Special Proceedings Memory Aid

EXECUTIVE COMMITTEE IAN MICHEL GEONANGA overall chairperson, JOSE ANGELO DAVID chairperson for academics, RUTH ABIGAIL ACERO chairperson for hotel operations, ALBERTO RECALDE, JR. vice-chairperson for operations, MARIA CARMELA HAUTEA vice-chairperson for secretariat, MARK EMMANUEL ABILO vice-chairperson for finance, RYAN LIGGAYU vice-chairperson for electronic data processing, JOMARC PHILIP DIMAPILIS vice-chairperson for logistics

SUBJECT COMMITTEE CAMILLE SOLA subject chair, REA NIA OCFEMIA assistant subject chair, ARIEL MAGHIRANG edp, VIANNE MARIE GARCIA and FLOYD ERICSON REY civil procedure, SHEENA MARIE PABUSTAN special civil actions, CHARMAINE DATOC special proceedings, FIDEL ESTEBAN criminal procedure, EMMALLAINE LEONILLE LORETO and PRINCESS MAY BUTRON evidence, EDRIAN APAYA special laws

MEMBERS Rachelle Ann Baod, Cecille Catherine Bautista, Sheigla Nerie David, Charisma Michelle de Jesus, Norietess de los Reyes, Nina Claire Escoto, Ryan Mervin Ferrer, Angel Garma, Robert Jay Lim, Divina Rosa Natanauan, Haroun Al-RashidPandapatan, Roger Arpee Pineda, Pia Mitzi Receno

REMEDIALLAW SPECIALPROCEEDINGS

Special Proceeding A remedy by which a party seeks to establish a status, a right or a particular fact (Rule 1, Section 3c).

SECTION 1. SUBJECT MATTER OF SPECIAL PROCEEDINGS

Special proceedings enumerated in the Rules of Court (J-CRASHED-CHAG) 1. Judicial approval of voluntary recognition of minor

natural children;2. Change of name;3. Rescission and revocation of adoption;4. Adoption;5. Settlement of estate of deceased persons;6. Habeas corpus;7. Escheat;8. Declaration of absence and death;9. Cancellation and correction of entries in the civil

registry;10. Hospitalization of insane persons;11. Adoption;12. Guardianship and custody of children;

Other Special Proceedings (LCR-VA) 1. Liquidation proceedings;2. Corporate rehabilitation;3. Recognition and enforcement of arbitration clause or

award;4. Vacation, setting aside, correction or modification of an

arbitral award;5. Any application with a court for arbitration assistance

and supervision.

Note: The list under Sec. 1, Rule 72 is not exclusive. Any petition which has for its main purpose the establishment of a status, right or a particular fact may be included as a special proceeding (Festin, Special Proceedings, A Foresight to the Bar Exam: Question and Answer Notes,

Bar Questions, Cases, Updated Laws and Rules, 2011 ed., p. 1).

SECTION 2. APPLICABILITY OF RULES OF CIVIL ACTIONS

In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.

The word practicable is defined as: possible to practice or perform; capable of being put into practice, done or accomplished. This means that in the absence of special provisions, rules in ordinary actions may be applied in special proceedings as much as possible and where doing so would not pose an obstacle to said proceedings. Nowhere in the Rules of Court does it categorically say that rules in ordinary actions are inapplicable or merely suppletory to special proceedings. Provisions of the Rules of Court requiring certificate of non-forum shopping for complaints and initiatory pleadings, a written explanation for non-personal service and filing, and the payment of filing fees for money claims against an estate would not in any way obstruct probate proceedings (Sheker v. Estate of Alice Sheker, Medina, G.R. No. 157912, December 13, 2007).

Notwithstanding Sec. 2, Rule 72, intervention as set forth under Rule 19 does not extend to creditors of a decedent whose credit is based on a contingent claim. Sec. 1, Rule 19 requires that an intervenor has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court x x x. While the language of Sec. 1, Rule 19 does not literally preclude petitioners from intervening in the intestate proceedings, 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 (Hilado, et al. v. Court of Appeals, G.R. No. 164108, May 8, 2009).

RULE 72 SUBJECT MATTER AND

APPLICABILITY OF GENERAL RULES

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REMEDIALLAWSPECIALPROCEEDINGS

SAN BEDA COLLEGE OF LAW 2013 CENTRALIZED BAR OPERATIONS

Ordinary Action Special Proceeding

Nature

Generally adversarial in nature. There are definite parties plaintiff vs. defendant.

Generally no definite adverse party because it is directed against the whole world, as majority of special proceedings are in rem.

Purpose To protect or enforce a right or prevent or redress a wrong.

To establish a right, status or fact.

Governing Rules

It is governed by ordinary rules supplemented by special rules.

It is governed by special rules supplemented by ordinary rules.

Court with Jurisdiction

It is heard by courts of general jurisdiction.

It is heard by courts of limited jurisdiction.

How initiated

Initiated by a pleading and parties respond through an answer after being served with summons.

Initiated by means of a petition and parties respond by means of an opposition after notice and publication are made.

Applicability of pleadings

Parties are generally allowed to file an answer, counterclaim, cross-claim and third-party complaint.

Law on pleadings generally not applicable.

Appeal The period to appeal is only 15 days and notice of appeal suffices.

The period to appeal is 30 days and aside from a notice of appeal, a record on appeal is required.

Ordinary Civil Action

Special Civil Action

Special Proceeding

One by which a party sues another for the enforcement or protection of a right or the prevention or redress of a

Civil action subject to specific rules.

Remedy by which a party seeks to establish a status, a right or a particular fact.

wrong.

Governed by the rules for ordinary civil actions.

Ordinary rules apply primarily but subject to specific rules.

Governed by special rules and ordinary rules apply as far aspracticable.

Involves two or more parties.

Involves two or more parties.

May involve only one party.

Initiated by complaint.

Some are initiated by complaint while some are initiated by petition.

Initiated by petition.

Based on a cause of action.

Some special civil actions have no cause of action.

Not based on a cause of action (except Habeas Corpus).

Summary of venues and jurisdiction for different Special Proceedings

Venue Jurisdiction Estate settlement (Rules 73-90)

Province of decedents residence at the time of death

MTC If estates gross value does not exceed PhP300K (PhP400K in Metro Manila)

If non-resident decedent Province where he had estate

RTC If estates gross value exceed MTCs jurisdiction

Escheat (Rule 91) If decedent dies intestate and without heirs Province where decedent last resided or where estate is If reversion Province where land lies wholly/partially

Guardianship (Rule 92) Family Court If minor ward

Where ward resides or where his property is located (if non-resident) RTC If other than minor

ward Trusteeship (Rule 98)

Where the will was allowed or where the property affected by the trust is located

RTC

Adoption (AM No. 02-6-02, RA 8043) If domestic where adopter resides

Family Court

If inter-country where adoptee resides (if filed with

Family Court or Inter-Country Adoption Board

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Family Court) If rescission of adoption where adoptee resides

Family Court

Habeas Corpus (Rule 102) SC (on any day and at any time, enforceable anywhere in the Philippines) Sandiganbayan (only in aid of its appellate jurisdiction) CA (in instances authorized by law, enforceable anywhere in the Philippines)

Where detainee is detained (if filed in RTC)

RTC (on any day and at any time, enforceable only within its judicial district) Family Court (on custody of minors, enforceable within its territorial jurisdiction, [Sec. 20, AM No. 03-04-04-SC])

Writ of Amparo (AM No. 07-9-12-SC) Where the threat or act/commission or any of its elements occurred

SC, CA, Sandiganbayan, RTC

Writ of Habeas Data (AM No. 8-1-16-SC) RTC Petitioners residence or

where the place the information isgathered/collected/stored, at the petitioners option

SC, CA, Sandiganbayan - If the action concerns public data files of government offices

Change of name (Rule 103) If judicial - Where the person applying for the change of his name resides

RTC

If administrative - a) Local civil registry where the record sought to be changed is kept b) Local civil registry of theplace of residence of interested party (only if petitioner migrated to another place in the Philippines and it would be impractical to file in the place where records sought to be changed are kept) c) Philippine consulates (only for Philippine citizens who reside in foreign countries)

Local civil registry or Philippine consulate

Declaration of absence and appointment of their representative (Rule 107)

Where absentee last resided RTC Cancellation/Correction of entries in the civil registry

(Rule 108) If judicial where the concerned civil registry is located

RTC

If administrative - a) Local civil registry wherethe record sought to be changed is kept b) Local civil registry of the place of residence of interested party (only if petitioner migrated to another place in the Philippines and it would be impractical to file in the place where records sought to be changed are kept) c) Philippine consulates (only for Philippine citizens who reside in foreign countries)

Local civil registry or Philippine Consulate

Special Proceedings under various laws and SC Circulars a. Petitions under the Family Courts Act (R.A. No. 8369)

1. Rule on Declaration of Absolute Nullity of VoidMarriages and Annulment of Voidable Marriages(A.M. No. 02-11-10-SC, March 15, 2003);

2. Rule on Legal Separation (A.M. No. 02-11-11-SC,March 15, 2003);

3. Rule on Provisional Orders (A.M. No. 02-11-12-SC,March 15, 2003);

4. Rule on Custody of Minors and Writ of HabeasCorpus in Relation to Custody of Minor Children (A.M.No. 03-04-04, April 22, 2003);

5. Summary of Judicial Proceedings under the FamilyCode (Arts. 238-253, New Civil Code)

b. Proceedings for protection orders under the Violenceagainst Women and their Children Act (R.A. No. 9262)1. Rule on Violence against Women and Children (A.M.

