special proceedings

REMEDIAL LAW REVIEWERSPECIAL PROCEEDINGS

GENERAL OBSERVATIONS & APPLICATION OF THE PARETO PRINCIPLE ON QUESTIONS

TAKEN FROM THE RULES ON SPECIAL PROCEEDINGS FOR THE PAST 20 YEARS.

1. Special proceedings have 37 Rules. Out of these 37 Rules, 17 were asked.

2. About 50 questions were taken out of these 17 rules.

3. Of the 50 questions asked, 82% were derived from only 8 rules.

4. These 8 rules represent almost 22% of the total number of rules in Special proceedings.

5. Most asked rule:a. Rule 102 – Habeas Corpus. (14x)b. Rule 75– Production of Will Allowance

of Will Necessary. (9x)c. Rule 74 – Summary Settlement of

Estates. (5x)d. Rule 108 – cancellation or correction

of entries in the civil registry. (3x)e. Rule 73 – Venue and Process (3x)f. Rule 86 – Claims Against Estate (3x)g. Rule 78 – Letters testamentary and of

administration, when and to whom issued. (2x)

RULE 72 – SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES (1)

SPECIAL PROCEEDING – is a remedy by which a party seeks to establish a status, a right, or a particular fact.

14 SPECIAL PROCEEDINGS ENUMERATED IN THE RULES OF COURT: (CATCH-AGED-SHARC)

1. Change of name;2. Adoption;3. Trustees;4. Constitution of family home (the concept of

a natural child was abolished and there is no more need to constitute a family home for the same is automatically constituted under Art. 523 of the FC);

5. Hospitalization of insane persons;6. Judicial Approval of voluntary recognition of

minor natural children;7. Guardianship and custody of minor;8. Escheat;9. Voluntary dissolution of corporations (filed

with the SEC);10. Settlement of estate of a deceased person;11. Habeas corpus;12. Declaration of absence and death;13. Rescission and revocation of adoption

(Assimilated in in Rule of Adoption);14. Cancellation and correction of entries in the

civil registry.

OTHER SPECIAL PROCEEDINGS:1. Land registration proceedings;2. Writ of Amparo;3. Writ of Habeas Data.

NOTE: The list under S1, R72 is not exclusive. Any petition which has for its main purpose the establishment of a status, a right, or a particular fact may be included as a special proceeding.

Declaration of presumptive death is a special proceeding which seeks to establish the fact (albeit presumptive) of death.

The SC has held that Art.151 of the FC, which requires that in suits involving the members of the same family, there must be a verified allegation of earnest efforts at compromise, applies only to suits or ordinary civil actions but not to a special proceeding like a petition for settlement of estate. (10 Bar Q16)

Intervention as set for under R19 does not extend to creditors of a decedent whose credit is based on a contingent claim. Case law has consistently held that the legal interest required of an intervenor “must be actual and material, direct and immediate, and not simply contingent or expectant.”

SETTLEMENT OF ESTATE OF DECEASED PERSONS

(RULES 73 – 90)

DIFFERENT MODES OF SETTLEMENT OF ESTATE OF A DECEASED PERSON/ PRESUMED DEAD.

1. Extrajudicial settlement of estate (S1, R74).2. Summary settlement of estate of small

value (S2, R74).3. Partition (R69).4. Probate of Will (R75-79).5. Petition of letters of administration in case

of Intestacy (R79).

PROCEDURE IN JUDICIAL SETTLEMENT PROCEEDINGS

Petition for probate of will, if any. (R75-76)

Court order fixing the time and place for probate.

Publication of hearing for 3 successive weeks. Notice shall also be given to the designated/ known heirs, legatees and devisees, and the

executor if the one petitioning for allowance of the will is not the testator.

Issuance of Letters Testamentary/

Administration. (A special administrator may be appointed)

(R77-80)

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Publication of notice for Filing of claims.

Filing of Claims(R86)

Issuance of Order of Payment or sale of properties.

Payment of claims: sale/mortgage/encumbrance of estate properties.

Distribution of remainder, if any. (This can be made even before payment, if bond is filed by

the heirs.)

RULE 73 – VENUE AND PROCESS (3)

JURISDICTIONIt depends upon the gross value of the estate of the decedent:

1. METRO MANILA – MTC if GV does not exceed P400,000, otherwise, RTC.

2. OUTSIDE Metro Manila – MTC if GV does not exceed P300,000, otherwise, RTC.

NOTE: Jurisdiction over the subject matter is determined by the allegations in the petition; hence, it is not the actual gross value of the estate which is the basis of jurisdiction but the alleged gross value of the estate.

The SC has held that if a petition does not allege the GV of the estate, the court does not acquire jurisdiction. A court may motu proprio dismiss a case on the ground of lack of jurisdiction, whether at the first instance or on appeal.

VENUE1. INHABITANT (RESIDENT) OF THE Phil.

(whether citizen or alien) – Court of the Province/City where he resides at the time of death.

2. INHABITANT (RESIDENT) OF FOREGIN COUNTRY – Court of any province he had his estate.

RESIDENCE means his personal, ACTUAL or physical habitation, his ACTUAL residence or place of abode.

NOTE: The SC has held that the writs and processes of a probate court cannot extend outside the Philippines.

Moreover, in a petition for probate of a will of non-resident, the petition should allege the jurisdictional fact that the testator left an estate in the Philippines. (10 Bar Q15)

EXTENT OF JURISDICTIONProbate courts are courts of LIMITED jurisdiction. It may only determine and rule upon issues relating to the settlement of the estate, namely: (ALD)

1. ADMINISTRATION of the estate;

2. LIQUIDATION of the estate;3. DISTRIBUTION of the estate.

General rule: Probate court cannot determine issue of ownership.

Exception:1. Ownership may be provisionally determined

for the purpose of including property in inventory, without prejudice to its final determination in a separate action; or

2. When all the parties are heirs and they submit the issue of ownership to the probate court provided that the rights of third parties are not prejudiced.

