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San Beda College of Law

100

MEMORY AID
SPECIAL PROCEEDINGS SPECIAL PROCEEDINGS - A remedy by which a party seeks to establish a status, a right or a particular fact. (Rule 1, Section 3 JURISDICTION GENERAL RULE: Regional !rial "ourt EXCEPTION: #!" has $urisdiction in the following cases% 1. &robate proceedings whether testate or intestate where the gross 'alue of the estate does ()! e*ceed &3++,+++ or &,++,+++ in #etro #anila, -."/0S12- of interest, damages of whate'er kind, attorney3s fees, litigation e*penses and costs. 4. 5-/-6A!-5 70R1S51"!1)( 8 in "adastral and /and Registration "ases co'ering lots where there is no contro'ersy or opposition or contested lots where the 'alue of which does not e*ceed & 1++!. 8 appeal is taken to the "A, not to the R!" since #!" is e9ual to R!" in this instance. 3. S&-"1A/ 70R1S51"!1)( 8 petitions for writ of :abeas "orpus in case of absence of R!" $udges.  S" and "A ha'e original $urisdiction o'er :abeas "orpus cases, concurrent with the R!". ORDINARY ACTION to protect or enforce a right or pre'ent or redress a wrong in'ol'es two or more parties go'erned by ordinary rules SPECIAL PROCEEDING in'ol'es the establishment of the right, status or fact may in'ol'e only one party go'erned by special rules supplemented

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REMEDIAL LAW

supplemented by special rules heard by courts of general $urisdiction 1nitiated by a pleading and parties respond through an answer

by ordinary rules heard by courts of limited $urisdiction 1nitiated by means of a petition and parties respond by means of an opposition

DIFFERENT MODES OF SETTLEMENT OF ESTATE OF DECEASED PERSON 1. -*tra$udicial Settlement of -state (Section 1, Rule ;, 4. &artition (Rule <= 3. Summary Settlement of -state of Small 2alue (Section 3, Rule ;, ,. &robate of >ill (Rule ;? to ;= ?. &etition for letters of Administration in cases of 1ntestacy (Rule ;= PROCEDURE PROCEEDINGS IN SETTLEMENT

Probate of t e !ill if any (Rule 7" #7$)

Issuance of Letters Testamentary/Administration (A special administrator may be appointed) (Rule 77-80)

.ilin( of %laims (Rule 8$)

Payment of %laims &ale/'ort(a(e/)ncumbrance of Properties of t e )state

*istribution of Residue+ if any (,ut t is can be made e-en before payment if a bond is filed by t e eirs)

REMEDIAL LAW COMMITTEE
 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law
101

MEMORY AID
RULE 73 VENUE AND PROCESS VENUE  1(:A@1!A(! )A &:1/1&&1(-S (whether citiBen or alien 8 "ourt of pro'inceCcity where he resides at the time of death.  1(:A@1!A(! )A A)R-16( ")0(!RD 8 R!" of any pro'ince wherein he had his estate. Residence – means his personal, actual or physical habitation, his actual residence or place of abode. (Fule vs. CA, L-40502, Nov. 29, 1976) !e"e es#$#e %& dece$sed 'e"s%ns se##(ed) (Sec.1 * +INDS OF SETTLEMENT A. -.!RA7051"1A/ S-!!/-#-(! ,R-(e 7./ Sec#i%n 01 @. 7051"1A/ S-!!/-#-(! - !estate or 1ntestate &roceedings instituted in the country where decedent has his residence EXTENT OF JURISDICTION &robate courts are courts of /1#1!-5 $urisdiction. 1t may only determine and rule upon issues relating to the settlement of the estate, namely% 1. administration of the estateE 4. li9uidation of the estateE and 3. distribution of the estate. GENERAL RULE: &robate court cannot determine issue of ownership. EXCEPTIONS: 1. &ro'isionally, ownership may be determined for the purpose of including property in in'entory, without pre$udice to its final determination in a separate actionE or 4. >hen all the parties are heirs and they submit the issue of ownership to the probate court pro'ided that the rights of third parties are not pre$udiced. (Bernardo vs. CA, L18148, Fe . 28, 196!)