No. 04-10-11, October 19, 2004)c. Proceedings under the Arbitration Law (R.A. No. 876)

and Alternative Dispute Resolution Act (R.A. No. 9285)1. Arbitration; court-annexed mediation and judicial

dispute resolution (A.M. No. 01-10-5-SC-PHILJA,October 16, 2001).

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RULES 73-90

Different modes of settlement of estate of a deceased person/presumed dead 1. Extrajudicial Settlement of Estate (Section 1, Rule 74);2. Summary Settlement of Estate of Small Value (Section

2, Rule 74);3. Partition (Rule 69);4. Probate of Will (Rule 75 to 79);5. Petition for Letters of Administration in cases of

Intestacy (Rule 79);

Procedure in settlement proceedings (Judicial)

SECTION 1. WHERE ESTATE OF DECEASED PERSONS SETTLED

Jurisdiction: It depends upon the gross value of the estate of the decedent: 1. In Metro Manila MTC: gross value does not exceed

PhP400,000.00, otherwise, RTC;2. Outside Metro Manila MTC: gross value does not

exceed PhP300, 000.00, otherwise, RTC (Sec. 19(4),Sec. 33(1), B.P. Blg. 129)..

Note: Jurisdiction over the subject matter is determined by the allegations in the petition; (Cadimas v. Carrion, G.R. No. 180394, September 29, 2008); 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.

Venue 1. Inhabitant (Resident) of the Philippines (whether citizen

or alien) Court of the province/city where he resides atthe time of death.

2. Inhabitant (Resident) of Foreign Country Court of anyprovince wherein he had his estate (Sec. 1, Rule 73).

Residence Residence means his personal, actual or physical habitation, his actual residence or place of abode (Fule v. Court of Appeals, G.R. No. L-40502, November 29, 1976).

Where the proceeding was commenced with a court of improper venue, as where the decedent was neither a resident at the time of his death nor had estate therein, and such objection was seasonably raised in the probate court, the petition should be dismissed and the proceedings should be instituted in the proper court (Eusebio v. Eusebio, et. al,. G.R. No. L-8409, December 28, 1956).

Remedy if venue is improperly laid General Rule: Ordinary appeal not certiorari or prohibition.

Exception: If want of jurisdiction appears on the record of the case (Sec. 1, Rule 73).

The judicial settlement of a decedents estate is a proceeding in rem.

SETTLEMENT OF ESTATE OFDECEASED PERSONS

RULE 73 VENUE AND PROCESSES

Petition for Probate of will, if any (Rule 75-76)

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) (Rules 77-80)

Publication of Notice for Filing Claims

Filing of Claims (Rule 86)

Issuance of Order of Payment or Sale of Properties

Payment of Claims: Sale/Mortgage/Encumbrance of estate

properties.

Distribution of remainder, if any (But this can be made even before payment if

a bond is filed by the heirs).

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Two kinds of settlement 1. Extrajudicial settlement a proceeding where the

decedent had left no will and no debts, and the heirsadjudicate the estate among themselves withoutseeking letters of administration (Sec. 1, Rule 74).

2. Judicial settlement Testate or intestate proceedinginstituted in the country where decedent had hisresidence at the time of his death or had estate if anonresident (Sec. 2, Rule 74).a. Summary judicial proceedings (if the value of estate

is below PhP10,000);b. Regular settlement proceedings

Extent of jurisdiction: Probate courts are courts of limited jurisdiction. it may only determine and rule upon issues relating to the settlement of the estate, namely: (LAD) 1. Liquidation of the estate;2. Administration of the estate; and3. Distribution of the estate (Herrera, Special Proceedings

and Special Rules Implementing the Family Courts Actof 1997, 2005 ed., p. 12).

General Rule: Probate court cannot determine issue of ownership.

Exceptions: 1. Ownership may be provisionally determined for the

purpose of including property in inventory, withoutprejudice to its final determination in a separate action(Vda. De Valera, et al., v. Inserto et al., G.R. No. 56504,May 7,1987);

2. When all the parties are heirs and they submit the issueof ownership to the probate court provided that therights of third parties are not prejudiced (Bernardo v.Court of Appeals, G.R. No. L-18148, Feb. 28, 1963);

3. Question is one of collation or advancement (Coca, etal., v. Pangilinan et al., G.R. No. L-27082, Jan. 31,1978).

The RTC acting in its general jurisdiction is devoid of authority to render adjudication and resolve the issue of advancement of the real property in favor of an heir since reconveyance and annulment of title with damages is not the proper vehicle to thresh out said question (Natcher v. Court of Appeals, G.R. No. 133000, October 2, 2001).

Other questions which the probate court can determine 1. Who the heirs of the decedent are;2. The recognition of a natural child;3. The validity of disinheritance effected by the testator;4. Status of a woman who claims to be the lawful wife of

the decedent;

5. The validity of a waiver of hereditary rights;6. The status of each heir;7. Whether property in inventory is conjugal or exclusive

property of deceased spouse;8. Matters incidental or collateral to the settlement and

distribution of the estate (Regalado, Remedial LawCompendium Vol. II, 2008 ed., p. 13).

Exclusionary Rule General Rule: The court first taking cognizance of the settlement of the estate of the decedent shall exercise jurisdiction to the exclusion of all other courts.

The probate court acquires jurisdiction from the moment the petition for the settlement of estate is filed with said court. It cannot be divested of such jurisdiction by the subsequent acts of the parties as by entering into extrajudicial partition of the estate (Sandoval v. Santiago, G.R. No. L-1723, May 30, 1949); or by filing another petition for settlement in a proper court of concurrent venue (Rodriguez v. De Borja, G.R. No. L-21993, June 21, 1966).

Exception: Estoppel by Laches

Note: Jurisdiction under Rule 73 Sec. 1 does not relate to jurisdiction per se but to venue. Hence, institution in a court where the decedent is neither an inhabitant nor had his estate may be the subject of waiver (Uriarte v. CFI, G.R. No. L-21938-39, May 29, 1970).

SECTION 2. WHERE THE ESTATE SETTLED UPON DISSOLUTION OF MARRIAGE Upon the death of either the husband or the wife, the partnership affairs must be liquidated in the testate or intestate proceedings of the deceased husband or wife. If both have died, liquidation may be made in the testate or intestate proceedings of either (Bernardo, et. al. v. Court of Appeals, et. al., G.R. No, L-18148, February 28, 1963).

SECTION 3. PROCESS The RTC may issue warrants and processes to compel the attendance of witnesses.

Writ of Execution

General Rule: Probate court cannot issue writs of execution.

Ratio: Its orders usually refer to the adjudication of claims against the estate which the executor/administrator may satisfy without the need of executory process (Regalado, p.14).

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Exceptions: (CEE) 1. To satisfy the contributive share of the devisees,

legatees and heirs when the latter had entered priorpossession over the estate (Sec. 6, Rule 88);

2. To enforce payment of the expenses of partition (Sec.3, Rule 90);

3. To satisfy the costs when a person is cited forexamination in probate proceedings (Sec. 13, Rule142).

Under the rule of inclusio unius est exclusio alterius, these should be the only instances when the probate court can issue writ of execution (Vda. De Valera, et al., v. Ofilada, et al., G.R. No. L-27526, Sept. 12, 1974).

SECTION 4. PRESUMPTION OF DEATH There is no need for an independent action for Declaration of Presumptive Death for purposes of Succession.