3. Question is one of collation or advancement.

PREFERENTIAL JURISDICTION RULEThe court first taking cognizance of the settlement of the estate of a non-resident decedent shall exercise jurisdiction to the exclusion of all other courts. Applies only to Non-resident decedent.

(Resident – The Court where he resides at the time of his death.)

While it is true that probate proceedings shall take precedence over intestate proceedings, this rule should be taken in conjunction with the rule on preferential jurisdiction.

REMEDY IF VENUE IS IMPROPERLY LAIDThe venue of probate proceeding can only be questioned on appeal, but certiorari under R73 may be resorted to if the impropriety of the venue appears on the record of the case.

RULE 74 – SUMMARY SETTLEMENT OF ESTATES (5)

SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUEIt is the procedure provided for in R74 for the summary settlement of estate (whether testate or intestate whose gross value does not exceed P10,000. The MTC has jurisdiction pursuant to B.P. blg. 129.

PROCEDURE IN SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE

Application for summary settlement with an allegation that the GV of the estate does not exceed

P10,000.

Publication of notice of the fact of summary settlement once a week for 3 consecutive weeks in a

newspaper of general circulation.

Hearing to be held not less than 1 month nor more than 3 months from the date of the last publication

of notice.

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Court to proceed summarily, without appointing an executor/administrator, and to make orders as may be necessary, such as: a) grant allowance of will, if

any; b) determine persons entitled to estate; c) pay debts of estate which are due.

Filing of the bond fixed by the court.

Partition of estate.

EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS

Requisites:1. The decedent left NO WILL and NO DEBTS.2. The heirs are all of age or the minors are

represented by their judicial or legal representatives duly authorized for the purpose.

PROCEDURE IN EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN/AMONG HEIRS

Division of estate in public instrument or affidavit of adjudication.

The public instrument or affidavit of adjudication must be filed with the proper Registry of Deeds.

Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a

newspaper of general circulation.

Filing of bond equivalent to the value of personal property with the proper RD.

DISPUTABLE PRESUMPTION THAT DECEDENT LEFT NO DEBTSIf no creditor files a petition for letters of administration within 2 years after the death of the decedent it is presumed that the estate left no debts.

REMEDIES OF THE AGGRIEVED PARTIES AFTER SETTLEMENT OF THE ESTATE

1. Within 2 years –claim against the bond or the real estate or both;

2. RESCISSION in case of preterition of compulsory heir in partition tainted with bad faith;

3. RECONVEYANCE of real property;4. Action to ANNUL a deed of extrajudicial

settlement on the ground of fraud which should be filed within 4 years from the discovery of fraud;

5. PETITION FOR RELIEF on the ground of FAME – 60 days after the petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered;

6. REOPENING BY INTERVENTION within any time before rendition of judgment, as long as it is within the reglementary period of 2 years;

7. New action to ANNUL settlement within reglementary period of 2 years.

Note: If on the date of the expiration of the 2- year period the person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside of the Philippines (MIPO), he may present his claim within 1 year after such disability is removed. (S5, R74)

Under Art.1456 of the Civil Code, if property is acquired through fraud, the person obtaining it is by force of law considered a trustee of an implied trust for the benefit of the person from whom the property comes. The action should be brought within 10 years from the registration of the title and provided the property has not been acquired by an innocent purchaser for value. (File for action of reconveyance based on implied trust.)

The publication of the deed of extrajudicial partition does not constitute constructive notice to the whole world since S1 R74 provides that “no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.”

RULE 75 – PRODUCTION OF WILL ALLOWANCE OF WILL NECESSARY (9)

NATURE OF PROBATE PROCEEDINGS1. IN REM – binding on the whole world;2. MANDATORY – no will shall pass either real

or personal unless it is proved and allowed in the proper court.

3. IMPRESCRIPTIBLE – because of the public policy to obey the will of the testator.

4. THE DOCTRINE OF ESTOPPEL DOES NOT APPLY.

NOTE: The SC has held that presentation and probate of the will is required by public policy. It involves public interest.

The custodian of the will must deliver the will to the court or to the executor WITHIN 20 DAYS after he learns of the death of the testator.

The executor, within 20 days after he knows of the testator’s death or after he knows that he is named an executor if he knows it after the testator’s death shall:1. Present the will to the court (unless it has

reached the court in any other manner); and

2. Signify in writing his acceptance OR refusal of the trust.

A custodian and executor is subject to a fine not exceeding P2,000 for neglect. And may be imprisoned if they were ordered by the probate

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court to deliver the will and neglects without reasonable cause to do so.

RULE 76 – ALLOWANCE OR DISALLOWANCE OF WILL (1)

PROBATE – is the act of proving in a court a document purporting to be the last will and testament of a deceased person in order that it may be officially recognized, registered and its provisions carried out insofar as they are in accordance with law (also referred to as allowance of will).

WHO MAY PETITION FOR ALLOWANCE OF WILL(LIED)

1. Legatee named in a will;2. Person INTERESTED in the estate;

An interested party is one who would be benefited by the estate (heir or creditor).

3. Executor;4. Devisee.

The testator himself may, during his lifetime, petition the court for the allowance of the will. This is known as ante-mortem probate.

The SC has held that one who has assigned or renounced his hereditary rights has no legal interest as would authorize him to initiate probate proceedings.

No defect in the petition (for allowance) shall render void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed.

EFFECT OF THE PROBATE OF THE WILLIt is conclusive as to the EXECUTION and VALIDITY of the will (even against the State). Thus, a criminal case against the forger not lie after the will has been probated.

EVIDENCE REQUIRED FOR THE ALLOWANCE OF THE WILL

1. UNCONTESTED WILLSa. NOTARIAL WILLS – testimony of AT LEAST

ONE of the subscribing witnesses may be allowed, if such witness testifies that the will was executed as is required by law.

