special proceedings.pdf

8/11/2019 Special Proceedings.pdf

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Remedial Law Summer Reviewer

ATENEOCENTRALBAROPERATIONS2007

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d. Trusteesi. RTC Gross value of the estate exceeds

P300,000/P400,000ii. MTC Gross value of the estate does

exceed P300,000/P400,000

If will allowed in the Philippines courtwhere will was allowed If will allowed outside the Philippines

court in place where property is situated

e. Adoption: Regional Trial Court If domestic adoption place where

adopter resides If inter-country adoption court who has

jurisdiction over the adoptee

f. Rescission and revocation of adoption:Regional Trial Court

g. Hospitalization of insane patient: RTC in placewhere person alleged to be insane is found

h. Habeas corpusi. SC (original, concurrent with RTC)ii. CA (original, concurrent with RTC)iii. RTC (within its respective region)iv. MTC (in absence of RTC judges in

province/city)

i. Change of namei. Judicial (Rules of Court): RTC in place

where petitioner resides

ii. Administrative (RA 9048): Civil registar where entry is located or if

applicant migrated: civil registar in placewhere he resides

Consul General: if applicant residesabroad

j. Voluntary dissolution of corporations: SEC

k. Constitution of family home: under the FamilyCode, it is deemed constituted on a house andlot from the time it is occupied as a familyresidence

l. Declaration of absence and death: RTC inplace where absentee resided before hisdisappearance

m. Cancellation of correction of entries in civilregistryi. Judicial (Rules of Court): RTC in place

where the civil registry is locatedii. Administrative (RA 1948):

Civil registar where entry is located or ifapplicant migrated: civil registar in placewhere he resides

Consul General: if applicant residesabroad

SETTLEMENT OF ESTATE OF DECEASEDPERSONS

DIFFERENT MODES OF SETTLEMENT OFESTATE OF DECEASED PERSON:

1. Extrajudicial Settlement of Estate (Rule 74,Sec. 1)

2. Summary Settlement of Estate of Small Value3. Partition (Rule 69)4. Probate of Will (Rule 75 to 79)5. Petition for Letters of Administration in case of

Intestacy

RULE 73VENUE AND PROCESS

Section 1. Where estate of deceased personsettledSection 2. Where estate settled upon dissolutionof marriageSection 3. ProcessSection 4. Presumption of death

According to Circular No. 21-99 (15 April 1999), thenew jurisdictional amounts as adjudged under RA7691 will be as follows:

File in the RTC:

Before 14Apri l 1999

14 April1999 31December

2003

BeginningYear 2004

In MetroManila

>P200,000 >P400,000 >P400,000

Outside

Manila

>P100,000 >P200,000 >P300,000

File in the MTC:

Before 14Apri l 1999

14 April1999 31December

2003

BeginningYear 2004

In M.Manila

P200,000 P400,000 P400,000

OutsideManila

P100,000 P200,000 P300,000


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

RESIDENCEThis means his personal, actual or physicalhabitation, his actual residence or place of abode(Fule v. CA, L-40502, Nov. 29, 1976)

Extent of Jurisdiction of Probate CourtsProbate courts are courts of limited jurisdiction. Itmay only determine and rule upon issues relating tothe settlement of the estate, namely:

1. Administration of the estate2. Liquidation of the estate3. Distribution of the estate

WHEN PROBATE PASSES UPON QUESTION OFTITLE TO PROPERTY:

a. Interested parties who are all heirs consentsand 3

rdparties not prejudiced (Bernardo v. CA,

Feb. 28, 1963);b. Otherwise, only in a provisional manner, to

determine whether property should be includedin the inventory, without prejudice to the finaldetermination of title in a separate action.

c. Question is one of collation or advancement

GENERAL RULEProbate court cannot issue writs of execution.

EXCEPTION: When probate courts can issues writsof execution:

a. To satisfy distributive shares of the devisees,legatees, and heirs in possession ofdecedents assets;

b. To enforce payment of expenses in partition;c. To satisfy costs when a person is cited for

examination in probate proceedings.d. To satisfy the claim in summary settlement

proceedings of creditors or heirs who appearwithin 2 years from the distribution.

PRINCIPLE OF EXCLUSIONARY RULE

The Court first taking cognizance of the settlement ofthe estate of the decedent shall exercise jurisdictionto the exclusion of all other courts.

The probate court acquires jurisdiction from themoment the petition for the settlement of estate isfiled with said court. It cannot be divested of such

jurisdiction by the subsequent acts of the parties asby entering into an extrajudicial partition of the estate;or by filing another petition for settlement in a propercourt of concurrent venue.

EXCEPTION: Estoppel by laches

Vda. De Manalo v. CA 349 SCRA 135 (2001)In the determination of the nature of an action or

proceeding, the averments and the character of therelief sought in the complaint/petition shall becontrolling. In this case, the petition containssufficient jurisdictional facts required in a petition forsettlement of estate. Indeed, the petition containedcertain averments that may be typical of an ordinarycivil action and the oppositors took advantage of thesaid defect.

But oppositors may not be allowed to defeat thepurpose of an essentially valid petition by raisingmatters that are irrelevant and immaterial to saidpetition. The jurisdiction of a court as well as theconcomitant nature of the action is determined by theaverments in the complaint and not by the defenses

contained in the answer.

RULE 74SUMMARY SETTLEMENT OF ESTATES

Section 1. Extrajudicial settlement by agreementbetween heirsSection 2. Summary settlement of estates ofsmall valueSection 3. Bond to be filed by distribu teesSection 4. Liability of d istribu tees and estate

Section 5. Period for claim of minor orincapacitated person

GENERAL RULEWhen a person dies, his estate is submitted to a

judicial settlement proceeding.

EXCEPTION: When estate need not be judiciallyadministered through an administrator or executor:

a. Extrajudicial settlement;b. Summary settlement of estate of small value

(not exceeding P10,000)

EXTRAJUDICIAL SETTLEMENTa. Does not require court intervention;b. Value of estate is immaterial;c. Allowed only in intestate succession;d. Proper only where there are no outstanding

debts of the estate at the time of settlement;e. Can be resorted to only at the instance and by

agreement of all heirs. (If heirs do not agree,they may resort to an action for partition)


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REQUISITES OF A VALID EXTRAJUDICIALSETTLEMENT:Substantive:

a. Decedent dies intestate;b. No outstanding debts of the estate at the time

of the settlement;c. Heirs are all of age or the minors arerepresented by their judicial guardians or legalrepresentatives;

Procedurala. Settlement is made in a public instrument duly

filed with the register of deeds or by affidavit ofadjudication in the case of a sole heir;

b. Filed with the Register of Deeds;c. Fact of settlement must be published in a

newspaper of general circulation once a weekfor 3 consecutive weeks;

d. Bond filed equivalent to the value of thepersonal property.

When bond filed is required?Bond filed is required only when personal property isinvolved. If real, it is subject to a lien in favor ofcreditor for full period of 2 years from suchdistribution and such lien cannot be substituted by abond.

Is a public instrument necessary for validity?No. Private instrument/document or oral agreementof partition is valid among the heirs who participatedin the EJS. The requirement in Rule 74 Sec. 1 that it

must be in a public instrument is NOT constitutive ofthe validity but is merely evidentiary (Hernandez v.

Andal). Reformation, in this case can be compelled.

Debts:While the Rules provide that the decedent must nothave left any debts, it is sufficient if any debts he mayhave left have been paid at the time of the EJS.

Philippines Economic Zone Authority v.

Fernandez et. al., G.R. No. 138971(2001)Persons unduly deprived of their lawful

participation in a settlement may assert their claim

only within the 2-year period after the settlement anddistribution of the estate. This prescription perioddoes not apply, however, to those who had no part inor had no notice of the settlement. 4, Rule 74, is notmeant to be a statute of limitations. An extrajudicialpartition, being merely an ex parte proceeding, wouldnot affect third persons who had no knowledgethereof. By its registration in the manner provided bylaw, a transaction may be known actually orconstructively.

SUMMARY SETTLEMENT OF ESTATES WITHSMALL VALUE:

a. Involves judicial adjudication in a summaryproceedings;

b. Applies only when gross estate does notexceed P10,000 (Amount is jurisdictional);c. Allowed in both testate and intestate estates;d. Available even if there are debts as the court

will make provisions for the payment thereof.

2 YEAR LIEN, REQUISITES:a. persons have taken part or have notice of

extrajudicial partition;b. compliance with the provisions of Rule 74,

Sec. 1

REMEDIES OF AGGRIEVED PARTIES AFTERSETTLEMENT OF ESTATE:

a. Within 2 years claim against the bond or thereal estate;

b. Rescission in case of preterition of compulsoryheir in partition tainted with bad faith (NCC Art.1104);

c. Reconveyance of real property;d. Action to annul deed of extrajudicial settlement

on the ground of fraud which should be filedwithin 4 years from discovery

An heir deprived of his share may file an action forreconveyance based on an implied or constructivetrust which prescribes in 10 years.

If on the date of the expiration of the 2-year period,the creditor or heir is:

a. minor or incapacitatedb. in prisonc. outside of the Philippines

He may present his claim within one year after suchdisability is removed (Rule 75, Sec. 5).

