handwriting shall besufficient evidence of the genuineness and due execution thereof(Sec. 12, Rule 76).

Note: If the holographic will is contested, the burden of disproving the genuineness and due executionthereof shall be on the contestant. The testator may, in his turn, present such additional proof as may be

necessary to rebut the evidence for the contestant (Sec. 12, Rule 76).

Q: What is the rule on proof of lost or destroyed will?A: If notarial will, it may be proven by a photostatic or xerox copy of the will coupled with the testimonies

of the attesting witnesses.If holographic will, a photostatic copy or xerox copy of the lost will would not suffice. But if there are noother copies available then a photostatic or xerox copy would suffice to serve as a comparison to thestandard writings of the testator. No testimonies of witnesses is allowed because the will was madeentirely by the testator himself(Bonilla vs. Aranz, G.R. No. L-58509, Dec. 7, 1982).

Q: What are the requisites for allowance of a lost or destroyed will?A: No will shall be proved as a lost or destroyed will unless:

1. Its execution and validity of the same must be established;2. It must have been in existence at the time of the death of the testator, or is shown to have been

fraudulently or accidentally destroyed during the lifetime of the testator without his knowledge;

and3. Its provisions must be clearly and distinctly proved by at least 2 credible witnesses (Sec. 6,

Rule 76).

2. GROUNDS FOR DISALLOWING A WILL

Q: What are the grounds for disallowance of will?A:

1. If not executed and attested as required by law;2. If the testator was insane, or otherwise mentally incapable to make a will, at the time of its

execution;3. If it was executed under duress, influence of fear, or threats;4. If it was procured by undue and improper pressure or influence, on the part of the beneficiary,

or of some other person for his benefit; or5. If the signature of the testator was procured by fraud or trick, and he did not intend that the

instrument should be his will at the time of fixing his signature thereto (Sec. 9, Rule 76).

Q: May an order denying probate of will be overturned after period to appeal has lapsed? Why?A: Yes. A petition for relief may be filed on the grounds of fraud, accident, mistake or excusablenegligence within a period of 60 days after the petitioner learns of the judgment or final order and notmore than 6 months after such judgment or final order was entered (Secs. 1&3, Rule 38). An action forannulment may also be filed on the ground of extrinsic fraud within 4 years from its discovery, and ifbased on lack of jurisdiction, before it is barred by laches or estoppel (Secs. 2&3, Rule 47). (2002 BarQuestion)

Q: What should the court do if, in the course of intestate proceedings, a will is found and it issubmitted for probate? Explain.A: The intestate proceeding will be suspended until the will is probated. Consequently, all the powers of

the administrator shall cease and the administrator shall forthwith surrender the letters to the court andrender his account within such time as the court directs. (2002 Bar Question)

Q: What is the Substantial Compliance Rule?A: If the will has been executed in substantial compliance with the formalities of the law, and thepossibility of bad faith and fraud is obviated, said will should be admitted to probate (Art. 809, NCC).

Note: Separate wills which contain essentially the same provisions and pertain to properties which in allprobability are conjugal in nature, practical considerations dictate their joint probate (Vda. de Perez v.Tolete, GR 76714, June 2, 1994).


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3. REPROBATE; REQUISITES BEFORE WILL PROVED OUTSIDE ALLOWED IN THE PHILIPPINES;EFFECT

Q: What is reprobate?A: It is a special proceeding to establish the validity of a will proved in a foreign country (Bernardo,Special Proceedings, p. 48, 2006 ed.).Note: The venue for the petition for reprobate is the same as that provided in Rule 73.

Q: What are the requisites before a will proven outside the Philippines be allowed here?A:

1. The testator was domiciled in a foreign country;2. The will has been admitted to probate in such country;3. The foreign court is, under the laws of said foreign country, a probate court with jurisdiction over

the proceedings;4. Proof of compliance with the law on probate procedure in said foreign country;5. The legal requirements in said foreign country for the valid execution of the will have been

complied with;6. Filing a petition in the Philippines with copy of the will and of its decree of allowance; and7. Notice and hearing (PCIB v. Escolin, G.R. No. 76714, June 2, 1994).

Note: Under the doctrine of processual presumption, there must be evidence to prove the existenceof foreign law, otherwise the court should presume that the law of the foreign country is the same as

Philippine laws.

The necessity of presenting evidence on the foreign laws upon which the probate in the foreign court isbased is impelled by the fact that our courts cannot take judicial notice of them (Salud Teodoro Vda. dePerez v. Hon. Zotico A. Tolete, 232 SCRA 722).

Q: What are the effects of (probate) reprobate?A:

1. The will shall have the same effect as if originally proved and allowed in the Philippines (Sec. 3,Rule 77);

2. Letters testamentary or administration with a will annexed shall extend to all estates of thetestatorin the Philippines(Sec. 4, Rule 77); and

3. Such estate, after the payment of just debts and expenses of administration, shall be disposedof according to the will, so far as such will, may operate upon it, and the residue, if any, shall bedisposed of as provided by law in cases of estates in the Philippines belonging to persons who

are inhabitants of another country (Sec. 4, Rule 77).