I. If all subscribing witnesses reside outside the province, DEPOSITION is allowed.

II. If the subscribing witnesses are dead, insane, or none of them resides in the Philippines, the court may admit testimony of other witnesses to prove the sanity of the TESTATOR, and the due execution of the will, and as evidence of the execution of

the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses or any of them.

b. HOLOGRAPHIC WILLS – The testimony of ONE witness who knows the handwriting and signature of the testator. In the absence thereof and if the court deem it necessary, expert testimony may be resorted to.

2. CONTESTED WILLa. NOTARIAL WILLS – ALL subscribing

witnesses AND the NOTARY PUBLIC before whom the will was acknowledged must be produced and examined.

HOWEVER, if any or all the witnesses (i) testify against the execution of the will, (ii) do not remember attesting thereto, or (iii) are of doubtful credibility, the will may be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law. (An instance where a party may impeach his own witness).

b. HOLOGRAPHIC WILLS – The SC has held in the case of Codoy vs. Calugay, that if the holographic will is contested, 3 witnesses who know the handwriting and signature of the testator are now mandatory to prove its authenticity and for its allowance. In the absence thereof and if the court deem it necessary, testimony of an expert witness may be resorted to.

NOTE: A holographic will if destroyed cannot be probated unless there exists a Photostatic or Xerox copy thereof.

The SC has held that to contest a will means to challenge the authenticity thereof. If the challenge was based on undue influence and lack of testamentary intent but did not otherwise attack the will’s authenticity, the testimony of one competent witness is enough.

EXCLUSIVE GROUNDS FOR DISALLOWING A WILL (FIDUS)

1. Not executed and attested as required by law (FORMAILITIES);

2. If the testator was INSANE, or otherwise mentally incapable of making a will, at the time of its execution;

3. If it was executed under DURESS, or the influence of fear or threats;

4. If it was procured by UNDUE and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit;

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5. 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.

NOTE: The presence of any of the above circumstances renders the will VOID not merely voidable. There is no such thing as voidable will.

SUBSTANTIAL COMPLIANCE RULEIf the will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud is obviated, said will should be admitted to probate. (Art.809 NCC)

SEPARATE WILLSThe SC has held that separate wills which contain essentially the same provisions and pertain to properties whish in all probability are conjugal in nature, practical considerations dictate their joint probate.

PROBATE STAGEThe rule is that during the probate stage, the court can pass only upon the extrinsic validity of a will, that is, whether the will complied with the formalities prescribed by law and whether the testator had testamentary capacity. The intrinsic validity of the will be passed upon the probate court only during the stage for the determination of the heirs and the distribution of the estate.

EXCEPTION: Where the defect of the will is apparent on its face, the court may pass upon its intrinsic validity since the probate of the will would become a useless ceremony.

ADDITIONAL NOTES: Preterition applies only to inadvertent omission

in the will. If there was no inadvertent omission, that is, the testator made an effective disinheritance, the will is valid.

If there is no opposition with simultaneous petition for letters of administration was filed, the court cannot continue the case as intestacy as it will have no jurisdiction and power to appoint an administrator.

RULE 77 – ALLOWANCE OF WILL PROVED OUTSIDE THE PHILIPPINES AND ADMINISTRATION OF ESTATE

THEREUNDER (1)

WILL PROVED OUTSIDE THE PHILIPPINES MAY BE PROVED HEREIt is a requirement that a will which was probated in a foreign country be re-probated in the Philippines. If the decedent owns properties in different countries, separate proceedings must be had to cover the same.

NOTES: In the absence of proof of the foreign law, it is

presumed that it is the same as that in the Philippines (Doctrine of Processual Presumption.)

The venue for the petition for re-probate is the same as that provided for in R73.

A will of a foreigner executed abroad can be probated in the Philippines without need of being probated abroad. Art.816 of the NCC states that the will of an alien who is abroad produces effect in the Philippines if made in accordance with the formalities prescribed by the law of the place where he resides, or according to the formalities observed in his country. Reprobate of a will already probated and allowed in a foreign country is different from that probate where the will is presented for the first time before a competent court. Reprobate is specifically governed by R&&. In reprobate, the local court acknowledges as binding the findings of the foreign probate court provided its jurisdiction over the matter can be established. If the instituted heirs do not have the means to go abroad for the probate of the will, it is as good as depriving them outright of their inheritance.

RULE 78 – LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO

WHOM ISSUED (2)

INITIATORY PLEADING IN PROBATE PROCEEDINGS1. If a person dies TESTATE:

a. Petition for allowance of will and for letters testamentary if there is an executor named in the will; or

b. Petition for allowance of will and for letters of administration with the will annexed, in case there is a will but there is no executor named in the will or the executor named in the will is incompetent, refuses the appointment, or fails to give a bond.

2. If a person dies INTESTATE:a. Petition for letters of administration.

WHO CAN ADMINISTER AN ESTATE1. EXECUTOR – the one named by the testator

in his will for the administration of his property after his death.

2. ADMINISTRATOR (SPECIAL OR REGULAR) – the one appointed by the court in accordance with the rules governing statutes to administer and settle the intestate estate.

3. ADMINISTRATOR WITH A WILL ANNEXED – the one appointed by the court in cases when, although there is a will, the will does not appoint any executor or if appointed,

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said person is either incapacitated or unwilling to serve as such.

INCOMPETENT TO SERVE AS EXECUTORS OR ADMINISTRATORS

1. A minor;2. A non-resident;3. One who in the opinion of the court is unfit

to exercise the duties of the trust by reason of:a. Drunkenness;b. Improvidence;c. Want of understanding or integrity;d. Conviction for an offense involving

moral turpitude (MALUM IN SE).4. The executor of an executor cannot

administer the estate of the firs testator.

ORDER OF PREFERENCE IN GRANTING LETTERS OF ADMINISTRATION (SNB RPC)1. Surviving spouse;2. Next of kin;3. Surviving spouse and next of kin;4. Person who the surviving spouse or next of

kin requests to have appointed;5. Principal creditor/s if the above neglect for

30 days after the person’s death to apply for administration or to request that administration be granted to some other person;

6. Person as the court may select, if no principal creditor competent and willing to serve.

NOTE: The probate court may for valid reason cause disregard such order of preference.