RULE 75PRODUCTION OF WILL; ALLOWANCE OF WILL

NECESSARY

Section 1. Allowances necessary; Conclusive asto executionSection 2. Custodian o f will to deliverSection 3. Executor to present will and accept orrefuse trustSection 4. Custodian and executor subject to finefor neglect


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Section 5. Person retaining will may becommitted

PROBATE OF WILLIt is a juridical act whereby an instrument is adjudged

valid and is ordered to be recorded. No will shall passproperty unless probated.

CUSTODIANHe is a person chosen in advance and entrusted withthe custody of the will. It does not refer to a merepossessor of the will.

He must deliver the will to the court or to the executorwithin 20 days after he learns of the death of thetestator (Rule 75, Sec. 2).

NATURE OF PROBATE PROCEEDINGS:a. In remb. Mandatoryc. Imprescriptibled. Estoppel does not apply

US v. Guimco, G.R. No. 12184 (1917)The act penalized in 4 (where the custodian and

executor are subjected to a fine for neglect notexceeding P2,000) is a special statutory offense andis properly prosecuted upon complaint or informationas other criminal offenses created by law.

RULE 76ALLOWANCE OR DISALLOWANCE OF WILL

Section 1. Who may petition for the allowance ofwill

WHO MAY PETITION FOR THE ALLOWANCE OFA WILL:

a. Any creditor as preparatory step for filing hisclaim therein;

b. Devisee or legateec. Person interested in the estate (heirs)d. Executor

e. Testator himself during his lifetime.

WHO MAY BE A PARTY IN A PROBATE?Generally, any person having a direct and materialinterest in the will or estate

JURISDICTIONAL FACTS ALLEGED IN PETITIONFOR PROBATE:

a. Person died leaving a will;b. In case of a resident, that he resided within the

territorial jurisdiction of the court; (in the case

of non-resident, that he left an estate withinsuch territorial jurisdiction).

DIFFERENCES BETWEEN PETITION FORPROBATE FILED BY THIRD PERSONS, AND BY

TESTATOR HIMSELF

Filed by third person Filed by testatorhimself

Notice published once aweek for 3 consecutiveweeks

Newspaper publicationnot required

Personal notice given todesignated/known heirs,legatees and devisees

Personal notice sent onlyto testators compulsoryheirs

Section 2. Contents of petition

CONTENTS OF PETITION FOR PROBATE:a. Jurisdictional facts;b. Names, ages and residences of heirs,

legatees, and devisees;c. Probable value and character of property of

estate;d. Name of person for whom letters are prayed;

ande. If will has not been delivered to the court, the

name of the person having custody of it.

But no defect in the petition shall render void theallowance of the will, or the issuance of letterstestamentary or of administration with the will

annexed.

Section 3. Court to appoint time for proving w illSection 4. Heirs, devisees, legatees, andexecutors to be notified by mail or personally

When does court acquire jurisdiction?Upon PUBLICATION for 3 weeks successively of theorder setting the case for hearing AND sending ofNOTICES (20 days before hearing by mail, 10 daysbefore by personal notice) to all persons interested.

Section 5. Proof at hearing

EVIDENCE IN SUPPORT OF PROBATE OFUNCONTESTED WILL

a. Notarial Wills testimony of at least 1 of thesubscribing witnesses; deposition allowed ifwitnesses outside the province (Sec. 7)

b. Holographic Wills testimony of 1 witnesswho knows the handwriting and signature ofthe testator. In the absence thereof, testimonyof an expert witness.


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Section 6. Proof of lost or destroyed will

HOW WILL IS PROVEN AS LOST ORDESTROYED:

a. Prove that will:

i. Was in existence at time of testatorsdeath, ORii. Was fraudulently or accidentally

destroyed in testators lifetime without hisknowledge;

b. Provisions of will must be clearly and distinctlyproven by at least 2 credible witnesses

Section 7. Proof when witnesses do not reside inprovince

Section 8. Proof when witnesses dead or insaneor do not reside in the Philippines

Section 9. Grounds for disallowing will

GROUNDS FOR DISALLOWING WILL:a. Not executed and attested as required by law;b. Testator was mentally incapacitated to make a

will or insane at the time of execution;c. Executed under duress, influence of fear, or

threats;d. Procured by undue and improper influence and

pressure on the part of the beneficiary or ofsome other person for his/her benefit;

e. Signature of testator was procured byfraud/trick and she/he did not intend instrumentto be will.

GENERAL RULE: HOLOGRAPHIC WILLIf destroyed, cannot be probated.

EXCEPTION: If there exists a Photostatic or Xeroxcopy thereof (Gan v. Yap, 104 PHIL 509)

Section 10. Contestant to file grounds o f contestSection 11. Subscribing witnesses produced or

accounted for where will contested

EVIDENCE IN SUPPORT OF PROBATE OFCONTESTED WILL

a. Notarial Wills All subscribing witnesses and

notary public before whom the will isacknowledged. Will may still be allowed if theCourt is satisfied from the testimony of otherwitnesses and from all the evidence presentedthat the will was executed and attested in themanner required by law EVEN IF any of thewitnesses testify against, do not remember, orof doubtful credibility.

b. Holographic Wills testimony of 3 witnesses(mandatory, Codoy v. Calugay, Aug. 12, 1999)who knows the handwriting and signature of

the testator. In the absence thereof, testimonyof an expert witness.

Section 12. Proof where testator petitions forallowance of holographic will

Section 13. Certificate of allowance attached toproved will

RULE 77ALLOWANCE OF WILL PROVED OUTSIDE OF

PHILIPPINES AND ADMINISTRATION OF ESTATETHEREUNDER

Section 1. Will proved outside Philippines may beallowed hereSection 2. Notice of hearing for allowance

Section 3. When will allowed, and effect thereofSection 4. Estate, how administered

IN RE-PROBATE OF WILL PROVEN ABROAD,PROPONENT MUST PROVE:

a. Testator was domiciled in the foreign country;b. Will has been admitted to probate in such

country;c. Foreign country was, under the laws of such

country, a probate court with jurisdiction;d. Law on foreign probate procedure and proof of

compliance therewith;e. Legal requirements in said country for valid

execution of will.

RULE 78LETTERS TESTAMENTARY AND OF

ADMINISTRATION, WHEN AND TO WHOMISSUED

Section 1. Who are incompetent to serve asexecutors or administrators

THE FOLLOWING ARE DISQUALIFIED FROM

SERVING AS EXECUTORS ORADMINISTRATORS:

a. A minor;b. A non-resident (of Phils.)c. A person unfit in the opinion of the court to

execute the duties of his trust by reason of:i. drunkenness;ii. improvidence;iii. want of understanding and integrity;iv. conviction of an offense involving moral

turpitude.


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Section 2. Executor of executor not to administerestateSection 3. Married women may serve

REQUISITES FOR A PERSON TO BE APPOINTEDEXECUTOR OR ADMINISTRATOR:a. Accepts the trustb. Gives a BONDc. Competent

Executor Administrator

Nominated by thetestator and appointed bythe court

Appointed by the court incase the testator did notappoint and executor or ifthe executor refused or ifthe will was disallowed orthere is no will (intestacy)

Must present will to thecourt within 20 days afterknowledge of death or ofsuch appointment,unless the will hasreached the court in anymanner

No such duty

Testator may provide thathe may serve without abond (Court may stillrequire but conditionedonly in payment of debts)

Must always post bond

Compensation may beprovided for by testator

otherwise, compensationunder Rule 85, Sec. 7

Governed by Rule 85,Sec. 7

Section 4. Letters testamentary issued when willallowedSection 5. Where some coexecutors disqualifiedothers may actSection 6. When and to whom letters ofadministration granted

LETTERSTESTAMENTARYIt is the authority issued to an executor named in thewill to administer the estate.

LETTERSOFADMINISTRATIONIt is the authority issued by the court to a competentperson to administer the estate of the deceased whodied intestate.

LETTERS OF ADMINISTRATION WITH A WILLANNEXEDIt is the authority issued by the court to a competentperson to administer the estate if the executor namedin the will refused to accept the office.

ORDER OF PREFERENCE IN GRANTINGLETTERS OF ADMINISTRATION:

a. The surviving spouse or the next of kin or bothin the discretion of the court, or to such person

as such surviving spouse or next of kin requestto have appointed, if competent and willing toserve (SURVIVING SPOUSE OR NOMINEE)

b. If above be incompetent or unwilling or theyneglect for 30 days after death to apply foradministration, any one or more of thePRINCIPAL CREDITORS, if competent andwilling to serve

c. If above be incompetent or unwilling, it may begranted to such other person as the court mayselect (STRANGER).

The underlying assumption is that those who will reapthe benefits of a wise, speedy and economicaladministration of the estate or on the other hand,suffer the consequences of waste, improvidence ormismanagement, have the higher interest and mostinfluential motive to administer the estate correctly.