Note: As a general rule, administration extends only to the assets of the decedent found within the state

or country where it was granted, so that an administrator appointed in one state or country has no powerover property in another state or country (Herrera, Remedial Law, Vol. III-A, p. 77, 2005 ed.).

Q: What is Ancillary Administration?A: When a person dies intestate owning property in the country of his domicile as well as in a foreigncountry, administration shall be had in both countries. That which is granted in the jurisdiction of thedecedents domicile is termed the principal administration, while any other administration is termedancillary administration (Ibid.).

E. LETTERS TESTAMENTARY AND OF ADMINISTRATION

1. WHEN AND TO WHOM THE LETTERS OF ADMINISTRATION GRANTED

EXECUTOR ADMINISTRATORNominated by thetestator andappointed by court

Appointed by the courtin case the testator didnot appoint anexecutor or if theexecutor refusedappointment


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(administration with awill annexed) or if thewill was disallowed or ifthe person did notmake a will (intestatesuccession)

Must present will to

the court within 20days after he knowsof the death of thetestator or after heknew that he wasappointed asexecutor (if heobtained suchknowledge after thedeath of thetestator), unless thewill has reached thecourt in any manner

No such duty.

Testator mayprovide that he may

serve without abond (BUT courtmay direct him togive a bondconditioned only topay debts)

Required unlessexempted by law.

Compensation maybe provided for bythe testator in thewill, otherwise Sec7, Rule 85 will befollowed

Compensation isgoverned by Sec. 7,Rule 85

Q: Who can administer the estate?A:

1. Executor named by the testator in his will for the administration of his property after his death;2. Administrator appointed by the court in accordance with the Rules or governing statutes to

administer and settle the intestate testate; or3. Administrator with a will annexed 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 incapacitatedor unwilling to serve as such.

Q: Who may serve as executor or administrator?A: Any competent person may serve as executor or administrator. There may be several executorsnamed in the will. Letters testamentary may issue to such of them as are competent, accept and givebond (Sec. 4, Rule 78).

Note: If the named executor does not qualify, then an administrator may be appointed (Sec. 6, Rule 78).

Q: Who are incompetent to serve as executor or administrator?A:

1. Minor;2. Non-resident of the Philippines; and3. Those who, in the opinion of the court, are unfit to execute the duties of the trust by reason of

drunkenness, improvidence, want of understanding or integrity, or conviction of an offenseinvolving moral turpitude (Sec. 1, Rule 78).

Note: Court cannot add new causes of disqualification (Herrera, Remedial Law, Vol. III-A, p. 81, 2005ed.).


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Q: What authority is issued to the person who administers the estate?A:

1. Letters testamentary authority issued to an executor named in the will to administer theestate;

2. Letters of administration authority issued by the court to a competent person to administer theestate of the deceased who died intestate; or

3. Letters of administration with a will annexed authority issued by the court to a competent

person to administer the estate of the deceased if the executor named in the will refused toaccept the office, or is incompetent.

2. ORDER OF PREFERENCE

Q: State the order of preference in granting letters of administration.A: If no executor is named in the will, or the executors are incompetent, refuse the trust, or fail to givethe bond, or a person dies intestate, administration shall be granted to:

1. The surviving spouse or next of kin, or both, in the discretion of the court, or to such person assuch surviving spouse or next of kin, requests to have appointed, if competent and willing toserve

2. The principal creditors, if competent and willing to serve, if the surviving spouse or next of kin,or the person selected by them be incompetent or unwilling or if the surviving spouse or next ofkin neglects for 30 days after the death of the person to apply for administration or to request

that administration be granted to some other person3. Such other person as the court may select if there is no such creditor competent and willing to

serve (Sec. 6, Rule 78).

Note: Order of preference may be disregarded for a valid cause. Administration may be granted to such

other person as the court may appoint in case the persons who have the preferential rights to beappointed are not competent or are unwilling to serve (Villamor v. CA, 162 SCRA 574).

Next of kin has been defined as those persons who are entitled by law to receive the decedentsproperty (Regalado, Remedial Law Compendium, p. 46, 2008 ed.).

Q: What is the rationale behind the order of preference in appointing an administrator?A: The underlying assumption behind this rule is that those who will reap the benefits of a wise, speedyand 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 v. Aguinaldo, G.R. No. 74769, Sept. 28, 1990) .This is likewise the same consideration which the law takes into account in establishing the preference ofthe widow to administer the estate of her husband upon the latters death, because she is supposed tohave an interest therein as a partner in a conjugal partnership [De Guzman v. Limcolioc, 67 Phil 404(1939)].