TO WHOM AND WHEN LETTERS TESTAMENTARY IS ISSUEDWhen the will has been proved and allowed, the court shall issue letters testamentary to the person named as executor therein, if he is competent, accepts the trust, and gives bond as required under R81.

RULE 79 – OPPOSING ISSUANCE OF LETTERS TESTAMENTARY, PETITION

AND CONTEST FOR LETTERS OF ADMINISTRATION (1)

The main issue is the determination of the person who is rightfully entitled to administration.

PERSONS TO OPPOSE ISSUANCE OF THE LETTERSAny person interested in the will may state in writing the grounds why letters testamentary should not issue to the persons named therein as executors, or any of them.

A petition may at the same time be filed for letters of administration with the will annexed (simultaneous petition for administration).

An INTERESTED PERSON is one who stands to be benefited from the distribution of the estate as in the case of an heir or a creditor.

The interest must be material and direct and not merely indirect or contingent. Thus a claimant whose right depends upon the dis allowance of the second will and the incapacity of the legatees in the first will to inherit is not an interested party since his interest depends upon a contingency.

NOTE: The SC has held that a person who cohabited with another is a co-owner of the properties acquired through their joint efforts during the cohabitation pursuant to the FC and that such co-ownership would qualify her as an interested person. (08 Bar Q10)

RULE 80 – SPECIAL ADMINISTRATOR (0)

SPECIAL ADMINISTRATOR – is a representative of the decedent appointed upon the discretion of the probate court to care for and preserve his estate until an executor or general administrator is appointed.

Regular Administrator

Special Administrator

Order of appointment is FINAL and is APPEALABLE.

Order of appointment is INTERLOCUTORY and is NOT APPEALABLE.

One of the obligations is to pay the debts of the estate.

Cannot pay debts of the estate.

Appointed when decedent died intestate or did not appoint an executor in the will was disallowed.

Appointed when there is delay in granting letters testamentary or administration or when the executor is a claimant of the estate.

NOTE: It is possible for the executor or administrator whose appointment is challenged by appeal to be appointed also as the special administrator pending such appeal. There is no harm in appointing the same person as special administrator because there is a vast difference between the powers and duties between the two positions.

While a special administrator may commence and maintain suits under S2, he cannot be sued by a creditor for the payment of the debts of the deceased. Such

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suit must await the appointment of a regular administrator.

RULE 81 – BONDS OF EXECUTORS AND ADMINISTRATORS (0)

WHEN BOND IS FILED:Before an executor or administrator enters upon the execution of his trust.

AMOUNT: To be fixed by the court.

PURPOSE:It is intended as an indemnity to the creditors, the heirs and the estate. It shall be accountable for any breach of duty that may be done by the administrator or executor. The liability may be enforced by motion or in a separate civil action.

CONDITIONS OF THE BOND: (IAAP)1. Make within 3 MONTHS a true and

complete INVENTORY of the property of the deceased which came to his knowledge and possession (not jurisdictional and not mandatory);

2. ADMINISTER the estate and pay and discharge all debts, legacies and charges, including dividends declared by the court from the proceeds (lease for more than 1 year is no longer acts of administration);

3. Render a true and just ACCOUNT within ONE YEAR and when required by the court (making of an inventory is a preliminary and provisional nature and is not decisive of the rights of all persons in interest);NOTE: The SC has held that a probate court has no jurisdiction over the question of title of properties. Such question should be resolved in a separate action.

4. PERFORM all orders of the court.

NOTES:Terms and effectivity of bond DOES NOT depend on payment of premium and does not expire until the administration is closed. As longs the probate court retains jurisdiction of the estate, the bond contemplates a continuing liability.

Even if the testator has directed in his will that his executor serve without a bond, the court may still require him to file a bond conditioned only to pay the debts of the testator.

RULE 82 – REVOCATION OF ADMINISTRATION, DEATH,

RESIGNATION AND REMOVAL OF EXECUTORS AND ADMINISTRATORS (0)

It is only when the newly discovered will has been admitted to probate that the letters of administration shall be revoked by the probate court.

GROUNDS FOR REMOVAL OF EXECUTOR OR ADMINISTRATOR (RASPI)1. Neglect to RENDER accounts (within 1 year

and when required by the court);2. Neglect to SETTLE estate according to these

rules;3. Neglect to PERFORM an order or judgment

of the court or a duty expressly provided by these rules;

4. ABSCONDING; or5. INSANITY or incapability or unsuitability to

discharge the trust.

RULE 83 – INVENTORY AND APPRAISAL PROVISION FOR SUPPORT OF FAMILY

Inventory and appraisal must be made within 3 MONTHS from the grant of letters testamentary or of administration.

ARTICLES NOT TO BE INVENTORIED1. Wearing apparel of the surviving spouse

and minor children;2. Marriage bed and bedding;3. Provisions and other articles as will

necessarily be consumed in the subsistence of the family of the deceased.

PERSONS ENTITLED TO ALLOWANCE DURING PROCEEDINGS1. LEGITIMATE surviving spouse;2. Children of the decedent (whether minor or

of legal age.

NOTE: When liabilities exceed the assets of the estate, his widow and children are not entitled to support pending the liquidation of the intestate estate, on the ground that such support having the character of an advance payment, is to be deducted from the respective share of each heir during distribution.

RULE 84 – GENERAL PROVISIONS AND DUTIES OF EXECUTORS AND

ADMINISTRATORS (0)

POWERS OF THE EXECUTOR OR ADMINISTRATOR OF THE ESTATE (BERIP)1. To have access to, and examine and take

copies of BOOKS and papers relating to the partnership in case of a deceased partner;

2. To EXAMINE and make invoices of the property belonging to the partnership in case of a deceased partner;

3. To maintain in tenantable REPAIRS, houses and other structures and fences and to

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deliver the same 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 court approval except necessary repairs;

5. To POSSESS and manage the estate when necessary:a. For the payment of debts; andb. For payment of expenses of

administration.