RULE 79OPPOSING ISSUANCE OF LETTERS

TESTAMENTAY, PETITION AND CONTEST FORLETTERS OF ADMINISTRATION

Section 1. Opposition to issuance of letters

testamentary; Simultaneous petition foradministrationSection 2. Contents of petition for letters ofadministrationSection 3. Court to set time for hearing. NoticethereofSection 4. Opposition to petition foradministrationSection 5. Hearing and order for letters to issueSection 6. When letters of administration grantedto any applicant

CONTENTS OF PETITION FOR ISSUANCE OF

LETTERS OF ADMINISTRATION:a. Jurisdictional facts;b. Names, ages and residences of heirs, and

creditors;c. Probable value and character of property of

estate; andd. Name of person for whom letters are prayed.

NOTE: Essentially the same as contents of petitionfor probate, except: (1) latter has an additional


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requirement (the last; see Rule 76); and (2) in thelatter, no need to name creditors in the petition.

GROUNDS FOR OPPOSITION:a. In Letters Testamentary:

i. Incompetenceb. In Letters of Administration:i. Incompetenceii. Preferential right of the heir under Rule 78

RULE 80SPECIAL ADMINISTRATOR

Section 1. Appointment of special administratorSection 2. Powers and duties of specialadministrator

Section 3. When powers of special administratorcease; Transfer of effects; Pending sui ts

SPECIAL ADMINISTRATORHe is appointed when there is a delay in grantingletters testamentary or of administration by anycause, including an appeal from the allowance ordisallowance of the will.

ORDER OF APPOINTMENT DISCRETIONARYThe preference accorded by Rule 78 refers to theappointment of a regular administrator.

Is the Order of Special Admin istrator appealable?No, such is an interlocutory order.

Administ rator Special Administrator

May be subject of appeal Not subject of appeal

One of the obligations isto pay the debts of theestate

Cannot pay debts of theestate

Appointed whendeceased died intestateor did not appoint anexecutor in the will or willwas disallowed

Appointed when there isdelay in granting letterstestamentary oradministration

RULE 81BONDS OF EXECUTORS AND ADMINISTRATORS

Section 1. Bond to be given before issuance ofletters; Amount; ConditionsSection 2. Bond of executor where directed inwill. When further bond required

Section 3. Bonds of joint executors andadministratorsSection 4. Bond of special administrator

UNDERTAKINGS OF BOND OF

EXECUTOR/ADMINISTRATOR:a. Make and return a complete inventory of theproperty of the estate which has come to hispossession or knowledge, or the possession ofany person for him, within 3 months;

b. To administer the property of the estateaccording to the Rules (if administrator) oraccording to the will (if executor);

c. To render an account within 1 year and at anyother time required by the court; and

d. Perform all orders of the court.

RULE 82REVOCATION OF ADMINISTRATION, DEATH,

RESIGNATION, AND REMOVAL OF EXECUTORSAND ADMINISTRATORS

Section 1. Administration revoked if willdiscovered; Proceedings thereuponSection 2. Court may remove or acceptresignation of executor or administrator;Proceedings upon death, resignation, or removalSection 3. Acts before revocation, resignation, orremoval to be validSection 4. Powers of new executor oradministrator

GROUNDS FOR REMOVAL OF EXECUTORS ORADMINISTRATORS:

a. Neglects to render account and settle theestate according to law;

b. Failure to perform order or judgment of thecourt or duty prescribed by the rules;

c. Absconds;d. Becomes insane;e. Incapable or unsuitable to discharge trust.

Acts before revocation

Lawful acts of an administrator or executor before therevocation, resignation or removal are valid unlessproven otherwise.

RULE 83INVENTORY AND APPRAISAL; PROVISION FOR

SUPPORT OF FAMILY


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Section 1. Inventory and appraisal to be returnedwithin three monthsSection 2. Certain articles not to be inventoriedSection 3. Allowance to widow and family

Inventory and appraisal must be made within 3months from the grant of letters.

PROPERTIES NOT TO BE INCLUDED ININVENTORY AS ASSETS OF THE ESTATE:

a. Wearing apparel of surviving spouse and minorchildren;

b. Marriage bed and bedding; ANDc. Provisions and articles which will necessarily

be consumed in the subsistence of thedeceaseds family.

WHO ARE ENTITLED TO ALLOWANCE DURINGPROCEEDINGS?

a. Legitimate surviving spouseb. Children of the decedent (need not be minors,

grandchildren sorry)

RULE 84GENERAL POWERS AND DUTIES OF

EXECUTORS

Section 1. Executor or administrator to haveaccess to partnership books and property; How

right enforcedSection 2. Executor or administrator to keepbuildings in repairSection 3. Executor or administrator to retainwhole estate to pay debts, and to administerestate not willed

GENERAL POWERS AND DUTIES OFEXECUTORS AND ADMINISTRATORS:

a. Have access to partnership books andproperty;

b. Maintain in tenantable repair the houses andother structures and fences belonging to theestate and deliver the same to the heirs anddevisees when directed to do so by the court;

ANDc. Right to the possession and management of

the real and personal estate so long as it isnecessary for the payment of debt andexpenses of administration.

HOW RIGHT TO HAVE ACCESS TOPARTNERSHIP BOOKS AND PROPERTYENFORCED:

a. On the written application of executor oradministrator

b. Court having jurisdiction of the estate may

c. Order any such surviving partner or partnersto:

i. Freely permit the exercise of the rightsii. Exhibit the books, papers, and property

d. Court may also punish any partner failing to doso for contempt

RULE 85ACCOUNTABILITY AND COMPENSATION OF

EXECUTORS AND ADMINISTRATORS

Section 1. Executor or administrator chargeablewith all estate and income

Section 2. Not to profit by increase or lose bydecrease in valueSection 3. When not accountable for debts dueestateSection 4. Accountable for income from realtyused by himSection 5. Accountable if he neglects or delays toraise or pay money

GENERAL RULEThe executor or administrator is accountable for thewhole estate of the deceased

EXCEPTION: He is not accountable for propertieswhich never came to his possession

EXCEPTION TO THE EXCEPTION: When throughuntruthfulness to the trust or his own fault or for lackof necessary action, the executor or administratorfailed to recover part of the estate which came to hisknowledge

Section 6. When allowed money paid as costsSection 7. What expenses and fees allowedexecutor or administrator

NOT PROPER EXPENSES OF ADMINISTRATIONWHICH ARE NOT CHARGEABLE TO ESTATE:

a. Services rendered by administrator which arenot beneficial to the estate in favor of an heir;

b. Premiums for her/his bond;c. Expenses for repair of property of the estate

being used and occupied by him;d. Expenses for keeping ordinary records and

receipts involved in his administration;e. Losses incurred in conduct of business with

use of funds of the estate.


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OPTIONS OF ATTORNEY TO COLLECTATTORNEYS FEES FROM ESTATE:

a. Sue administrator/executor in the latterspersonal capacity (who may then include any

fees so paid in his account); ORb. File a petition in the testate/intestateproceedings asking the court, after notice to allinterested persons, to allow his claim and todirect the executor/administrator to pay it as anexpense of administration.

Section 8. When executor or administrator torender accountSection 9. Examination on oath with respect toaccountSection 10. Account to be settled on noticeSection 11. Surety on bond may be party toaccounting

RULE 86CLAIMS AGAINST ESTATE

Section 1. Notice to creditors to be issued bycourtSection 2. Time within which claims shall be filed

NOTICE FOR FILING OF CLAIMS:a. Published once a week for 3 successive week

in newspaper of general circulation;b. Posted:

i. In 4 public places in PROVINCE of lastresidence of decedent;

ii. In 2 public places in MUNICIPALITY ofdecedents last residence.

CLAIMS WHICH MUST BE FILED WITH THEPROBATE COURT:

a. All claims for money against decedent arisingfrom contract;

b. Claims for funeral expenses and for the lastillness;

c. Judgment for money.

TIME FOR FILING OF CLAIMS:Must be filed within the time specified by the court inits notice, which period shall not be less than 6months nor more than 12 months from the date of thefirst publication of the notice.

HOWEVER, at any time before an order ofdistribution is entered, a creditor who failed to file hisclaim on time may, upon showing good cause, askthe court to allow him to file his claim. The court may

then allow him to file such claim within a time whichshall not exceed 1 month.

ALTERNATIVE REMEDIES AVAILABLE TOMORTGAGE CREDITOR UPON DEATH OF

MORTGAGOR:a. Abandon security and prosecute claim inprobate court;

b. Foreclose mortgage judicially; and recoverdeficiency thru claim in probate court;

c. Rely solely on mortgage or security andforeclose the same within statute of limitations,without the right to recover the deficiency

PNB v. CA, et. al., G.R. No. 121597 (2001)Rule 89 7 (f) provides that if the court grants

authority to mortgage property of the estate, it shallbe valid as if the deed had been executed by thedeceased in his lifetime. Thus, Rule 86 7 alsoapplies as to the remedies of the mortgagee. Caselaw now holds that this rule grants to the mortgagee 3distinct, independent and mutually exclusiveremedies that can be alternatively pursued by themortgage creditor for the satisfaction of his credit incase the mortgagor dies, among them:

(1) to waive the mortgage and claim the entiredebt from the estate of the mortgagor as an ordinaryclaim;

(2) to foreclose the mortgage judicially and proveany deficiency as an ordinary claim; and

(3) to rely on the mortgage exclusively,foreclosing the same at any time before it is barred

by prescription without right to file a claim for anydeficiency.

