Personal copy of ATTY. RENE CALLANTA,jr

SPECIAL PROCEEDINGS - A remedy by which a party seeks to establish a status, a right or a particular fact (Rule 1, Section 3) JURISDICTION : Regional Trial Court EXCEPTION: MTC can entertain Special proceedings where: 1. the gross value of the estate does not exceed 200T/400T (BP 129) 2. It acts in Cadastral and Land Registration Proceedings (Sec. 35 Judiciary Act)  appeal is taken to the CA, not to the RTC since MTC is equal to RTC in this instance 3. Habeas Corpus where no RTC judge is available *** The rule on demurrer to evidence in civil cases, is applicable in special proceedings.

Special proceedings: a) Settlement of estate of deceased persons b) Escheat c) Guardianship and custody of children d) Trustees e) Adoption f) Rescission and revocation of adoption g) Hospitalization of insane patient h) Habeas corpus i) Change of name j) Voluntary dissolution of corporations k) Judicial approval of voluntary recognition of minor natural children; l) Constitution of family home m) Declaration of absence and death n) Cancellation of correction of entries in civil registry

1. Constitution of Family Home – now covered by the Family Code 2. Voluntary Dissolution of Corporations – now covered by the Corporation Code and the SEC rules *** However, judicial approval of recognition of minor children is still included. An illegitimate child must still establish filiation in order to have a personality in the settlement of the estate of the deceased.

CIVIL Action
To protect or enforce a right, or to prevent or redress a wrong Initiated by Complaint Definite Parties (involves 2 or more parties) Answer is filed Handled by court of general jurisdiction Adversarial (pleadings are required ) Statute of Limitations applies 15-day appeal period

To establish a status, right, or a particular fact Initiated by Petition Definite petitioner, no definite adverse party (may involve only one party ) Opposition is filed Heard by court of limited jurisdiction Not adversarial ( petition or application is sufficient ) No statute of limitations 30-day appeal period

Sigma Rho ( ΣΡ ) reviewers


Personal copy of ATTY. RENE CALLANTA,jr

Settlement of estate of deceased persons i. RTC – Gross value of the estate exceeds P200,000/P400,000 ii. MTC – Gross value of the estate does not exceed P200,000/P400,000 If resident – place where deceased resided at time of death If non-resident – place where deceased had estate Escheat i. Ordinary escheat proceedings: RTC If resident – place where deceased last resided If non-resident – place where he had estate ii. Reversion of land to State for violation of Constitution / Laws: RTC where land lies in whole or in part iii. Unclaimed deposits (for 10 years): RTC of province where bank is located *** All banks located in 1 province where court is located may be made parties defendant in 1 action. Guardianship and custody of children: Family Court If resident – place where minor/incompetent resides If non-resident – place where minor/incompetent has property Trustees i. RTC – Gross value of the estate exceeds P200,000/P400,000 ii. MTC – Gross value of the estate does exceed P200,000/P400,000 If will allowed in the Philippines – court where will was allowed If will allowed outside the Philippines – court in place where property is situated Adoption: Regional Trial Court If domestic adoption – place where adopter resides If inter-country adoption – court who has jurisdiction over the adoptee Rescission and revocation of adoption: Regional Trial Court Hospitalization of insane patient: RTC in place where person alleged to be insane is found Habeas corpus i. SC ii. CA iii. RTC (within its respective region) iv. MTC (in absence of RTC judges in province/city) Change of name i. 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 place where he resides Consul General: if applicant resides abroad Voluntary dissolution of corporations: SEC

Sigma Rho ( ΣΡ ) reviewers


Personal copy of ATTY. RENE CALLANTA,jr

Constitution of family home: under the Family Code, it is deemed constituted on a house and lot from the time it is occupied as a family residence Declaration of absence and death: RTC in place where absentee resided before his disappearance Cancellation of correction of entries in civil registry i. Judicial (Rules of Court): RTC in place where the civil registry is located ii. Administrative (RA 1948):Civil registar where entry is located or if applicant migrated: civil registar in place where he resides Consul General: if applicant resides abroad

Section 1. – Where estate of deceased persons settled. 2 Kinds of Settlement A. EXTRAJUDICIAL SETTLEMENT  (Rule 74, Section 1) B. JUDICIAL SETTLEMENT  proceedings instituted in the country where decedent has his residence a. intestate- letters of administration b. testate-petition for probate Venue on settlement proceedings: 1. If the decedent is an inhabitant of the Philippines. – RTC in province which he resides at the time of death. 2. If decedent is an inhabitant of a foreign country. – RTC of any province in which he had estate. RESIDENCE – connotes physical presence with continuity or consistency in a place where the party actually resides as distinguished from DOMICILE which connotes permanent and “animus rivertendi” or intention to return. *** This place of residence of the deceased in settlement of estates, probate of a will, and in the issuance of letters of administration is merely constitutive of venue.
*** Filing of probate not in the residence of the deceased is only a matter of venue and not jurisdictional which can be waived by the parties. CUENCO vs. COURT OF APPEALS (13 SCRA 360) For purposes of determining what court has jurisdiction in the settlement of a deceased’s estate, the residence of the deceased or the location of his estate is not an element of jurisdiction over the subject matter but merely of venue.

SETTLEMENT OF ESTATE UPON DISSOLUTION OF MARRIAGE: 1. By the death of the husband or wife – the estate shall be settled in the testate or intestate proceedings of the deceased spouse. 2. By the death of both spouses – the estate shall be settled in the testate or intestate proceedings of either.

*** Settlement of estate of deceased Muslims shall be filed before the Shari’a Court (PD 1083). JURISDICTIONAL FACTS:
- Probate court acquire jurisdiction upon the Filing of petition for settlement

Sigma Rho ( ΣΡ ) reviewers


Personal copy of ATTY. RENE CALLANTA,jr

A court acquires jurisdiction to probate a will when it is shown by evidence before it that: a. person has died leaving a will; b. in case of a resident of this country, he died in the province where the court exercises territorial jurisdiction;or c. in the case of a non-resident, he has left an estate in the province where the court is situated; and d. the last will or testament of the deceased has been delivered to the court, and is in possession thereof. EXCLUSIONARY RULE: “ xx The court first taking cognizance of the settlement of the estate of the decedent, shall exercise jurisdiction to the exclusion of all other courts. xxx” GENERAL RULE: Exclusionary EXCEPTION: 1. laches 2. waiver GENERAL RULE :The jurisdiction assumed by a court, so far it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding. EXCEPTIONS: 1) In an appeal from that court, in the original case; 2) When the want of jurisdiction appears on the record. Rationale is to preclude other courts from assuming jurisdiction (Cuenco vs. CA 53 SCRA 360) Remedy if the venue is improperly laid: ordinary appeal not certiorari or mandamus unless want of jurisdiction appears on the record of the case. NOTE: Jurisdiction under Rule 73 Sec. 1 does not relate to jurisdiction per se but to venue, hence institution in the court where the decedent is neither an inhabitant or have his estate may be waived. (Uriarte vs. CFI) GENERAL RULE: Probate court cannot issue writs of execution EXCEPTIONS: 1. To satisfy the contributive share of the devisees, legates and heirs (Sec. 6 Rule 88) 2. To enforce payment of the expenses of partition (Sec. 3 Rule 90) 3. To satisfy the court when a person is cited for examination in probate proceeding (Sec. 13, Rule 142) 4. To satisfy the claim in summary settlement proceedings of creditors or heirs who appear within 2 years from the distribution.
DE BORJA vs. VDA. DE BORJA (46 SCRA 577) Where the compromise agreement entered into by and between the various heirs in the personal capacity, the same is binding upon them as individuals, upon the perfection of the contract, even without previous authority of the court to enter into such agreement. The only difference between an extrajudicial compromise and one that is submitted and approved by the court, is that the latter can be enforced by execution proceeding.

QUESTIONS WHICH THE PROBATE COURT CAN DETERMINE: 1. Who are the heirs of the decedent; 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 a property in the inventory is conjugal or exclusive; 8. All other matters incidental or collateral to the settlement and distribution of the estate.
POWERS OF THE PROBATE COURT: 1. Issuance of writs and processes; 2. Require the appearance of witnesses; 3. Declaration heirship, recognition, disinheritance, status of alleged wife, repudiation; 4. Other matters incidental or collateral to the settlement of the estate; 5. Issuance of writ of execution;

Sigma Rho ( ΣΡ ) reviewers


2. the partnership affairs must be liquidated in the testate or intestate proceedings of the deceased husband or wife. The balance may be recovered by motion in the same proceeding. EXCEPTION: 1. RULE 74 SUMMARY SETTLEMENT OF ESTATE KINDS OF SETTLEMENT OF ESTATE: 1. his estate is submitted to a judicial settlement proceeding. without prejudice to its final determination in a separate action. jurisdiction to declare who are the heirs of the deceased testator and whether or not a particular party is or should be declared his acknowledged natural child. Action for partition in case of disagreement of the heirs. GENERAL RULE: If a person dies. A: If such person is alive. Extrajudicial settlement by agreement between heirs. MODES OF EXTRA JUDICIAL SETTLEMENT 1. > Legitime may be recovered. summary settlement of estate Section1. 3. (Such property may be recovered in the condition in which it may be found or its price if sold but he is not entitled to fruits and rent). *** Upon the death of either the husband or the wife. Judicial settlement through letters testamentary or letters of administration with or without a will. or 2. no will b. When all the parties are heirs and they submit the issue of ownership to the probate court provided that the rights of third parties are not prejudiced (Bernardo vs. 3. said court having. ownership may be determined for the purpose of including property in inventory. Q: What is the effect of re-appearance of a person declared dead for purposes of settlement of his estate.REMEDIAL NOTES 2004 . extrajudicial settlement of estate b. EXCEPTIONS: The heir/s may resort to: a. RENE CALLANTA.jr ISSUE OF OWNERSHIP GENERAL RULE: Probate courts are of limited jurisdiction and cannot determine issue of ownership. Provisionally. no debts the heirs are all of age or the minors are represented by their judicial or legal representatives duly authorized for the purpose PROCEDURAL division of estate must be in a public instrument filed with proper Registry of Deeds publication of notice of petition once a week for three consecutive weeks bond filed equivalent to the value of personal property Sigma Rho ( ΣΡ ) reviewers 5 . Section 1.SIGMA RHO . If both have died. CA) UNARTE vs. Affidavit of self-adjudication by an heir or extra judicial settlement by one heir filed with the registry of deeds under Rule 74. 2. REQUISITES SUBSTANTIVE the decedent left a.CALLANTA & PARTNERS Personal copy of ATTY. CFI OF NEGROS (33 SCRA 252) A party claiming to be an acknowledged natural child of the testator is entitled to intervene in proceedings for the probate of the will of testator if it is still open or to ask for its reopening if it has already been closed so as to be able to submit for determination the question of his acknowledgment as a natural child of the deceased testator. Extra judicial settlement. Summary settlement of estate of small value. Extra judicial settlement by agreement of the heirs under Rule 74 Section 1. Where the estate settled upon dissolution of marriage. he shall be entitled to the balance of his estate after payment of all his debts. Section 2. in its capacity as a probate court. liquidation may be made in the testate or intestate proceedings of either.

rebuttable. resorted at the instance and by agreement of all heirs JUDICIAL SETLLEMENT 1. there must be no outstanding debts of the estate at the time of settlement 5. available even if there are debts.CALLANTA & PARTNERS Personal copy of ATTY. Such presumption is however. Satisfy the just claim of creditor of decedent within two (2) years after the settlement and distribution of an estate. value of the estate immaterial 3. stipulation for extrajudicial partition during the pendency of the action of partition one heir – affidavit of adjudication If personal property is involved – file a bond If real estate – no need to file a bond. allowed in both testate and intestate 4. TORRES (114 SCRA 478) Where the deceased left no debts and the heirs or legatees are all of age. bond to be determined by the court personal property *** There is a presumption that the decedent left no debts if no creditor files a petition for letters of administration within 2 years after the death of the decedent. TORRES vs. Satisfy the share of prisoner or outside the Philippines deprived of his claim. 2. SUMMARY SETTLEMENT VS. no court intervention 2.SIGMA RHO . EXTRA JUDICIAL SETTLEMENT: POINTS OF SUMMARY SETTLEMENT EXTRA JUDICIAL COMPARISON SETTLEMENT 1) As to Court intervention With the court intervention Without court intervention 2) As to value of the estate 3) As to the availability 4) As to debt 5) As to the consent of heirs 6) As to the amount of the bond Value of gross estate must be P10. *** No extra judicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. deprived of his claim. RENE CALLANTA. gross estate must not exceed P10T 3. may be instituted by any interested party even a creditor of the estate without the consent of all heirs 6. 3. there is no necessity for the institution of special proceedings and the appointment of an administrator for the settlement of the estate because the same can be effected either extrajudicially or through an ordinary action for partition. > Within one year after such disability is removed.REMEDIAL NOTES 2004 .jr Is a Public Instrument necessary for the validity of an extrajudicial settlement? NO. amount of bond is equal to the value of 6. Satisfy the share of unduly deprived heir. *** Real estate is subject to a lien in favor of creditors or heirs 2 years EXTRAJUDICIAL SETTLEMENT 1. Satisfy the share of minor or incapacitated person. public instrument 2.00 or less which is jurisdictional Available both in testate and intestate Apply even if there is debt left Filed by any interested person even without the consent of the heirs Amount is determined by the court Value of estate is immaterial Available only in intestate Apply only when there is no debt left Filed and resorted to only by the heirs Amount is based on the value of personal property Sigma Rho ( ΣΡ ) reviewers 6 . 4. requires summary judicial adjudication 2.000. WAYS OF EFFECTING EXTRAJUDICIAL PARTITION: 1. it is the court which will make provision for its payment 5. allowed only in intestate succession 4. Oral agreement of partition is valid among the heirs who participated in the extrajudicial settlement. LIABILITY OF DISTRIBUTEES AND ESTATE TO: 1.