Q: When may co-administrators be appointed?A:

1. To have the benefit of their judgment and perhaps at all times to have different interestsrepresented (Gonzales vs. Aguinaldo et al., 140 SCRA 112 (1990));

2. Where justice and equity demand that opposing parties or factions be represented in themanagement of the estate of the deceased (Vda. De Dayrit vs. Ramolete, 117 SCRA 608(1982));

3. Where the estate is large or, from any cause, an intricate and perplexing one to settle (Herrera,Remedial Law, Vol. III-A, p. 86, 2005 ed);

4. To have all interested persons satisfied and the representatives to work in harmony for the bestinterest of the estate (ibid); or

5. When a person entitled to the administration of an estate desires to have another competentperson associated with him in the office (Gabriel v. CA, G.R. No. 101512, Aug. 7, 1992).

The purpose of having co-administrators is to have the benefit of their judgment and perhaps at all timesto have different interests represented, especially considering that in this proceeding they willrespectively represent the legitimate and illegitimate groups of heirs to the estate (Gabriel v. CA, 212SCRA 413, Aug. 7,1992).


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3. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS FILING OF

PETITION FOR ADMINISTRATION

Q: Who may oppose the issuance of letters testamentary or administration?A:Any person interested in the will may file a written opposition (Sec. 1, Rule 79).

Note: In order to be a party, a person must have material and direct, not indirect or contingent. (Herrera,Remedial Law, Vol. III-A 2005 ed., p. 91)He may attach thereto a petition for letters of administration and pray that letters be issued to himself, orto any competent person named in the opposition (Sec. 1, Rule 79).Earnest efforts of compromise between members of the same family as a condition precedent to thefiling of a case in court applies only to suits or ordinary civil actions and not to special proceedings(Vda. de Manalo v. CA, GR 129242, January 16, 2001).

Q: What are the grounds for opposing a petition for administration?A:Any interested person may by filing a written opposition, contest the petition on the ground of the:

1. Incompetency of the person for whom letters are prayed therein; or2. Contestant's own right to the administration (Sec. 4, Rule 79).

Note: Letters of administration may be granted to any qualified applicant, though it appears that thereare other competent persons having better right to the administration, if such persons fail to appear when

notified and claim the issuance of letters to themselves (Sec. 6, Rule 79).

Q: Is the order of Appointment of Regular Administrator final?A: No. The order of appointment of a regular administrator is appealable. Where no notice is required bySec. 3, Rule 79 of the Rules of Court has been given to persons believed to have an interest in theestate of the deceased person; the proceeding for the settlement of the estate is void and should beannulled. The requirement as to notice is essential to the validity of the proceeding in order that noperson may be deprived of his right to property without due process of law (Herrera, Remedial Law, Vol.III-A, p. 94, 2005 ed.).

Bonds of Executors and AdministratorsQ: When is bond required to be filed?A:

GR: Before an executor or administrator enters upon the execution of his trust (Sec. 1, Rule 81).Note: The term and effectivity of bond do not depend on payment of premium and does not expire

until the administration is closed. As long as the probate court retains jurisdiction of the estate, thebond contemplates a continuing liability (Luzon Surety v. Quebrar, G.R. No. L-40517, Jan. 31, 1984).XPN: The executor may serve without a bond if the testator so directs, or with only his individualbond, conditioned only to pay the debts of the testator(Sec. 2, Rule 81).

Q: What are the conditions of the bonds?A:

1. Make within 3 months a true and complete inventory of the property of the deceased which

came to his knowledge and possession;

2. Administer the estate and pay and discharge all debts, legacies and charges, including

dividends declared by the court from the proceeds;

3. Render a true and just account within 1 year and when required by the court;

4. Perform all orders of the court (Ibid.).

Q: When may the court require a further bond?A:

1. Change in circumstances of the executor or administrator or for other sufficient cause (Sec. 2,Rule 81);

2. Sale, mortgage, or encumbrance of the property of the estate conditioned that suchadministrator or executor will account for the proceeds of the sale or encumbrance (Sec. 7,Rule 89).

Q: May the probate court order the forfeiture of the administrators bond?


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A: Yes, because the execution or forfeiture of an administrators bond is deemed to be a necessary andincident of administration proceedings, as much as its filing and the fixing of its amount. Therefore, theprobate court, may have the bond executed in the same proceedings (Phil. Trust Co. v. Luzon SuretyCo., G.R. No. L-13031, May 30, 1961).

Q: State the rule on bonds in case of joint executors or administrators.A: The court may take separate bonds from each or a joint bond from all (Sec. 3, Rule 81).

4. POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS; RESTRICTIONS ON THEPOWERS

Q: What are the rights of the executor or administrator of the deceased partners estate?A:

1. He shall at all times have access to, and may examine and take copies of books and papersrelating to the partnership;

2. He can make invoices of the property belonging to the partnership, and the surviving partner orpartners on request; and

3. The books, papers, and property in the partnerships hands or control shall be exhibited to suchexecutor or administrator(Sec. 1, Rule 84).

Note: To exercise these rights, the executor or administrator must file his application with the probatecourt which must grant the same.