The plain result of adopting the last mode offoreclosure is that the creditor waives his right torecover any deficiency from the estate. The 3

rdmode

includes extrajudicial foreclosure sales; the result ofextrajudicial foreclosure is that the creditor waivesany further deficiency claim.

Section 3. Publication of notice to creditors

Publish the notice for 3 consecutive weeks in anewspaper of general circulation in the province and

post the same in 4 public places in the province andin 2 public places in the municipality where thedecedent last resided.

Section 4. Filing copy of printed noticeSection 5. Claims which must be filed undernotice. If not fi led, barred; exceptions

Olave v. Carlos, 208 Phil 678 (1983)


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Claims referred to under this section refer toclaims for the recovery of money and which are notsecured by a lien against the property of the estate.

Claims which should not be filed under the

Statute of Non-claims (ACTIONS WHICH DO NOTSURVIVE)

1. Money claims, debts incurred by deceasedduring his li fetime arising from contract:

a. express or implied;b. due or not due;c. absolute or contingent;

2. Claims for funeral expenses;3. For the last illness of the decedent; and4. Judgment for money against decedent.

ABSOLUTE CLAIMIt is such a claim as, if contested between living

persons, would be proper subject of immediate legalaction and would supply a basis of a judgment for asum certain.

CONTINGENT CLAIMIt is a conditional claim or claim that is subject to thehappening of a future uncertain event.

Claims not yet due or contingent may be approved attheir present value.

A claim that is ext inguished by death should bedistinguished from an action which does not survive.

A claim is extinguished by reason of death if theaction is personal to either parties such as in cases oflegal separation, annulment or declaration of nullity.

Section 6. Solidary ob ligation o f decedent

Juacian v. Querol, 38 Phil 707 (1918)Claim should be filed against decedent as if he

were the only debtor without prejudice on th part ofthe estate to recover contribution from the otherdebtor.

Joint Obligation o f decedentThe claim must be confined to the portion belonging

to the decedent.

Section 7. Mortgage debt due from estate

ALTERNATIVE REMEDIS OF THE CREDITORHOLDING A CLAIM SECURED BY A MORTGAGEOR OTHER COLLATERAL SECURITY

1. Abandon the security and prosecute his claimagainst the estate and share in the generaldistribution of the assets of the estate;

2. Foreclose his mortgage or realize upon hissecurity by action in court making the executoror administrator a party defendant and if thereis judgment for DEFICIENCY, he may file aclaim (contingent) against the estate within the

statute of non-claims;3. Rely solely on his mortgage and foreclose(judicial or extrajudicial) the same at anytimewithin the period of the statute of limitations buthe cannot be admitted as creditor and shall notreceive in the distribution of the other assets ofthe estate.

NOTE: These remedies are alternative, theavailment of one bars the availment of otherremedies.

Section 8. Claim of executor or administratoragainst an estate

One of the instances where a special administrator isappointed.

Section 9. How to file a claim. Contents thereof;Notice to executor or administrator

HOW TO FILE A CLAIM:1. deliver the claim with the necessary vouchers

to the clerk or court;2. serve a copy thereof on the executor or

administrator;3. if the claim is due, it must be supported by

affidavit stating the amount due and the factthat there has been no offsets;

4. if the claim is not due or contingent, it mustbe accompanied by affidavit stating theparticulars thereof.

Section 10. Answer of executor or administrator;Offsets

Executor may file answer within 15 days from serviceof claim.

Answer must set forth claims which decedent has

against claimant or else it will forever be barred.

Section 11. Disposition o f admitted claim

If executor or administrator admits claim, the heir,legatee or devisee may oppose it.

Section 12. Trial of contested claim

The court may refer the claim to a commissioner.


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conveyed such property that by law theconveyance would be void as against hiscreditors;

3. the subject of the attempted conveyance wouldbe liable toATTACHMENTin his lifetime;

4. the executor or administrator has shown NODESIRE TO FILEaction the action or failed toinstitute the same within a reasonable time;

5. LEAVE is granted by the court to the creditorto file the action;

6. a BONDis filed by the creditor;7. the action by the creditor is in the NAMEof the

executor or administrator.

NOTE: However, the last three requisites areunnecessary where the grantee is the executor oradministrator himself, in which event the actionshould be in the name of all creditors.

RULE 88PAYMENT OF THE DEBTS OF THE ESTATE

Section 1. Debts paid in full if estate sufficient

Writ of execution is not the proper procedure tosatisfy debts. Court must ORDER THE SALE ORMORTAGE of the properties of decedent, theproceeds of which will satisfy the debts andexpenses.

Is execution a proper remedy to satisfy anapproved claim?NO, because:

1. Payment approving a claim does not create alien upon a property of the estate;

2. Special procedure is for the court to order thesale to satisfy the claim.

Section 2. Part of estate from which debt paidwhen provision made by will

If the testator makes a provision in his will ordesignates the estate to be appropriated for the

payment of his debts that will be followed. But if it isno sufficient, such part of the estate as is notdisposed of by will, if any, shall be appropriated forthat purpose.

Section 3. Personalty first chargeable for debts,then realty

2 INSTANCES WHEN REALTY IS LIABLE FORDEBTS AND EXPENSES:

1. when the personal estate of the decedent isnot sufficient for that purpose;

2. where the sale of such personalty would be tothe detriment of the participants of the estate.

ORDER OF PAYMENT OF DEBTS:a. From portion of property designated in the will;b. From personal property not disposed of by will;c. From real property not disposed of by will.

Section 4. Estate to be retained to meetcontingent claims

If the court is satisfied that contingent claim duly filedis valid, it may order the executor or administrator toretain in his hands sufficient estate to pay a portionequal 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.

Section 5. How contingent claim becomingabsolute in two years allowed and paid; Actionagainst distributes later

If such contingent claim becomes absolute and ispresented to the court or to the executor oradministrator, within two years from the time limitedfor other creditors to present their claims, it may beallowed by the court.

Jaucian v. Querol, supraIf the contingent claim matures after the

expiration of the two years, the creditors may sue thedistributees, who are liable in proportion to the sharesin the estate respectively received by them.

De Bautista v. De Guzman, 125 SCRA 682 (1983)It has been ruled that the only instance wherein a

creditor can file an action against a distributee of thedebtors assets is under Section 5, Rule 88 of theRules of Court. The contingent claims must first havebeen established and allowed in the probate court

before the creditors can file an action directly againstthe distributees.

Section 6. Court to fix contributive shares wheredevisees, legatees, or heirs have been inpossessionSection 7. Order of payment if estate is inso lvent

If estate is insolvent, as in liabilities are more thanassets, Sec. 7 in relation to Arts. 1059 and 2239 to


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2251 of the Civil Code (Concurrence and Preferenceof Credits) must apply.

Section 8. Dividends to be paid in proportion toclaims

Section 9. Estate of insolvent non-resident, howdisposed of

In case administration is taken in the Philippines ofthe estate of a person who was at the time of his debtan inhabitant of another country, and who diedINSOLVENT, his estate in the Philippines shall be sodisposed of that his creditors in and outside thePhilippines may receive an equal share, in proportionto their respective credits.

Section 10. When and how claim proved outsidethe Philippines against insolvent residents estatepaid

Claims proven outside the Philippines where theexecutor had knowledge and opportunity to contestits allowance therein may be added to the list ofclaims in the Philippines against the estate of anINSOLVENT RESIDENT and the estate will bedistributed equally among those creditors.

However, the benefit of Section 9 and 10 cannot beextended to the creditors in another country if theproperty of such deceased person there found is notequally apportioned to the creditors residing in thePhilippines. (Principle of Reciprocity)

Section 11. Order for payment of debtsSection 12. Orders relating to payment of debtswhere appeal is takenSection 13. When subsequent distribution ofassets orderedSection 14. Creditors to be paid in accordancewith terms of orderSection 15. Time for paying debts and legaciesfixed, or extended after notice, within whatperiods

Need not exceed 1 year in the first instance. But

court may extend on application of executor oradministrator and after hearing and notice thereof.

Extension must not exceed six months for singleextension. Whole period allowed to the originalexecutor or administrator shall not exceed 2 years.

Section 16. Successor of dead executor oradministrator may have time extended on noticewithin certain period

Successor of deceased executor or administratormay be given an extension not to exceed 6 months.

RULE 89SALES, MORTGAGES, ANG OTHERENCUMBRANCES OF PROPERTY OF DECEDENT

Section 1. Order of sale of personalty

The court may order the whole or part of thePERSONAL estate to be sold if necessary:

1. to pay debts and expenses of administration;2. to pay legacies; or3. to cover expenses or for the preservation of

the estate.

Section 2. When court may authorize sale,mortgage, or other encumbrance of realty to paydebts and legacies through personalty notexhausted

1. If personal estate is NOT SUFFICIENT to paydebts, expenses of administration andlegacies;

2. If sale of personal estate may injure thebusiness or interest of those interested in theestate;

3. If testator has NOT made sufficient provisionfor payment of such debts, expenses andlegacies;

4. If deceased was in his lifetime under contract,binding in law to deed real property tobeneficiary (Section 8);

5. If the deceased during his lifetime held realproperty in trust for another person (Section 9).

REQUISITES: 1. application of executor or administrator;2. written notice to person interested; and3. hearing.