Publication of notice once a week for 3 consecutive weeks in a newspaper of general circulation in the province of residence and other notice to interested persons. 2.00 3. By the petition of an interested person and 4. without the appointment of an executor or administrator. and without delay. 1 Rule 74 have been strictly complied with. b. conclusive as to execution. Apportion and divide it among them after the payment of such debts of the estate.SIGMA RHO . if any. c. Summary Settlement of estate of small value. the unpaid creditor may. Summary settlement of estate is a procedure by which. distribution is made all in a single hearing and a single order without appointment of any administrator or executor. Date for hearing shall be set by court which shall: a. After the lapse of the 2-year period. Section 4.and d. Sigma Rho ( ΣΡ ) reviewers 7 . 3. The court may proceed summarily. be held not less than one month nor more than three months from date of last publication of notice. RENE CALLANTA. once a week for three consecutive weeks in a newspaper of general circulation. testate or intestate. IMPORTANT: 1. 5. his will. b. file a motion in the court wherein such summary settlement was had. if any.CALLANTA & PARTNERS Personal copy of ATTY. Andal) RULE 75 PRODUCTION OF WILL. 6. (Hernandez vs. Custodian of a will . an ordinary action may be instituted against the distributees within the statute of limitations but not against the bond. Where the decedent died whether. be published. b. CA) *** Extrajudicial partition is not binding upon any person who did not participate or who had no notice *** The requirement of a public instrument does not apply when there are no creditors or the rights of creditors are not affected. After hearing held not less than one (1) month nor more than three (3) months from the date of the last publication of notice.Within 20 days from knowledge of death *** Executor to present will & accept or refuse trust within20 days Probate of a will – juridical act whereby an instrument is adjudged valid and is ordered to be recorded. and c. Determine who are the persons legally entitled to participate in the estate. PROCEDURAL REQUIREMENTS: 1. (Sampilo vs. Notice shall be served upon such interested persons as the court may direct. Application must contain allegation of gross value of estate.000. the heirs and legatees are declared. ALLOWANCE OF WILL NECESSARY Section 1. grant: a. are paid. *** Where the estate has been summarily settled. is allowed. his debts. Liability of distributees and estate. within 2 years.Deliver to court or executor . 2. if any. Allowance necessary. Gross value of the estate does not exceed P10.jr Section 2. in a summary manner: a. NOTE: The provision of Sec. 4 Rule 74 barring distributees or heirs from objecting to an extrajudicial partition after the expiration of 2 years is applicable only to: 1) persons who have taken part or had notice of the extrajudicial partition and 2) when the provisions of Sec. Allowance of the will.REMEDIAL NOTES 2004 . for the payment of his credit.

because of the public policy to obey the will of the testator.jr NATURE OF PROBATE PROCEEDINGS 1. a criminal case against the forger may not lie after the will has been probated. (Fernandez vs. 3. Dimagiba) *** Non payment of court fees not jurisdictional EFFECT OF THE PROBATE OF A WILL: It is conclusive as to the execution and the validity of the will (even against the state). Testate Proceeding where the decedent died leaving a will in which probate proceeding is commenced by petition for allowance of the will and the issuance of letters testamentary. Probate proceedings are proceedings in rem hence binding on the whole world. This is governed by Rule 75 up to Rule 90. we hasten to the rule that in the broader interests of justice. It is also imprescriptible. KINDS OF JUDICIAL SETTLEMENT OF ESTATE 1.REMEDIAL NOTES 2004 . COURT OF APPEALS (114 SCRA 478) An act done by a probate court in excess of its jurisdiction may be corrected by certiorari. 2. 2. And even assuming the existence of the remedy of appeal. particularly where appeal would not afford speedy and adequate relief. RULE 76 ALLOWANCE OR DISALLOWANCE OF WILL JUDICIAL SETTLEMENT OF AN ESTATE: Settlement is made through court by special proceedings with full-blown procedure with either administrator or executor managing the estate pending trial and until partition and distribution of the remaining estate to the heirs and legacies or devisees. EXCEPTION: Where the defect is apparent on its face. Guimco) MANINANG vs. Nuguid.SIGMA RHO . Balanay vs. *** No will shall pass either real or personal property unless it is proved & allowed in the proper court *** The doctrine of estoppel does not apply in a probate proceeding by reason of public policy. It does not refer to a mere possessor of the will. REPROBATE: > a specific proceeding to establish the validity of a will proved in a foreign country. Intestate Proceeding where the decedent died without a will or the same was disallowed which is commenced by petition for issuance of letters of administration. EFFECT of ALLOWANCE (conclusive as to) 1) Due execution 2) Validity 3) Capacity of testator GENERAL RULE: Probate court can only determine the intrinsic validity of a will after its extrinsic validity is established. *** The act penalized in §4 (where the custodian and executor is subjected to a fine for neglect) is a special statutory offense and is properly prosecuted upon complaint or information as other criminal offenses created by law (US vs. Martinez) Custodian is a person chosen in advance and entrusted with the custody of the will.CALLANTA & PARTNERS Personal copy of ATTY. Thus. RENE CALLANTA. (Nuguid vs. a petition for certiorari may be entertained. It is mandatory. Sigma Rho ( ΣΡ ) reviewers 8 .

6. testator himself *** PUBLICATION confers jurisdiction over the RES > BUT. devisee or legatee named in the will 3. Exception is where the will clearly preterited a compulsory heir which invalidates the whole will.CALLANTA & PARTNERS Personal copy of ATTY. (Sanchez vs. the court need not go through with the probate of the will (Nuguid vs. Judgment for allowance of the will and certificate of allowance. 13. legatees and devisees is known > OTHERWISE. Distribution and partition of the residue of the estate. no need for publication *** NOTICE is required if address or residence of the heirs. *** Testacy prevails over intestacy such that a pending intestate proceedings must be replaced by a probate proceeding. 16. 10. Filing of petition for probate or allowance of will. 8. CA 1973) *** The right to petition for probate of will may be filed any time and is (imprescriptible) and not subject to bar by statute of limitations by reason of public policy (Guevara vs. Guevara 98 Phil 249) *** The probate of will is a proceedings in rem which binds the whole.SIGMA RHO . Filing or presentation of claims against the estate of the deceased. CA 279 SCRA 647) SUMMARY OF PROCEDURE IN THE ALLOWANCE OF A WILL & JUDICIAL SETTLEMENT OF THE ESTATE: ( Rule 75 to Rule 90 ) 1. 3. Submission of wills to the court. The will was executed in accordance with formalities required by law. *** The probate court can resolve only questions of ownership provisionally for purposes of including or excluding it in the inventory. world that is why it requires publication as constructive notice. 7. 18. any creditor 2. Petition for appointment of administration if no executor was appointed. Inventory and appraisal of the estate of the decedent which includes: 14. 4. action by and against executor or administrator 15. Petition for appointment of executor of letters testamentary. It must be threshed out in a separate action. Accounting by the Executor/Administrator and closing of the state proceedings Requisites for Allowance of Will: 1. sale or mortgage or encumbrances of property of estate. 9. if probate is upon testator’s motion. person interested in the will 4. Section 1. Registration of the will and certificate of allowance. The will was executed by the testator with sound mind and capable of disposing his estate.jr IMPORTANT ASPECTS OF PROBATE OF ALLOWANCE OF WILLS *** No will shall pass either real or personal estate unless it is proved and allowed in the proper court. 17. RENE CALLANTA. Who may petition for allowance of will. upon discovery of the existence of that will. 2. 12. such as allowance of the will shall be conclusive to its due execution. 12. it’s the time to go back to intestacy (Cuenco vs. 1. Opposition to contest petition for appointment of executor or letters testamentary.REMEDIAL NOTES 2004 . Nuguid 17 SCRA 449) *** Subject to the right of appeal. Dimagiba Oct. Contest of the will for its disallowance. Payment of the debts of the estate of the deceased. 11. 1967) *** Doubts are resolved in favor of testacy where the will evidences intent of testator to dispose of his whole estate (Balanay vs. If disallowed. court still requires jurisdiction by mere publication Sigma Rho ( ΣΡ ) reviewers 9 . 5. 2. Appointment of special administrator pending hearing of petition and opposition for Petition for appointment of executor or administrator. Appointment of executor/administrator with all its powers and duties and accountabilities. Hearing of Court of proofs of due execution of the will. Martinez). *** The doctrine of estoppel does not apply in probate proceedings since the presentation of a will are required by public policy and involves public interest (Fernandez vs.

Section 4. A person who neglects any of the duties required herein without excuse satisfactory to the court shall be fined not exceeding P2. the testator was of sound and disposing mind at the time the will was made 2.SIGMA RHO . A person having custody of a will who neglects without reasonable cause to deliver the same. 5) Signature of testator was procured by fraud/trick and she/he did not intend instrument to be will. legatees. FILED BY THIRD PERSON FILED BY TESTATOR HIMSELF Notice published once a week for 3 Newspaper publication not required consecutive weeks Personal notice given to designated/known Personal notice sent only to testator’s heirs. He has no more interest in the decedent’s estate. no proof of publication is necessary. is not an “interested party” who can institute intestate proceedings and petition for the issuance of letters of administration.00. NOTE: 3 consecutive weeks is not strictly 21 days. 2. 2) Testator was mentally incapacitated to make a will or insane at the time of execution. or threats. 2. By the Executor – to present the will and/or to accept or refuse the trust within 20 days after knowledge of the death of testator Penalty for Failure to Comply: 1. *** If petition for probate is on testator’s own initiative during his lifetime.000. Heirs. strictly complied with the formalities 4. SUBMISSION OF THE WILLS TO THE COURT FOR PROBATE. DURAN (20 SCRA 379) A legal heir. or to the executor named in the will. Court to appoint time for proving will. may be committed to prison and there kept until he delivers the will. 3) Probable value and character of property of estate. who in a public instrument assigned and renounced his hereditary rights in favor of the decedent’s widow. no duress. legatees and executors to be notified by mail or personally. fraud or undue influence 3. will was genuine and not fraudulent GROUNDS FOR DISALLOWING WILL: 1) Not executed and attested as required by law. By Whom: 1. RENE CALLANTA. devisees.CALLANTA & PARTNERS Personal copy of ATTY. influence of fear. 2) Names. ages and residences of heirs. the name of the person having custody of it. Notice thereof to be published. *** When does court acquire jurisdiction over interested persons and res? Upon sending notices and publication for three consecutive weeks of the order setting the case for hearing. and devisees.jr DURAN vs. legatees and devisees compulsory heirs Section 3. 4) Procured by undue and improper influence and pressure on the part of the beneficiary or of some other person for his/her benefit. by the court having jurisdiction. Contents of petition for probate: 1) Jurisdictional facts. *** 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 Differences between petition for probate filed by third persons.REMEDIAL NOTES 2004 . 4) Name of person for whom letters are prayed. and by testator himself. when ordered. 3) Executed under duress. Sigma Rho ( ΣΡ ) reviewers 10 . and 5) If will has not been delivered to the court. By the custodian of the will – to deliver within 20 days after knowledge of the death of testator to the court having jurisdiction. WHAT IS DUE EXECUTION? Due execution means that 1.

the proceeding in his last domicile ANCILLARY ADMINISTRATION. in holographic wills – 3 witnesses who knows the handwriting of testator.court may grant allowance on the testimony of one of the subscribing witnesses and in a holographic will. EVIDENCE in support of will: 1. Provisions are clearly and distinctly proved by at least to (2) credible witnesses. *** 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 *** DEPOSITIONS of witnesses may be taken showing them a Xerox copy of the will *** In case of a HOLOGRAPHIC WILL. and the certificate must be filed and recorded as other wills are filed and recorded. Execution and Validity of will is established.REMEDIAL NOTES 2004 . 3. *** However.jr By mail: 20 days before hearing Personal notice: 10 days before hearing Section 5. ( Gan vs. 4. (Doctrine of Processual Presumption) *** A will allowed probate in a foreign country. separate administration proceedings must be had in said countries. 2. Proof of hearing.Evidence must be presented GENERAL RULE: Holographic will if destroyed cannot be probated.CALLANTA & PARTNERS Personal copy of ATTY. If none is available. EXCEPTION: If there exists a Photostat or Xerox copy thereof. or in conformity with the formalities prescribed by our Civil Code. If not contested . in Codoy vs. or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge. Sigma Rho ( ΣΡ ) reviewers 11 . *** A lost will cannot be admitted for probate on an agreement of stipulation . or according to the formalities observed in his country. PRINCIPAL ADMINISTRATION or domicilliary proceedings. 3 witnesses who know the handwriting and signature of the testator are now required/mandatory to prove its authenticity and for its allowance. What is sufficient in absence of contest. If contested – in notarial wills.the administration proceedings where he left his estate. must be re-probated in the Philippines. Existence of the will is proven at the time of death of testator. Provisions thereof must be Distinctly stated and certified by the judge. RENE CALLANTA. by an expert witness. If the decedent owns properties in different countries. expert testimony may be resorted to. foreign laws on a particular subject are presumed to be the same as those of the Philippines. it is not mandatory that witnesses be first presented before expert testimony may be resorted to PROOF OF LOST OR DESTROYED WILL: Requisites: 1. the SC ruled that if the holographic will is contested. *** In the absence of evidence to the contrary. Calugay. the testimony of one witness who knows the handwriting and signature of the testator shall testify and in the absence thereof. ALL subscribing witnesses and notary public must be presented. Yap) RULE 77 ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER *** NATIONAL LAW of the testator is the one thet governs his testamentary disposition When may a will of an alien in a foreign country produce effect in the Philippines? If made with the formalities prescribed by the law of the place in which he resides. 2. under the seal of the court.SIGMA RHO .