Q: What should be done by the executor or administrator to freely exercise his rights and duties?A: He shall submit a written application to the court having jurisdiction of the estate (Sec. 1, Rule 84).

Q: What are the general powers of an administrator or an executor?A:

1. 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 property belonging to the partnership in case of adeceased partner

3. To maintain in tenantable repairs, houses and other structures and fences and to deliver thesame in such repair to the heirs or devisees when directed so to do by the court

4. To make improvements on the properties under administration with the necessary courtapproval except for necessary repairs

5. To possess and manage the estate when necessary:i) For the payment of debts; and

ii) For the payment of expenses of administration (Rule 84).

Q: Is the right of an executor/administrator to the possession and management of property of thedeceased absolute?A: No, it can only be exercised so long as it is necessary for the payment of debts and expenses ofadministration (Ruiz v. CA, G.R. No.118671, Jan. 29, 1996).

Q: What are the restrictions on the powers of administrator or executor?A:

1. He cannot acquire by purchase, even at public or judicial action, either in person or mediation ofanother, the property under administration (Art. 1491 NCC, par. 3);

2. He cannot borrow money without authority from the court;3. He cannot speculate with funds under administration;4. He cannot lease the property under administration for more than 1 year;

Note: The administrator has the power to enter into lease contracts involving the properties ofthe estate even without prior judicial authority and approval (Mananquil v. Villegas, A.M. No.2430, Aug. 30, 1990).

5. He cannot continue the business of the deceased unless authorized by the court; and6. He cannot profit by the increase or decrease in the value of the property under administration;7. He cannot exercise the right of legal redemption over a portion of the property owned in

common sold by one of the other co-owners (Herrera, Remedial Law, Vol. III-A, pp. 116-117,2005 ed.).

5. APPOINTMENT OF SPECIAL ADMINISTRATOR


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REGULAR ADMINISTRATOR SPECIAL ADMINISTRATOR

Order of Appointment may be the subject ofan appeal

Order of Appointment is interlocutory and hencenot appealable

One of the obligations is to pay the debts ofthe estate

Cannot pay the debts of the estate

Appointed when the deceased died intestate or

did not appoint an executor in the will or thewill was disallowed

Appointed when there is delay in granting letters

testamentary or administration

Q: When may a probate court appoint a special administrator?A:

1. When there is delay in granting letters testamentary or of administration by any cause includingan appeal from the allowance or disallowance of a will (Sec. 1, Rule 80); or

2. When the executor or administrator is a claimant against the estate he represents (Sec. 6, Rule86). The special administrator shall have the same powers as that of a general administrator.

Note: Only one special administrator at a time may be appointed, since the appointment is merelytemporary. When appointed, a special administrator is regarded, not as a representative of the agent ofthe parties suggesting the appointment, but as the administrator in charge of the estate, and in fact, asan officer of the court subject to the supervision and control of the probate court (Corona v. CA, 116SCRA 316).

Q: Why is there a need for appointing a special administrator?A: The principal object is to preserve the estate until it can pass into the hands of persons fullyauthorized to administer it for the benefit of the creditors and heirs (De Guzman v. Guadiz, G.R. No. L-48585, Mar. 31, 1980).

Q: What are the qualifications of a special administrator?A: These are not spelled out in the Rules of Court. Thus, the appointment should be within the sounddiscretion of the court. The fundamental and legal principles governing the choice of a regularadministrator should also be taken into account in the appointment of a special administrator (Herrera,Vol. III-A, p. 99, 2005 ed.).

Note: Notice through publication is still necessary for the appointment of a special administrator.(Herrera, Remedial Law, Vol. III-A, p, 96, 2005 ed.)

Q: Does the order of preference in the appointment of regular administrators apply to theappointment of special administrators?A: No, but such order of preference may be followed by the judge in the exercise of sound discretion(Matias v. Gonzales, G.R. No. L- 13391, May 25, 1960).

Q: Is the order appointing a special administrator appealable?A: No, it is an interlocutory order(Esler v. Tad-y, G.R. No. L-20902, Oct. 9, 1923).

Q: What are the powers and duties of a special administrator?A:

1. Possess and take 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:

a. Perishable property; andb. Other property ordered sold by the court;

5. Pay debts only as may be ordered by the court (Sec. 2, Rule 80).6. Submit an inventory and render an accounting of his administration as required by the terms of

his bond (Sec 4, Rule 81).

Note: While a special administrator may commence and maintain suits under Sec 2 Rule 80, he cannotbe sued by a creditor for the payment of the debts of the deceased (De Gala v. Gonzales, et al. 53 Phil104). Such suit must await the appointment of a regular administrator.

Q: When do the powers of special administrator cease?


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A: After the questions causing the delay are resolved and letters testamentary or administration aregranted to executor or regular administrator(Sec. 1, Sec. 80).

Note: An order appointing a special administrator is interlocutory and the court making the appointmentretains control over it to modify, rescind, or revoke the same on sufficient grounds at any time beforefinal judgment. No appeal lies from the appointment of a special administrator (Herrera, Remedial Law,Vol. III-A, p. 102, 2005 ed.).