IN

REMEDIAL LAW

EXAMPLES OF OT2ER 3UESTIONS 2IC2 T2E PRO4ATE COURT CAN DETERMINE 1. >ho are the heirs of the decedentE 4. !he recognition of a natural childE 3. !he 'alidity of disinheritance effected by the testatorE ,. Status of a woman who claims to be the lawful wife of the decedentE ?. !he 'alidity of a wai'er of hereditary rightsE <. !he status of each heirE ;. >hether property in in'entory is con$ugal or e*clusi'e property of deceased spouseE F. All other matters incidental or collateral to the settlement and distribution of the estate. PRINCIPLE OF EXCLUSIONARY RULE !he court first taking cogniBance of the settlement of the estate of the decedent, shall e*ercise $urisdiction to the e*clusion of all other courts. !he probate court ac9uires $urisdiction from the moment the petition for the settlement is filed with said court. 1t cannot be di'ested of such $urisdiction by the subse9uent acts of the parties as by entering into e*tra$udicial partition of the estate ("andoval vs. "an#$a%o, 88 &'(L 784 E or filing another petition for settlement in a proper court of concurrent 'enue ()e Bor$a vs. *an, 77 &+$l 872). EXCEPTION: -stoppel by /A":-S  7urisdiction under Rule ;3 Sec. 1 does ()! relate to $urisdiction per se but to 'enue. :ence, institution in the court where the decedent is neither an inhabitant or ha'e his estate may be wai'ed. (,r$ar#e vs. CF(, L-219!8-!9, -a. 29, 1970)  1mproper 'enue must be seasonably raised. (/use $o v. /use $o, 100 &'(L 59!)

REMEDIAL LAW COMMITTEE
 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law
102

MEMORY AID
REMEDY IF T2E VENUE IS IMPROPERLY LAID )R51(ARD A&&-A/ not certiorari or mandamus 0(/-SS want of $urisdiction appears on the record of the case.  R!" may issue writs and processes. (Sec.3, Rule ;3 GENERAL RULE: &robate court cannot issue writs of e*ecution. Reason% its orders usually refer to the ad$udication of claims against the estate which the e*ecutorCadministrator may satisfy without the need of e*ecutory process. EXCEPTIONS: -."/0S12- (e01ress$o un$us es# e02lus$o al#er$us 1. !o satisfy the contributi'e share of the de'isees, legates and heirs when the latter had entered prior possession o'er the estate. (Sec. <, Rule FF 4. !o enforce payment of the e*penses of partition. (Sec. 3, Rule =+ !e"e #!e es#$#e se##(ed -'%n diss%(-#i%n %& 5$""i$6e (Sec.4 0pon the death of either the husband or the wife, the partnership affairs must be li9uidated in the testate or intestate proceedings of the deceased husband or wife. 1f both ha'e died, li9uidation may be made in the testate or intestate proceedings of either. RULE 7. SUMMARY SETTLEMENT OF ESTATE GENERAL RULE: 1f a person dies, his estate is submitted to a $udicial settlement proceeding. EXCEPTION: !he heirs may resort to% 1. -*tra$udicial settlement of estateE or 4. Summary settlement of estate 8 must be conducted in accordance with regular procedure ()! under rules of summary procedure. (Regalado  1n these e*ceptions an administrator or e*ecutor need not be appointed.

IN

REMEDIAL LAW

EXTRAJUDICIAL SETTLEMENT 4Y AGREEMENT 4ET EEN 2EIRS (Sec.1 Re7-isi#es% A. Substanti'e 1. !he decedent left a no will b no debts 4. !he heirs are all of age or the minors are represented by their $udicial or legal representati'es dul. au#+or$3ed 4or #+e 1ur1ose @. &rocedural /0 5i'ision of estate must be in a &0@/1" 1(S!R0#-(! or by AAA15A21! of A57051"A!1)( $n #+e 2ase o4 a sole +e$r. 10 Ailed with proper Registry of 5eeds 20 &ublication of notice of the fact of e*tra$udicial settlement once a week for 3 ")(S-"0!12- >GS. 30 @ond filed e9ui'alent to the 'alue of &-RS)(A/ property.  !he bond is re9uired only when personalty is in'ol'ed or the real estate is sub$ect to a lien in fa'or of creditors, heirs or other persons for the full period of 4 years from such distribution and such lien cannot be substituted by a bond.  !he bond is the 'alue of the personal property certified by the parties under oath and ")(51!1)(-5 upon payment of $ust claims filed under Sec. ,, Rule ;,. 4OND /0 e9ui'alent to the 'alue of personal property 10 certified by parties under oath by an affida'it 20 conditioned upon the payment of $ust claims filed under Sec. ,. 1f they cannot agree to the manner of partition among themsel'es, they may resort to )rdinary Action of &artition. 1f despite the institution of such action they subse9uently arri'ed at an agreement, they may enter into the corresponding stipulation and register the same with the Register of 5eeds. (Regalado