A person dies Intestate Sigma Rho ( ΣΡ ) reviewers 12 . one who in the opinion of the court is unfit to exercise the duties of the trust by reason of a. Administrator. although there is a will. Executor failed to give Bond. Refusal of executor to accept trust. or if appointed. 3. or 5. said person is either incapacitated or unwilling to serve. 2. 5. SUNTAY (95 PHIL 500) The lack of objection to the probate of a last will will not relieve the proponent thereof or the party interested in its probate from establishing its due execution and proving clearly and distinctly the provisions thereof by at least two credible witnesses as provided for in Section 6 Rule 77 of the Rules of Court.One appointed by the State for the administration of the property of the deceased in case the decedent failed to leave a will. or executor named is not competent or refuses the office. that the foreign tribunal is a probate court. or 4. conviction for an offense involving moral turpitude Requisites for a person to be appointed executor or administrator: 1) Accepts the trust 2) Gives a BOND 3) Competent LETTERS TESTAMENTARY . want of understanding and integrity d. and 3. Executor. drunkenness b.CALLANTA & PARTNERS Personal copy of ATTY. Incompetent executor or executors. RENE CALLANTA. PEOPLE WHO CAN ADMINISTER THE ESTATE: 1. SUNTAY vs.The one appointed by the testator in his will for the administration of his property after his death. 3. a minor 2. Administrator with a will annexed (Rule 79.jr What should be proved in reprobation? The following need to be established: 1. the laws of a foreign country on procedure and allowance of the will in accordance therewith and in the absence of proof of foreign law. ADMINISTRATOR WITH A WILL ANNEXED – one appointed by the court in cases when. due execution of the will in accordance with foreign laws.Authority issued to an executor named in the will to administer the estate. regular or special (Rule 80). the will does not appoint any executor. that the will has been admitted to probate in such country. improvidence c. a non-resident 3. domicile of the testator in the foreign country and not in the Philippines. No executor is named in the will. or if he failed to appoint one even if he left a will. Any competent person may serve as executor or administrator – He is incompetent if: 1. RULE 78 LETTERS TESTAMENTARY AND OF ADMINISTRATION WHEN AND TO WHOM ISSUED. ADMINISTRATOR .REMEDIAL NOTES 2004 . 4. 2.SIGMA RHO . or 2. Petition for Issuance of Letters of Administration – GROUNDS FOR ISSUANCE: 1. processual presumption applies. Section 1) EXECUTOR .

except: (1) latter has an additional requirement (the last. subsequent to the petition void and subject to annulment. *** The ORDER OF PREFERENCE: this provision is not mandatory for the courts to obey.SIGMA RHO . age. jurisdictional facts. see Rule 76). ANGELES (162 SCRA 347) Notice through publication of the petition for the settlement of the estate of a deceased person is jurisdictional. residence of heirs and creditors. request to have appointed. ANY one or more of the principal creditors . GROUNDS FOR OPPOSING 1) Incompetency 2) Contestants right to administration 3) Requirements not fulfilled *** Even where a person who had filed a petition for the allowance of the estate of the deceased person had no right to do so in view of his lack of interest in the estate.No power over property in another state RULE 79 OPPOSING ISSUANCE OF LETTERS TESTAMENTARY PETITION AND CONTENTS FOR LETTERS OF ADMINISTRATION Contents of a petition for letters of administration: a. The filing of the petition may be considered as having been ratified by the interested parties. or to such person as such surviving spouse or next of kin. it develops that there is another who has more interest therein than the surviving spouse. name of the person for whom letters is prayed for NOTE: Essentially the same as contents of petition for probate. or if the surviving spouse or next of kin neglects for thirty (30) days after the death of the decedent to apply for administration. if competent and willing to serve. 3) If there is no such creditor competent and willing to serve. it may be granted to such other person as the court may select. RENE CALLANTA. Sigma Rho ( ΣΡ ) reviewers 13 . Valmores 97 PHIL 163) DE GUZMAN vs. GABRIEL vs.REMEDIAL NOTES 2004 . 2) If the surviving spouse or the next of kin or the person selected by them be incompetent or unwilling to serve. where the interested persons did not object to its application. c. and (2) in the latter. name. (Eusebio vs. if competent and willing to serve. or both in the discretion of the court. RULE: Administration extends only to the assets of the decedent within the state where it was granted . probable value and character of the property d. If under the circumstances of each case. the preference established in the latter’s farm becomes untenable. b. What is the main issue in an administration proceeding?  Who is the person rightfully entitled to administration. COURT OF APPEALS (21 SCRA 413) Failure to apply for letters of administration for thirty days after the decedent’s death is not sufficient to exclude the widow from the administration of the estate of her husband. IN RE: INTESTATE OF DE GUZMAN (67 PHIL 404) The preference provided by law for the appointment of the administrator of the estate is not absolute if there are other reasons justifying the appointment of an administrator other than the surviving spouse. the absence of which makes court orders affecting other persons.jr ORDER OF PREFERENCE 1) The surviving husband or wife or the next of kin. no need to name creditors in the petition. nevertheless.CALLANTA & PARTNERS Personal copy of ATTY. the defect in the petition would be deemed cured. Just as the order of preference is not absolute and may be disregarded for valid cause so may the thirty-day period be likewise waived.

pay debt as ordered by the court When does the power of a special administrator cease?  After the letters are granted. He will deliver the same to person appointed executor or administrator.SIGMA RHO . Must give a bond conditioned that: a. sell perishable property d. c.REMEDIAL NOTES 2004 . When may a probate court appoint a special administrator? a. estate and from the proceeds pay all debts and charges 4. RENE CALLANTA. DEATH. make an inventory within three months 2. Amounts. inventory of property which came to his knowledge and possession administer all goods. credits and 3.jr RULE 80 SPECIAL ADMINISTRATOR Special Administrator – appointed when there is a delay in granting letters testamentary or of administration by any cause. b. He will truly account for such. executor is a claimant of the estate he represents c. possession and charge of the properties b. delay in granting of letters including appeal in the probate of the will. RESIGNATION AND REMOVAL OF EXECUTORS AND ADMINISTRATORS When Letters of Administration revoked: 1) Newly discovered will 2) Letters of administration illegally issued Sigma Rho ( ΣΡ ) reviewers 14 . He will make inventory. he shall give a bond conditioned as follows: 1. – Bond to be given before issuance of letters. including an appeal from the allowance or disallowance of the will. commence and maintains suit for the estate c. Before an executor or administrator enters upon execution of his trust. chattels. *** The bond is effective as long as the court has jurisdiction over the proceedings. Conditions. RULE 82 REVOCATION OF ADMINISTRATION. Is appointment of special administrator appealable? NO. *** Appointment of a special administrator under this rule is not mandatory but the judge may do so in the exercise of its discretion.CALLANTA & PARTNERS Personal copy of ATTY. Bond of special administrator. appointment of a REGULAR ADMINISTRATOR is appealable because it is a final order. executor or administrator becomes insane or incapacitated Powers and duties: a. rights. perform all orders of the court Section 4. However. RULE 81 BONDS OF EXECUTOR AND ADMINISTRATOR Section 1. *** A special administrator is not authorized to pay the estate unless so ordered by the Court. b. render an account within one year 5. the same is interlocutory.

2) Marriage bed and bedding. AGUINALDO (190 SCRA 112) To justify removal of an administrator. resignation. A temporary residence outside of the state. or removal to be valid. However. gives the surviving spouse and the children the right to receive support during the liquidation of the estate of the deceased. Section 3. Absconding. The ouster of a person of the right to intervene in an intestate proceeding as an heir is not a ground for revocation of her authority to act as an administrator of the estate. Neglect to render accounts. – Inventory and appraisal to be made within three months from the grant of letters testamentary or of administration *** Approval of an inventory is not a conclusive determination of what assets constituted the decedent’s estate and of the valuation thereof. *** Acts of an administrator or executor before the revocation of letters administration or testamentary are valid unless proven otherwise. ALLOWANCE – monetary advances subject to collation and deductible from their share in the estate of the decedent. Section 3. 4. RULE 83 INVENTORY AND APPRAISAL PROVISION FOR SUPPORT OF FAMILY Section 1. there must be evidence of an act or omission on the part of the administrator not conformable to or in disregard of the rules or orders of the court. *** For purpose of determining whether or not property should be included in the inventory. resignation or removal.REMEDIAL NOTES 2004 . Neglect to settle estate according to these rules. – Allowance to widow and family. with respect to the spouse. COURT OF APPEALS Since the provisions of the Civil Code.CALLANTA & PARTNERS Personal copy of ATTY.  These grounds are exclusive. Insanity or incapability or unsuitability to discharge the trust. Grounds for removal or for compelling resignation are: 1.SIGMA RHO . (w/in one year or when the court directs) 2. Acts before revocation. *** Though the Rules of Court provides that only minors and incompetents can have allowance. Proceedings upon death. Sigma Rho ( ΣΡ ) reviewers 15 . 1. AND 3) Provisions and articles which will necessarily be consumed in the subsistence of the deceased’s family. such right cannot be impaired by Section 3 of Rule 83 of the Rules of Court which is a procedural rule. GONZALES vs. the probate court may decide provisionally on such ownership Properties not to be included in inventory as assets of the estate: 1) Wearing apparel of surviving spouse and minor children. Court may remove or accept resignation of executor or administrator. the Civil Code and Family Code does not distinguish with regard to the beneficiaries. maintained for the benefit of the health of the executor’s family is not such removal from the state as to necessitate his removal as executor. 5. SANTECO vs. DE PARRENO vs. ARANGANSO(116 SCRA 117) An administrator does not have to be an heir. a substantive law. 3. RENE CALLANTA. Such determination is only provisional and a prima facie finding of the issue of ownership. Aranzanso) Section 2. (De Parreno vs.jr *** The discovery of a will does not ipso facto nullify the letters of administration already issued or the revocation thereof until the will has been proved and allowed pursuant to Rule 82 Sec. the same must be the legitimate spouse. Neglect to perform an order or judgment of the court or a duty expressly provided by these rules.

and examine and take copies of books and papers relating to the partnership in case of a deceased partner. To possess and manage the estate when necessary: a.CALLANTA & PARTNERS Personal copy of ATTY. 2. cannot lease the property for more than one year 5. RENE CALLANTA. either in person or mediation of another. GENERAL RULE: The executor or administrator is accountable for the whole estate of the deceased. and b. EXCEPTION: He is not accountable for properties which never came to his possession. cannot acquire by purchase. Section 6. POWERS OF EXECUTOR / ADMINISTRATOR OF THE ESTATE. Not to profit by increase or loss by decrease in value. the executor or administrator failed to recover part of the estate which came to his knowledge. cannot borrow money without authority of the court 3. *** Administrator or executor shall not profit by the increase of the estate nor be liable for any decrease which the estate. 1. for the payment of debts.jr Who are entitled to allowance during proceedings? According to the Civil Code. cannot continue the business of the deceased unless authorized by the court 6. Examine and make invoices of the property belonging to the partnership in case of a deceased partner. without his fault. the children need not be minors or incapacitated to be entitled to allowance.REMEDIAL NOTES 2004 . *** Grandchildren not included in receiving allowance *** SUPPORT is in the character of advance of share in inheritance *** When liabilities exceed the asset of the estate his widow and children are not entitled to support pending the liquidation of the intestate estate. for payment of expenses of administration SOME RESTRICTIONS ON POWER OF ADMINISTRATOR/EXECUTOR: 1. When allowed money paid as costs. cannot profit by the increase or decrease in the value of the property under administration RULE 85 ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS Section 2. 188. Art. Sigma Rho ( ΣΡ ) reviewers 16 . RULE 84 GENERAL POWERS OF EXECUTORS AND ADMINISTRATORS Section 3. 4. EXCEPTION TO THE EXCEPTION: When through untruthfulness to the trust or his own fault or for lack of necessary action. even at public or judicial auction. Executor and administrator to retain whole estate to pay debts.SIGMA RHO . cannot speculate with funds under administration 4. on the ground that such support. 3. might have sustained. having the character of an advance payment to be deducted from the respective share of each heir during distribution. and to administer estate not willed. To have access to. Make improvements on the properties under administration with the necessary court approval except for necessary repairs. the property under administration 2.