RESTRICTIONS ON THE POWER OF AN ADMINISTRATOR OR EXECUTOR (ABS _ LCP)1. Cannot ACQUIRE by purchase, even at

public or judicial auction, either in person or mediation of another, the property under administration;

2. Cannot BORROW money without authority of the court;

3. Cannot SPECULATE with fund under administration;

4. Cannot LEASE the property for more than one year;

5. Cannot continue the business of the deceased unless authorized by the court;

6. Cannot PROFIT by the increase or decrease in the value of the property under administration.

NOTE: The right of an executor or administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be exercised so long as it is necessary for the payment of the debts and expenses of the administration.

RULE 85 – ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND

ADMINISTRATORS (0)

ACCOUNTABILITYGENERAL RULE: The executor or administrator is accountable for the whole estate of the deceased.

EXCEPTION: He is not accountable for properties which never came to his possession.

EXCEPTION TO THE EXCEPTION: When through untruthfulness to the trust or his own fault or for lack of necessary action, the executor or administrator failed to recover part of the estate which came to his knowledge.

COMPENSATION IF THERE IS NO PROVISION IN THE WILL1. P4.00 a day for the time actually and

necessarily employed; or2. COMMISSION;3. A GREATER SUM may be allowed if:

a. The estate is large;

b. The settlement has been attended with great difficulty;

c. The settlement has required a high degree of capacity of the executor or administrator.

NOTE: Acting as a counsel in a suit is not part of the duties of an administrator of the estate. It is but just that he is paid attorney’s fees.

ATTORNEY’S FEESThe SC has held that the lawyer should first seek payment from the executor or administrator who is primarily liable.

However if the executor or administrator refuses to pay the lawyer, the latter has two alternatives:a. The lawyer may file a separate suit against

the executor or administrator in the latter’s personal capacity; or

b. The lawyer may file a direct claim against the estate itself for recovery of the fees as ADMINISTRATIVE EXPENSES.NOTE: A writ of execution against the estate is dismissed if no notice of the motion is given to ALL interested parties.

A motion of Writ of Execution is not premature. A lawyer’s fee treated as administration expense is paid ahead of the claims of the interested parties.

RULE 86 – CLAIMS AGAINST ESTATE (3)

MONEY CLAIMS1. All claims for money against the decedent

arising from contract, a. express or implied;b. whether the same be due, not due; orc. contingent.

2. All claims for funeral expenses;3. All claims for expenses for the last sickness

of the decedent; and4. Judgment for money against the decedent.

STATUTE OF NON-CLAIMS is the period fixed by the rule for the filing of the claims against estate.

WHEN TO FILE CLAIMS

GENERAL RULE: Within the time fixed in the notice which shall not be more than 12 MONTHS nor LESS THAN 6 MONTHS after the date of the FIRST PUBLICATION. Otherwise they are BARRED FOREVER.

NOTE: Even if the testator acknowledged the debt in his will and instructed the executor to pay the debt, the statute of non-claims must still be complied with; otherwise the claim may also be barred.

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EXCEPTION: BELATED/TARDY CLAIMS

BELATED/TARDY CLAIMS are claims not filed within the original period fixed by the court. On application of a creditor who has failed to file his claim within the time previously limited, at ANY TIME BEFORE and order of distribution is entered, the court may: a. for cause shown; and b. on such terms as are equitable,allow such claim to be filed within a time NOT EXCEEDING 1 MONTH from the order allowing belated claims.

IMPORTANT NOTES:

A creditor barred by the statute of non-claims may file a claim as COUNTERCLAIM in any suit that the executor or administrator may bring against such creditor.

A money claim arising from CRIME or QUASI-DELICT committed by the decedent is not included in the concept of claims which have to be filed under this RULE but should be the subject of an action against the executor or administrator or against the heirs.

A favorable judgment for money should be files as a money claim pursuant to the rules. The SC has held that a money claim cannot be enforced by a writ of execution but should instead be filed as a money claim.

The substitution of the deceased in the civil action by the administrator or the decedent’s representative is generally considered as equivalent to the presentation of the claim with the probate court. Hence, the claim is not barred by the statute of non-claims.

Non-payment of the docket fee for a money claim is not a ground for its dismissal. The probate court should just order the payment of the docket fees within a reasonable time.

MORTGAGE DEBT DUE FROM ESTATE

ALTERNATIVE REMEDIES: (AFR)1. ABANDON or waive the security and

prosecute the claim against the estate and share in the general distribution of the assets of the estate;

2. FORECLOSE his mortgage or realize upon his security by action in court making the executor or administrator a party defendant and if there is judgment for DEFICIENCY, he

may file a contingent claim against the estate within the statute of non-claims;

3. RELY solely on his mortgage and foreclose (judicial or extrajudicial) the same at any time within the period of the statute of limitations but he cannot be admitted as creditor and shall not receive in the distribution of the other assets of the estate.

NOTE: An action to enforce lien on property is not a money claim which is barred by the statute of non-claims. However, deficiency judgment is a contingent claim which should be filed within the statute of non-claims.

Judgment of a probate court approving or disapproving a claim is appealable. The mode of appeal is record on appeal and must be filed within 30 days from notice of judgment.

RULE 87 – ACTIONS BY AND AGAINST EXECUTORS (0)

ACTIONS WHICH MAY BE COMMENCED DIRECTLY AGAINST THE EXECUTOR OR ADMINISTRATOR1. Recovery of real estate or personal property

for any interest therein from the estate;2. Enforcement of a lien thereon;3. Action to recover damages for any injury to

person or property, real or personal (tortuous acts).

NOTE: An action for revival of money judgment may be filed against the administrator to preempt prescription of judgment.

Before distribution is made or before any residue is known, the heirs and devisees have no cause of action against the executor or administrator for recovery of the property left by the decedent.