NOTE: Assets in the hands of executor oradministrator will not be reduced to prevent a creditor

from receiving his full debt or diminish his dividends.

Without notice and hearing the sale, mortgage orencumbrance is void. Notice is mandatory. Non-compliance therewith under the sale is null and void.

Maneclang v. Baun, 208 SCRA 179 (1992)The reason behind this requirement is that the

heirs are the presumptive owner. Since theysucceed to all the rights and obligation of thedeceased from the moment of the latters death, they


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are the person directly affected by the sale ormortgage and therefore cannot be deprived of theproperty, except in the manner provided by law.

Section 3. Persons interested may prevent such

sale, etc., by giv ing bondSection 4. When court may authorize sale ofestate as beneficial t interested person; Disposalof proceedsSection 5. When court may authorize sale,mortgage, or other encumbrance of estate to paydebts and legacies in other countries

When it appears from records and proceedings of aprobate court of another country that the estate of thedeceased in foreign country is not sufficient to paydebts and expenses.

Section 6. When court may authorize sale,mortgage, or other encumbrance or realtyacquired on execution or foreclosureSection 7. Regulations for granting authority tosell, mortgage, or otherwise encumber estate

Application for authority to sell, mortgage, orencumber property of the estate may be denied bythe court if:

1. the disposition is not for any of the reasonsspecified by the rules; OR

2. under Section 3 of Rule 89, any personinterested in the estate gives a bondconditioned to pay the debts, expenses of

administration and legacies.

Section 8. When a court may authorizeconveyance or realty which deceased contractedto convey; Notice; Effect of deedSection 9. When court may authorize conveyanceof lands which deceased held in trust

RULE 90DISTRIBUTION AND PARTITION OF THE ESTATE

Section 1. When order for distribution of residuemade

LIQUIDATIONThis means the determination of all assets of theestate and payment of all debts and expenses.

GENERAL RULE: ORDER OF DISTRIBUTION shallbe made AFTER PAYMENTS of all debts, funeralexpenses, expenses of administration, allowance ofwidow and inheritance tax is effected.

EXCEPTION: If the distributes or any of them givesa bond conditioned for the payment of said obligation,the ORDER OF DISTRIBUTION may be made evenBEFORE PAYMENTS of all debts, etc.

IN THESE PROCEEDINGS, THE COURT SHALL:1. collate;2. determine heirs; and3. determine share of each heir.

A separate action for the declaration of heirs is notnecessary.

When is title vested? From FINALITY of order ofdistribution.

An order which determined the distributive shares ofheirs is appealable. If not appealed, it becomes final.

Timbol v. Cano, 1 SCRA 1271 (1961)The probate court loses jurisdiction over the

settlement proceedings only upon payment of alldebts and expenses of the obligor and delivery of theentire estate to all the heirs.

CONDITIONS PRECEDENT TO BE COMPLIEDWITH FOR THE ISSUANCE OF AN ORDER OFDISTRIBUTION

1. Showing that the executor, administrator orperson interested in the estate applied forsuch; and

2. The requirements as to notice and hearingupon such application have been fulfilled.

PROHIBITION AGAINST INTERFERENCE BYOTHER COURTS

Timbol v. Cano, 1 SCRA 1271 (1961)As long as the order of distribution of the estate

has not been complied with, the probate proceedingscannot be deemed closed and terminated, because a

judicial partition is not final and conclusive and doesnot prevent the heirs form bringing an action to obtainhis share, provided the prescriptive period therefore

has not elapsed. The better practice, however, for theheir who has not received his share, is to demand hisshare through proper motion in the same probate oradministrative proceedings, or for the reopening ofthe probate or administrative proceedings if it hadalready been closed, and not through an independentaction, which may thus reverse a decision or order ofthe probate or intestate court already final andexecuted and re-shuffle properties long agodistributed and disposed of.


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REMEDY OF HEIR WHO HAS NOT RECEIVED HISSHARE OF THE ESTATE:

a. If excluded from the proceedings: move forreopening of the proceedings before the order

declaring the same closed has become finaland executory (after 30 days);b. If not excluded, but only has not yet

received his distributive share under theproject of partition: remedy is not to movefor reopening (since proceedings are onlydeemed closed upon actual distribution), but tofile a motion for execution within thereglementary period (5 years).

Section 2. Questions as to advancement to bedeterminedSection 3. By whom expenses of partition paid

One of the instances where writ of execution may beissued.

Section 4. Recording the order of partition ofestate

RULE 91ESCHEATS

Section 1. When and by whom petition filed

ESCHEATThis is a proceeding whereby the real and personalproperty of a deceased person in the Philippines,who dies without leaving any will or legal heirs,become the property of the State upon his death.

REQUISITES FOR PETITION FOR ESCHEATa. Person died intestate;b. Person died leaving no heirs; ANDc. Person died leaving properties in the

Philippines

3 INSTANCES OF ESCHEATS

1. When a person dies intestate leaving no heirbut leaving property in the Philippines (Section1);

2. Reversion Proceedings Sale in violation ofthe Constitutional provision; and

3. Unclaimed Balances Act (dormant accounts for10 years shall be escheated).

What is the basis of the states right to receiveproperty in escheat? Order of succession under

the Civil Code, the STATE is the LAST HEIR of thedecedent.

Who files? Solicitor General or his representative inbehalf of the Philippines.

Where to file? RTC of last residence or of locationof this estate in the Philippines if he is a non-resident.

Section 2. Order for hearing

IF PETITION IS SUFFICIENT IN FORM ANDSUBSTANCE THE COURT SHALL:

1. Make an ORDER OF HEARING hearingshall not be more than 6 MONTHS AFTERENTYR OF ORDER;

2. Direct the publication of a copy of the order at least once a week for 6 CONSECUTIVEWEEKS.

REQUISITES: 1. publication of the order;2. person died intestate;3. he is seized of real or personal property in

the Philippines;4. he left no heir or person entitled to such

property;5. there is no sufficient cause to the contrary.

Section 3. Hearing and judgment

DISPOSITION OF ESCHEATED PROPERTY:

a. If real property to municipalities or citieslocated;

b. If personal property(1) To city or municipality where decedent last

resided in Phils;(2) If decedent never resided in Phils, then to

municipality or city where located.

The court, at the instance of an interested party, oron its own motion, may order the establishment of aPERMANENT TRUST, so that only the income fromthe property shall be used.

Section 4. When and by whom claim to estatefiled

Any devisee, legatee, heir, widow/er, or other personentitled to the estate may file a claim with the courtWITHIN 5 YEARS FROM DATE OF JUDGMENT,otherwise forever barred.

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Actions for reversion of property alienated in violationof Constitution or any statute.

These shall be governed by Rule 91. However, theaction must be instituted in the province where the

land lies in whole or in part.

PERIOD: Within 5 years from the date of judgment;(under Art. 1014 of the Civil Code, THE 5-YEARPERIOD IS RECKONED FROM THE DATE THEPROPERTY WAS DELIVERED TO THE STATE andfurther provides that if the property had been sold,the municipality or city shall be accountable only forsuch part of the proceeds as may not have beenlawfully spent.)

By whom: person with interest

Can court convert escheat proceedings intoordinary special proceedings or vice-versa?NO. This is not allowed for the two actions havedifferent requirements in acquiring jurisdiction. Inspecial proceedings, publication is once a week for 3weeks while in escheat, once a week for 6 weeks.

NOTE: Escheat under the Unclaimed Balance Lawmust be filed in RTC of the place where the dormantdeposits are found.

GUARDIANSHIP

Guardianship of minors is now governed by theRule on Guardianship of Minors (A.M. No. 03-02-05-SC) which took effect on May 1, 2003. While,guardianship of incompetents is still governed bythe provisions of the Rules of Court onGuardiansh ip (Rule 92 to Rule 97)

RULE 92VENUE

Section 1. Where to inst itute proceedings

INCOMPETENTS RTC of his residence or wherehis property is located in case of non-residents (Sec.1)

MINORS Family Court of his residence or wherehis property is located in case of non-resident (Sec.3, A.M. No. 03-02-05-SC)

Residence means domicile.

KINDS OF GUARDIANS:A. According to scope:

1. General over the person of the ward or overhis property

2. Limited over the property only.

B. According to Constitution:1. General Guardian;2. Legal Guardian without judicial

appointment;3. Guardian Ad Litem appointed by courts of

justice to prosecute or defend a minor, insaneor person declared to be incompetent, in anaction in court.

Section 2. Meaning of word incompetent

INCOMPETENT includes:1. 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 have lucid

intervals;6. persons not of unsound mind but by reason of

age, disease, weak mind, and other similarcauses cannot, without outside aid, take careof themselves or manage their property.