Claims which must be filed with the probate court: 1) All claims for money against decedent arising from contract.jr *** Generally. Options of attorney to collect attorney’s fees from estate: 1) Sue administrator/executor in the latter’s personal capacity (who may then include any fees so paid in his account). for protecting it against destruction or deterioration. after notice to all interested persons. *** The object of the law in fixing the time within which claims against the estate may be filed is for the speedy settlement of the affairs of the deceased person and early delivery of the property of the estate into the hands of the persons entitled to receive it. RULE 86 CLAIMS AGAINST ESTATE Section 1. EXPENSES OF ADMINISTRATION: those necessary for the management of the property. *** Claims arising after his death cannot be presented except for funeral expenses and expenses of the last sickness of the decedent. costs charged or allowed against an executor or administrator in actions brought or prosecuted by or against him should be paid out of the estate of the deceased. b. his death creating an equitable lien thereon for the benefit of the creditors CLAIM . *** Upon the death of a person.REMEDIAL NOTES 2004 . Not proper expenses of administration which are not chargeable to estate: 1) Services rendered by administrator which are not beneficial to the estate in favor of an heir. When executor or administrator to render account. 3) Expenses for repair of property of the estate being used and occupied by him. and possibly for the production of fruits. In 4 public places in PROVINCE of last residence of decedent. Notice for filing of claims: 1) Published once a week for 3 successive week in newspaper of general circulation. In 2 public places in MUNICIPALITY of decedent’s last residence. RENE CALLANTA. Sigma Rho ( ΣΡ ) reviewers 17 . Notice to creditors to be issued by court.CALLANTA & PARTNERS Personal copy of ATTY. 5) Losses incurred in conduct of business with use of funds of the estate. to allow his claim and to direct the executor/administrator to pay it as an expense of administration. Section 8.SIGMA RHO .any debt or pecuniary demand against the decedent’s estate  When may a court issue notices to creditors? Immediately after granting letters testamentary or of administration. EXCEPTION: There is allowed an extension of time for presenting claims against or paying the debts of the estate for disposing of the estate but even in such cases. all his property is burdened with all his debts. 2) Posted: a. 3) Judgment for money. RULE: Within one year from the time of receiving letters testamentary or letters of administration. 2) Premiums for her/his bond. 4) Expenses for keeping ordinary records and receipts involved in his administration. unless he did not act in good faith. OR 2) File a petition in the testate/intestate proceedings asking the court. the administration should be terminated in not more than two-years and a half. 2) Claims for funeral expenses and for the last illness.

3. the filing of the petition for the issuance of letters of administration is the first concrete step to take so that the creditors of the estate of the deceased may be known and recognized. The court in the exercise of its administrative control over the executor or administrator may direct him to pay such taxes. Judgment for money against decedent. the claim will still be barred even if the Statute of Non-claims has not yet expired. Money claims. the court may. but if that judgment against the deceased Sigma Rho ( ΣΡ ) reviewers 18 .REMEDIAL NOTES 2004 . If not filed. In effect. RENE CALLANTA. LAYA A contingent claim is one which. if the Statute of Limitation has lapsed. express or implied b.failure to file claim within said period will bar recovery by creditor. VDA. *** Before order of distribution is entered. 2. absolute or contingent 2. barred. the court should then be informed that the claim had already matured. Time within which claims shall be filed. *** Not more than 12 months nor less than six months after the date of the first publication of the notice. at the discretion of the court. the action is not dismissed and an appeal may be taken by and against the administration. due or not due c. Claims which must be filed under notice. Alternative remedy of a creditor who is barred by the Statute of Non-claims: To file counterclaims in any suit that the executor or administrator may bring against the claimant. on application of a creditor who has failed to file its claim within the time fixed. STATUTE OF NONCLAIMS . Villarin) Section 5. Carlos) What claims should be filed under the Statute of Non-claims: 1. exceptions. (PNB vs.jr *** Claims for taxes due and assessed after the death of the decedent need not be presented in the form of a claim. A contingent claim does not follow the temporary orders of dismissal of an action upon which it is based.CALLANTA & PARTNERS Personal copy of ATTY.(Olave vs. COURT OF APPEALS (210 SCRA 107) If the defendant dies after final judgment of the Regional Trial Court. DIZON vs. allow such belated claim to be filed within a time not exceeding 1 month. it can be considered for all legal intents and purposes that the claimant bank has made known its claim against it and since the aforesaid petition was filed within the 10-year prescriptive period for the revival of the money judgment. INTESTATE ESTATE OF BUAN vs. Sec. awaits the final outcome thereof and only the final result can cause its termination. the claimant bank may be deemed to have filed its claim on time. debts incurred by deceased during his lifetime arising from contract a.SIGMA RHO . *** Death of the creditor does not suspend statute of non-claims *** While the Statute of Non-claims is preferred over the Statute of Limitations . DE VILLARIN (66 SCRA 590) Where the claimant bank filed a petition for the issuance of letter of administration stating therein that it was one of the creditors of the estate of the deceased. PHILIPPINE NATIONAL BANK vs. And the heirs. *** 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. by its nature is necessarily dependent upon an uncertain event for its existence or validity. CONTINGENT CLAIM – one which depends for its demandability upon the happening of a future uncertain event. Claims for funeral expenses and for the last illness of the decedent. even after distribution are liable for such taxes. for cause shown and on such terms as are equitable. It is to be presented in the same manner as an ordinary claim and when the contingency arises which converts the contingent claim into a valid claim.

*** Does not preclude the executor or administrator from redeeming the property mortgaged or pledged . 2. Rely solely on his mortgage and foreclose the name at anytime within the period of the statute of limitation but he cannot be admitted as creditor and shall not receive in the distribution of the other assets of the estate. enforcement of a lien thereon 3. action to recover damages for any injury to person or property. mistake. Foreclose by action in court making executor or administrator a party defendant and if there is judgment for deficiency. real or personal (tortuous acts)  1-3 are actions that survive the decedent Sigma Rho ( ΣΡ ) reviewers 19 . VILLANUEVA vs. REMEDIES OF THE CREDITOR: 1. the claim must be confined to the portion belonging to the decedent. in special proceedings you still need to filerecord on appeal (notice of appeal on ordinary cases) and the period of appeal is not 15 days but 30 days from notice of judgment. not by execution under Rule 39 but in accordance with Section 5 of Rule 86 (i.Paying the debt with court approval Section 13. Section 6. how is the claim settled? Claim should be filed against decedent as if he were the only debtor without prejudice on the part of the estate to recover contribution from the other debtor.jr becomes final and executory. by preventing the same as a claim against the estate. Section 7..e.) NOLLEDO vs. *** Judgment against executor and administrator shall not create any lien upon the property of the estate or does not constitute a specific lien which may be registered on such property.5 Rule 86. Mortgage debt due from estate. legal holiday pay. *** Judgment of a probate court approving or disapproving a claim shall not anymore be “appealable as in ordinary cases” because now. NLRC (238 SCRA 52) Claims of petitioner for underpayment of wages. *** If obligation of the decedent is solidary. Solidary obligation of decedent. Abandon security and prosecute his claim against the estate and share in the same general distribution of the assets of the estate. accident or fraud warranting interpretation of a court of equity. Judgment allowing claim. the availment of one bars the availment of other remedies.CALLANTA & PARTNERS Personal copy of ATTY.REMEDIAL NOTES 2004 .SIGMA RHO . Absent any showing of excusable negligence. They must be filed against his estate in accordance with Sec. he may file a claim against the estate. recovery of real or personal property or any interest therein from the estate 2. it shall be enforced. RAMOS (161 SCRA 363) Courts can extend the period within which to present claims against the estate even after the period limited has lapsed not only under special circumstances. effect of. *** If obligation is joint. RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS Actions which may be brought against executor and administrators (not against the estate): 1. the money claim may no longer be allowed. RENE CALLANTA. 3. *** These remedies are alternative. separation pay and retirement benefit are actually money claims against the estate of Felipe Bacani.

It cannot. arising from contract express or implied. 2) judgment for money. CIRCA NILA DEV’T CORP. To obtain such possession. Proceedings when property concealed. RENE CALLANTA.REMEDIAL NOTES 2004 . however.CALLANTA & PARTNERS Personal copy of ATTY. In that case. embezzled or fraudulently conveyed. embezzled or conveyed away any properties of the deceased. 244) The purpose of the proceedings for examining persons suspecting of having concealed.jr ACTIONS WHICH MAY NOT BE BROUGHT [DOES NOT SURVIVE] . It approves contracts entered into for and on behalf of the estate or the heirs to it but this is by fiat of The Rules of Court. Submission to the court’s jurisdiction (Bernardo vs. Sigma Rho ( ΣΡ ) reviewers 20 . GENERAL RULE: The probate court has no authority to decide whether or not the properties belong to the estate or to the person being examined since probate courts are courts of limited jurisdiction. the heirs and devisees have no cause of action against the executor or administrator for recovery of the property left by the decedent. or 2. VALERA vs. jurisdiction over which is vested in The Regional Trial Court acting as a court of general jurisdiction. vs. GUANCO vs. INSERTO (149 SCRA 533) The Regional Trial Court acting as a probate court exercises limited jurisdiction and without power to determine the issue of title to property claimed by a third person adversely to the decedent unless the claimant and all other parties having legal interest in the property current to the submission of the question to the probate court on the interest of third persons are not prejudiced.Claim for recovery of money. BAYLEN (157 SCRA 609) A probate court is a tribunal of limited jurisdiction. Compliance with the terms and conditions thereof may be compelled by specific performance. EXCEPTIONS: 1. *** Before distribution is made or before any residue is known. The phrase “express or implied includes all purely personal obligation other than those which have their source in delict or tort. embezzled or conveyed away property of the deceased is to elicit evidence and it does not authorize the court to enforce delivery of possession of the thing involved. recourse must be had to an ordinary action. Probate court is without jurisdiction to issue such order. Provisional determination of ownership for inclusion in the inventory. or of having concealed. LLEMOS (5 SCRA 959) Actions that are abated by death are 1) claims for funeral expenses and those for the last sickness of the decedent. The reason for the exception being that the question of whether or not a particular matter should be resolved by the court in the exercise of its general jurisdiction as a special court is in reality not a jurisdictional but in essence of procedural one. Section 3. involving a mode of practice which may be waived. CA) CUIZON vs. NATIONAL BANK (54 PHIL. judicial approval is necessary for the validity of such contracts. It acts on matters pertaining to the estate but never on rights to property arising from contract. Section 6. adjudicate the rights and obligations of the parties thereto. PURPOSE: To elicit information or to secure evidence from those persons suspected as having possessed or having knowledge of properties belonging to deceased. arising from contract REMEDY: File against the estate *** Executor or Administrator may compromise with debtor for a debt due with approval of the court *** Mortgage due estate may be foreclosed by executor or administrator *** Executor or Administrator is liable if failure to foreclose causes damage *** Probate court has not jurisdiction to adjudicate the rights & obligations of parties arising from a contract AGUAS vs. debt or interest thereon.SIGMA RHO . RAMOLETE (129 SCRA 495) Probate court is without authority to deprive third persons of possessions and ownership of property and covered by transfer certificate of title in the name of such third party. and 3) all claims for money against the decedent. Heir may not sue until share assigned.