6. GROUNDS FOR REMOVAL OF ADMINISTRATOR

Q: What are the grounds for the removal of an executor or administrator?A:

1. Neglect to render an account and settle the estate according to law;2. Neglect to perform an order or judgment of the court, or a duty expressly provided by the Rules;3. Absconds;4. Becomes insane; or5. Becomes incapable or unsuitable to discharge the trust (Sec. 2, Rule 82).

Note: These grounds are not exclusive. The position of the administrator is one of confidence and whenthe court finds that the administrator is not entitled to such confidence, it is justified in withdrawing theappointment and giving no valid efficacy thereto (Cobarrubias v. Dizon, G.R. No. L-225, Feb. 26, 1946).

Q: What are the other grounds for removal of an executor or administrator?A:

1. Death;2. Resignation;3. An administrator who disbursed funds of the estate without judicial approval. (Cotia vs.

Jimenez, 104 Phil. 960);4. False representation by an administrator in securing his appointment (Cabarubbias vs. Dizon,

76 Phil. 209);5. An administrator who holds an interest adverse to that of the estate or by his conduct showing

his unfitness to discharge the trust (Garcia vs. Vasquez, 32 SCRA 490);6. An administrator who has the physical inability and consequent unsuitability to manage the

estate (De Borja vs. Tan, 93 Phil. 167).

Note: An administrator is required to exercise reasonable diligence and act in entire good faith in theperformance of that trust.

Note: Temporary absence is not a ground for disqualification (Herrera, Remedial Law, Vol. III-A, p. 109,2005 ed.)

Q: Are the grounds for removal of executor or administrator the same for special administrator?A: No. The grounds for the removal of regular administrator do not apply strictly to the specialadministrator as he may be removed by the court on other grounds upon its discretion.

Q: What is the status of the act made prior to the revocation, resignation, or removal of anexecutor or administrator?A: The effect of revocation of letters testamentary or of administration is to terminate the authority of theexecutor or administrator, but the acts of the executor or administrator, done in good faith prior to therevocation of the letters will be protected, and similar protection will be extended to rights acquired undera previous grant of administration [Vda. de Bacaling v. Laguda, et al., 54 SCRA 243 (1973)].

Q: Does the discovery of a will automatically terminate the letters of administration?A: No, until the will has been proved and allowed pursuant to Section 1, Rule 82 (De Parreno v.

Aranzanso, G.R. No. L- 27657, Aug. 30, 1982).

Q: What are the duties of administrator upon revocation of the letters?A:

1. Surrender the letters to the court; and2. Render his account within such time as the court may direct (Sec. 1, Rule 82).


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Q: What are the powers of a new executor or administrator after the first one resigns or isremoved?A:

1. To collect and settle the estate not administered;2. To prosecute or defend actions commenced by or against the former executor or administrator;

and3. To recover execution on judgments in the name of former executor or administrator.

An authority granted by the court to the former executor or administrator for the sale or mortgage ofreal estate may be renewed in favor of such person without further notice or hearing (Sec. 4, Rule82).

Note: The order of removal is appealable [Borromeo v. Borromeo, 97 Phil 549, 551 (1955)].

Q: Is the executor or administrator chargeable with all the estate and income of the deceased?A:

GR: The executor or administrator is accountable for the whole estate of the deceased.XPN: He is not accountable for properties which never came to his possession.XPN to the XPN: When through untruthfulness to the trust or his own fault or for lack of necessaryaction, the executor or administrator failed to recover part of the estate which came to his knowledge(Sec. 1, Rule 85).

Q: When is the executor or administrator liable for damages?

A:1. Neglects or unreasonably delays to raisemoney, by collecting the debts or selling the real or

personal estate of the deceased (Sec. 5, Rule 85);2. Neglects to pay over the money he has in his hands;3. The value of the estate is lessened;4. Unnecessarycost or interest accrues; and5. The persons interested suffer loss (Sec. 6, Rule 85).

Q: What are expenses of administration?A: They refer to those necessary for the management of the property, for protecting it against destructionor deterioration, and possibly for the production of fruits (De Guzman v. De Guzman-Carillo, G.R. No. L-29466, May 18, 1978).

Q. What are not considered as Necessary Expenses?A:

1. Expenses on the anniversary of the death of the deceased;2. Expenses incurred by a presumptive heir for her appearance and that of her witnesses at the

trial to oppose the probate of an alleged will;3. Expenses for the settlement of the question as who are entitled to the estate left by the

deceased;4. Expenses incurred by the executor or administrator to procure a bond;5. Personal expenses of the occupant of the heir of the family residences;6. Expenses for stenographic notes, unexplained representation expenses (Herrera, Remedial

Law, Vol. III-A, p.122, 2005 ed.)

Q: What are the bases of compensation of the executor or administrator?A:

1. GR: That provided by the will, in case of an executor;XPN: Unless there is a written instrument filed in the court which he renounces all claim to thecompensation provided by law.