REMEDIAL LAW COMMITTEE
 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

. amount of bond is e9ual to the 'alue of personal property JUDICIAL SETLLEMENT re9uires summary $udicial ad$udication gross estate must not e*ceed &1+! allowed in both testate and intestate a'ailable e'en if there are debtsE it is the court which will make pro'ision for its payment #ay be instituted by A(D 1(!-R-S!-5 &AR!D e'en a creditor of the estate 6$#+ou# #+e 2onsen# o4 all +e$rs bond to be determined by the court >hile the Rules pro'ide that the decedent must not ha'e left any debts. Bau#$s#a.Elaine Mas"ka! )E*i+ence. 1977) IMPORTANT RE3UIREMENTS /0 Application must contain allegation of gross 'alue of estate.#"$<-dici$( se##(e5en#= NO) &ri'ate instrumentCdocument or )ral agreement of partition is 'alid among the heirs who participated in the e*tra$udicial settlement. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. Reformation compelled. 110 &+$l 584) DISPUTA4LE PRESUMPTION T2AT DECEDENT LEFT NO DE4TS 1f no creditor files a petition for letters of administration within 4 years after the death of the decedent. REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. +++...4 6R)SS 2A/0. . 10 Action to Annul a deed of e*tra$udicial settlement on the ground of ARA05 8 within .>GS in a newspaper of general circulation. compliance with the pro'isions of Sec. REMEDIES /0 >1!:1( 4 DRS. )(". ('ernande3 vs Andal :owe'er. 30 4%nd . RE3UISITES OF T O>YEAR PERIOD LIEN 1.San Beda College of Law 103 MEMORY AID Is $ P-8(ic Ins#"-5en# necess$"9 &%" #!e :$(idi#9 %& $n e. it is sufficient if any debts he may ha'e left ha'e been paid at the time of the e*tra$udicial settlement is entered into."--5 &1+. CA) 4ASIS TO COMPEL SETTLEMENT OF T2E ESTATE 1.. Rule .Jeenice +e Sa0"n )Cri$inal Proce+"re. 20 (otice shall be ser'ed upon such interested persons as the court may direct. L-!790!. 4.. undue depri'ation of lawful participation in the estate..of the estate must ()! -. C#arissi$ae %en!"ra.. Conanan. e*istence of debts against the estate or undue depri'ation of lawful participation payable in money.1. . LIA4ILITY OF DISTRI4UTEES AND ESTATE (Sec.A >--G A)R 3 ")(S-"0!12. 1.amount fi*ed by the court (not 'alue of personal prop conditioned upon payment of $ust claims under Sec. ("a51$lo vs. (Regalado EXTRAJUDICIAL SETTLEMENT (o court inter'ention 'alue of the estate immaterial allowed only in intestate succession there must be no outstanding debts of the estate at the time of settlement resorted at the instance and by agreement of A// heirs may be IN REMEDIAL LAW SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE (Sec.Alnai. -ar2+ !0. ev$den#$ar. !he re9uirement under Sec. $n na#ure. ()el 8osar$o vs. Maricris Oronea  E PS: Mar!essa N"ylan. 10 5ate for hearing a) shall be set by court not less than 1 #)(!: nor more than 3#)(!:S from da#e o4 las# 1u l$2a#$on o4 no#$2e9 b) published. (7u$2o vs. persons ha'e taken part or ha'e notice of e*tra$udicial partition 4.claim against the bond or the real estate.. that it must be in public instrument is ()! constituti'e of the 'alidity but is 5erel.  !his is $urisdictional. Rule . CHAIRPERSONS: Allen Fariñas.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s.