Requisites for creditor (instead of the executor/administrator) to be able to file an action to recover property fraudulently conveyed by the decedent: 1) There is a deficiency of assets in the hands of the executor/administrator for the payment of the debts and expenses.REMEDIAL NOTES 2004 . the conveyance made is void (when there are badges of fraud) 3. 2) The deceased in his lifetime had made (or attempted) a fraudulent conveyance of his property with intent to defraud his creditors.jr All that the said court could do is to determine whether they should or should not be included in the inventory or list of properties to be administered by the administration. RULE 88 PAYMENT OF THE DEBTS OF THE ESTATE Section 1. NOTE: These requisites need not be complied with if the grantee of the fraudulent conveyance is the executor or administrator himself. 4. Leave is granted by court to creditor to file the action. Action by creditor is in the name of the executor or administrator. 3) The subject of the conveyance would be liable to attachment by any of the creditors during the decedent’s lifetime. a creditor may commence and prosecute the action if the following requisites are present: 1. the parties have to resort to an ordinary action in a final determination of the conflicting claims of title because the probate court cannot do so. 4) The executor/administrator has shown to have no desire or interest to file the action. Debts paid in full if estate sufficient. or had made any such conveyance which would be void as against his creditors. Lien for costs.SIGMA RHO . 2. and the action is brought in the name of all the creditors. *** This provision applies when there is a deficiency of assets in the hands of the executor or administrator for the payment of the debts and expenses for administration for it is under this circumstance that there may be conveyances made by the deceased with intent to defraud the creditor. RENE CALLANTA. the last 3 requisites are not required. Bond is filed by creditor as prescribed in this provision and. 3. When executor or administrator must bring action. That the executor or administrator has shown to have no desire to file the action or failed to institute the same within the reasonable time. When creditor may bring action. When a grantee in a fraudulent conveyance is other than the executor or administrator. if the exec/admin was himself the transferee of the fraudulent conveyance. 6) A bond is filed by the creditor to indemnify the exec/admin against all costs and expenses incurred by reason of the action. Of these is a dispute. Section 9. *** A probate court loses jurisdiction of the estate only after payment of all the debts & remaining estate is delivered to the heirs entitled to receive CONDITIONS FOR PAYMENT 1) Hearing on all money claims 2) Amount ascertained Sigma Rho ( ΣΡ ) reviewers 21 . Section 10.  HOWEVER. or to avoid any right. deficiency in assets 2. 5) Leave of court is obtained. Property fraudulently conveyed by the deceased may be recovered. and 7) The action is brought in the name of the exec/admin. subject of conveyance is liable for attachment in lifetime of decedent. Requisites before action may be filed: 1. or has failed to do so within a reasonable time. debt or duty.CALLANTA & PARTNERS Personal copy of ATTY. in which event the action should be in the name of all creditors.

otherwise his claim will be barred. NOTE: Although testator acknowledged a specific debt on his will. beyond 2 years *** Periods set for herein is merely discretionary and not mandatory. TIME FOR PAYING DEBTS & LEGACIES 1 YEAR = upon grant of Letters testamentary/Letters of administration 6 months = per single extension 2 YEARS = maximum period 2 ½ YEARS = successor of dead executor may extend time for payment for 6 months. legatees or devisees before actual distribution. GUIA (75 PHIL. Unlike in ordinary execution sales.SIGMA RHO . Section 4. 245) In the administration and liquidation of the estate of the deceased person. 3) From real property not disposed of by will. REQUISITES: 1. 3. RENE CALLANTA. The EXCEPTION is when there is prior possession by the heirs. INTESTATE ESTATE OF GONZALES vs. Part of the estate from which debt paid when provision left by will.jr 3) Sufficient funds to pay claims Order of payment of debts: 1) From portion of property designated in the will. there is no legal provision allowing redemption in the sale of property for payment of debts of a deceased person. contingent claim is duly filed 2. WHEN REAL PROPERTY IS CHARGEABLE 1) Personal property insufficient 2) Sale of personal property is detrimental to participants Section 2. If sufficient to satisfy claims of a class.CALLANTA & PARTNERS Personal copy of ATTY. RULE 89 SALES. Section 15. sales ordered by the probate court in payment of debts are final and not subject to legal redemption. Time for paying debts and legacies fixed. the creditor must still file his claim in the testate or intestate proceedings. MORTGAGE AND OTHER ENCUMBRANCES OF THE PROPERTY OF THE DECEASED Sigma Rho ( ΣΡ ) reviewers 22 . IF DEFICIENT. court is satisfied that the claim is valid. Estate to be retained to meet contingent claims. or extended after notice. it shall be paid in due course because the specific procedure is for the court to order the sale. within what periods. 2) From personal property not disposed of by will. 1059 and 2239 to 2251 of the Civil Code must apply. What is the effect of a claim approved by the court under the Rule 88? The general rule is that execution does not lie.7 in relation to Art.contributions *** If insolvent as in liabilities are more than the assets. Use rule on preference of creditors. there is no lien over the claim. rather.REMEDIAL NOTES 2004 . The claim has become absolute. Sec.

3) Payment of debts. mortgage or other encumbrances of realty to pay debts and legacies though personality not exhausted. the sale.SIGMA RHO . the authority to sell. expenses of administration and legacies in the Philippines 2) Sale would be beneficial to persons interested in the estate. The requisites set forth in Rule 89 are mandatory and essential. to cover expenses for the preservation of the estate Section 2. IMPT: without notice. in a special proceeding. should be made with the approval of the court. binding in law to deed real property to beneficiary. Where the deceased in his lifetime held real property in trust for another person (Section 9) MANOTOK REALTY vs. expenses of administration and legacies. it does not follow that notice to the father is notice to the children. SOLER (2 SCRA 755) A sale of properties of an estate under administration must comply with the provisions on notice to heirs and hearing of application. mortgage or other encumbrance of estate to pay debts and legacies in other countries. BAUN (208 SCRA 179) For purposes of complying with the requirement of notice under Rule 89 of the Rules of Court. Reasons to sell personal property: 1) Payment of debts. *** Allowed when it appears from records and proceedings of a probate court of another country that the estate of the deceased in foreign country is not sufficient to pay debts and expenses.REMEDIAL NOTES 2004 . Testator has not made sufficient provision for payment of such debts.jr Section 1. mortgage or encumber property of the estate may be denied by the court if: 1. (Section 8) 5. Sigma Rho ( ΣΡ ) reviewers 23 . Sale of personal estate may injure the business or interests of those interested in the estate 3. to pay legacies 3. Order of sale of personalty The court may order the whole or part of the personal estate to be sold if necessary: 1. CA (149 SCRA 174) Although the Rules of Court do not specifically state that the sale an immovable property belonging to an estate of a decedent. this authority is necessarily included in its capacity as a probate court. Baun) BONAGA vs. the disposition is not for any of the reasons specified by the rules or if. Notice is mandatory. When court may authorize sale. Without them. (Maneclang vs. MANEDANG vs. PERSONS PROHIBITED TO ACQUIRE PROPERTIES 1) Executor / Administrator 2) Judges & Court officers 3) Lawyers Section 5. When may the court order the sale or conveyance of real estate: 1. the sale itself and the order approving it would be null and void ab initio. Noncompliance therewith under the sale is null and void. mortgage or encumbrance is void. expenses and legacies 4. to pay debts and expense of administration 2. RENE CALLANTA. When court may authorize sale. Without them. the authority to sell. 2.CALLANTA & PARTNERS Personal copy of ATTY. the sale itself and the order approving it would be null and void ab initio. expenses and legacies involved in settlement of estate of decedent in a foreign country. Application for authority to sell. Personal estate is not sufficient to pay debts. Deceased was in his lifetime under contract.

RULE ON WRIT OF EXECUTION GEN. showing that the executor. In order that an order of distribution may be issued. the requirements as to notice and hearing upon such application have been fulfilled Remedy of heir who has not received his share of the estate: 1) If excluded from the proceedings: *** move for reopening of the proceedings before the order declaring the same closed has become final and executory (after 30 days). however. Cano) SOLICIO vs. and 2. The better policy. When order for distribution of residue made. determine the share of each heir. is to demand his share through a proper motion in the same proceeding or for the reopening of the administrative proceeding if it has already been closed and not through an independent action. collate 2. it becomes final. but to file a motion for execution within the reglementary period (5 years). funeral expenses. RULE 90 DISTRIBUTION AND PARTITION OF THE ESTATE Section 1. The finality of the approval of the project of partition by itself alone does not terminate the probate proceeding.jr 2. for the heir who has not received his share. determine heirs 3.REMEDIAL NOTES 2004 . *** An order which determines the distributive shares of heirs is appealable. 2) If not excluded. allowance of widow and inheritance tax is effected. When does the probate court loss jurisdiction over the settlement proceedings? Upon payment of all debts and expenses of the obligor and delivery of the entire estate to all the heirs. administrator or person interested in the estate applied for such. In these proceedings. any person interested in the estate gives a bond conditioned to pay the debts. When is title vested? From finality of order of distribution. GENERAL RULE: order for distribution shall be made AFTER payments of all debts. COURT OF APPEALS(182 SCRA 119) The probate court loses jurisdiction of an estate under administration only after the payment of all debts and the remaining estate delivered to the heirs entitled to receive the same. RULE: not allowed EXCEPTIONS— Sigma Rho ( ΣΡ ) reviewers 24 . (Timbol vs. the court may order the delivery to the heirs of their respective shares except when the heir file a bond conditioned to pay the debts. but only has not yet received his distributive share under the project of partition: *** remedy is not to move for reopening (since proceedings are only deemed closed upon actual distribution).SIGMA RHO . the court shall: 1. RENE CALLANTA. the following are the conditions precedent: 1. under Section 3 Rule 89.CALLANTA & PARTNERS Personal copy of ATTY. As long as the order of distribution of the estate has not been complied with. the probate proceeding cannot be deemed closed and terminated because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share. *** Only after partition is approved and not before. expenses of administration and legacies. expenses for administration. If not appealed.

Properties left by decedent without a will and without an heir. It is the falling of a decedent’s estate into the general property of the State. Date of hearing shall be not more than 6 months from entry of order fixing date of hearing. Publication of time and place of hearing of petition before the hearing at least once a week for six (6) successive weeks in some newspaper of general circulation published. Section 4. When and by who claim to estate escheated filed. Sigma Rho ( ΣΡ ) reviewers 25 . Unclaimed Balance Act *** it is commenced by petition not complaint. RENE CALLANTA. REPUBLIC vs. 3. 3 INSTANCES of ESCHEATS: 1. Who files? a. PROCEDURAL REQUIREMENTS: 1. Petition is filed by the Solicitor General or his representative in behalf of the Republic of the Philippines and praying that the estate of the deceased be declared escheated. which is the reversion of property to the State when the title thereto fails from defect of an heir. Properties obtained through corrupt practices. 4.jr 1) Satisfy contributive shares 2) Enforce payment of expenses 3) Satisfy the courts when a person is cited for examination RULE 91 ESCHEATS ESCHEATS. Representative of the Solicitor General Venue: RTC of the province in which the deceased last resided :In actions for unclaimed deposit. REQUISITES OF ESCHEATS: 1. 4. CFI OF MANILA (165 SCRA 11) Rule 4 of the Rules of Court cannot govern escheat proceedings principally because said action refers to personal actions.\ Notice of hearing to be published once a week for 6 weeks. Solicitor General b. Properties subject of illegal sales of land to disqualified aliens in violation if the Constitution or public land laws. A person dies Intestate leaving no heir or person by law entitled to his estate. Escheat proceedings are actions in rem which must be brought in the province or city where the res (where the dormant deposit) is located.REMEDIAL NOTES 2004 . venue is the place where money is deposited. 3. Properties left by decedent with an invalid will and without an heir. The said person Left real or personal property in the Philippines. Petition sufficient in form and substance.SIGMA RHO . What is the basis of the state’s right to receive property in escheat? Order of succession under the Civil Code. REVERSION sale in violation of the constitution 3. 2.CALLANTA & PARTNERS Personal copy of ATTY. 3. PROPERTIES SUBJECT OF ESCHEATS: 1. 2. 2. where a person dies without a will or heir leaving property in the Philippines (Section 1) 2. Hearing and judgment upon satisfactory proof in open court on the date fixed. defined – it is a term of French or Norman derivation meaning chance or accident. The said petition is filed in the court of the place of last Residence of the deceased last resided or in which he has Estate if he is a non-resident.

LIABILITY OF MUNICIPALITY OR CITY: Shall be accountable to him for the proceeds. No additional court fees need to be paid. DISPOSITION OF ESCHEATED PROPERTIES: 1. if resident – RTC of the province where the minor or incompetent resides b. Meaning of word incompetent Incompetent includes: 1. Trust Fund – the court. 3. Where to institute proceedings. hospitalized lepers 3. Sigma Rho ( ΣΡ ) reviewers 26 . Personal Properties – given to the municipality or city where he last resided in the Philippines. and public charitable institutions and centers in said municipalities or cities. 2. widower or other person entitled to such estate must be made within five (5) years from the date of such judgment a claim not made within said time shall be forever barred. to the place of his estate. There are different procedures. if he has transferred thereto his bonafide residence. so that only the income from the property shall be used. widow. persons not of unsound mind but by reason of age. if non-resident – RTC of the province where the property or part thereof is situated Under BP 129 – the value of the estate is no longer jurisdictional. those suffering from penalty of civil interdiction 2.REMEDIAL NOTES 2004 . deaf and dumb who are unable to read and write though they have lucid intervals. at the instance of an interested party. disease. after deducting reasonable charges for the care of the estate. Section 2. heir. Can an administration proceeding be converted into estate proceeding? No. Real Properties – given to the municipalities or cities in which the same is situated. 5. GENERAL GUARDIANS AND GUARDIANSHIP RULE 92 VENUE Section 1. or any other person entitled to the estate may file a claim with the court within 5 years from date of the judgment.SIGMA RHO . PRESCRIPTIVE PERIOD: Claim against the estate by a devisee.CALLANTA & PARTNERS Personal copy of ATTY.jr Period: within five years from the date of judgment – under 1014 of the Civil Code. or if non-resident. heir. weak mind and other similar causes cannot take care of themselves or manage their property. prodigals 4. Transfer of venue *** Venue may be transferred to court of another province where ward has acquired real property. PURPOSE: Such estate shall be for the benefit of public schools. may order the establishment of a permanent trust. or on its own motion. from date property is delivered By whom: person of interest *** Devisee. Venue: a. RENE CALLANTA. legatee. Section 3. Procedures in both are jurisdictional. legatee.