Section 3. Transfer of Venue

RULE 93APPOINTMENT OF GUARDIANS

Section 1. Who may petition for appointment ofguardian for resident

MINOR INCOMPETENT

(a) any relative; or (a) any relative; or

(b) other person onbehalf of a minor; or

(b) friend; or

(c) the minor himself if 14years of age or over;or

(c) other person onbehalf of the residentincompetent who hasno parents or lawfulguardian; or

(d) the Secretary ofSocial Welfare andDevelopment AND bythe Secretary ofHealth in case of aninsane minor who

(d) the Director of Healthin favor of an insaneperson who shouldbe hospitalized or infavor of an isolatedleper (Sec. 1); or


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needs to behospitalized (Sec. 2 of

A.M. No. 03-02-05-SC)

(e) any one interested in

the estate of a non-resident incompetent(Sec. 6)

The father and the mother shall jointly exercise legalguardianship over the person and property of theirminor without the necessity of a court appointment.In such case, this Rule shall be suppletory to theprovisions of the Family Code on Guardianship.

Section 2. Contents of Petition

MINOR INCOMPETENT

(a) The jurisdictionalfacts; (a) The jurisdictionalfacts;

(b) the name, age andresidence of theprospective ward;

(b) The incompetencyrendering theappointmentnecessary orconvenient;

(c) the ground renderingthe appointmentnecessary orconvenient;

(c) the probable valueand character of hisestate;

(d) the death of theparents of the minor

or the termination,deprivation orsuspension of theirparental authority;

(d) the names, ages,and residences of the

relatives of theincompetent, and ofthe persons havinghim in their care;

(e) the remarriage of theminors survivingparent;

(e) the name of theperson for whomletters ofguardianship areprayed. (Section 2 ofRule 93)

(f) the names, ages, andresidences of relativewithin the 4

thcivil

degree of minor, andof persons having himin their care andcustody;

(f) any one interested inthe estate of a non-resident incompetent(Section 6)

(g) the probable value,character and locationof the property of theminor; and

(h) the name, age andresidence of theperson from whom

letters of guardianshipare prayed. (Sec. 7 of

A.M. No. 03-02-05-SC)

The petition involving MINORS is required to beVERIFIED and accompanied by CERTIFICATIONAGAINST FORUM SHOPPING while that involvingINCOMPETENT must be VERIFIED only. However,no defect in the petition or verification shall rendervoid the issuance of letters of guardianship.

Section 3. Court to set t ime for hearing; Noticethereof

Notice of date and place of hearing to be given to allpersons named in the petition residing in theprovince, and to the minor himself if over 14 (NOTE:not 14 or over).

There is NO requirement for PUBLICATION onlyNOTICE except in case of non-resident minor orincompetent.

However, service of NOTICE upon minor if above 14years of age or upon incompetent is mandatory and

jurisdictional.

If the person is insane, service of notice upon theDirector of Hospital where he is hospitalized issufficient.

Section 4. Opposition to petition

GROUNDS: 1. Majorityof alleged minor;2. Competencyof alleged incompetent;3. Unsuitability of the persons for whom letters

are prayed.

PROCEDURE OF GUARDIANSHIP PROCEEDINGS1. filing of petition;2. court shall set the case for hearing;3. cause notices to be served to the persons

mentioned in the petition, including the minor, if

above 14 years of age;4. court shall receive evidence;5. declaration of the propriety of the petition;6. issue letters of guardianship.

Section 5. Hearing and order for letters to issueSection 6. When and how guardian fornonresident appointed; Notice

Any relative, friend or any one interested in the estateof a person liable to be put under guardianship may


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file a petition for guardianship over the property ofsuch person.

Notice shall be given through publication orotherwise.

Section 7. Parents as GuardiansSection 8. Service of Judgment

Civil registrar of the place where the minor orincompetent resides or where the property is situatedshall be served with a copy of the judgment.

RULE 94BONDS OF GUARDIAN

Section 1. Bond to be given before issuance ofletters; Amounts; Conditions

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

CONDITIONS: 1. To make and return to the court, within three

(3) months, a true and complete INVENTORYof all the estate, real and personal, of his wardwhich shall come to his possession orknowledge or to the possession or knowledgeof any other person for him;

2. To faithfully EXECUTE THE DUTIES of histrust, to manage and dispose of the estateaccording to these rules for the best interestsof the ward, and to provide for the proper care,custody, and education of the ward;

3. To render a true and just ACCOUNT of all theestate of the ward in his hands, and of allproceeds or interest derived therefrom, and ofthe management and disposition of the same,at the time designated by these rules and suchother times as the court directs; and at theexpiration of his trust to settle his accounts with

the court and deliver and pay over all theestate, effects, and moneys remaining in hishands, or due from him on such settlement, tothe person lawfully entitled thereto;

4. To PERFORM all orders of the court by him tobe performed.

Section 2. When new bond may be required andold sureties dischargedSection 3. Bonds to be filed; Actions thereon

Bond may be proceeded against in the same orseparate proceeding for the use and benefit of theward, or of any other person legally interested in theestate.

RULE 95SELLING AND ENCUMBERING PROPERTY OF

WARD

Section 1. Petition of guardian for leave to sell o rencumber estate

GROUNDS: 1. when income of estate is insufficient to

maintain the ward and his family; or

2. when income of estate is insufficient tomaintain and educate ward when a minor; or3. when it appears that it is for the benefit of the

ward.

REQUIREMENTS: 1. petition must be verified;2. notice must be give to the next of kin; and3. hearing so that they may show cause why

petition should not be granted.

Section 2. Order to show cause thereupon

NEXT OF KINThis pertains to those relatives who are entitled toshare in the estate of the ward under the Law onIntestate Succession including those who inherit perstirpes or by right of representation.

Notice to next of kin and interested persons isJURISDICTIONAL.

Lindain v . CA, GR No. 95305 (1992)Sale of the wards realty by the guardian without

authority from the court is VOID. Under the law, aparent acting merely as legal administrator of theproperty of his/her children, does NOT have the

power to dispose, or alienate, the property of saidminor without judicial approval.

Section 3. Hearing on return of order; CostsSection 4. Contents of order for sale orencumbrance, and how long effective

The Order of Sale must specify the grounds.


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Duration of the order for sale and encumbranceof p roperty: Within 1 year from the granting of theorder. It is presumed that if the property was not soldwithin 1 year, the ward has sufficient income.

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

Section 5. Court may order investment ofproceeds and d irect management of estate

RULE 96GENERAL POWERS AND DUTIES OF

GUARDIANS

Section 1. To what guardianship shall extendSection 2. Guardian to pay debts of wardSection 3. Guardian to settle accounts, coll ectdebts and appear in actions for wardSection 4. Estate to be managed frugally andproceeds applied to maintenance of wardSection 5. Guardian may be authorized to jo in inpartition proceedings after hearingSection 6. Proceeding when persons suspectedof embezzling or concealing property of wardSection 7. Inventories and accounts of guardians,and appraisement of estateSection 8. When guardians accounts presentedfor settlement, expenses and compensationallowed

GENERAL POWERS AND DUTIES OFGUARDIANS:

1. have the care and custody of the person of theward, and the management of the estate only,as the case may be (Sec. 1);

2. pay the debts of the ward (Sec. 2);3. settle accounts, collect debts and appear in

actions for ward (Sec. 3);4. manage the estate of the ward frugally, and

apply the proceeds to maintenance of the ward(Sec. 4);

5. render verified inventory within 3 months after

his appointment and annually thereafter uponapplication of interested persons (Sec. 7); and

6. render to court for its approval an accountingof the property for 1 year from his appointmentand every year thereafter (Sec. 8).

Every guardian, other than the wards parents, shallbe allowed the amount of his reasonable expenses,and compensation which shall not exceed 15% of theNET income of the estate.

RULE 97TERMINATION OF GUARDIANSHIP

Section 1. Petition that competency of ward beadjudged and proceedings thereupon

Petition shall be verified by oath and shall state thatsuch person is then competent.

GROUNDS FOR TERMINATION

MINOR INCOMPETENT

(a) The ward has come ofage; or

(a) Competency of theward has been

judicially determined;or

(b) The ward has died; or (b) Guardianship is no

longer necessary; or(c) Death of guardian(Sec. 25, A.M. No. 03-02-05-SC)

(c) Death of guardian; or

(d) Death of ward.

Section 2. When guardian removed or allowed toresign

GROUNDS FOR REMOVAL OF A GUARDIAN: 1. insanity;2. incapability or unsuitability to discharge

functions;3. wastage or mismanagement of the property of

the ward; and4. failure to render an account or make a return

within 30 days after it was due.

The abovementioned grounds are EXCLUSIVE .

Section 3. Other termination o f guardianshipSection 4. Record to be kept by Justice of thePeace or Municipal JudgeSection 5. Service of Judgment

SALIENT FEATURES AND SPECIAL RULESFOUND IN THE RULE ON GUARDIANSHIP OF

MINORS (A.M. No. 03-02-05-SC, effect ive May 1,2003)

A. Grounds for Petit ion (Sec. 4)1. continued absence, or incapacity or death of

his parents;2. suspension, termination or deprivation of

parental authority;3. remarriage of his surviving parent, if the latter

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4. when the best interest of the minor so requires.