GENERAL RULE: The heirs have no legal standing to sue for the recovery of property of the estate during the pendency of administration proceedings.

Such an action against the administrator will be ruled premature and dismissed. The proper remedy is for an action to remove administrator on the ground that he has become unsuitable to discharge the trust.

EXCEPTIONS:1. If the executor or administrator is unwilling

or refuses to bring suit; and2. When the administrator is alleged to have

participated in the act complained of and he is made a party defendant;

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3. When there is no appointed administrator or pending appointment.

RULE 88 – PAYMENT OF DEBTS OF THE ESTATE (0)

A writ of execution is not the proper procedure to satisfy debts. The court must order the sale or mortgage of the properties of the decedent, the proceeds of which will satisfy the debts and expenses.

GENERAL RULE: Payment of the debts of the estate must be taken in the following order of preference:1. From the portion or property designated in

the will;2. From the personal property; and3. From the real property.

EXCEPTION: The court on petition of interested parties may modify such order of disposition.

ESTATE TO BE RETAINED TO MEET CONTINGENT CLAIMSIf the court is satisfied that the contingent claim duly filed is valid, it may order the executor or administrator to retain in his hands a sufficient part of the estate to pay a portion equal to the dividend of the creditors.

REQUISITES:1. Contingent claim is duly filed;2. Court is satisfied that the claim is valid; and3. The claim has become absolute.

HOW CONTNGENT CLAIM BECOMING ABSOLUTE IN TWO YEAR ALLOWED AND PAID1. If such contingent claim becomes absolute

and is presented to the court as absolute claim WITHIN TWO YEARS from the time allowed for the presentation of claims, it will be paid in the same manner as the other absolute claims.

2. If the contingent claim matures AFTER THE EXPIRATION OF THE TWO YEARS, the creditors may sue the distributees, who are liable in proportion to the shares in the estate respectively received by them.

NOTE: If estate is insolvent, as in liabilities are more than the assets, S7 in relation to Art.1059 and 2239 to 2251 of the Civil Code must apply.

RULE 89 – SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY

OF DECEDENT (0)

ORDER OF SALE OF PERSONALTY

1. To pay debts and expenses of administration;

2. To pay legacies; or3. To cover expenses for the preservation of

the estate.

NOTE: Notice is mandatory. Without notice and hearing, the sale, mortgage or encumbrance of real property is void.

If the opposition to the sale is based on the fact that the oppositor claims title to the property to be sold, the court will hold in abeyance the authority to sell such property until the issue of ownership has been settled in an ordinary action, since the probate court generally has no jurisdiction to resolve issues of ownership in the administrative proceedings.

RULE 90 – DISTRIBUTION AND PARTITION OF THE ESTATE (1)

LIQUIDATION is the determination of all assets of the estate and payment of all debts and expenses.

GENERAL RULE: An ORDER of DISTRIBUTION shall be made AFTER payment of a. all debts;b. funeral expenses;c. expenses for administration;d. allowance of the widow and children; ande. inheritance tax is made.

EXCEPTION: if the distributees or any of them gives a bond conditioned for the payment of said obligation, the ORDER OF DISTRIBUTION may be made even BEFORE payments of all debts, etc.

NOTE: Matters relating to the rights of filiation and heirship must be ventilated in the proper probate court in a special proceeding instituted precisely for the purpose of determining such rights. They cannot be adjudicated in an ordinary civil action.

REMEDY OF AN HEIR WHO HAS NOT RECEIVED HIS SHARE1. File a motion with the probate court for

delivery to him of his share; or2. If the estate proceeding have been CLOSED,

file a motion for reopening of the proceeding, within the prescriptive period.

WRIT OF EXECUTIONAs general rule, a probate court cannot issue writs of execution. Its orders usually refer to the adjudication of claims against the estate which the executor/administrator may satisfy without the need of executor process.

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EXCEPTION: (CEE)1. To satisfy the CONTRIBUTIVE share of the

devisees, legatees and heirs when the latter had entered prior possession over the estate.

2. To ENFORCE payment of the expenses of partition;

3. To satisfy the costs when a person is cited for EXAMINATION in probate proceedings.

OTHER SPECIAL PROCEEDINGS

RULE 91 – ESCHEATS (2)

ESCHEAT is the proceeding whereby the real AND personal property of a deceased person in the Philippines, who dies intestate (or if the will was not allowed, hence intestacy) and without legal heirs becomes the property of the State upon his death.

THREE INSTANCES OF ESCHEATS1. When a person dies intestate leaving no

heir but leaving property in the Philippines;2. REVERSION PROCEEDINGS – An action

brought by the Republic to recover properties alienated in violation of the Constitution or of any statute.

Lands of the public domain and real rights thereto which were acquired in violation of the Constitution or the public land laws shall also be reverted to the State (S2, Art.XVII, Constitution)NOTE: reversion will not be allowed even if the original buyer was an alien, if later on the title to the property was transferred by succession to the buyer’s heirs who are qualified parties, i.e. Philippine citizens.

3. UNCLAIMED BALANCES ACT (dormant accounts for 10 years shall be escheated.

ORDER OF HEARINGIf the petition is sufficient In FORM and SUBSTANCE the court shall:1. Make an order of hearing – hearing shall

not be more than 6 months after entry of order;

2. Direct the publication of a copy of the order – at least once a week for 6 consecutive weeks.

TO WHOM WILL THE PROPERTY ESCHEATED BE ASSIGNED:1. IF PERSONAL PROPERTY, to the municipality

or city where he last resided;2. IF REAL PROPERTY, to the municipality or

city where the property is located.3. IF THE DECEASED NEVER RESIDED in the

Philippines, to the municipality or city where the property may be found.

OTHER ACTIONS FOR CLAIM OF ESCHEATS

PERIOD OF FILING CLAIMWithin 5 years from date of judgment otherwise it will be barred forever pursuant to the Civil Code.