The returning absentees recovery of his estate is subject to the following conditions: 1. All his debts must have been paid;2. He shall recover his property in the condition in which it

may be found together with the price of any propertythat may have been alienated or the property acquiredtherewith;

3. He is not entitled to the fruits of the rent (Art. 392, NewCivil Code).

General Rule: The settlement of the estate of the decedent should be judicially administered through an administrator or executor.

Exception: The heirs may resort to: 1. Extrajudicial settlement of estate (Sec.1);2. Summary settlement of estates of small value (Sec. 2).

Note: In both exceptional circumstances, an administrator or executor need not be appointed.

SECTION 1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS

Extrajudicial Settlement

Procedure in extrajudicial settlement by agreement between/among heirs

Requisites: A. Substantive

1. The decedent left -a. No will;b. No debts.

2. The heirs are all of age or the minors arerepresented by their judicial or legal representativesduly authorized for the purpose.

B. Procedural 1. Division of estate must be in a public instrument or

by affidavit of self-adjudication in the case of a soleheir;

2. Filed with proper Registry of Deeds;3. Publication of notice of the fact of extrajudicial

settlement once a week for 3 consecutive weeks;4. Filing of the bond with the Register of Deeds

equivalent to the value of personal property. (Sec.1, Rule 74).

Note: The bond is required only when personalty is involved. If it is a real estate, it shall be subject to a lien in favor of creditors, heirs or other persons for the full period of 2 years from such distribution and such lien cannot be

RULE 74 SUMMARY SETTLEMENT OF

ESTATES

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 Registry of Deeds

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substituted by a bond (Rebong v. Ibaez, G.R. No. L-1578, September 30, 1947).

The bond is the value of the personal property certified by the parties under oath and conditioned upon payment of just claims filed under Sec. 4, Rule 74.

Affidavit of Self Adjudication An affidavit required by Sec 1 of Rule 74 to be executed by the sole heir of a deceased person in adjudicating to himself the entire estate left by the decedent.

Is a public instrument necessary for the validity of an extra-judicial settlement? No. A private instrument/document or oral agreement of partition as well as a compromise agreement entered without previous authority of the court is valid among the heirs who participated in the extrajudicial settlement. The requirement under Sec. 1, Rule 74 that it must be in a public instrument is not constitutive of the validity but is merely evidentiary in nature (Hernandez v. Andal, G.R. No. L-273, March 29, 1947). Under the new Rules, it would appear that a public instrument is now required for registration. If the settlement is in a private instrument, it is believed that the same is still valid and reformation of the instrument may be compelled (Arts. 1359, et. seq., New Civil Code).

Extrajudicial Settlement Summary Settlement

No court intervention. Requires summary judicial adjudication. Value of the estate is immaterial.

Gross estate must not exceed PhP10,000.

Allowed only in intestate succession.

Allowed in both testate and intestate

There must be no outstanding debts of the estate at the time of settlement.

It is available even if there are debts; it is the court which will make provision for its payment.

Resorted at the instance and by agreement of all heirs.

May be instituted by any interested party even by a credit of the estate without the consent of all heirs.

Amount of bond is equal to the value of personal property.

Amount of bond is to be determined by the court.

Bond is filed with the Register of Deeds. Bond is filed with the court.

Note: While the Rules provide that the decedent must not have left any debts, it is sufficient if any debts he may have left have been paid at the time the extrajudicial

settlement is entered into (Guico v. Bautista, G.R. No. L-14921, December 31, 1960).

Disputable presumption that decedent left no debts: If 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 (Sec. 1, Rule 74).

Note: Section 1, Rule 74 does not preclude the heirs from instituting administration proceedings even if the estate has no debts or obligations, if they do not desire to resort, for good reasons, to an ordinary action for partition (Rodriguez v. Tan, G.R. No. L-6044, November 24, 1952).

Good reason depends on the circumstances of each case (Pereira v. CA, et al., G.R. No. 81147, June 20, 1989).

SECTION 2. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE The gross value of the estate must not exceed PhP10,000.

In accordance with B.P. Blg. 129, the summary settlement of estates of small value is within the jurisdiction of the MTCs.

Important Requirements: 1. Application must contain allegation of gross value of

estate;2. Date for hearing:

a. Shall be set by court not less than 1 month nor morethan 3 months from date of last publication of notice;

b. Order of hearing published, once a week for 3consecutive weeks in a newspaper of generalcirculation.

3. Notice shall be served upon such interested persons asthe court may direct;

4. Bond in an amount fixed by the court (not value ofpersonal property) conditioned upon payment of justclaims under Sec. 4.

Procedure in summary settlement of estates of small value

Application for summary settlement with an allegation that the gross value of the estate

does not exceed PhP10,000.00

Publication of notice of the fact of summary settlement once a week for 3 consecutive weeks in a newspaper of general circulation (the court may also

order notice to be given to other persons as such court may direct)

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SECTION 3. BOND TO BE FILED BY DISTRIBUTEES The amount of bond required under a summary settlement is determined by the court, unlike in an extrajudicial settlement where the amount is equal to the value of the personal property as established by the instrument of adjudication (Regalado, p. 21).

SECTION 4. LIABILITY OF DISTRIBUTEES AND ESTATE

When settlement of estates in the courts may be compelled: 1. If there is an undue deprivation of lawful participation in

the estate;2. The existence of debts against the estate; or3. If there is an undue deprivation of lawful participation

payable in money.

Note: The bar against distributees from objecting to an extrajudicial partition after the expiration of two years is applicable only: a. To persons who have participated or taken part or had

notice of the extrajudicial partition, andb. When all the persons or heirs of the decedent have

taken part in the extrajudicial settlement (Sampio v.Court of Appeals, G.R. No. L-10474, February 28,1958).

Is a person who had no knowledge or had not participated in the extrajudicial settlement bound thereby by reason of constructive notice of publication? No. Extrajudicial settlement under Sec. 1 of Rule 74 is an ex parte proceeding, and the rule plainly states that persons who do not participate or had no notice of an extrajudicial settlement will not be bound

thereby, and contemplates a notice that has been sent out or issued before any deed of settlement or partition is agreed upon, and not after such agreement has already been executed. The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part because the same was notice after the fact of execution. The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their lawful participation in the estate (Benatiro v. Heirs of Cuyos, G.R. No. 161220, July 28, 2008).

Note: The other heirs are also not bound by the extrajudicial settlement should the Deed of Extrajudicial Partition or Affidavit of Self-Adjudication be false (Sec. 4 in relation to Sec. 1).

Remedies of the Aggrieved Parties after Settlement of the Estate 1. Within 2 years - claim against the bond or the real

estate or both (Sec.4, Rule 74);2. Rescission in case of preterition of compulsory heir in

partition tainted with bad faith (Article 1104, NCC);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 yearsfrom the discovery of fraud;

5. Petition for Relief on the ground of FAME fraud,accident, mistake, excusable negligence 60 daysafter the petitioner learns of the judgment, final order orother proceeding to be set aside, and not more than 6months after such judgment or final order was entered(Rule 38);

6. Reopening by Intervention within anytime beforerendition of judgment, as long as it is within thereglementary period of 2 years;

7. New action to annul settlement within reglementaryperiod of 2 years.

An heir deprived of his share may file an action for reconveyance based on an implied or constructive trust which prescribes 10 years from the date of registration or date of issuance of certificate of title or from actual discovery of fraud if the registration was made in bad faith (Marquez v. Court of Appeals, G.R. No. 125715, December 29, 1998).

Where the estate has been summarily settled, the unpaid creditor may, within 2 years, file a motion in court wherein such summary settlement was had, for the payment of his credit.

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

publication of notice court may direct)

Court to proceed summarily, without appointing an executor/administrator, and to make orders as

may be necessary, such as: a) Grant allowance of the 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 the estate

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After the lapse of 2 years, an ordinary action may be instituted against the distributees within the statute of limitations but not against the bond.

The 2-year lien upon the real property distributed by extrajudicial or summary settlement shall be annotated on the title issued to the distributees and after 2 years will be cancelled by the register of deeds without need of court order (Land Registration Commission Circular 143 dated January 28, 1964).

Such lien cannot be discharged nor the annotation be cancelled within the 2 year period even if the distributees offer to post a bond to answer for contingent claims from which lien is established (Rebong v. Ibaez, G.R. No. L-1578, September 30, 1947).

SECTION 5. PERIOD FOR CLAIM OF MINOR OR INCAPACITATED PERSON If on the date of the expiration of the two-year period, the creditor or heir is: 1. A minor; or2. Incapacitated; or3. In prison; or4. Outside the Philippines.