2. If there is no compensation provided, the compensation shall be either:a. P4.00 per day for the time actually and necessarily employed;b. Commission upon the value of so much of the estate as comes into his possession and

finally disposed of by him; orc. 2% of the first P5,000, 1% in excess of P5,000 up to P3,000, % in excess of P30,000 up

to P100,000 and % in excess of P100,000 (Sec. 7, Rule 85).

Q: How will the compensation be apportioned if there are two or more executors oradministrators?


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A: It shall be apportioned among them by the court according to the services actually rendered by themrespectively (Sec. 7, Rule 85).

Q: Can an administrator recover attorneys fees from the estate?A: No because his compensation is fixed by the rule and such compensation is in the nature ofexecutors or administrators commissions, and never as attorneys fees (Sec. 7, Rule 85).

Q: What is the remedy of a lawyer who was hired by executor/administrator in collectingattorneys fees?A:

1. Request the administrator to make payment and file an action against him in his personalcapacity and not as administrator should he fail to pay; or

2. Petition in the testate or intestate proceeding asking the court, after notice to all personsinterested, to allow his claim and direct the administrator to pay it as an expense ofadministration (Occena v. Marquez, G.R. No. L-28693, Sept. 30, 1974).

Q: When should an executor or administrator render an account?A:

GR: Within 1 year from the time of receiving letters testamentary or letters of administration.XPN:An extension of time is allowed for presenting claims against or paying the debts of the estateor for disposing of the estate (Sec. 8, Rule 85).

Note: Before the account of an executor or administrator is allowed, notice shall be given to personsinterested of the time and place of examination and allowing the same (Sec. 10, Rule 85).

F. CLAIMS AGAINST THE ESTATE

Q: What is a claim?A: Claim refers to any debt or pecuniary demand against the decedents estate.These are money claims upon a liability contracted by the decedent before his death (Herrera, RemedialLaw, Vol. III-A, p. 139, 2005 ed.).

Q: What is absolute claim?A: It is one which, if contested between living persons, would be the proper subject of immediate legalaction and would supply a basis of judgment for a sum certain (Moran, 1980 Ed. 487).

Q: What is contingent claim?

A: It is a conditional claim, which is subject to the happening of a future uncertain event (Buan v. Laya,G.R. No. L-7840, Dec. 24, 1957).

Q: What is the duty of the court after granting letters testamentary or of administration?A: The court shall issue a notice requiring all persons having money claims to file them in the office ofthe clerk of court (Sec. 1, Rule 86).

Note: Upon the death of a person, all his property is burdened with all his debts, his death creating anequitable lien thereon for the benefit of the creditors. Such lien continues until the debts are extinguishedeither by the payment, prescription, or satisfaction in one of the modes recognized by law.The purpose of presentation of claims against decedents of the estate in the probate court is to protectthe estate of the deceased. Further, its primary object is to apprise the administrator and the probatecourt of the existence of the claim so that a proper and timely arrangement may be made for its paymentin full or by pro rata portion in the due course of the administration (Herrera, Remedial Law, Vol. III-A, p.131, 2005 ed.).

1. TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONSQ: What is the time within which claims shall be filed?A: It should not be less than six (6) months nor more than twelve (12) months from the day of the firstpublication of the notice thereof. Such period when fixed by the probate court becomes mandatory.However, at any time before an order of distribution is entered, on application of a creditor who has failedto file his claim within the time previously limited, the court may, for cause shown and on such terms asare equitable, allow such claim to be filed within a time not exceeding one (1) month (Sec. 2, Rule 86).The period prescribed in the notice to creditors is not exclusive; that money claims against the estatemay be allowed at any time before an order of distribution is entered, at the discretion of the court for thecause and upon such terms as are equitable (Quisumbing vs. Guison, 76 Phil 730).


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Note: The range of period specified in Sec.2 of Rule 86 is intended to give the court the discretion to fixthe period for the filing of the claims. The probate court is permitted by the rule to set the period as longas it is within the limitation provided.

Q: What is the purpose of the law in fixing the period within which to file the claims against theestate?

A: The fixing of the period is intended to insure a speedy settlement of the affairs of the deceasedperson and the early delivery of the property to the person entitled to the same (Santos v. Manarang, 27Phil 209, 203, citing Re: Estate of De Dios, 24 Phil 574).

2. STATUTE OF NON-CLAIMS

Q: What is the statute of non-claims?A: It is a period fixed by the courts for the filing of claims against the estate for examination andallowance (Herrera, Remedial Law, Vol. III-A, p. 132, 2005 ed.).

Q: When should claims be filed?A:

GR: Within the time fixed in the notice which shall not be more than 12 months nor less than 6months after the date of the first publication. Such period once fixed by the court is mandatory.Otherwise, the claims are barred forever.