NOTE: Proceedings in Escheat cannot be converted into settlement of the estate. For the distribution of the estate of the decedent to be instituted, the proper petitions must be presented and the proceedings should comply with the requirements of the rule. An escheat court does not have the power to order or proceed with, the distribution of the estate of a decedent in escheat proceedings and adjudicate the properties to the oppositors.

GUARDIANSHIP(R92-97)

Rule on guardianship of MINORS is now governed by the SC Rule on Guardianship of MINORS (RGM) effective May 1, 2001. Rules 92-97 are still applicable to guardianship over INCOMPETENTS.

GUARDIANSHIP is the power of protective authority given by law and imposed in an individual who is free and in enjoyment of his rights over one whose weakness on account of his age or other infirmity renders him unable to protect himself.

THREE KINDS OF GUARDIANS UNDER THE LAW1. LEGAL GUARDIAN. One who is such by

provision of law without need of a court appointment. (Ex. Parents)

2. GUARDIAN AD LITEM. One who is appointed by the court for purpose of a particular action or proceeding involving a MINOR.

3. GENERAL GUARDIAN. One who is appointed by the court over the person and/or property of the ward to represent the latter in all his civil acts and transactions.

PROCEDURE FOR GUARDIANSHIP FOR INCOMPETENT PERSONS WHO ARE NOT MINORS1. Petition for the appointment of a guardian;2. Court order fixing the hearing of the

petition;3. Notice of the hearing;4. Hearing and appointment of the guardian;5. Service of judgment on the local civil

registrar;6. Filing of bond by the guardian;7. Issuance of Letters of Guardianship; and8. Termination of guardianship.

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RULE 92 –VENUE (0)

JURISDICTION:GUARDIANSHIP OVER INCOMPETENTSRESIDENT – RTC of where the incompetent resides.NON-RESIDENT – RTC of the place where his property is located.

GUARDIANSHIP OVER MINORSRESIDENT – FC of where the minor resides.NON-RESIDENT – FC of the place where his property is located.

NOTE: MTCs no longer have jurisdiction over guardianship proceedings pursuant to B.P. blg 129. However where the minor or incompetent is a party to an action in the MTC, the latter may appoint a guardian ad litem for him.

MEANING OF THE WORD INCOMPETENT1. Those suffering from penalty of civil

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

write;5. Those of unsound mind though they may

have lucid intervals;6. Person not of unsound mind but by reason

of age, disease, weak mind and other similar causes, cannot, without aid, take care of themselves and manage their property.

RULE 93 – APPOINTMENT OF GUARDIANS (0)

WHO MAY PETITION FOR APPOINTMENT OF GUARDIAN OF A MINOR1. Any relative or other person on behalf of a

minor;2. The minor himself, if 14 years of age or

above;3. Secretary of DSWD and by the Secretary of

Health in the case of an insane minor who needs to be hospitalized.

NOTE: when the minor resides outside the Philippines but has property in the Philippines, any relative or friend of such minor, or anyone interested in his property, in expectancy or otherwise, may petition for the appointment of a guardian over the property.

In the appointment of guardian for an INCOMPETENT, the choice of a suitable guardian is left to the sound discretion of the court. There is no rule of preference regarding the appointment of guardian over an incompetent.

COURT TO SET TIME FOR HEARING OR NOTICE THEREOF

TO WHOM NOTICE IS SERVED1. Persons mentioned in the petition residing

in the Philippines;2. The incompetent.

NOTE: There is no requirement of publication, only notice except in case of a nonresident incompetent. However, service of NOTICE upon the person mentioned in the petition, including the incompetent who is not a minor is MANDATORY and JURISDICTIONAL.

RULE 94 – BONDS OF GUARDISN (0)

Before an appointed guardian enters upon the execution of his trust, he shall give a BOND.

PURPOSE OF THE BOND: For the protection of the property of the minor or incompetent to the end that he may be assured of an honest administration of his funds.

NECESSITY OF THE BOND: When required by statues to give a bond, no person can qualify and act as guardian without complying with this condition precedent.

NOTE: The bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulfilled. The mere fact that defendant was removed as guardian did not relieve her or her bondsmen from liability during the time she was duly acting as such guardian.

In case of guardianship over the person of the minor child, the parents are not required to furnish a bond. However in the case of guardianship over the property of the minor child, the parents are required to furnish a bond if the market value of the property or the annual income of the child exceeds P50,000. The parent concerned shall furnish a bond in such amount as the court may determine, but in no case less than 10% of the value of such property or the annual income.

RULE 95 – SELLING AND ENCUMBERING PROPERTY OF WARD (0)

GROUNDS1. When the income of estate is insufficient to

maintain the ward and his family or;2. When it appears that it is for the benefit of

the ward.

REQUIREMENTS1. VERIFIED PETITION;

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2. Notice must be given to the next of kin and all interested in the estate;

3. Hearing so that they may show cause why petition should not be granted.

NOTE: Sale of the ward’s realty by the guardian without authority is VOID.

DURATION OF THE ORDER OF SALE AND ENCUMBRANCE OF THE PROPERTY

Within 1 year from the granting of the order. It is presumed that if the property is not sold within 1 year, the ward has sufficient income.

The authority to sell or encumber shall not extend beyond 1 year unless renewed by the court.

The property may be sold at a public or private sale. Compare with the sale of a MINOR’s property which may be sold only in a public sale.

RULE 96 – GENERAL POWERS AND DUTIES OF GUARDIAN (0)

In general a guardian has full authority to take possession of the property of the ward and to perform all acts necessary for its management, and to bring and defend such actions as may be needed for this purpose.

NOTE: Conflict regarding the ownership or title to the property in the hands of the guardian in his capacity as such should be litigated in a separate proceeding being solely concerned with the ward’s care and custody and proper administration of his properties.

The guardian is bound to exercise such diligence and prudence as reasonable men ordinarily employ in the conduct of their own affairs and will be held liable for any loss which results from his failure to exercise such prudence and diligence.