B. Considerations in Appointing Guardians (Sec.5)1. moral character;

2. physical, mental and psychological condition;3. financial status;4. relationship of trust with the minor;5. availability to exercise the powers and duties of

a guardian for the full period of theguardianship;

6. lack of conflict of interest with the minor; and7. ability to manage the property of the minor

C. Who may be appointed guardian of the personor property, or both, of a minor (Sec. 6)

In default of parents or a court appointedguardian, the court may appoint a guardian of aminor, observing as far as practicable, thefollowing ORDER OF PREFERENCE:

1. the SURVIVING GRANDPARENT and In caseseveral grandparents survive, the court shallselect any of them taking Into account allrelevant considerations;

2. the OLDEST BROTHER OR SISTER of theminor over twenty-one years of age, unlessunfit or disqualified;

3. the ACTUAL CUSTODIAN of the minor overtwenty-one years of age, unless unfit ordisqualified; and

4. any OTHER PERSON, who in the sounddiscretion of the court, would serve the bestinterests of the minor.

D. Case Study Report (Sec. 9)

The court shall order a social worker to conduct acase study of the minor and all prospectiveguardians and submit report and recommendationto the court for its guidance before the scheduledhearing.

E. Bond of parents as guardian of property of

minor (Sec. 16)

If the market value of the property or the annualincome of the child exceeds P50,000, the parentconcerned shall furnish a bond in such amount asthe court may determine, but in no case less than10% of the value of such property or income, toguarantee the performance of the obligationsprescribed for general guardians.

A verified petition for approval of the bond shall befiled in the Family Court of the place where thechild resides or, if the child resides in a foreigncountry, in the Family Court of the place wherethe property or any part thereof is situated.

The petition shall be docketed as a summaryspecial proceeding in which all incidents andissues regarding the performance of theobligations of a general guardian shall be heardand resolved.

F. Removal or Resignation of Guardian (Sec. 24)

No motion for removal or resignation shall begranted unless the guardian has submitted theproper accounting of the property of the ward andthe court has approved the same.

G. Grounds for termination of Guardianship (Sec.25)

The court motu proprio or upon verified motion ofany person allowed to file a petition forguardianship may terminate the guardianship onthe ground that the ward has COME OF AGE orhas DIED. The guardian shall notify the court ofsuch fact within 10 days of its occurrence.

RULE 98

TRUSTEES

EXECUTOR/ADMINISTRATOR

GUARDIAN TRUSTEE

Accounts are notunder oath andexcept for initialand finalsubmission ofaccounts, theyshall be filed onlyat such times asmay be required

by the court.

Accounts mustbe under oathand filedannually.

Accountsmust beunder oathand filedannually.

Court that hasjurisdiction may beMTC or RTC.

Court whichhas jurisdictionis RTC(incompetent)or Family Court(minor).

Court whichhas

jurisdiction isMTC or RTCif appointed tocarry intoeffectprovisions ofa will; iftrustee dies,


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TIF

resigns orremoved in acontractualtrust, RTChas

jurisdiction intheappointmentof newtrustee.

May sell,encumber ormortgage propertyif it is necessaryfor the purpose ofpaying debts,expenses ofadministration orlegacies, or for thepreservation orproperty or if salewill be beneficialto the heirs,legatees ordevisees.

May sell orencumberproperty ofward if incomeof estate isinsufficient tomaintain wardand his familyand educatethe minor; thesale orencumbranceis for thebenefit of wardupon order ofthe court.

May sell orencumberproperty ofestate held intrust ifnecessary forexpedientupon order ofthe court.

Order of sale hasno time limit

Order of sale isvalid for only 1year after grantof the same.

Order of salehas no timelimit

Appointed by thecourt to settle

estate ofdecedent.

Appointed asguardian.

Appointed tocarry into

effect theprovisions ofa will orwritteninstrument(contractualtrust).

Not exemptedfrom filing bondeven if suchexemption isprovided in the will(bond is only

conditioned uponpayment of debts.

Must alwaysfile a bond.

May beexemptedfrom filingbond ifprovided inthe will or if

beneficiariesrequestedexemption.

Services ofexecutor oradministrator areterminated uponpayment of debtsand the estate anddistribution ofproperty to heirs.

Guardianshipis terminateduponattainment ofage of majorityof the minor orupon gainingcompetency in

Trusteeship isterminatedupon turningover theproperty tobeneficiaryafterexpiration of

the case of anincompetent(need courtorder for thelatter).

trust (periodmay beprovided for inthe will ortrust

contract).

Must pay thedebts of theestate.

Must pay thedebts of theward.

No obligationsto pay debtsof beneficiaryor trustor.

Section 1. When trustee appointed

VENUE FOR PETITIONS FOR APPOINTMENT OFTRUSTEES:

a. If trustee is necessary to carry into effect the

provisions of a will, then in the RTC in whichthe will was allowed (assuming allowed in thePhilippines);

b. Otherwise, then in the RTC of any province inwhich some property affected by the trust issituated

A TRUSTEE IS NECESSARY TO CARRY INTOEFFECT:

1. A will where the testator omitted to appoint atrustee in the Philippines (TestamentaryTrust); and

2. Other written instruments where the trusteetherein declines, resigns, dies, or is removed

before accomplishment of trust (ContractualTrust).

Section 2. Appointment and powers of trusteeunder will, executor or former trus tee need notadminister trust

No persons succeeding to a trust as executor oradministrator of a former trustee shall be required toaccept such trust.

Section 3. Appointment and powers of newtrustee under written instrument

Section 4. Proceedings where trustee appointedabroad

When land in the Philippines is held in trust for aresident by a trustee who derives his authority fromabroad, such trustee must petition the RTC where theland is situated, otherwise, the trust will be vacantand a new trustee will be appointed.


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When a trust is created abroad for property in thePhilippines, judicial approval is still needed thoughtrustor is alive.

Section 5. Trustee must fil e bond

Neglect of trustees to file a bond will be interpretedby the court as resignation or decline to accept thetrust.

HOWEVER, HE MAY BE EXEMPTED FROM BONDWHEN REQUESTED BY:

1. Testator;2. All persons beneficially interested in the trust.

However, the court may cancel such exemptionanytime.

Section 6. Conditions included in bond

THE FOLLOWING CONDITIONS SHALL BEDEEMED TO BE A PART OF THE BONDWHETHER WRITTEN THEREIN OR NOT:

1. That the trustee will make and return to thecourt, at such time as it may order, a trueinventory of all the real and personal estatebelonging to him as trustee, which at the timeof the making of such inventory shall havecome to his possession or knowledge;

2. That he will manage and dispose of all suchestate, and faithfully discharge his trust in

relation thereto, according to law and the will ofthe testator or the provisions of the instrumentor order under which he is appointed;

3. That he will render upon oath at least once ayear until his trust is fulfilled, unless he isexcused therefrom in any year by the court, atrue account of the property in his hands and ofthe management and disposition thereof, andwill render such other accounts as the courtmay order;

4. That at the expiration of his trust he will settle

his accounts in court and pay over and deliverall the estate remaining in his hands, or duefrom him on such settlement, to the person orpersons entitled thereto.

Section 7. Appraisal; Compensation o f trus teeSection 8. Removal or resignation of trustee

REQUISITES1. Petition filed by parties beneficially interested;2. Notice to trustee; and

3. Hearing.

Who may petition? Parties beneficially interested.

GROUNDS

1. removal appears essential in the interest ofpetitioners;2. insanity;3. incapability of discharging trust;4. unsuitability.

Section 9. Proceedings for sale or encumbranceof trust estate

Rules on Sale and Encumbrance of Trust Estate shallconform as nearly as may be to the provisions onSale and Encumbrance by Guardians.

ADOPTION

The provisions of the Rules of Court on Adoptionhave been amended by the Domestic Adoption

Act of 1998 and Inter-count ry Adoption Act of1995. Sec. 6 of Rule 99 was amended by

Administ rat ive Circular No. 03-04-04 whi le Sec. 7of Rule 99 was amended by AdministrativeCircular No. 02-1-19-SC. Effective August 22,2002, there is a new Rule on Adoption.

NATURE AND CONCEPT OF ADOPTION

Adoption is a juridical act, a proceeding IN REM,which creates between two persons a relationshipsimilar to that which results from legitimate paternityand filiation.

PURPOSE OF ADOPTIONThe promotion of the welfare of the child and theenhancement of his opportunities for a useful andhappy life, and every intendment is sustained topromote that objective.

WHAT DOES THE COURT DETERMINE INADOPTION CASES?

1. capacity of the adopters;2. whether the adoption would be for the best

interest of the child.

Teotico v. Del Val, L-18753 (1956)Adoption is strictly personal between the adopter

and the adopted.

JUDICIALADOPTION

EXTRAJUDICIALADOPTION


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Proper in domesticadoption.

Proper in inter-countryadoption.

Under the jurisdiction ofthe Family Court (whereadopter resides).

Under the jurisdiction ofthe Inter-Country

Adoption Board (but a

petition may also be filedwith the Family Court[where adoptee resides]which will turn it over toICAB).

Trial custody is in thePhilippines for 6 months(but court may reduceperiod or exempt partiesfrom trial custody).

Trial custody is in thecountry of adopter and ismandatory before adecree of adoption isissued (expenses areborne by the adopter).

Petition for adoption mayinclude prayer for changeof name, rectification ofsimulated birth ordeclaration that child is afoundling, abandoned,dependent or neglectedchild.