Note: Where an executor or administrator commences an action, or prosecutes an action alreadycommenced by the deceased in his lifetime, the debtor may set forth by answer the claims he hasagainst the decedent, and mutual claims may be set off against each other in such action (Sec. 5,Rule 86).

XPN: Belated claims.

Q: What is the rule on Belated Claims?A: Belated claims may be filed even beyond the period fixed by the court:

1. On application of a creditor who has failed to file his claim within the time previously limited, atany time before an order of distribution is entered, the court may, for just causes, allow suchclaim to be filed not exceeding 1 month from the order allowing belated claims; or(Sec. 2 , Rule86)

2. Where the estate filed a claim against the creditor or claimant who failed to present his claim

against the estate within the period fixed by the probate court for the settlement of such claims,the creditor will be allowed to set up the same as a counterclaimto the action filed by the estateagainst him.

Note: Statute of non-claims supersedes the Statute of Limitations insofar as the debts of deceasedpersons are concerned because if a creditor fails to file his claim within the time fixed by the court in thenotice, then the claim is barred forever. However, both statute of non-claims and statute of limitationsmust concur in order for a creditor to collect. (Sikat vs. Vda. De Villanueva, G.R. No. L-35925, November10, 1932)

Q: What claims against the estate of the decedent must be presented in the probate court in thetestate or intestate proceedings?A: Only claims which survive such as:

1. All claims for money against the decedent, arising from contract, express or implied, whetherthe same be due, not due, or contingent;

2. All claims for funeral expenses;3. Expenses for the last sickness of the decedent; or4. Judgment for money against the decedent (Sec. 5, Rule 86).

Note: Action on contractual claims such as favorable judgment obtained by the plaintiff in an action forrecovery of money arising from contract, express or implied, and the defendant dies before entry of final

judgment may be filed against the estate of the decedent (Sec. 20, Rule 3).The enumeration is exclusive.

A money claim arising from a crime or quasi-delict committed by the decedent is not included in theconcept of claims which have to be filed under this rule but should be the subject of an action against the


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executor or administrator (Sec 1, Rule 87) or against the heirs (Belamala v. Polimar L-24098, Nov 18,1967).

Action which survives like an action to recover real or personal property or an interest therein from theestate may be commenced against the executor or administrator under Rule 87.

Q: What is the effect of failure to file the claims within the required period?A:As expressly provided by the rule, all claims not presented within the time herein provided are barred.

Q: The trial court admitted to probate the holographic will of Alice and thereafter issued an orderfor all the creditors to file their respective claims against the estate. Alan filed a contingent claimfor agent's commission due him in the event of the sale of certain parcels of land belonging tothe estate and reimbursement for expenses incurred. The executrix of the estate moved for thedismissal of said money claim against the estate on the grounds that Alan failed to attach acertification against non-forum shopping. The trial court dismissed the case. Is the trial courtcorrect?A: No. Under Sections 1 and 5, Rule 86 of the Rules of Court, after granting letters of testamentary or of

administration, all persons having money claims against the decedent are mandated to file or notify thecourt and the estate administrator of their respective money claims; otherwise, they would be barred,subject to certain exceptions. A money claim is only an incidental matter in the main action for thesettlement of the decedent's estate; more so if the claim is contingent since the claimant cannot eveninstitute a separate action for a mere contingent claim. Hence, Alans contingent money claim, not beingan initiatory pleading, does not require a certification against non-forum shopping (Sheker v. Estate of

Alice O. Sheker, G.R. No.157912, Dec. 13, 2007).

Q: Should taxes due and assessed after the death of the decedent be presented in the form of aclaim?A: No. The court in the exercise of its administrative control over the executor or administrator may directhim to pay such taxes. Moreover, heirs even after distribution are liable for such taxes (Vera v.Fernandez, G.R. No. L-31364, Mar. 30, 1979.)

CLAIMSEXTINGUISHED BY

DEATH

ACTIONS WHICHSURVIVE

Personal to eitherof the parties

Extinguished bydeath

An action to recoverreal or personalproperty or an interesttherein, from theestate, or to enforce a

lien therein, and actionto recover damages foran injury to property,real or personal. (Sec.1, Rule 87)

Claim is notextinguished by deathbut shall be prosecutedas a money claimagainst the estate ofthe deceased

Examples: legalseparation,annulment ofmarriage,declaration ofnullity of marriage

Example: contractualmoney claim

3. CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE

Q: What should be the action of the executor or administrator if he has a claim against theestate?A: He shall give notice to the court in writing and the court shall thereafter appoint a special administrator(Sec. 8, Rule 86).


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Note: This is one of the instances where a special administrator is appointed. The special administratorwill have authority to act only with respect to the claim of the regular administrator of the executor(Regalado, Vol. 2, p. 83, 11

thed.).