CA. 144 "C8A !!). file a motion in the court wherein such summary settlement was had.8 because of the public policy to obey the will of the testator. 79 &+$l !24) RULE 7? PRODUCTION OF ILL@ ALLO ANCE OF ILL NECESSARY Sec#i%n 0) A((%A$nce necess$"9/ c%nc(-si:e $s #% e. or b) 1n prison or c) )utside the &hilippines. 10 #A(5A!)RD . $s re5oved.4< 10 de'isee or legatee named in the will 20 person interested in the will (e. any person ha'ing a d$re2# and 5a#er$al $n#eres# in the will or estate. (8e on% vs. . !% 5$9 'e#i#i%n &%" $((%A$nce %& Ai((= (Sec. for the payment of his credit.ec-#i%n) NATURE OF PRO4ATE PROCEEDINGS /0 1( R-# -binding on the whole world. it has been held in one case that a will may be sustained on the IN REMEDIAL LAW basis of Article 1+F+ of the "i'il "ode which reads as follows% H1f the testator should make a partition of his properties by an act inter 'i'os.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. CHAIRPERSONS: Allen Fariñas. )$5a%$ a) RULE 7B ALLO ANCE OR DISALLO ANCE OF ILL P"%8$#e %" A((%A$nce %& i((s > act of pro'ing in a court a document purporting to be the last will and testament of a deceased person in order that it may be officially recogniBed. o4 4raud.)A -S!)&&-/ does no# apply. within 4 years.Alnai... Re$s%n: presentation and probate of will is re9uired by public policy and in'ol'es public interest. the unpaid creditor may. such partition shall stand in so far as it does not pre$udice the legitime of the forced heir. ( ane3. ? Rule .. 20 Recon'eyance of real property.I (-an%-:. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. vs. heirs 30 testator himself 8 during his lifetime the possession of the will is not necessary !% 5$9 8e $ '$"#9 in '"%8$#e= 6enerally. or by will. the creditor or heir is a) A minor or incapacitated. :)>-2-R. CONTENTS OF T2E PETITION (Sec.San Beda College of Law 104 MEMORY AID D-ARS 4ro5 #+e d$s2over. EXCEPTION: 1f on the date of the e*piration of the two-year period.Jeenice +e Sa0"n )Cri$inal Proce+"re. he may present his claim within one year a4#er su2+ d$sa $l$#.$.3 Such lien cannot be discharged nor the annotation be cancelled within the 4 year period e'en if the distributees offer to post a bond to answer for contingent claims from which lien is established.. >here the estate has been summarily settled. 20 1#&R-S"R1&!1@/.no will shall pass either real or personal property unless it is pro'ed and allowed in the proper court.1 /0 any creditor .ur$sd$2#$onal 4a2#s 8 death of the testator and his residence at the time of death or the pro'ince REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. Maricris Oronea  E PS: Mar!essa N"ylan.? !he 4-year lien upon the real property distributed by e*tra$udicial or summary settlement shall be annotated on the title issued to the distributees and after 4 years will be cancelled by the register of deeds without need of court order (/R" "1R"0/AR 1. 30 !he 5)"!R1(. p. registered and its pro'isions carried insofar as they are in accordance with law. C#arissi$ae %en!"ra.4 /0 the . (Sec. (Fernande3 vs.as preparatory step for filing of his claim therein (Regalado.Elaine Mas"ka! )E*i+ence.

