RULE 78

LETTERS TESTAMENTARY AND OF ADMINISTRATION WHEN AND TO

WHOM ISSUED

PERSONS WHO CAN ADMINISTER THE ESTATE

• Executor

• Administrator; and

• Administrator with a will annexed.

WHO MAY SERVE AS EXECUTOR/ADMINISTRATOR?

Any competent person may serve as executor or administrator.

SECTION 1. WHO ARE INCOMPETENT TO SERVE AS EXECUTOR/ADMINISTRATOR?• a minor

• A non-resident of the Philippines

• One who, in the opinion of the court is unfit to exercise the duties of trust by reason of:

- drunkenness

-improvidence

– want of understanding and integrity

– Conviction for an offense involving moral turpitude.

MAY THE EXECUTOR OF AN EXECUTOR BE ALLOWED TO ADMINISTER THE ESTATE?

• No, Under Section 2, the executor of an executor shall not, as such, administer the estate of the first testator.

MAY A MARRIED WOMAN SERVE AS EXECUTRIX OR ADMINISTRATRIX?

• Yes, she may serve as provided under Section 3 of Rule 78. Likewise, the marriage of a single woman shall not affect her authority so to serve under a previous appointment.

WHAT AUTHORITY IS ISSUED TO THE PERSON WHO ADMINISTERS THE ESTATE?

• 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;

• 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 to accept the office, or is incompetent.

WHAT IS THE RULE IF SOME CO-EXECUTORS ARE DISQUALIFIED?

• Section 5 provides that when all of the executors named in a will can not act because of incompetency, refusal to accept the trust, or failure to give bond, on the part of one or more of them, letters testamentary may issue to such of them as are competent, accept and give bond, and they may perform the duties and discharge the trust required by the will.

Section 6. WHEN AND TO WHOM LETTERS OF ADMINISTRATION GRANTED

SECTION 6. WHEN AND TO WHOM LETTERS OF ADMINISTRATION GRANTED.

• If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted:

To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as

such surviving husband or wife, or next of kin, requests to have appointed, if incompetent and willing to serve;

If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that

administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve;

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

CAN THE COURT SET ASIDE THE ORDER OF PREFERENCE?

• As a general rule, the court cannot. The Rules of Court provides for the order of preference in the appointment of an administrator.

UNDER WHAT CIRCUMSTANCES MAY THE COURT REJECT THE ORDER OF PREFERENCE?

In case the persons who have the preferential right to be appointed under the Rule are not competent or are unwilling to serve, administration may be granted to such other person as the court may appoint.

WHAT IS THE SCOPE OR LIMIT OF ADMINISTRATION?

• The general rule universally recognized is that administration extends only to the assets of a decedent found within the state or country where it was granted, so that an administrator appointed in one state or country has no power over the property in another state or country.

Problem

• Sergio Punzalan, Filipino, 50 years old, married, and residing at Ayala Alabang Village, Muntinlupa City, of sound mind and disposing mind, executed a last will and testament in English, a language spoken and written by him proficiently. He disposed of his estate consisting of a parcel of land in Makati City and cash deposit at the City Bank in the sum

of P300 million. He bequeathed P50 million each to his 3 sons and P150 million to Susan, his favorite daughter-in-law. He named his best friend, Cancio Vidal, as executor of the will without bond.

Question

Can the probate court appoint the widow as executor of the will?

Answer

• Yes, the probate court can appoint the widow as executor of the will as Section 6 of Rule 78 of the Rules of Court provides that if the executor named in the will is incompetent, refuses the trust, or fails to give bond, administration shall be granted to the surviving spouse as the case may be, if competent and willing to serve.

Problem

• An illegitimate sister of the deceased, and the latter’s legitimate spouse could not agree as to who should be appointed by the court as special administrator.

Question

• Who has preference and why?

Answer

• The surviving spouse is to be preferred, as in the appointment of a regular administrator. The reason for the preference is clear: aside from her share in the conjugal partnership, the spouse also is an heir of the deceased. She has, therefore, a greater interest in administering the entire property correctly than any other relative.

END OF PRESENTATION

THANK YOU!!!

CASE

NAVAS SIOCA VS. GARCIA

GR. NO. L-20080