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

SECTION 1. ALLOWANCE NECESSARY. CONCLUSIVE AS TO EXECUTION

Nature of probate proceedings 1. In Rem: binding on the whole world (Regalado, p. 31).2. Mandatory: no will shall pass either real or personal

property unless it is proved and allowed in the propercourt (Sec. 1, Rule 75).

However, a will may be sustained on the basis of Article 1080 of the Civil Code which states that: If the testator should make a partition of his properties by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heir (Mang-Oy v. Court of Appeals, G.R. No. L-27421, September 12, 1986).

3. Imprescriptible because of the public policy to obeythe will of the testator.

4. The doctrine of estoppel does not apply.The presentation and probate of the will is required bypublic policy. It involves public interest (Fernandez v.Dimagiba, G.R. No. L-23638, October 12, 1967).

SECTION 2. CUSTODIAN OF WILL TO DELIVER The custodian must deliver the will to the court or to the executor within 20 days after he learns of the death of the testator.

SECTION 3. EXECUTOR TO PRESENT WILL AND ACCEPT OR REFUSE TRUST The executor, within 20 days after he knows of the testators death or after he knows that he is named an executor if he knows it after the testators death, shall: 1. Present the will to the court (unless it has reached the

court in any other manner); and2. Signify in writing his acceptance or refusal of the trust.

SECTION 4. CUSTODIAN AND EXECUTOR SUBJECT TO FINE FOR NEGLECT A fine not exceeding PhP2,000.

SECTION 5. PERSON RETAINING WILL MAY BE COMMITTED

Probate 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 the law (also referred to as allowance of the will) (Jurado, Comments and Jurisprudence on Succession, 2009, 9th Edition, p. 134).

SECTION 1. WHO MAY PETITION FOR THE ALLOWANCE OF WILL 1. Executor;2. Devisee or legatee named in the will;3. Person interested in the estate (e.g. heirs);

An interested party is one who would be benefited bythe estate, such as an heir, or one who has a claimagainst the estate, such as a creditor (Sumilang v.Ramagosa, G.R. No. L-23135, December 26, 1967).

4. Testator himself during his lifetime;5. Any creditor - as preparatory step for filing of his claim

therein (Regalado, p.30).

RULE 75 PRODUCTION OF WILL

ALLOWANCE OF WILL NECESSARY

RULE 76 ALLOWANCE OR DISALLOWANCE

OF WILL

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Who may be a party in probate? In general, any person having a direct and material interest in the will or estate (Trillana v. Crisostomo, G.R. No. L-3378, August 22, 1951).

SECTION 2. CONTENTS OF PETITION 1. The jurisdictional facts death of the testator and his

residence at the time of death or the province whereestate was left by the decedent who is a non-resident;

2. The names, ages, and residences of the heirs,legatees, and devisees of the testator or decedent;

3. The probable value and character of the property of theestate;

4. The name of the person for whom letters are prayed;and

5. The name of the person having custody of the will if ithas not been delivered to the court.

But no defect in the petition 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 a will: It is conclusive as to the execution and validity of the will (even against the State). Thus, a criminal case against the forger may not lie after the will has been probated (Jurado, p. 144).

May Sec. 1, Rule 76 be waived since it is just a procedural requirement? No because the same requirement is embodied in Art. 838 of the Civil Code, which is a substantive law.

Issue in the probate of a will General Rule: Only determination of the extrinsic validity not the intrinsic validity or validity of testamentary dispositions.

Exceptions: Principle of practical considerations 1. The waste of time, effort, expense plus added anxiety

are the practical considerations that induced the SC toa belief that we might as well meet head-on the issuesof the validity of the provisions of the will in question(Nuguid v. Nuguid, G.R. No. L-23445, June 23, 1966).

2. Where the entire or all testamentary dispositions arevoid and where the defect is apparent on its face (Acainv. Intermediate Appellate Court, G.R. No. 72706,October 27, 1987; Nepumuceno v. Court of Appeals, G.R. No. L-62952, October 9, 1985).

Extrinsic Validity Means due execution of the will.

Meaning of due execution (FM-VPS) 1. That the will was executed strictly in accordance with

the formalities required by law;2. That the testator was of sound and disposing mind

when he executed the will;3. That there was no vitiation of consent through duress,

fear or threats;4. That it was not procured by undue or improper pressure

or influence on the part of the beneficiary, or someother person for his benefit;

5. That the signature of the testator is genuine, i.e., it wasnot procured through fraud and that the testatorintended that what he executed was his last will andtestament (Art. 839, New Civil Code).

SECTION 3. COURT TO APPOINT TIME FOR PROVING WILL; NOTICE THEREOF TO BE PUBLISHED The probate of a will is a proceeding in rem and the publication provided for by this Rule is a jurisdictional requirement. The personal service of notice upon the heirs is a matter of procedural convenience and not a jurisdictional requisite. (Regalado, p. 31)

If the petition for probate is on the testators own initiative during his lifetime (Ante Mortem): 1. No publication is necessary (Sec. 3); and2. Notice shall be made only to the compulsory heirs (Sec.

4).

Note: Three (3) weeks successively is not strictly 21 days. It is sufficient that publication has been made once a week successively three times, even if less than twenty- one days intervened between the first and last publication (Basa v. Mercado, G.R. No. L-42226, July 26, 1935).

SECTION 4. HEIRS, DEVISEES, LEGATEES, AND EXECUTORS TO BE NOTIFIED BY MAIL OR PERSONALLY

Persons to be Given Notice: 1. Designated or known heirs, legatees and devisees; and2. Executor and co-executor if not the petitioner.

Modes of Notification 1. If by mail: 20 days before hearing2. If through personal service: 10 days before hearing.

SECTION 5. PROOF AT HEARING. WHAT SUFFICIENT IN ABSENCE OF CONTEST At the hearing, compliance of publication and notice must first be shown before introduction of testimony in support of the will.

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Evidence required in support of a will 1. Uncontested Will

a. Notarial Wills: Testimony of at least one of thesubscribing witnesses may be allowed, if suchwitness testifies that the will was executed as isrequired by law (Sec.5).i. If all subscribing witnesses reside outside the

province deposition is allowed (Sec.7).ii. If the subscribing witnesses are dead, insane, or

none of them resides in the Philippines Thecourt may admit testimony of other witnesses toprove the sanity of the testator, and the dueexecution of the will, and as evidence of theexecution of the will, it may admit proof of thehandwriting of the testator and of the subscribingwitnesses or of any of them (Sec. 8).

b. Holographic Wills: the testimony of one witness whoknows the handwriting and signature of the testator.In the absence thereof and if the court deem itnecessary, expert testimony may be resorted to.

In case of a holographic will, it is not mandatory that witnesses be first presented before expert testimony may be resorted to, unlike notarial wills wherein the attesting witnesses must first be presented or accounted for (Azaola v. Singson, G.R. No. L-14003, August 5, 1960). This is so because holographic wills are not required to be witnessed and the existence of a qualified witness may be beyond the control or knowledge of the proponent of the will (Regalado, p. 35).

2. Contested Willa. Notarial Wills: All subscribing witnesses and the

notary public before whom the will was acknowledgedmust be produced and examined (Sec. 11).

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: 3 witnesses who know thehandwriting of testator. In the absence thereof and ifthe court deem it necessary, testimony of an expertwitness may be resorted to.

However, in Codoy v. Calugay (G.R. No. 123486, Aug. 12, 1999), the SC ruled that if the holographic

will is contested, 3 witnesses who know the handwriting and signature of the testator are now required/mandatory to prove its authenticity and for its allowance.

General Rule: A holographic will if destroyed cannot be probated.

Exception: If there exists a Photostatic or Xerox copy thereof (Gan v. Yap, G.R. No. L-12190, August 30, 1958).

Note: In the case of a contested notarial will, it is the duty of the petitioner to produce all the available attesting witnesses and the notary public, but he is not concluded by the testimony of said witnesses, even if adverse, as the court may still admit the will to probate on the basis of other satisfactory evidence (Fernandez v. Tantoco, G.R. No. 25489, September 8, 1926). This is an exception to the rule that a party is generally bound by the testimony or evidence that he presents, because here, unlike ordinary actions, he has no choice in the evidence as he is duty-bound to account for all attesting witnesses. It has been held that the testimony of the notary before whom the will was acknowledged will prevail over that of the two attesting witnesses who claim undue execution of the will (Ramos, et. al. v. Court of Appeals, et. al. G.R. No. L-40804, January 31, 1978).