IN REMEDIAL LAW 10 20 30 "0 COURT APPOINTS TIME FOR PROVING ILL) NOTICE T2EREOF TO 4E PU4LIS2ED (Sec. and as e'idence of the e*ecution of the will.? At the hearing.Elaine Mas"ka! )E*i+ence. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. (AC 78 No. EXCEPTION: >here the entire or all testamentary dispositions are 'oid and where the defect is apparent on its face. Maricris Oronea  E PS: Mar!essa N"ylan. insane. EFFECT OF T2E PRO4ATE OF A ILL 1t is conclusi'e as to the -. CA. a criminal case against the forger may not lie after the will has been probated. MEANING AND EXTENT DUE EXECUTION 5ue e*ecution means that% /0 the testator is of sound and disposing mind when he e*ecuted the willE 10 the will was ()! e*ecuted under duress. de'isees of the testator or decedentE the probable 'alue and character of the property of the estateE the name of the person for whom the letters are prayedE the name of the person ha'ing custody of the will if has not been deli'ered to the court. fraud or other circumstances that 'itiates consentE 20 the re9uired formalities ha'e been strictly complied withE and 30 the will is genuine and not a forgery... MODES OF NOTIFYING 49 5$i(: 4+ days before hearing Pe"s%n$( n%#ice: 1+ days before hearing  3 weeks successi'ely is not strictly 41 days. .-"0!1)( and the 2A/151!D of the will (e'en against the state . !hus.if subscribing witnesses reside is dead. and the due e*ecution of the will. ages. and residences of the heirs. :2#. EVIDENCE in s-''%"# %& Ai((: /0 0(")(!-S!-5 >1// (Sec. compliance of &ublication and (otice must first be shown before introduction of testimony in support of the will. REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas. 19879 Ne1u5u2eno vs. ANTE MORTEM 1f petition for probate is on testator3s own initiati'e during his lifetime /0 no publication is necessaryE and 10 notice shall be made only to the compulsory heirs. or none reside in the &hilippines 8 "ourt may admit testimony of the witnesses to pro'e the sanity of the testator. . legatees.? a) No#ar$al <$lls . (A2a$n vs. 1!9 "C8A 206) EXTRINSIC VALIDITY .San Beda College of Law 105 MEMORY AID where estate was left by the decedent who is a non-residentE the names. NOTICES MUST 4E GIVEN TO: /0 designated or known heirs.Jeenice +e Sa0"n )Cri$inal Proce+"re..means due e*ecution of the will. ISSUE IN T2E PRO4ATE OF A ILL GENERAL RULE: )nly determination of the e*trinsic 'alidity not the intrinsic 'alidity or testamentary dispositions.if all subscribing witnesses reside outside the pro'ince 8 deposition is allowed. . 27.3 !en d%es c%-"# $c7-i"e <-"isdic#i%n %:e" in#e"es#ed 'e"s%ns $nd "es= 0pon &0@/1"A!1)( for 3 >GS successi'ely of the order setting the case for hearing A(5 sending ()!1"-S to all persons interested.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s.Alnai. PROOF OF 2EARING (Sec.testimony of at least 1 of the subscribing witnesses is allowed. 72706. or the issuance of letters testamentary or of administration with the will anne*ed. C#arissi$ae %en!"ra. it may admit proof of the @ut no defect in the petition shall render 'oid the allowance of the will. legatees and de'iseesE and 10 e*ecutor and co-e*ecutor if not the petitioner.

if any or all the witnesses (i testify against the e*ecution of the will. 10 ")(!-S!-5 (Sec.A// subscribing witnesses A(5 notary public... 12. 12!486. Maricris Oronea  E PS: Mar!essa N"ylan. (ii do not remember attesting thereto. 1f the decedent owns properties in different countries. b) 'olo%ra1+$2 <$lls . Au%. vs. ..the administration proceedings 6+ere +e le4# +$s es#a#e.Jeenice +e Sa0"n )Cri$inal Proce+"re. testimony of an e*pert witness. b) 'olo%ra1+$2 <$lls . in Codo.Elaine Mas"ka! )E*i+ence. the will may be allowed if the court is satisfied from the testimony of other witnesses and from all the e'idence presented that the will was e*ecuted and attested in the manner re9uired by law..3 witnesses who knows the handwriting of testator. Calu%a. CHAIRPERSONS: Allen Fariñas. =a1.4 /0 there must be a will (inferred from the wordings of Rule .  :)>-2-R. the S" ruled that if the holographic will is contested.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. T O TYPES OF ESTATE PROCEEDINGS% /0 D%5ici((i$"9 $d5inis#"$#i%n the proceeding instituted in las# res$den2e of the decedent.San Beda College of Law 10 MEMORY AID handwriting of the testator and of the subscribing witnesses or of any of them. 1999. GENERAL RULE: :olographic will if destroyed "A(()! be probated. RULE 77 ALLO ANCE OF ILL PROVED OUTSIDE OF P2ILIPPINES AND ADMINISTRATION OF ESTATE T2EREUNDER A will allowed or probated in a foreign country. testimony of an e*pert witness may be resorted to. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. or if it was not.Alnai. 1n the absence thereof.ec-#ed $nd '"%:ed in $ &%"ei6n c%-n#"9 8e $((%Aed in #!e P!i(i''ines -nde" R-(e 77= YES) &rov$ded that the following must be pro'ed% REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST.the testimony of 1 witness who knows the handwriting and signature of the testator. 78 N:. or (iii of doubtful credibility.< Aacts which should be pro'ed in order that a lost or destroyed will may be allowed% /0 due e*ecution and 'alidity of the willE IN REMEDIAL LAW 10 will was in e*istence when testator died..ero* copy thereof. 10 Anci(($"9 $d5inis#"$#i%n . C#arissi$ae %en!"ra. 104 &+$l 509) P"%%& %& (%s# %" des#"%9ed Ai(( (Sec. RE3UISITES OF ANCILLARY ADMINISTRATION (Sec. E 10 filing of% a) copy of the will e*ecuted in foreign countryE b) order or decree of foreign court allowing such willE and c) authentication of re9uisites a and b abo'eE 20 notice of time and place of hearingE 30 hearingE and "0 certificate of allowance. separate administration proceedings must be had in said countries. EXCEPTION: 1f there e*ists a &hotostat or . that it has been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledgeE and 20 the pro'isions of the will are clearly established by at least #6o 2red$ le 6$#nesses. 3 witnesses who know the handwriting and signature of the testator are now re9uiredCmandatory to pro'e its authenticity and for its allowance. (7an vs.11 a) No#ar$al <$lls . C$n $ Ai(( e. must be 8/-&8:BA*/) in the &hilippines.  :)>-2-R. 1n the absence thereof.