RULE 97 – TERMINATION OF GUARDIANSHIP (0)

GROUNDS FOR TERMINATION1. Competency of the ward has been judicially

determined;2. Guardianship is no longer necessary;3. Death of guardian;4. Death of ward.

GROUNDS FOR REMOVAL OF A GUARDIAN1. Insanity;2. Incapability or unsuitability to discharge

functions;

3. Wastage or mismanagement of the property of the ward; and

4. Failure to render an account or make a return within 30 days after it was due.

NOTE: The remedy of a guardian from the order of removal is appeal.

A guardian may be allowed to resign when it appears proper to allow the same.

RULE 98 – TRUSTEES (0)

PROCEDURE FOR APPOINTMENT OF TRUSTEES1. Allowance of the instrument creating the

trust (Probate of Will);2. Petition by the executor/administrator of

the person appointed as Trustee in the instrument

3. Appointment of the trustee by the court4. Notice to all interested persons; and 5. Filing of Bond by the Trustee.

TRUST is a fiduciary relationship concerning property whereby confidence is reposed upon a person who hold legal title over the property and deals with it for the benefit of another.

TRUSTEE is the person whom confidence is reposed as regards property for the benefit of another person.

JURISDICTION: the RTC or MTC in which the Will was allowed, if it be a will allowed in the Philippines, otherwise by the RTC of the province in which the property or some portion thereof, affected by the trust, is situated.

GENERAL RULE: Neglect of trustees to file a bond will be interpreted by the court as resignation or a decline to accept the trust.

However, he may be exempted from bond when requested by:1. Testator; OR2. All persons beneficially interested in the

trust, being of legal age, request such exemption.

Nonetheless, the court may cancel such exemption anytime.

RULE 99 – ADOPTION (1)

NOTE: The provisions of the Rules of Court on Adoption have been amended by the Domestic Adoption Act of 1998 and the Inter-country Adoption Act of 1995. Sec.6 of Rule 99 was already amended by Administrative Circular No. 03-04-04 while Sec.7 of Rule 99 was amended by Administrative Circular No. 02-1-19-Sc effective August 22, 2002.

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ADOPTION is a juridical act, a proceeding IN Rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.

PROCEDURE FOR DOMESTIC ADOPTION UNDER AM-02-6-02-SC1. Petition for domestic adoption;2. Order of hearing by the court;3. Child and home study report by the social

worker;4. Hearing on the petition for adoption;5. Supervised trial custody;6. Adoption decree issued by the court.

WHO MAY ADOPTI. ANY FILIPINO CITIZEN

1. Of legal age;2. In possession of full civil capacity

and legal rights;3. Of good moral character;4. Has not been convicted of any

crime involving moral turpitude;5. Emotionally and psychologically

capable of caring for children;6. At least 16 years older than the

adoptee; and7. In a position to support and care

for his/her children in keeping with the means of the family.

II. ANY ALIEN POSSESSING THE SAME QUALIFICATION AS ABOVE, PROVIDED1. That his country has diplomatic

relations with the Philippines;2. That he has been living in the

Philippines for at least 3 CONTINUOUS YEARS prior to the filing of the application for adoption;

3. Maintains residence until the adoption decree is entered;

4. Certified to have legal capacity to adopt by his country; and

5. That his government allows the adoptees to enter his country as his adopted child.

III. The guardian with respect to the ward after termination of the guardianship and clearance of his financial accountabilities.

WAIVER OF AGE DIFFERENCEThe requirement of 16 YEARS difference between the adopter and the adoptee may be waived if the adopter is:1. The biological parent of the adoptee;2. The spouse of the adoptee’s parent.

WAIVER OF RESIDENCY REQUIREMENTThe requirement on residency and certification of alien’s qualification to adopt may be waived for the following:

1. The adopter is a FORMER FILIPINO CITIZEN who seeks to adopt a relative within the 4th

degree of consanguinity or affinity;2. One who seeks to adopt the legitimate child

of his spouse;3. One who is married to a Filipino citizen and

seeks to adopt jointly with his spouse a relative within the 4th degree of consanguinity or affinity of the Filipino.

JOINT ADOPTIONThe husband and wife shall jointly adopt, the exceptions are:1. If one spouse seeks to adopt the legitimate

child of the other spouse.2. If one spouse seeks to adopt his own

illegitimate child, provided the other spouse has given his CONSENT thereto. If one spouse seeks to adopt the other’s illegitimate child, both spouses must jointly adopt.

3. If the spouses are legally separated from each other.

NOTE: Death of adopter will not result in the dismissal of petition. However death of the adoptee extinguishes her legal personality, as such, will result In the dismissal of the petition.

RESCISSION OF ADOPTIONAdoption being in the best interests of the child shall not be subject rescission by the adopter. However, the adopter may disinherit the adoptee for causes provided in Art. 919 of the Civil Code.

RESCISSION OF ADOPTION BY ADOPTEEUpon verified petition filed by the adoptee who is over 18 years of age, or with the assistance of the DSWD, or by his guardian or counsel, if over 18 but is incapacitated, the rescission may be rescinded based on any of the following grounds committed by the adopter:1. Repeated physical and verbal maltreatment

by the adopter despite having undergone counseling;

2. Attempt on the life of the adoptee;3. Sexual abuse or violence; or4. Abandonment or failure to comply with

parental obligations.

INTER-COUNTRY ADOPTION

WHO MAY ADOPT1. Any alien or Filipino citizen permanently

residing abroad who is at least 27 years of age;

2. Other requirements are the same as with RA8552.

NOTE: When a foreigner who is married to a Filipino Citizen seeks to adopt jointly with his/her spouse as relative within the 4th civil

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degree of consanguinity or affinity of the Filipino spouse, the Domestic Adoption Act shall apply.

WHO MAY BE ADOPTEDOnly a child legally available for domestic adoption may be the subject of inter-country adoption

A child under the inter-country adoption act is defined as any person below 15 years of age.

The Board shall ensure that all possibilities for adoption of the child under the FC have been exhausted and that inter-country adoption is in the best interest of the child.

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special proceedings

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