SECTION 6. PROOF OF LOST OR DESTROYED WILL. CERTIFICATE THEREUPON This section applies to a lost or destroyed notarial will and not to a holographic will.

Facts which should be proved in order that a lost or destroyed will may be allowed: 1. That the will has been duly executed by the testator;2. That the will was in existence when the testator died, or

if it was not, that it has been fraudulently or accidentallydestroyed in the lifetime of the testator without hisknowledge; and

3. The provisions of the will are clearly established by atleast two credible witnesses.

SECTION 7. PROOF WHEN WITNESSES DO NOT RESIDE IN PROVINCE

SECTION 8. PROOF WHEN WITNESSES DEAD OR INSANE OR DO NOT RESIDE IN THE PHILIPPINES

SECTION 9. GROUNDS FOR DISALLOWING WILL

Grounds provided for are exclusive: (FIDUS) 1. If not executed and attested as required by law;

(formalities)

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2. If the testator was insane, or otherwise mentallyincapable to make 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 andinfluence, on the part of the beneficiary, or of someother person for his benefit;

5. If the signature of the testator was procured by fraud ortrick, and he did not intend that the instrument shouldbe his will at the time of fixing his signature thereto.

Substantial Compliance Rule If 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 wills which contain essentially the same provisions and pertain to properties which in all probability are conjugal in nature, practical considerations dictate their joint probate (Vda. De Perez v. Tolete, G.R. No. 76714, June 2, 1994).

Separate Wills probated jointly in view of simultaneous deaths of the spouses testators: A literal application of the rules should be avoided if they would only result in the delay in the administration of justice. What the law expressly prohibits is the making of joint wills either for testators reciprocal benefit or of 3rd person. Wills of the decedent spouse are essentially similar in disposition and property; joint probate was allowed (Acain v. IAC, G.R. No. 72706, October 27,1987).

Law governing forms of wills: The law in force at the time of the execution of a will (Art. 795, NCC).

SECTION 10. CONTESTANT TO FILE GROUNDS OF CONTEST

Contestant must: 1. State in writing his grounds for opposing the allowance

of the will; and2. Serve a copy thereof to petitioner and other interested

parties.

SECTION 11. SUBSCRIBING WITNESSES PRODUCED OR ACCOUNTED FOR WHERE WILL CONTESTED

SECTION 12. PROOF WHERE TESTATOR PETITIONS FOR ALLOWANCE OF HOLOGRAPHIC WILL If there is no contest, the fact that the testator affirms that the holographic will and the signature are in his own

handwriting shall be sufficient evidence of the genuineness and due execution thereof.

In case of contest, the burden of proof is on the contestant.

SECTION 13. CERTIFICATE OF ALLOWANCE ATTACHED TO PROVED WILL. TO BE RECORDED IN THE OFFICE OF REGISTER OF DEEDS. Order for probate is final. Thus, it is appealable.

SECTION 1: WILL PROVED OUTSIDE THE PHILIPPINES MAY BE PROVED HERE. It 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.

SECTION 2: NOTICE OF HEARING FOR ALLOWANCE. What should be filed: Petition for allowance accompanied with: 1. Authenticated copy of the will2. Authenticated decree of the allowance thereof.

The court will then fix a time and place for hearing and cause notice thereof to be given.

With regard to notices, the will probated abroad should be treated as if it were an original will or a will presented for probate for the first time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which require publication and notice by mail or personally to the known heirs, legatees, and devisees of the testator resident in the Philippines and to the executor, if he is not the petitioner, are required (Salud Teodoro Vda. De Perez v. Hon. Zotico A. Tolete, G.R. No. 76714, June 2, 1994).

Matters to be proven during a re-probate proceeding: 1. That the testator was domiciled in a foreign country;2. That the will has been admitted to probate in such

country;3. That the foreign court was, under the laws of said

foreign country, a probate court with jurisdiction over theproceedings;

4. The law on probate procedure in said foreign countryproof of compliance therewith; and

RULE 77 ALLOWANCE OF WILL PROVEDOUTSIDE OF PHILIPPINES ANDADMINISTRATION OF ESTATE

THEREUNDER

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5. The legal requirements in said foreign country for thevalid execution of the will (De Perez v. Tolete, supra).

Effects of the allowance of a will under Rule 77: 1. The will shall be treated as if originally proved and

allowed in Philippine courts;2. Letters testamentary or administration with a will

annexed shall extend to all estates in the Philippines;3. After payment of just debts and expenses of

administration, the residue of the estate shall bedisposed of as provided by law in cases of estates inthe Philippines belonging to persons who areinhabitants of another state or country.

Note: 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 Rule 73.

A will of a foreigner executed abroad can be probated in the Philippines without need of being probated abroad. Art. 816 of the Civil Code 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 Rule 77. 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 (In Re: Palaganas, G.R. No. 169114, 26 January 2011).

Who can administer the estate? 1. Executor the one named by the testator in his will for

the administration of his property after his death.2. Administrator, regular or special the one appointed

by the Court in accordance with the Rules or governingstatutes to administer and settle the intestate estate(Rule 80).

3. Administrator with a will annexed the oneappointed by the court in cases when, although there isa will, the will does not appoint any executor, or ifappointed, said person is either incapacitated orunwilling to serve as such (Rule 79, Section 1).

Who may serve as an executor or administrator? Any competent person may serve as executor or administrator.

SECTION 1. WHO ARE 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 when the habits of drink are carried

so far as to cloud the brain and weaken their respectfor honesty and integrity; The drunkennesscontemplated by this statute, undoubtedly, is thatexcessive, inveterate and continued use ofintoxicants, to such an extent as to render the subjectof the habit as unsafe against to entrust with the careof property or the transaction of business (Herrera, p.78).

b. Improvidence means the want of care andforesight in the management of property which wouldbe likely to render the estate and effects of theintestate unsafe and liable to be lost or diminished invalue (Blacks Law Dictionary, 5th ed., p.682).

c. Want of understanding amounts to lack ofintelligence such as would or might subject one tosinister influence or coercion against the generalinterest of the estate (Herrera, p.80).

d. Want of integrity integrity is synonymous toprobity, honesty and uprightness in business relationswith others. The accusation should be certain andgrave in its nature (Herrera, p.80).

e. Conviction for an offense involving moralturpitude an act of baseness, vileness or depravityin the private and social duties which a man owes hisfellow men, to society in general, contrary to theaccepted and customary rule of right and dutybetween man and woman or conduct contrary tojustice, honesty, modesty or good morals (Zari v.Flores, A.M. No. (2170-MC) P-1356 November 21,1979).

4. The executor of an executor cannot administer theestate of the first testator (Sec. 2).

Executor and Administrator; Distinguished Executor Administrator

Nominated by the testator and appointed by court.

Appointed by the court in case the testator did not appoint an executor or if

RULE 78 LETTERS TESTAMENTARY AND OFADMINISTRATION, WHEN AND TO

WHOM ISSUED

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Executor Administrator the executor refused appointment (administrator with a will annexed) or if the will was disallowed or if a person did not make a will (intestate succession).

Must present will to the court within 20 days after he knows of the death of testator or after he knew that he was appointed as executor (if he obtained such knowledge after death of testator), unless the will has reached the court in any manner.

No such duty.

Testator may provide that he may serve without a bond (but court may direct him to give a bond conditioned only to pay debts).

Required unless exempted by law

Compensation may be provided for by the testator in the will, otherwise Sec. 7, Rule 85 will be followed.

Compensation is governed by Sec. 7, Rule 85.

SECTION 2. EXECUTOR OF EXECUTOR NOT TO ADMINISTER ESTATE

SECTION 3. MARRIED WOMEN MAY SERVE

SECTION 4. LETTERS TESTAMENTARY ISSUED WHEN WILL ALLOWED

Testamentary Privilege The right given by law to a person to dispose of his property when he dies.

Letters Testamentary An authority issued to an executor named in the will to administer the estate (Festin, p. 46).

Letters of Administration An authority issued by the court to a competent person to administer the estate of the deceased who died intestate (Festin, p. 46).

Letters of Administration with a Will Annexed An authority issued by the court to a competent person to administer the estate of the deceased if the executor

named in the will refused to accept the office or if the person name is incompetent.

SECTION 5. WHERE SOME CO-EXECUTORS DISQUALIFIED, OTHERS MAY ACT

SECTION 6. WHEN AND TO WHOM LETTERS OF ADMINISTRATION GRANTED

Order of preference in granting letters of administration 1. The surviving husband or wife or the next of kin, or both

in the discretion of the court, or to such person as suchsurviving spouse or next of kin, requests to haveappointed, if competent and willing to serve (survivingspouse or next of kin or their nominee);

Next of Kin Those persons who are entitled by law to receive the decedents property (Regalado, p. 46).