KINDS OF GUARDIAN: 1. any friend 4. unsuitability of the persons for whom letters are prayed GUARDIANS. Philippines Director of Health in favor of insane or leper 6.SIGMA RHO . for non-residents. or other person on behalf of minor or incompetent 5. if 14 years and above. defined – is a trust relation in which person acts for another called the “guardian”. Section 4. the law regards as incapable of managing his own affairs called the “ward”. Grounds for opposition: 1. this requirement is jurisdictional c.CALLANTA & PARTNERS Personal copy of ATTY. including minor. LEGAL GUARDIAN – who is such by provision of law without the need of judicial appointment like a father or mother of a minor.REMEDIAL NOTES 2004 . minor himself if 14 years old or over 2. Who may petition for appointment of guardian for residents. which the latter. Notice thereof. issue letters of guardianship Sigma Rho ( ΣΡ ) reviewers 27 . IMPT: There is no requirement for publication. GUARDIAN AD LITEM – who may be any competent person appointed by the court for purposes of assisting the ward in a particular action or proceedings.  If the person is insane. 2. WHO MAY FILE THE PETITION FOR APPOINTMENT OF GUARDIAN: 1. Section 1. NOTE: Service of notice upon minor if above 14 years or upon incompetent is mandatory and jurisdictional. any relative 3. only notice.jr RULE 93 APPOINTMENT OF GUARDIANS GUARDIANSHIP. a friend. declaration of the propriety of the petition e. competency of alleged incompetent 3. Court to set time for hearing. RENE CALLANTA. filing of petition b. court shall set the case for hearing cause notices to be served to the persons mentioned in the petition. court shall receive evidence d. services of notice upon the Director of Hospital where hospitalized is sufficient. Opposition to petition. Grounds for disqualification 1) Mental incapacity 2) Conviction of a crime 3) Moral delinquency 4) Physical disability Procedure: a. JUDICIAL GUARDIAN – who is competent person appointed by the court over the person and/or property of the ward to represent the latter in his civil acts and transactions. majority of alleged minor 2. relative or any person interested in his estate in expectancy or otherwise Section 3. 3.

CALLANTA & PARTNERS Personal copy of ATTY. *** A sale of the ward’s realty by the guardian without authority from the court is void. TEST: Is it necessary? If not.Parents must file petition ** Court may appoint another suitable person 3) If property or annual income of child is more than P50. for the use and benefit of the ward or of any other person legally interested in the estate.000 .000 . *** In case of breach of the conditions of the bond. or 2. Sigma Rho ( ΣΡ ) reviewers 28 . RULE 95 SELLING AND ENCUMBERING PROPERTY OF WARD Section 2. *** Bond may be proceeded against in the same or separate proceeding for the use and benefit of the ward. and 4) Perform all orders of the court. & financial condition of the prospective guardian *** No person shall be appointed as guardian if his interest conflict with those of the ward or if he is non-resident of the Philippines. it may be prosecuted in the same guardianship proceeding OR in a separate action. *** The wards are not liable for TORTS committed by their guardians. RENE CALLANTA. character. is it beneficial? Requirements: 1. 2) To faithfully execute the duties of his trust. when it appears that it is for the benefit of the ward. RULE 94 BONDS OF GUARDIANS Undertaking of bond of guardian: 1) Make and return a complete inventory of the property of the estate which has come to his possession or knowledge.jr Section 5. within 3 months. or the possession of any person for him. Hearing and order for letters to issue.REMEDIAL NOTES 2004 . 3) To render a true and just account.000 . notice must be given to the next of kin IMPT: Notice to next of kin and interested persons is jurisdictional. or of any other person legally interested in the estate. *** Incompetent must be present if able to attend RULE ON PARENTS as GUARDIANS 1) If property is less than P2. petition must be verified 2. Grounds for selling or encumbering estate 1. when income of estate is insufficient to maintain ward and family or to maintain and educate ward when a minor.Parents must furnish a bond (not less than 10% of the value of the property) *** In the appointment of the guardian. the courts should take into consideration the competency.No court appointment is necessary 2) If property is more than P2. Petition of the guardian for leave to sell or encumber estate. Next of kin pertains to those relatives who are entitled to share in the estate as distributees per stirpes or by right of representation.SIGMA RHO .

CUI vs. The powers and duties of the widow as legal administrator of her minor children are only powers of possession and management. *** If after examination the court finds sufficient evidence showing ownership on the part of the ward. Her power to sell.REMEDIAL NOTES 2004 . LIMITED GUARDIANSHIP – only as to property Summary of duties and powers of guardians 1. shall be allowed the amount of his reasonable expenses. and order its delivery to them. GENERAL GUARDIANSHIP – both as to person and property of minor 2. and compensation which shall not exceed 15% of the NET income of the estate. mortgage. PICCIO (91 SCRA 712) Neither is the guardianship proceedings or in administration proceedings may the court determine the ownership of property claimed by the guardian or administrator to belong to the ward or to the estate of the deceased. EXCEPTION: only in extreme Sigma Rho ( ΣΡ ) reviewers 29 . bring and defend suits 4. RENE CALLANTA. Income from real estate 2. encumber or otherwise dispose of the property of her minor children must proceed form the court which requires court authority and approval. payment of debts of the ward 3. sell or encumber estate *** Every guardian.SIGMA RHO . *** Court may cite suspected person to appear for examination. ORDER OF PAYMENTS OF DEBT OF WARD: 1. custody of ward 2.CALLANTA & PARTNERS Personal copy of ATTY. LINDAIN vs. RULE 96 GENERAL POWERS AND DUTIES Types of Guardianship 1. or alienate. It is the duty of the guardian to bring the proper action. the property of said child without judicial approval.jr *** Order granting the authority to sell shall last for only 1 year. *** Guardian may lease out real estate of ward without court order for not more than 6 years (act of administration) > If more than 6 years need for court approval. compensation > 15% of net income of ward Section 6. *** Guardians. If sufficient a. Personal estate b. If not sufficient . COURT OF APPEALS (212 SCRA 725) A parent. other than the ward’s parents. Proceedings when person suspected of embezzling or concealing property of ward. acting merely as the legal administrator as distinguished from judicial administrator of the property of his/her minor children. reasonable expenses 2.out of real estate > need for court order GUARDIANS ALLOWED: 1. does not have the power to dispose of. E/A or trustees may do acts of ADMINISTRATION BUT not act of strict dominion or ownership.

Trustee 3. RULE 97 TERMINATION OF GUARDIANSHIP GROUNDS FOR TERMINATION OF GUARDIANSHIP: 1. Insanity or incompetency of guardian. DUE TO THE GUARDIAN: a. relative or friend. RULE 98 TRUSTEES Section 1. By his guardian. RENE CALLANTA.REMEDIAL NOTES 2004 . b. 3) Hearing and trial. Procedure of termination of guardian (whether violently or not) By Petition to the Court: 1) Petition verified under oath to have his present competency judicially determined. Marriage of the ward. e. 4) Opposition by the other person. 2. d. By the person declared incompetent. 2) Notice to the guardian so declared and to the ward. f. Removal of reason of incompetency .SIGMA RHO . Unsuitability of the guardian. *** In Guardianship proceedings the court has no jurisdiction to determine the issue of ownership since said court is a court of limited jurisdiction. a will wherein judicial approval is needed 2. b. (Ciu vs. c. b. Removal due to acts of waste or mismanagement of the estate. accounting – once a year Sigma Rho ( ΣΡ ) reviewers 30 . Reaching majority age by the minor. 5) Judgment declaring Competency of Ward. inventory 2. Piccio) *** Guardian and ward cannot get married until and after final accounting approved by the court. 3 PARTIES: 1.CALLANTA & PARTNERS Personal copy of ATTY. Petition to the court of ward or guardian. manage and dispose 3. Trustor 2. Resignation of the guardian. 6) Service of judgment upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated. Failure to render account within 3 months. any other instrument *** When a trust is created abroad for property in the Philippines. judicial approval is still needed though trustor is alive. c. Where trustee appointed. A trustee may be necessary to carry into effect: 1. DUE TO WARD: a. By whom? a.jr cases where the property clearly and indisputably belongs to the ward or where the latter’s title thereto has already been judicially decided that the court may direct its delivery to the guardian. CONDITIONS FOR THE BOND OF A TRUSTEE: 1. Beneficiary (cestui que trust) *** No person succeeding to a trust as E/A of a former trustee shall be required to accept such trust.

of legal age 2. WHAT DOES THE COURT DETERMINE IN ADOPTION CASES? 1.CALLANTA & PARTNERS Personal copy of ATTY. then in the RTC of any province in which some property affected by the trust is situated Section 9.whether the adoption would be the best interest of the child DOMESTIC ADOPTION ACT OF 1998 (RA 8552) One of the declared policies of this Act: it shall ensure that every child remains under the care and custody of his parents and only when such efforts prove insufficient that adoption by an unrelated person may be considered. incapability of discharging trustee 4. 2) Otherwise. petition 2.capacity of the adopters 2. Grounds: 1. WHO MAY ADOPT: ANY FILIPINO CITIZEN 1. or Trustees may do acts of administration BUT NOT acts of strict dominion Section 8. settle his accounts in courts *** Guardians.The provisions of the Rules of Court on Adoption have been amended by the Domestic Adoption Act of 1998 and the Intercountry Adoption Act of 1995. That his/her country has diplomatic relations with the PHILIPPINES 2. insanity 3. Proceedings for sale or encumbrance of trust estate. Removal or resignation of the trustee.jr 4. essential in the interest of petitioners 2. of good moral character ANY ALIEN 1. ADOPTION: Proceeding where by fiction of law paternity of filiation is cleared.SIGMA RHO . Procedure: 1. notice to trustee 3. That he/she has been living in the Philippines for at least three (3) continuous Sigma Rho ( ΣΡ ) reviewers 31 . in possession of full civil capacity and legal rights 3. due notice and hearing 3. then in the RTC in which the will was allowed (assuming allowed in the Philippines).REMEDIAL NOTES 2004 . judgment RULE 99 ADOPTION AND CUSTODY OF MINORS . unsuitability Procedure: 1. RENE CALLANTA. Who may petition? Parties beneficially interested. E/A. file a petition 2. hearing Venue for petitions for appointment of trustees: 1) If trustee is necessary to carry into effect the provisions of a will.

*** Aliens who permanently reside in the Philippines are not qualified to become adopters under the ICA. the adoptee. That his/her government allows the 7. If the spouses are legally separated from each other WRITTEN CONSENT OF THE FOLLOWING ARE REQUIRED: 1.SIGMA RHO . A person of legal age if. the legitimate and adopted sons/daughters ten (10) years of age or over. 2. BUT they are qualified for Domestic adoption. 2. *** The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. the spouse of the adoptee’s parent 3. If one spouse seeks to adopt his/her own illegitimate son/daughter 3. said person had been consistently considered and treated by the adopter(s) as his/her own child since minority. the biological parent of the child. the biological parent of the adoptee 2. The legitimate son/daughter of one spouse by the other spouse. 4. WHO MAY BE ADOPTED 1. §7 of the IRR) NOTE: The requirement on residency and certification of alien’s qualification to adopt may be waived for the following: 1. One who seeks to adopt the legitimate son/daughter of his/her Filipino spouse. An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy. if ten (10) years of age or over 2. A former Filipino citizen who seeks to adopt a relative within the 4 th degree of consanguinity or affinity.REMEDIAL NOTES 2004 . RENE CALLANTA. at least sixteen (16) years older than the adoptee to enter his/her country as his/her adoptee. if any. of the person adopting or to be adopted. 5. B. 5. If one spouse seeks to adopt the legitimate son/daughter of the other. if any 4. If the adopter is the sibling of the adoptee (Article IV. Certified to have legal capacity to adopt. 3. PROCEDURE: A. NOTE: The requirement of sixteen (16) years difference between the adopter and the adoptee is NOT applicable if the adopter is: 1. emotionally and psychologically capable 3. ten (10) years of age or over. of the adopter(s) and adoptee. in a position to support and care for 4. adopter and the biological parents. A child whose adoption has been previously rescinded. has not been convicted of any crime years prior to the filing of the application for involving moral turpitude adoption. 3. the spouse. of the adopter if living with said adopter and the latter’s spouse if any 5. Maintains residence until the adoption of caring for children decree is entered. prior to the adoption. One who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse.CALLANTA & PARTNERS Personal copy of ATTY. 6. the illegitimate sons or daughters. A child whose biological or adoptive parents has died. No petition for adoption shall be finally granted until the adopters has been given by the court a supervised trial custody period for at least six (6) months. No petition for adoption shall be set for hearing unless a licensed social worker has made a case study of the adoptee. 6. 2. Husband and wife shall jointly adopt EXCEPT: 1. by his/her children in keeping with the means his/her country of the family 5.jr 4. adopted son/daughter. Any person below eighteen (18) years of age who has been judicially declared available for adoption. Sigma Rho ( ΣΡ ) reviewers 32 . if known 3.

moral depravity 2. through an intermediate agency. the supervised child custody is undertaken and the decree of adoption is issued outside the Philippines. all between biological parents and the adoptee shall be severed. CA June 3. parental authority is vested with the natural parents and any damages inflicted by adopted is the liability of his natural parents. are denied custody of the child: When the parent is unfit to take charge of the child by reason of: 1. which application shall be in accordance with the requirements as set forth in the Rules to be promulgated by the Inter-country Adoption Board. adoptee shall be considered legitimate child of adopter for all intents and purposes 4. *** The aliens country should allow the adoptee enter his country as his adopted child. CUSTODY OF MINOR Section 6. other requirements same as with RA 8552 WHO MAY BE ADOPTED > Only a legally free child may be the subject of inter-country adoption.CALLANTA & PARTNERS Personal copy of ATTY. except when biological parent is spouse of adopter 3. (Tamargo vs. Inter-country adoption refers to the socio-legal process of adopting a Filipino child by a foreign national or a Filipino citizen permanently residing abroad. RENE CALLANTA. who are separated or divorced. Appeal Instances where the husband or the wife.jr C. a decree of adoption shall be entered stating the name by which the child is to be known. Proceedings as to child whose parents are separated. NOTE: The new birth certificate to be issued to the adoptee shall not bear any notation that it is an amended issue. incapacity Sigma Rho ( ΣΡ ) reviewers 33 . Del Val 13 SCRA 406) *** Pending adoption proceedings. habitual drunkenness 3. adopters shall have reciprocal rights of succession without distinction from legitimate filiation *** Relationship resulting from adoption is limited only to adopter and adopted and does not extend to other relatives except expressly provided by law (Teotico vs. 2. CA 205 SCRA 321) INTER COUNTRY ADOPTION ACT OF 1995 1. (Sayson vs. and no opposition has been interposed to the petition. adopter will exercise parental authority 2. The original birth certificate shall be stamped “cancelled” and shall be sealed in the Civil Registry records. After the publication of the order of hearing.1992) *** Adoption cannot be collaterally attacked. EFFECTS 1. or with the Board.REMEDIAL NOTES 2004 .SIGMA RHO . any alien or Filipino citizen permanently residing abroad who is at least twenty-seven (27) years of age 2. An application to adopt a Filipino child shall be filed either with the Philippine RTC having jurisdiction over the child. NOTE: A child under this Act is defined as any person below fifteen (15) years of age. whether governmental or an authorized and accredited agency. *** In ICA. in the country of the prospective adoptive parents. only directly because a presumption arises as to the validity of the decree. An amended birth certificate shall be issued. WHO MAY ADOPT 1. D.