Q: What is the procedure in filing claims?A:

Q: Jericho loaned P5 Million from Carina. Said loan was secured by a real estate mortgage over aparcel of land owned by Jericho. Thereafter, Jericho died without satisfying the loan secured bythe said mortgage. What are the remedies available to Carina to enforce her mortgage credit?A:

1. Waive the mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim;2. Foreclose the mortgage judicially and prove any deficiency as an ordinary claim;3. Rely on the mortgage exclusively, foreclosing the same at any time before it is barred by

prescription without the right to claim for any deficiency (Sec. 7, Rule 86).

Note: The above remedies are alternative. (Herrera, Remedial Law, Vol. III-A, p. 154, 2005 ed.)


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4. PAYMENT OF DEBTS

Q: Is execution the proper remedy to satisfy an approved claim?A: No, because:1. A writ of execution is not allowed by the Rules of Court for the payment of debts and expenses of

administration;

2. The proper procedure is for the court to order the sale of the property of the deceased to satisfy theclaim (Herrera, Vol. III-A, p. 177, 2005 ed.)

Q: How should the debts of the estate be paid?A:

GR: The payment of the debts of the estate must be taken from the following order:1. Portion or property designated in the will The debts of the testator, expenses of

administration, or family expenses, shall be paid according to the provisions of the will. If suchare insufficient, the properties not disposed of by will, if any, shall be appropriated for thatpurpose.

2. Personal property;3. Real property (Sec. 2, Rule 88).

Note: If there is still a deficiency, it shall be met by contributions of devisees, legatees, or heirswho have entered into possession of portions of the estate before the debts and expenses have

been settled and paid (Secs. 2, 3, and 6, Rule 88).

XPNS: On application by executor or administrator, with written notice to persons interested, andafter hearing, real properties can be charged first even though the personal properties are notexhausted when:1. The personal property is not sufficient to pay the debts, expenses of administration and

legacies (Sec. 3, Rule 88);2. The sale of such personal property would be detrimental to the participants of the estate (Sec.

3, Rule 88);3. Sale of personal property may injure the business or other interests of those interested of the

estate (Sec. 2, Rule 89);4. The testator has not made sufficient provision for payment of such debts, expenses or legacies

(Sec. 2, Rule 89);5. The decedent was, in his lifetime, under contract, binding in law, to deed real property to

beneficiary (Sec. 8, Rule 89);

6. The decedent during his lifetime held real property in trustfor another person (Sec. 9, Rule 89).

Q: How shall the proceeds from sale of personal property be used?A:

1. To pay the debts and expensesof administration;2. To pay legacies;and3. To cover expenses for the preservation of the estate (Sec. 1, Rule 89).

Q: How should contingent claims be paid?A: If the court is satisfied that a contingent claim duly filed is valid, it may order the executor oradministrator to retain in his hands sufficient estate to pay such contingent claim when the samebecomes absolute, or if the estate is insolvent, sufficient estate to pay a portion equal to the dividend ofthe other creditors (Sec. 4, Rule 88).

Q: What must be satisfied before a contingent claim may be allowed by the court?A:

1. Duly filed within the 2 year period allowed for the creditors to present claims;2. The claim is valid; and3. The claim became absolute (Sec. 5, Rule 88).

Q: What is the consequence if the contingent claim is not presented within the 2 year period afterit becomes absolute?A: The assets retained in the hands of the executor or administrator, not exhausted in the payment ofclaims, shall be distributed by the order of the court to the persons entitled to the same (Sec. 4, Rule 88).However, the assets so distributed may still be applied to the payment of the claim when established,


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and the creditor may maintain an action against the distributees to recover the debt, and suchdistributees and their estates shall be liable for the debt in proportion to the estate they have respectivelyreceived from the property of the deceased. (Sec. 5, Rule 88)

Note: If heirs have taken possession of portions of the estate before the debts have been settled, theyshall become liable to contribute for the payment of debts and expenses, and the court may, afterhearing, settle the amount of their several liabilities, and order how much and in what manner each

person shall contribute (Sec. 6, Rule 88).The contingent claims must first have been established and allowed in the probate court before thecreditors can file an action directly against the distributees (De Bautista v. De Guzman, L-28298,November 25, 1983).

Q: What is the order of payment if estate is insolvent or assets are insufficient?A: The executor or administrator shall pay the debts according to the concurrence and preference ofcredits provided by Articles 1059 and 2239-2251 of the NCC (Sec. 7, Rule 88).

Q: How should the estate in the Philippines of an insolvent non-resident be disposed of?A: It shall be disposed of that his creditors in and outside the Philippines may receive an equal share, inproportion to their respective credits (Sec. 9, Rule 88).

Q: When and how should claims proved outside the Philippines against insolvent residentsestate be paid?

A: Claims proven outside the Philippines where the executor had knowledge and opportunity to contestits allowance may be added to the list of claims proved against the decedent in the Philippines and theestate will be distributed equally among those creditors (Sec. 10, Rule 88).

Note: The benefits in the above provision shall not be extended to the creditors in another country if the

property of such deceased person there found is not equally apportioned to the creditors residing in thePhilippines and the other creditors, according to their respective claims (Sec.

special civil action_special proceedings-2

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