2. If the surviving spouse or the next of kin or the personselected by them be incompetent or unwilling to serve,or if the surviving spouse or next of kin neglects for 30days after the death of the decedent to apply foradministration by them or their nominee, any one ormore of the principal creditors, if competent and willingto serve;

However, neglect of such persons to apply for letters administration for 30 days after death is not sufficient to exclude the widow from the administration of the estate of her husband. There must be a very strong case to justify the exclusion of the widow from the administration (Herrera, p. 84).

3. If there is no such creditor competent and willing toserve, it may be granted to such other person as thecourt may select (stranger).

Note: As a general rule, the court cannot set aside the order of preference under Sec. 6 Rule 78.

Exception: In case the persons who have the preferential right to be appointed under the rule are not competent or are unwilling to serve, administration or they neglect to apply for letters of administration for 30 days after the decedents death, the letters may be granted to such other person as the court may appoint.

The order of appointment of regular administrator is final and appealable.

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

Note: Co-administrators may be appointed for the benefit of the estate and those interested therein (Matute v. Court of Appeals, G.R. No. 26751, January 31, 1969).

Scope or limits of administration: The general rule is that administration extends only to the assets of a decedent found within the state or country where it was granted, so that an administrator appointed in one state or country has no power over the property in another state or country (Leon v. Manufacturers Life Insurance Co., G.R. No. L-3677, November 29, 1951).

Note: A party indebted to the decedents estate cannot compatibly perform the duties of an administrator and should not be appointed as such (Lim v. Diaz-Millarez, G.R. No. L-17633, October 19, 1966). Where such fact of indebtedness was only subsequently discovered after the administrator had been duly appointed, he should not be removed, absent any other lawful ground (Dalisay, etc. v. Consolacion, etc., G.R. No. L-44702, July 30, 1979).

SECTION 1. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY. SIMULTANEOUS PETITION FOR ADMINISTRATION The main issue is the determination of the person who is rightfully entitled to administration.

Persons to oppose the issuance of letters: Any person interested in the will.

In order to be a party, a person must have material and direct, and not one that is only indirect or contingent, interest (Saguinsun v. Lindayag, G.R. No. L-17759, December 17, 1962).

The opposition may be accompanied by a Petition for the issuance of Letters of Administration with the will annexed.

SECTION 2. CONTENTS OF A PETITION FOR LETTERS OF ADMINISTRATION 1. The jurisdictional facts;2. The names, ages, residences of heirs and the names

and ages of the creditors;3. The probable value and character of the estate; and4. The name of the person for whom letters are prayed for.

No defect in the petition shall render void the issuance of the letters of administration.

SECTION 3. COURT TO SET TIME FOR HEARING. NOTICE THEREOF Publication for 3 weeks and notice to heirs, creditors and other persons believed to have an interest in the estate is required before hearing.

Note: Sec. 3 of this Rule is jurisdictional. Where no notice as required by this section has been given to persons believed to have an interest in the estate of the deceased person, the proceeding for the settlement of the estate is void and should be annulled (Eusebio v. Valmores, G.R. No. L-7019, May 31, 1955).

SECTION 4. OPPOSITION TO PETITION FOR ADMINISTRATION

Grounds for Opposition: 1. Incompetence;2. Preferential right of the heir under Sec. 6, Rule 78.

SECTION 5. HEARING AND ORDER FOR LETTERS TO ISSUE Letters of Administration shall issue if it is proven that: 1. Notice as required in Sec. 3 was given; and2. The decedent left no will; or there is no competent and

willing executor.

SECTION 6. WHEN LETTERS OF ADMINISTRATION GRANTED TO ANY APPLICANT Letters can be granted to any person or any other applicant even if other competent persons are present if the latter fail to claim their letters when notified by the court.

RULE 79 OPPOSING ISSUANCE OF LETTERS

TESTAMENTARY, PETITION ANDCONTEST FOR LETTERS OF

ADMINISTRATION

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SECTION 1. APPOINTMENT OF SPECIAL ADMINISTRATOR

Special Administrator A representative of the decedent appointed by the probate court to care for and preserve his estate until an executor or general administrator is appointed (Fule v. CA, G.R. No. L-40502, November 29, 1976).

Ancillary Administrator A person appointed by the court in a state where the descendant was not domiciled to manage the assets and liabilities and to oversee the distribution of decedents estate in that state. Such an administrator usually works as an adjunct to the executor or administrator appointed in the state where the decedent was domiciled (See Perkins v. Benguet Cosolidated, Inc., Gr No. L-23145, November29,1968).

When may a probate court appoint a special administrator? 1. Delay in granting of letters by any cause including

appeal in the probate of the will;2. Executor is a claimant of the estate that he represents

(Section 8, Rule 86).

Note: In the second instance, the administrator shall have the same powers as that of a general administrator but only insofar as the claim of the executor is concerned.

Order of Appointment (Discretionary) The preference accorded by Sec. 6 of Rule 78 of the Rules of Court to a surviving spouse refers to the appointment of a regular administrator, not to that of special administrator, and that the order appointing the latter lies within the discretion of the probate court, and is not appealable (Pijuan v. De Gurrea, G.R. No. L-21917, November 29, 1966).

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 or will was disallowed.

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

SECTION 2. POWERS AND DUTIES OF SPECIAL ADMINISTRATOR 1. Possess and charge of the goods, chattels, rights,

credits, and estate of the deceased and preserve thesame;

2. Commence and maintain suit for the estate;3. Sell only:

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

4. Pay debts only as may be ordered by the court.

The special administrator also has the duty to submit an inventory and to render an accounting of his administration as required by the terms of his bond (Sec 4, Rule 81).

SECTION 3. WHEN POWERS OF SPECIAL ADMINISTRATOR CEASE. TRANSFER OF EFFECTS. PENDING SUITS

When does the power of a special administrator cease? After the questions causing the delay are resolved and letters are granted to regular executor or administrator.

Is an appointment of a special administrator appealable? No, as expressly provided for in Sec. 1, Rule 109.

The only remedy against the appointment of a special administrator is Certiorari under Rule 65. Certiorari, however, requires nothing less than grave abuse of discretion (Tan v. Gedorio, Jr., G.R. No. 166520, 14 March 2008). However, there must be a Temporary Restraining Order or Injunction Order to stop the Special Administrator from assuming the position (Sec. 7, Rule 65) .

An appointment of a regular administrator is appealable because it is a final order (De Borja v. Tan, G.R. No. L-6476, November 18, 1955). There are important duties devolving on a regular administrator which a special administrator cannot perform, and there are many actions to be taken by the court which could not be accomplished before a regular administrator is appointed (Reynoso v. Santiago, G.R. No. L-3039, December 29, 1949).

RULE 80 SPECIAL ADMINISTRATOR

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Note: A special administrator is appointed only for a limited time and for a specific purpose. Naturally, because of the temporary and special character of his appointment, it was deemed by the law not advisable for any party to appeal from said temporary appointment (De Borja v. Tan, supra).

While a special administrator may commence and maintain suits under Sec. 2, he cannot be sued by a creditor for the payment of the debts of the deceased (De Gala v. Gonzales, et al., G.R. No. L-30289, March 26, 1929). Such suit must await the appointment of a regular administrator.

SECTION 1. BOND TO BE GIVEN BEFORE ISSUANCE OF LETTERS. AMOUNT. CONDITIONS.

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 (Festin, p.56).

Conditions of the bonds: 1. Make within 3 months a true and complete inventory of

the property of the deceased which came to hisknowledge and possession;

2. Administer the estate and pay and discharge all debts,legacies and charges, including dividends declared bythe court from the proceeds;

3. Render a true and just account within one year andwhen required by the court;

4. Perform all orders of the court.

Administrators Bond Statutory Bond Conditions prescribed by statute forms part of bond agreement. Terms and effectivity of bond do not depend on payment of premium and does not expire until the administration is closed. As long as the probate court retains jurisdiction of the estate, the bond contemplates a continuing liability (Luzon Surety v. Quebrar, G.R. No. L-40517, January 31, 1984).

SECTION 2. BOND OF EXECUTOR WHERE DIRECTED IN WILL WHEN FURTHER BOND REQUIRED 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.