*** Either parent may appeal from the final order of custody. Cases petition should be filed: in all cases where in the opinion of the Secretary of Health. abandonment and failure to comply with parental obligation *** Unlike in revocation of guardianship. the older brother or sister 3.SIGMA RHO . for the welfare of a person who in the Secretary’s judgment is insane. the effect retroacts as to date of filing thereof.jr 4. children's home or benevolent society. Sigma Rho ( ΣΡ ) reviewers 34 . RENE CALLANTA.Secretary of Health Where petition is filed: . *** Under the petition for adoption. revocation of adoption is a separate proceeding from the adoption. such confinement is: a. 2. repeated physical or verbal violence.RTC of the province where the person alleged to be insane may be found. and such person or the one having charge of him is opposed to his being taken to a hospital or other placed for the insane. RULE 101 PROCEEDINGS FOR HOSPITALIZATION OF INSANE PERSONS Who files a petition for commitment of an insane person: . the adopter can no longer revoke the adoption.CALLANTA & PARTNERS Personal copy of ATTY. GROUNDS FOR REVOCATION BY ADOPTEE: 1. the paternal or maternal grandparent 2. for the public welfare b.REMEDIAL NOTES 2004 . any suitable asylum. it relates only as to the date of the judgment. he can merely disinherit the adoptee in accordance with the provisions of the Civil Code. RULE 100 RESCISSION AND REVOCATION OF ADOPTION *** Under the Domestic Adoption Act of 1998. Remedy of adopter against the erring adoptee . Hence in revocation. the court may designate the following: 1. In revocation. 3. vested rights prior to rescission should be respected.Disinheritance Effects of rescission: 1) Restoration of previous legal custody (for minors) 2) Extinguishment of reciprocal rights 3) Cancellation of amended birth certificate and restoration of original birth certificate  Vested rights respecting criminal sanctions remain. poverty If it appears that neither parent is entitled to the custody of the child. attempt against his life or sexual assault/ violence. some reputable and discreet person 4.

GROUNDS FOR GRANTING OF WRIT OF HC: 1. Toyoto vs. 2) The court had no jurisdiction to impose the sentence. Lucban) Sigma Rho ( ΣΡ ) reviewers 35 . Enrile. Deprivation of fundamental constitutional rights such as freedom of abode and locomotion (Villavicencio vs. Villavicensio vs. the great object of which is the liberalization of those who may be imprisoned without sufficient cause. *** The privilege of writ is so sacred that. requiring him to produce the body of the person detained at a designated time and place.REMEDIAL NOTES 2004 . the sentence being void as to the excess. and to produce and to show cause and to explain the reason for detention. it shall not be suspended except in cases of invasion or rebellion when public security requires it (Art. COVERAGE Nationwide Nationwide RETURN SC or RTC CA or the RTC Regional within RTC or the sala judicial district itself Regional within Family court itself judicial district Regional within RTC or the RTC judicial district judge where the same should be filed. effective and material. 15).jr RULE 102 HABEAS CORPUS HABEAS CORPUS. according to our CONSTITUTION.) Writ of habeas corpus may also be availed of as a consequence of a judicial proceeding: 1) There has been a deprivation of a constitutional right resulting in restraint of person.unconditional order to produce the body of a person at the time and place specified therein. 3) An excessive penalty has been imposed. cases by which the rightful custody of the person is withheld from the person entitled thereto NOTE: The restraint must be actual. Concept – Latin term which literally means “you have the body” is a high prerogative writ of ancient common-law origin. (Mancupa vs.a command directed to the person detaining another. Habeas corpus extends to: 1. cases of illegal confinement or detention by which a person is deprived of his liberty 2.SIGMA RHO . CA or any member At any day and at any time in the instances authorized by law like cases on appeal RTC or any judge At any day and ay therof any time in all criminal cases before it Family Courts At any day and at any time in all custody cases of minors MTC or any judge Cases in the thereof absence of all RTC judge in the place where the MTC is.CALLANTA & PARTNERS Personal copy of ATTY. The person need not actually be confined as long as freedom of action is limited. ESSENTIAL PURPOSE: > To inquire into all manner of involuntary restraint as distinguished from voluntary and to relieved a person therefrom if such restraint is illegal. III Sec. JURISDICTION AND VENUE: COURT APPLICATION SC or any member At any day and at any time in all the cases before it. WRIT OF HABEAS CORPUS . . RENE CALLANTA. Ramos. Lucban.

(People vs. HOWEVER. (Lobera vs. CA or any member thereof 3. *** WHC is not available remedy as substitute for a trial or in advance of the trial to determine jurisdiction of the court. 1994) *** Proceedings in habeas corpus are separate and distinct from the main case from which the proceeding spring. Simon 1994) *** WHC may be used as an ancillary remedy with certiorari. (Moncupa vs. RENE CALLANTA. Enrile Jan. Raveles 108 Phil 1159) or where the court has no jurisdiction over the subject matter (Makapagal vs.jr 2. Viola 61 Phil 824) *** But actual physical restraint is not always required. 1. RTC or any judge thereof 4  MTC – in the absence of RTC judges PROCEDURE FOR GRANT OF WRIT 1. 1986) Does voluntary restraint constitute habeas corpus? As a general rule. Penalty imposed by the court is not provided for by law. Void judicial order because court issuing has no jurisdiction over the crime charged or of the place of commission or the person of the accused (Malinao vs. NOTE: Voluntariness is viewed from the point of view of the person entitled to custody.REMEDIAL NOTES 2004 . EXCEPTION: Immigration cases. “Restraint” means actual and effect restraint not merely moral restraint. Santamaria 55 Phil 418) 3. the former reaches the person not the record while the latter reaches the record not the person. CA Oct. some other person in his behalf 2. *** But WHC will not lie where appeal or certiorari is available for purpose of reviewing errors in the judgment. NO except when a person restrained minor and the petitioner is the father or mother or guardian or a person having custody of the minor. Dir. **** WHC cannot be collaterally attacked and cannot be used as a substitute remedy for a lost appeal. where a judgment is already final and executory and a favorable law lessening the penalty of the convict who are considered to have already served his sentence thereunder. verified petition signed by the party for whose relief it is intended. WHC is proper. Bail Bond of accused was not admitted or excessive bond was required (In Re: McCullough 38 Phil 41) 4. > An immigrant under bond may contest an adverse decision of the Immigration Commission by means of a petition for HC. PRELIMINARY CITATION – issued by the court to show cause whether or not the writ should be issued Section 2. (Galvez vs. SC or any member thereon 2. (Gonzales vs.CALLANTA & PARTNERS Personal copy of ATTY.SIGMA RHO . of Prisons 87 Phil 179) IMPT: Habeas Corpus can never be a substitute for appeal. > COLLATERAL REMEDY GENERAL RULE: A person OUT on bail is not entitled to the WHC because his detention is merely legal or technical NOT actual or physical. It is issued only in special circumstances. any restraint which will prejudice freedom of action is sufficient. allowance of writ Sigma Rho ( ΣΡ ) reviewers 36 . which must be trued and decided in full-blown hearing. Who may grant the petition.

when public safety requires EFFECT OF SUSPENSION OF THE PRIVILEGE OF THE WRIT: 1.REMEDIAL NOTES 2004 . such fact shall appear) Contents of the Return of the Writ: 1) Whether he has the party under his custody. the gravity of his sickness or infirmity by reason of which he cannot be produced. at what time. and shall set forth 1) That the person in whose behalf the application is made is imprisoned or restrained of his liberty 2) The officer or name of the person by whom he is imprisoned or restrained. 3) If party is in his custody and is not produced. hearing on return *** Proceedings in HC cases are to be disposed of in a SUMMARY WAY *** An appeal in HC proceedings should be perfected (notice of appeal) within 48 hours. by the president 2. the return shall be prima facie evidence of the cause of the restraint. the authority and cause upon which he is held. 3) Place where he is imprisoned or restrained. the date on which the decision was promulgated is not counted. 4) Copy of the commitment or cause of the detention.jr 3. return 6. in case of invasion or rebellion 3. the return being prima facie evidence of the cause of the restraint. This is because unless the allegations are controverted. and has transferred the same to another. will be issued as a matter of course ordering the production of the person. and 4) If he previously had custody. the return shall be only considered as a plea of the facts set forth. then state to whom. command officer to produce 4. and the period starts to run the following day. together with a copy of the writ. 2) If he does. execution or other process. Only where return of the respondent showing that: Sigma Rho ( ΣΡ ) reviewers 37 . Otherwise. for what cause. service of writ by sheriff or other officer 5. if it can be procured without impairing the efficiency of the remedy (if no legal authority for imprisonment. RENE CALLANTA. if known. order. if proper in form. and by what authority such transfer was made. KINDS OF WRIT OF HABEAS CORPUS 1) PRELIMINARY CITATION – where a person detained under governmental authority and the illegality of his detention is not patent from the petition for the writ. Therefore. > Mandatory and jurisdictional *** In counting the 48 hours. and the party claiming custody must prove the same. Contents of petition: > must be signed and verified. power or restraint. Application for writ. *** If it appears that that the prisoner is under custody under a warrant of commitment in pursuance of law. failure to file a reply to the Return warrants the dismissal of the petition. they are deemed to be true and admitted.SIGMA RHO . 2) PREEMPTORY WRIT – issued when the cause of detention appears to patently illegal and the non-compliance therewith is punishable WHEN SUSPENDED: 1.CALLANTA & PARTNERS Personal copy of ATTY. in the former case. the court may issue a citation to the government officer having the person in her/his custody to show cause why the writ should not issue.