Petition for adoption only.

Legitimate or illegitimatechild of a spouse or evena person who is of legalage may be adopted.

Only a child legallyavailable for domesticadoption may be thesubject of inter-countryadoption.

Income tax returns,police clearance,character reference,family picture, birthcertificate of adopter arenot required to beannexed in the petition.

Income tax returns,police clearance,character reference,family picture, birthcertificate of adopter arerequired to be annexedin the petition.

Petition must bepublished for 3successive weeks in anewspaper of generalcirculation in the provinceor city where court issituated.

No publicationrequirement.

Application is through apetition with the FC.

Application may bethrough agency in

foreign country and thensubmit to ICAB.

Decree of adoptionissued by FC which has

jurisdiction over the case.

Decree of adoptionissued by a foreigncourt.

RULES ON DOMESTIC ADOPTION(Secs. 1-25, A.M. No. 02-6-02)

WHO MAY ADOPT (Sec. 4)1. Any Filipino Citizen

(a) Of legal age;(b) In possession of full civil capacity and legal

rights;

(c) Of good moral character;(d) Has not been convicted of any crimeinvolving moral turpitude;

(e) Emotionally and psychologically capable ofcaring for children;

(f) In a position to support and care for his/herchildren in keeping with the means of thefamily; and

(g) At least 16 years older that the adoptee.

EXCEPTIONS:(1) If the adopter is the biological parent of

the adoptee(2) If the adopter is the spouse of the

adoptees parent(3) If the adopter is the sibling of the

adoptee (Article IV, 7 of the IRR)

2. Any alien possessing the same qualificationsabove; provided:(a) That his/her country has diplomatic

relations with the Philippines;(b) That he/she has been living in the

Philippines for at least 3 continuous yearsprior to the filing of the application foradoption;

(c) Maintains residence until the adoption

decree is entered;(d) Certified to have legal capacity to adopt; by

his/her country; and(e) That his/her government allows the adoptee

to enter his/her country as his/her adoptedson/daughter.

3. The guardian with respect to the ward after thetermination of the guardianship and clearanceof his financial accountabilities.

The requirement of 16 YEARS DIFFERENCEbetween the adopter and the adoptee is NOT

applicable if the adopter is:(a) the biological parent of the adoptee;(b) the spouse of the adoptees parents.

The requirement on residency and certificationof aliens qualification to adopt may beWAIVED for the following:(a) The adopter is a former Filipino citizen who

seeks to adopt a relative within the 4th civildegree of consanguinity or affinity;


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(b) One who seeks to adopt the legitimateson/daughter of his/her Filipino spouse;

(c) One who is married to a Filipino citizen andseeks to adopt jointly with his/her spouse arelative within the 4

th civil degree of

consanguinity or affinity or the Filipinospouse.

WHO MAY BE ADOPTED (Sec. 5)1. Any person below eighteen (18) years of age

who has been judicially declared available foradoption OR voluntarily committed to DSWD;

2. The legitimate child of one spouse by the otherspouse;

3. An illegitimate child by a qualified adopter toraise the status of the former to that oflegitimacy;

4. A person of legal age regardless of civil status,if, prior to the adoption, said person has beenconsistently considered and treated by theadopters as their own child since minority;

5. A child whose adoption has been previouslyrescinded;

6. A child whose biological or adoptive parentshave died;

7. A child not otherwise disqualified by law orthese rules.

A child legally available for adoption refers to achild who has been voluntarily committed to theDSWD or to a duly licensed and accredited child-placing or child caring agency, freed of the parental

authority of his biological parents.

2 WAYS TO COMMIT A CHILD1. Administ rat ive/Voluntary In this case, the

parent or guardian of the child voluntarilycommitted him to the DSWD or any dulylicensed child placement or child caringagency. The child must be surrendered inwriting. Such written instrument must benotarized and signed in the presence of anauthorized representative of the departmentafter counseling has been made to encouragethe parents to keep the child. (Sec. 5, A.M. No.

02-1-19-SC)2. Judicial/Involuntary Follow the procedure is

A.M. No. 02-1-19-SC.

RE: PROPOSED RULES ON COMMITMENT OFCHILDREN (A.M. No. 02-1-19-SC)

WHO MAY FILE (Sec. 4a)1. The Secretary of the DSWD;2. His authorized representative;

3. Any child placement or child caring agencies.

VENUE (Sec. 4b): Family Court of the province orcity in which the parent or guardian resides or wherethe child is found.

WHO SHALL BE SUMMONED (Sec. 4c)1. Parent or guardian of the child;2. Office of the public prosecutor.

WHEN MAY SUMMONS NOT BE ISSUED (Sec. 4d)1. If it appears from the petition that both parents

of the child are dead; or2. That neither parent can be found in the

province or city where the court is located andthe child has no guardian residing therein.

In case no summons is issued, the court has the dutyof appointing a guardian ad litem and shall proceedwith the hearing of the case with due notice to theprovincial or city prosecutor.

There is no answer here. Only hearing is required.

CHILDS RIGHT TO COUNSEL (Sec. 4g)The court, upon request of the child capable offorming his own views or upon request of hisguardian ad litem, shall appoint a lawyer to representhim in the proceedings.

DUTY OF THE PUBLIC PROSECUTOR (Sec. 4h)The provincial or city prosecutor shall appear for the

State and ascertain if there has been due notice to allparties concerned and that there is justification for thedeclaration of dependency, abandonment or neglect.

JUDGMENT (Sec. 4j)If, after hearing, the court shall find the child to bedependent, abandoned, or neglected, it shall render

judgment committing him to the care and custody ofthe DSWD or any child placement or child caringagency.

However, if the court finds, that the abandonment orneglect of the child may be remedied, the child may

be allowed to stay in his home under the care andcustody of his parent, subject to the supervision ofthe DSWD.

End of A.M. No. 02-1-19-SC

GENERAL RULE:Husband and wife shall jointly adopt.

EXCEPTIONS:


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1. If one spouse seeks to adopt the legitimateson/daughter of the other;

2. If one spouse seeks to adopt his/her ownillegitimate son/daughter;

3. If the spouses are legally separated from each

other.

VENUE (Sec. 6): Family Court where theprospective adoptive parents reside.

CONTENTS OF THE PETITION (Sec. 7)1. If the adopter is a Filipino citizen, the petition

shall allege the following:(a) The jurisdictional facts;(b) That the petitioner is of legal age, in

possession of full civil capacity and legalrights; is of good moral character; has notbeen convicted of any crime involving moralturpitude; is emotionally and psychologicallycapable of caring for children; is at least 16years older than the adoptee, unless theadopter is the biological parent of theadoptee or is the spouse of the adopteesparent; and is in a position to support andcare for his children in keeping with themeans of the family and has undergonepre-adoption services as required by Sec. 4of RA No. 8552.

2. If the adopter is an alien, the petition shallallege the following:(a) The jurisdictional facts;

(b) Sub-paragraph 1(b) above;(c) That his country has diplomatic relations

with the Republic of the Philippines;(d) That he has been certified by his diplomatic

or consular office or any appropriategovernment agency to have the legalcapacity to adopt in his country and hisgovernment allows the adoptee to enter hiscountry as his adopted child and residethere permanently as an adopted child; and

(e) That he has been living in the Philippinesfor at least 3 continuous years prior to thefiling of the petition and he maintains such

residence until the adoption decree isentered.

The requirement of certification of the aliensqualification to adopt in his country and hisresidency may be waived if the alien:(1) is a former Filipino citizen who seeks to

adopt a relative within the 4th degree of

consanguinity or affinity; or(2) seeks to adopt the legitimate child of his

Filipino spouse; or

(3) is married to a Filipino citizen and seeks toadopt jointly with his spouse a relativewithin the 4

th degree of consanguinity or

affinity of the Filipino spouse.

3. If the adopter is the legal guardian of theadoptee, the petition shall allege thatguardianship had been terminated and theguardian had cleared his financialaccountabilities.

4. If the adopter is married, the spouse shall be aco-petitioner for joint adoption except if:(a) one spouse seeks to adopt the legitimate

child of the other; or(b) if one spouse seeks to adopt his own

illegitimate child and the other spousesignified written consent thereto; or

(c) if the spouses are legally separated fromeach other.

5. If the adoptee is a foundling, the petition shallallege the entries which should appear in hisbirth certificate, such as name of child, date ofbirth, place of birth, if known; sex, name andcitizenship of adoptive mother and father, andthe date and place of their marriage.

6. If the petition prays for a change of name, itshall also state the cause or reason for thechange of name.

In all petitions, it shall be alleged:(a) The first name, surname or names, age and

residence of the adoptee as shown by hisrecord of birth, baptismal or foundlingcertificate and school records;

(b) That the adoptee is not disqualified by lawto be adopted;

(c) The probable value and character of theestate of the adoptee;

(d) The first name, surname or names by whichthe adoptee is to be known and registeredin the Civil Registry.

Petition shall be verified and specifically state at theheading of the initiatory pleading whether the petitioncontains an application for a change of name,rectification of simulated birth, voluntary orinvoluntary commitment of children, or declaration ofchild as abandoned,

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