SECTION 3. BONDS OF JOINT EXECUTORS AND ADMINISTRATORS

SECTION 4. BOND OF SPECIAL ADMINISTRATOR

Conditions of the bonds 1. Make and return a true inventory;2. Render accounting when required by court; and3. Deliver the estate to the person appointed executor or

administrator or other authorized persons.

As long as the probate court retains jurisdiction of the estate, the bond contemplates a continuing liability (Luzon Surety v. Quebrar, Gr No. L-40517, January 31, 1984).

SECTION 1. ADMINISTRATION REVOKED IF WILL DISCOVERED. PROCEEDINGS THEREUPON

When letters of administration revoked and powers cease: When the decedents will is allowed and proved by the court after the issuance of letters of administration.

Duty of administrator upon revocation of the letters 1. Surrender the letters to the court; and2. Render his account within such time as the court may

direct.

Whether the intestate proceeding already commenced should be discontinued and a new proceeding under a separate number and title should be constituted is entirely a matter of form and lies within the sound discretion of the court (Reynoso v. Santiago, G.R. No. L-3039, December 29, 1949).

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

First court intestate; second court testate: As a general rule, the court with which the petition is first filed

RULE 81 BONDS OF EXECUTORS AND

ADMINISTRATORS

RULE 82 REVOCATION OF ADMINISTRATION,

DEATH, RESIGNATION ANDREMOVAL OF EXECUTORS AND

ADMINISTRATORS

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must take cognizance of the settlement of the intestate estate. However, if it learns thereafter that another court has before it a petition for the probate of the decedents will, it may hold the petition before it in abeyance and defer to the second court where the probate proceedings are pending and if the will is admitted to probate therein, it will definitely decline to take cognizance (Cuenco v. Court of Appeals, G.R. No. L-24742, Oct. 26, 1973).

Will discovered; administrator already appointed: If during the pendency of intestate proceedings, a will of the decedent is discovered, proceedings for the probate of the will shall replace the intestate proceedings even if an administrator had already been appointed therein (Cuenco v. Court of Appeals, supra). However, the discovery of adocument purporting to be the last will and testament of a deceased, after the appointment of an administrator of the estate of the latter, upon the assumption that he or she had died intestate, does not ipso facto nullify the letters of administration already issued or even authorize the revocation thereof, until the alleged will has been proved and allowed by the court (Advincula v. Teodoro, G.R. No. L-9282, May 31, 1956).

SECTION 2. COURT MAY REMOVE OR ACCEPT RESIGNATION OF EXECUTOR OR ADMINISTRATOR. PROCEEDINGS UPON DEATH, RESIGNATION OR REMOVAL

Grounds for removal of executor or administrator (RSPAI) 1. Neglect to perform an order or judgment of the court or

a duty expressly provided by these rules;2. Absconding; or3. Insanity or incapability or unsuitability to discharge the

trust;4. Neglect to render accounts (within 1 year and when

required by the court);5. Neglect to settle estate according to these rules.

Other Valid Grounds for Removal of an Administrator: 1. Adverse interest of an administrator to that of the estate

(Garcia v. Vasquez, G.R. No. L-26884, April 30, 1970).2. Physical inability and consequent unsuitability to

manage the estate (De Borja v. Tan, G.R. No. L-6476,November 18,, 1955).

3. False representation by an administrator in securing hisappointment (Cobarrubias v. Dizon, G.R. No. L-225,February 26, 1946).

The order of removal is appealable (Borromeo v. Borromeo, G.R. No. L-6363, September 15, 1955).

Note: Grounds are not exclusive.

The position of the administrator is one of confidence and when the court finds that the administrator is not entitled to such confidence, it is justified in withdrawing the appointment and giving no valid efficacy thereto (Cobarrubias v. Dizon, supra).

Examples of valid removal of administrator a. Disbursement of funds of the estate without judicial

approval;b. False representation by an administrator in securing his

appointment;c. Holding an interest adverse to that of the estate or by

his conduct shows unfitness to discharge the trust;d. Physical inability and consequent unsuitability to

manage the estate.

Degree of diligence required: An administrator is required to exercise reasonable diligence and act in entire good faith in the performance of that trust.

SECTION 3. ACTS BEFORE REVOCATION, RESIGNATION OR REMOVAL TO BE VALID Lawful acts of an administrator or executor before the revocation, resignation, or removal are valid.

SECTION 4. POWERS OF NEW EXECUTOR OR ADMINISTRATOR. RENEWAL OF LICENSE TO SELL REAL ESTATE

Power of the new executor or administrator 1. Collect and settle the estate not administered;2. Prosecute or defend actions commenced by or against

the former executor or administrator; and3. Have execution on judgments recovered in the name of

former executor or administrator.

Authority to sell previously given to the former executor or administrator may be renewed without notice or hearing.

SECTION 1. INVENTORY AND APPRAISAL TO BE RETURNED WITHIN THREE MONTHS Inventory and appraisal must be made within 3 months from the grant of letters testamentary or of administration.

The three-month period is not mandatory. The fact that an inventory was filed after the three-month period would not

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deprive the probate court of jurisdiction to approve it. However, an administrators unexplained delay in filing the inventory may be a ground for his removal (Sebial v. Sebial, G.R. No. L-23419, June 27, 1975).

Approval of an inventory is not a conclusive determination of what assets constituted the decedents estate and of the valuation thereof. Such determination is only provisional and a prima facie finding of the issue of ownership.

Property claimed by third persons may be included in the inventory as part of the assets of the estate and the probate court may order such inclusion, but such order of the probate court is only a prima facie determination and does not preclude the claimants from maintaining an ordinary civil action for the determination of title (Gonzales v. CFI Manila, G.R. No. L-34395, May 19, 1981).

SECTION 2. CERTAIN ARTICLES NOT TO BE INVENTORIED 1. 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 thedeceased.

SECTION 3. ALLOWANCE TO WIDOW AND FAMILY

Allowance Refers to the monetary advances which are subject to collation and are likewise deductible from their share in the estate of the decedent.

Persons entitled to allowance during proceedings 1. Legitimate surviving spouse (Nepomuceno v. Court of

Appeals, G.R. No. L-62952, October 9, 1985); and2. Children of the decedent.

Note: According to Art. 188 of the Civil Code, the children need not be minors or incapacitated to be entitled to allowance (Santero v. CFI of Cavite, G.R. No. 61700-03, Sept. 24, 1987).

Grandchildren are not entitled to allowance under Rule 83 (Ruiz v. Court of Appeals, G.R. No. 118671, January 29, 1996).

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 (Wagner v. Moore, G.R. No. L-25842, March 18, 1927).

SECTION 1. EXECUTOR OR ADMINISTRATOR TO HAVE ACCESS TO PARTNERSHIP BOOKS AND PROPERTY. HOW RIGHT ENFORCED

SECTION 2. EXECUTOR OR ADMINISTRATOR TO KEEP BUILDINGS IN REPAIR

SECTION 3. EXECUTOR OR ADMINISTRATOR TO RETAIN WHOLE ESTATE TO PAY DEBTS AND TO ADMINISTER ESTATE NOT WILLED

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 ofa deceased partner;

2. To examine and make invoices of the propertybelonging to the partnership in case of a deceasedpartner;

3. To maintain in tenantable repair, houses and otherstructures and fences and to deliver the same in suchrepair to the heirs or devisees when directed so to doby the court;

4. To make improvements on the properties underadministration with the necessary court approval exceptfor necessary repairs (Herrera, p. 121);

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

Some restrictions on the power of an administrator or executor (cannot ABS-LCP) 1. Cannot acquire by purchase, even at public or judicial

auction, either in person or mediation of another, theproperty under administration Art. 1491, NCC);

2. Cannot borrow money without authority of the court;3. Cannot speculate with fund under administration (Sec.

2, Rule 85);4. Cannot lease the property for more than one year (Art.

1878, NCC);

A view is held, however, that the aforesaid provision of Art. 1878 of the Civil Code on agency should not apply to leases entered into by an executor or administrator, under the theory that they represent not only the estate

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but also the parties interested therein, that they are required to file a bond and that their acts are subject to specific provisions of law and orders of the probate court, which circumstances are not true with respect to agents (Regalado, p. 65).

5. Cannot continue the business of the deceased unlessauthorized by the court (Sec. 1, Rule 84);

6. Cannot profit by the increase or decrease in the valueof the property under administration (Sec. 2, Rule 85).

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 (Estate of Hilario Ruiz v. Court of Appeals, G.R. No. 118671, January 29, 1996).

SECTION 1. EXECUTOR OR ADMINISTRATOR CHARGEABLE WITH ALL ESTATE AND INCOME

General 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.