REMEDIAL NOTES 2004 . however it shall only be plea of the facts set forth if restraint is by private authority. Convey the person so imprisoned before the judge. by legal process 2.CALLANTA & PARTNERS Personal copy of ATTY. the date on which the decision was promulgated is not counted. WHC IS AVAILABLE IN THE FOLLOWING CASES: 1. also to person under moral restraint. 1. Officer shall: 1. person in whose custody or under whose restraint the party imprisoned or restraint is held. such person cannot. by order of proper court or judge be removed from one place to another within the Phil. Disobedience thereof constitutes contempt of court. court or judge before whom he is to be brought. In case of fire. When the return evidence. show cause of the imprisonment or restraint. If person detaining him does not appeal. unless from sickness or infirmity. *** If a prisoner is in custody under a warrant of commitment in pursuance of law or under a judicial order. insurrection or other necessity or public calamity. the prisoner shall be released. The right to bail also exist in case of crime of rebellion. b. the return shall be considered PRIMA FACIE EVIDENCE OF THE CAUSE OF RESTRAINT. epidemic. have the body of person before the court 2. see discussion on the right to bail. Make the return of the writ together with the day and the cause of caption or restraint. 3. Salazar) Sigma Rho ( ΣΡ ) reviewers 38 . RENE CALLANTA. Madayag: An appeal in Habeas Corpus proceedings should be perfected (i. it will continue the proceedings to determine the validity of the detention. When prisoner discharged if no appeal. Elepante vs. 2. and when only a plea. In the place where it is effective. QUERY: When does court acquire jurisdiction over person of respondent? The writ itself plays the role as summon in ordinary actions. Defect of form. Section 9. In all other cases. *** If one is unlawfully imprisoned. court shall order his discharge but such discharge shall not be effective until a copy of the order has been served on the office or person detaining the prisoner. The court then dismiss the petition. Section 13. To whom writ directed and what to require. When prisoner may be removed from one custody to another. EXCEPTION: > Lawful order or process of a court having jurisdiction of the cause or offense. 4. Section 8. prisoner is delivered to an inferior officer to carry to jail 3. Section 18.jr a. The person in custody is being held for a crime covered by the proclamation suspending the writ. How writ is executed and returned. and the period starts to run the following day GENERAL RULE: > A person discharged by virtue of a WHC can NOT again be imprisoned for the SAME OFFENSE. by filing Notice of Appeal) within 48 hours. compliance with which is mandatory and jurisdictional. (Caunca vs. 4. 2.e. and 2. No writ can be disobeyed for defect in form if it sufficiently states: 1. without danger be brought before the court. for trial.SIGMA RHO . Section 6. Directed to officer and command him to: 1. Section 15. court acquires jurisdiction over the person of the respondent by MERE SERVICE OF WRIT. In counting the 48 hours.

all names by which petitioner is known 3. *** Person desiring to change his name shall present petition to RTC of the province in which he resides. Sandiganbayan 193 SCRA 464) 2. of Human Rights. 1992) Section 2. (Conde vs. 379) *** The name that can be change under this rule is one registered in civil register not one in baptismal certificate. (Ng Yao Siong vs. 7. 650) Civilian persons convicted by the military court judicially rules as invalid as held in Tan vs. name is ridiculous. 6. Dir. In case of desaparecidos. cause for change of name 4. (Alacantara vs. the case should be referred to Comm. name asked for Grounds for change of name: 1. of Prisons 235 SCRA 152) WHEN NOT AVAILABLE: 1. (Republic vs. Contents of petition. that petitioner is bonafide resident of the province where petition is filed for at least three years prior to date of filing 2. necessity to avoid confusion Petition must include: TITLE BODY Sigma Rho ( ΣΡ ) reviewers 39 . Prov. May 21. People 31 SCRA 391) Court error denying right to speedy trial. The name asked for must be both stated in the petition and the published order as it is jurisdictional (Go vs. (Gumabon vs. 5. Warden) Unlawful denial of right to bail (Celeste vs. 376 NCC) EXCEPTION: Employment of pen name or pseudonyms or stage name is allowed if done in good faith and no injury to third person (Art. It shall set forth: 1. (Republic vs.REMEDIAL NOTES 2004 . Venue. Republic 1966) *** Change if name is a proceeding in rem. consequence of a change of status e. of Prisons 37 SCRA 420) Person held by court without jurisdiction. (Dizon vs. Barrios case. Republic 77 SCRA 65) *** Petition for adoption and change of name cannot be joined as they are not the same in nature and character nor do they represent common questions of fact or law. Rivera 45 Phil. (In Re: Petition for Habeas Corpus of Sumulong. Violator of conditional pardon because he may be rearrested. (Ordoñez vs. RENE CALLANTA. he may change name and use his natural parent’s name if the same will prejudice him. motion to quash information not writ is the proper remedy. Hernandez 253 SCRA 509) *** Although law on adoption provides that adopted child shall use surname of adopter. of Prisons 75 Phil 749) Person sentenced to a longer penalty than that of other person charged with the same offense. (Zafra vs. Person charged with political offense during Japanese Occupation after liberation. tainted with dishonor and extremely difficult to write or pronounce 2.jr 2. *** Petition shall be signed and verified by person desiring his name changed or some other person in his behalf. 3. Where offense already prescribe.SIGMA RHO .g: legitimated child 3.CALLANTA & PARTNERS Personal copy of ATTY. *** Requirement of verification is formal not jurisdictional requisite. Dir. 4. It is not a ground for dismissing the petition. 251 SCRA 709) RULE 103 CHANGE OF NAME Section 1. Eduardo 158 SCRA 470) 3. Dir. GENERAL RULE: No person can change his name without judicial order (Art. (Paredes vs. CA.

3) Name asked for. ZOSA (146 SCRA 366) Changes in the birth entry regarding a person’s citizenship is now allowed under Rule 108 of the Rules of Court as long as adversary proceedings are held.REMEDIAL NOTES 2004 . Rule 108 of the Rules of Court provides only the procedure or mechanism on the proper enforcement of the substantive law and does not violate the Constitution. alias Y. aliases. to Z. X. Example: “In Re: Petition for Change of Name of X. 2) Cause for the change of name. residency 2. and contain correct information as to: 1) Name or names of petitioner. CHIAO BEN LIM vs.jr 1. RULE 104 : VOLUNTARY DISSOLUTION OF CORPORATION *repealed by Sections 118 and 119 of the Corporation Code RULE 105 JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL CHILDREN Recognition of natural children (art. ZOSA (165 SCRA 292) If the title of the petition for change of name does not contain the name sought to be adopted and the names by which the petitioner is known by his friends and associates. Petitioner. aliases. all aliases 3. The non inclusion of all the names and aliases of petitioner in the caption of the order or in the title of the petition defeats the purpose of the publication.CALLANTA & PARTNERS Personal copy of ATTY. Official name (birth certificate). RENE CALLANTA. 278. asked for) 3. name (official. it is jurisdictional 2. Publication: must reproduce title of the petition (see above). be very particular with the spelling because it may void or annul the proceedings.SIGMA RHO . cause of change Notice of hearing published once a week for 3 consecutive weeks. Sigma Rho ( ΣΡ ) reviewers 40 . or within 4 months after last publication Last publication 4 months Hearing 30 days Election Hearing cannot be scheduled within these periods Title of Petition: Must include name. and name asked for.  Failure to comply with above requirements renders proceedings null and void REPUBLIC vs. name asked for 1. such title is defective and subsequent publication of the order containing such defective title renders the trial court without jurisdiction to hear and determine the petition.NCC)  Only evidence accepted 1) Record of birth 2) Will 3) Statement before court of record 4) Any authentic writing RULE 106 : CONSTITUTION OF FAMILY HOME *amended by Articles 152 and 153 of the Family Code. Date of hearing: cannot be held within 30 days before an election.

5 years STAGES OF ABSENTEE (1) 0 – 2 years (2) 2 years to 7 years (3) beyond 7 years (absence of 4 years under extraordinary circumstances) LEGAL CONSEQUENCE ------. When the absentee appears personally or by means of an agent. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION: 1. loss or recovery of citizenship. Marital entries – legal separations. Absence without administrator . judgments of annulments of marriage.2 years 2. and personal notice sent to all known heirs.status. 2) Names. election. 4) Probable value. Personal entries – Births. and residences of heirs instituted in the will (a copy of which must be presented) and of the intestate heirs.Petition for declaration of absence may be filed .REMEDIAL NOTES 2004 .SIGMA RHO . Notice of hearing: published once a week for 3 consecutive weeks. *** DIFFERENT from declaration of presumptive death > A declaration of presumption of death can never be final. However in the latter case. Citizenship entries – naturalization. adoptions. or declaring marriages void from the beginning. WHEN MAY A PERSON BE DECLARED ABSENT 1. location and character of the property of the absentee. RENE CALLANTA. RULE 108 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY *** This Rule applies not only to proceedings for correction of innocuous or clerical errors but also to correct substantial errors such as citizenship. 3. 2 years only is required in extraordinary circumstances Contents of petition for appointment of representative. 5. his whereabouts being unknown and without having left an agent to administer his property or the power conferred upon the agent has expired. marriages.for purposes of marriage: 4 years continuous absence shall be sufficient for present spouse to remarry.jr RULE 107 ABSENTEES WHEN REPRESENTATIVE APPOINTED: > When a person disappears from his domicile. deaths 2.CALLANTA & PARTNERS Personal copy of ATTY. and 6. 4.and legitimacy. Absence with administrator . acknowledgements of children.considered dead for all intents and purposes except for the purpose of succession . judicial determination of filiation. it is necessary that the proceedings be adversarial in nature. ages. or for declaration of absence and appointment of trustee or administrator: 1) Jurisdictional facts. Sigma Rho ( ΣΡ ) reviewers 41 . devisees. 3) Names and residences of creditors and other persons with adverse interests over the properties of the absentee. showing a proper document that he has acquired the absentees property by purchase or other title. Miscellaneous – changes of name. Civil capacity – Civil interdiction or voluntary emancipation of a minor. When a 3rd person appears. TERMINATION OF ADMINISTRATION: 1. 2. creditors and other interested persons at least 10 days before the hearing. legatees. Filial entries – legitimations. When the death of the absentee is proved and his testate/intestate heirs appear 3.

the particular erroneous entry which are sought to be corrected b. copying.SIGMA RHO . NOTE: Proceedings for the correction of entries should not be considered as establishing one’s status is a manner conclusively beyond dispute.) Venue for petitions for cancellation/correction of entry in Civil Registry: . Zosa. 4. (Chiao Ben Lim vs. 2. Proper petition is filed where the Civil Registrar and all parties interested are impleaded.jr *** If the subject matter is not the correction of clerical errors which are harmless or innocuous but involving nationality which is clearly substantial. Notice thereof must be given to the Solicitor General and all parties affected thereby. The status corrected would not have a superior quality for evidentiary purposes. which is visible to the eyes. Valencia 141 SCRA 462) Requisites of Adversarial proceedings: 1. The order of the hearing must be published 3. proceedings must be with “appropriate adversarial proceedings” not summary (lara vs. Parties to proceedings: 1) The civil registrar AND 2) All persons who have or claim any interest which would be affected thereby Scope:1) Clerical / typographical errors 2) Change of first name / nickname Definition of “Clerical or Typographical error”: > a mistake committed in the performance of clerical work in writing. such as misspelled name or misspelled place of birth or the like. Opportunity for the respondents to be heard. RENE CALLANTA.any person having direct and personal interest in the correction or change Where to file petition: 1) With the local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept 2) if petitioner has already migrated to another place in the country and it would not be practical for such party to appear before the local civil registrar keeping the documents to be corrected or changed: With the local civil registry of the place where the interested party is presently residing or domiciled 3) if petitioner resides or domiciled in foreign countries: With nearest Phil. tainted with dishonor or extremely difficult to write or pronounce 2) New first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community 3) Change will avoid confusion Form and contents of petition: 1) in the form of an affidavit. subscribed and sworn to before any authorized person 2) set forth fact necessary to establish merits 3) show affirmatively that petitioner is competent to testify to the matters stated 4) state: a.CALLANTA & PARTNERS Personal copy of ATTY. There is no increase or dimunition of substantive right. Consulate *** Petition may be availed of only once Grounds for change of first name: 1) First name is ridiculous. transcripting or typing an entry in the civil register that is harmless and innocuous. or obvious to the understanding and can be corrected or changed only by reference to other existing record or records Who may file petition: . the change sought to be made 5) supported by: Sigma Rho ( ΣΡ ) reviewers 42 . Full blown trial.RTC of province where the corresponding civil registry is located.REMEDIAL NOTES 2004 . 5.

trustee. ORDER or DECREE order for hearing shall be published once a order shall also be published once for three week for three consecutive weeks consecutive weeks and court shall cause reasonable notice to persons named in petition service of judgment shall be upon the civil register concerned *** Petition for change of name (Rule 103) and petition for cancellation or correction of entries are DISTINCT PROCEEDINGS. EXCEPT that no appeal is allowed from appointment of special administrator. Sigma Rho ( ΣΡ ) reviewers 43 . 3) Allowance/disallowance of any claim against the estate of a deceased person or any claim presented on behalf of the estate to offset claim against it. 4) Settlement of account of executor. his name EVENT. EXTRA: RA 9048 AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER PETITIONS FOR CHANGE OF NAME Differences between RA 9048 and Rule 108 RA 9048 Administrative proceeding Affidavit is filed Penalty clause Publication requirement: once a week for 2 consecutive weeks Posting in conspicuous place Change of name is based on 3 enumerated grounds RULE 108 Summary judicial proceeding Petition is filed No penalty clause Publication requirement: 3 consecutive weeks No posting Change of name is to correct clerical / innocuous errors Rule 109 Appeals in Special Proceedings Appeals in special proceedings may be taken from the following orders/judgments: 1) Allowance/disallowance of wills.CALLANTA & PARTNERS Personal copy of ATTY. 6) Final order or judgment rendered in case and affects substantial rights of person appealing UNLESS it be an order granting or denying a motion for new trial or motion for reconsideration.REMEDIAL NOTES 2004 . at least 2 public or private documents showing the correct entry or entries upon which the correction or change shall be based 6) other relevant documents PETITIONS FOR THE CORRECTION. a certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed ii. or guardian. Petition is filed by person desiring to change By any person interested in any ACT. CANCELLATION OF ENTRIES Petition to be filed in the RTC where the verified petition filed in the place where the petitioner resides corresponding registry is located Solicitor General must be notified by service Civil registrar concerned is made a party to of a copy of the petition. the proceeding as a respondent. RENE CALLANTA.SIGMA RHO . a final determination in the lower court of the rights of the party appealing. 2) Determination of lawful heir or distributive share of the estate to which such person is entitled. in proceedings relating to settlement of estate or administration of a trustee or guardian.jr i. 5) Constitutes. administrator.

Sign up to vote on this title
UsefulNot useful