SECTION 2. NOT TO PROFIT BY INCREASE OR LOSE BY DECREASE IN VALUE Administrator or executor shall not profit by the increase of the estate nor be liable for any decrease which the estate, without his fault, might have sustained.

SECTION 3. WHEN NOT ACCOUNTABLE FOR DEBTS DUE ESTATE The executor or administrator is not accountable if debt remains uncollected without his fault.

SECTION 4. ACCOUNTABLE FOR INCOME FROM REALTY USED BY HIM If executor or administrator uses or occupies real estate under administration, he must account for it.

SECTION 5. ACCOUNTABLE IF HE NEGLECTS OR DELAYS TO RAISE OR PAY MONEY

When accountable: 1. If an executor or administrator:

a. Neglects or unreasonably delays to raise money, bycollecting the debts or selling the real or personalestate of the deceased; or

b. Neglects to pay over the money he has in his hands;and

2. The value of the estate is lessened; or3. Unnecessary cost or interest accrues; or4. The persons interested suffer loss.

SECTION 6. WHEN ALLOWED MONEY PAID AS COSTS

SECTION 7. WHAT EXPENSES AND FEES ALLOWED EXECUTOR OR ADMINISTRATOR. NOT TO CHARGE FOR SERVICES AS ATTORNEY. COMPENSATION PROVIDED BY WILL CONTROLS UNLESS RENOUNCED

Expenses of Administration Those necessary for the management of the property, for protecting it against destruction or deterioration, and possibly for the production of fruits.

Compensation if there is no provision in the will 1. PhP4.00 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.

Attorneys fees: An administrator who is a lawyer may not recover attorneys fees from the estate; his compensation is fixed by the rule but such compensation is in the nature of executors or administrators commissions, and never as attorneys fees. A lawyer of an administrator or executor may not charge the estate for his fees, but rather, he must charge his client (the executor or the administrator).

Where the administrator is himself the counsel for the heirs, it is the latter who must pay therefor.

When a lawyer has rendered legal services to the executor or administrator to assist him in the execution of

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his trust, his attorneys fees may be allowed as expenses of administration. The estate, is, however, not directly liable for his fees, the liability for the payment resting primarily on the executor or administrator. If the administrator had paid the fees, he would be entitled to reimbursement from the estate (Occena v. Marquez, G.R. No. L-27396, September 30, 1974).

Procedure for collection of attorneys fees 1. Request the administrator to make payment and file an

action against him in his personal capacity and not asadministrator should he fail to pay; or

2. Petition in the testate or intestate proceeding asking thecourt, after notice to all persons interested, to allow hisclaim and direct the administrator to pay it as anexpense of administration (Herrera, p.123).

SECTION 8. WHEN EXECUTOR OR ADMINISTRATOR TO RENDER ACCOUNT General Rule: Within one year from the time of receiving letters testamentary or letters of administration.

Exception: An extension of time is allowed by the court for presenting claims against, or paying the debts of the estate, or for disposing of the estate; and he shall render such further accounts as the court may require until the estate is wholly settled.

The fact that the final accounts had been approved does not divest the court of jurisdiction to require supplemental accounting for, aside from the initial accounting, the Rules provide that he shall render such further accounts as the court may require until the estate is wholly settled. (Tumang v. Laguio, G.R. No. L-50277, February 14, 1980).

SECTION 9. EXAMINATIONS ON OATH WITH RESPECT TO ACCOUNT

Examination may be dispensed with when: 1. No objection is made to the allowance of the account;

and2. Its correctness is satisfactorily established by

competent proof.

The heirs, legatees, distributees and creditors have the same privilege of being examined.

SECTION 10. ACCOUNT TO BE SETTLED ON NOTICE

SECTION 11. SURETY ON BOND MAY BE PARTY TO ACCOUNTING

SECTION 1. NOTICE TO CREDITORS TO BE ISSUED BY COURT

Money Claims Claims for money, debt or interest thereon upon a liability contracted by the decedent before his death (Festin, p. 75).

When may the court issue notices to creditors to file their claims? Immediately after granting letters testamentary or of administration.

Claims arising after his death cannot be presented except for: 1. Funeral expenses; and2. Expenses of the last sickness of the decedent.

Claims for taxes (inheritance and estate) due and assessed after the death of the decedent need not be presented in the form of a claim. The court in the exercise of its administrative control over the executor or administrator may direct the latter to pay such taxes (Pineda v. CFI of Tayabas, G.R. No. L-30921, February 16, 1929).

The heirs, even after distribution, are liable for inheritance and estate taxes (Government of the Philippine Islands v. Pamintuan, G.R. No. L-33139, October 11, 1930).

SECTION 2. TIME WITHIN WHICH CLAIMS SHALL BE FILED

Statute of Non-Claims The period fixed by the rule for the filing of the claims against the estate.

Reason for the rule: For the speedy settlement of the affairs of the deceased and the early delivery of the property to the distributees, legatees or heirs.

Where to File Claims: All money claims must be entertained by Settlement Court regardless of amount. (Sec. 1) In other words, B.P. Blg. 129 is not applicable.

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

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after the date of the first publication. Otherwise, they are barred forever.

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.

Exception: Belated claims

Belated Claims 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 an order of distribution is entered, the court may, for cause shown and 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.

Note: The statute of non-claims supersedes the statute of limitations insofar as the debts of deceased persons are concerned because if a creditor fails to file his claim within the time fixed by the court in the notice, then the claim is barred forever. However, both statute of non-claims and statute of limitations must concur in order for a creditor to collect; thus, a creditor cannot claim, even if within the statute of non-claims, if his claim has already prescribed under the statute of limitations.

However, a creditor barred by the Statute of Non-claims may file a claim as a counterclaim in any suit that the executor or administrator may bring against such creditor (Sec 5).

Good excuse for late filing The pendency of the action before the regular courts was cited as a good excuse for the tardiness of the claim (Echaus v. Blanco, G.R. No. L-30453, December 4, 1989).

SECTION 3. PUBLICATION OF NOTICE TO CREDITORS. Publication of the notice for 3 successive weeks in a newspaper of general circulation in the province and post the same in 4 public places in the province and in 2 public places in the municipality where the decedent last resided.

SECTION 4. FILING COPY OF PRINTED NOTICE. 10 days after publication and posting.

Note: A notice to creditors to file their claims is not proper if only a special administrator has been appointed as a special administrator is generally not empowered to pay the debts of the deceased (Sec. 2, Rule 80) and his bond,

unlike that of a regular administrator, is not conditioned upon the payment of such debts (Regalado, p. 74).

SECTION 5. CLAIMS WHICH MUST BE FILED UNDER NOTICE. IF NOT FILED, BARRED; EXCEPTIONS. Claims referred to under this section refer to claims for the recovery of money and which are not secured by a lien against the property of the estate (Olave v. Canlas, G.R. No. L-12709, February 28, 1962).

If the claim is secured; apply Sec. 7 of this Rule.

Claims which should be filed under the Statute of Non-claims 1. Money claims, debts incurred by deceased during his

lifetime 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;4. Judgment for money against decedent.

Note: The enumeration is exclusive (Festin, p. 75).

A money claim arising from a crime of 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 (Sec. 1, Rule 87) or against the heirs (Belamala v. Polinar, G.R. No. L- 24098, November 18, 1967).

Unpaid taxes are not covered by the statute of non- claims as these are monetary obligations created by law (Vera, et al. v. Fernandez, et al., G.R. No. L- 31364, March 30, 1979).

Absolute Claim Such a claim as, if contested between living persons, would be proper subject of immediate legal action and would supply a basis of a judgment for a sum certain.

Contingent Claim A conditional claim or claim that is subject to the happening of a future uncertain event.

It has reference to the uncertainty of liability, and not to uncertainty of collection (Gaskell v. Tan Sit, G.R. No. 18405, September 23, 1922).

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

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A deficiency judgment is a contingent claim and therefore, must be filed with the probate court where the settlement of the deceased is pending, within the period fixed for the filing of claims (First National City Bank of New York v. Cheng Tan, G.R. No. L-14234, February 28, 1962).

Claims Extinguished by Death Actions which Survive

Personal to either of the parties and is extinguished by death

Claim is not extinguished by death but shall be prosecuted as a money claim against the estate of the deceased

Examples: legal separation, annulment of marriage, declaration of nullity of marriage

Example: contractual money claim

Where the defendant dies while the action for a sum of money is pending against him in the Court of Appeals, he shall be substituted therein by his legal representative but the final judgment of the appellate court shall not be enforceable b

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