10 letters testamentary or administration with a will anne*ed shall e*tend to all estates of the &hilippines. C#arissi$ae %en!"ra. where the testator did not name any e*ecutor or that the e*ecutor so named refuses to accept the trust. (Sec.Authority issued to an e*ecutor named in the will to administer the estate.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s.. CHAIRPERSONS: Allen Fariñas.ed > one appointed by the court in cases when.. or fails to file a bond.Jeenice +e Sa0"n )Cri$inal Proce+"re. 2O ARE INCOMPETENT TO SERVE AS EXECUTOR@ADMINISTRATOR= /0 a minor 10 a non-resident 20 one who in the opinion of the court is unfit to e*ercise the duties of the trust by reason of% a) drunkenness b) impro'idence c) want of understanding and integrity d) con'iction for an offense in'ol'ing moral turpitude  -*ecutor of e*ecutor shall not. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. as such. Ad5inis#"$#%" Ai#! $ Ai(( $nne. regular or special (Rule F+ E and 20 Administrator with a will anne*ed (Rule . E. or according to the formalities obser'ed in his country. said person is either incapacitated or unwilling to ser'e as such. or if appointed.. Maricris Oronea  E PS: Mar!essa N"ylan.)ne appointed by the "ourt in accordance with the Rules or IN REMEDIAL LAW go'erning statutes to administer and settle the intestate estate or such testate estate. shall be disposed of as pro'ided by law in cases of estates in &hilippines belonging to persons who are inhabitants of another state or country. 2O MAY SERVE AS EXECUTOR@ ADMINISTRATOR= Any ")#&-!-(! person may ser'e as e*ecutor or administrator.San Beda College of Law 10! MEMORY AID /0 foreign court must ha'e $urisdiction o'er the proceedingE 10 domicile of testatorCdecedent in the foreign country and not in the &hilippinesE 20 that the will has been admitted to probate in such countryE 30 it was made with the formalities prescribed by the law of the place in which the decedent resides. or in conformity with the formalities prescribed by our "i'il "odeE and "0 due e*ecution of the will in accordance with the foreign laws. Ad5inis#"$#%" . or is otherwise incompetent. administer the estate of the first testator. etc. (Regalado EFFECTS /0 the will shall ha'e the same effect as if originally pro'ed and allowed in court of the &hilippines. Section 1 .ec-#%" > !he one named by the testator in his will for the administration of his property after his death. 20 Residue of estate after payment of debts.=. TO 2OM LETTERS ADMINISTRATION GRANTED OF REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. RULE 7C LETTERS TESTAMENTARY AND OF ADMINISTRATION 2EN AND TO 2OM ISSUED PERSONS 2O CAN ADMINISTER T2E ESTATE /0 -*ecutorE 10 Administrator. the will does not appoint any e*ecutor.Elaine Mas"ka! )E*i+ence. 4 Le##e"s #es#$5en#$"9 .Alnai. . although there is a will. Le##e"s %& $d5inis#"$#i%n – Authority issued by the court to a ")#&-!-(! person to administer the estate of the deceased who died intestate.

Alnai. RULE 7D OPPOSING ISSUANCE OF LETTERS TESTAMENTARY PETITION AND CONTENTS FOR LETTERS OF ADMINISTRATION !$# is #!e MAIN ISSUE in $n $d5inis#"$#i%n '"%ceedin6= >ho is the person rightfully entitled to administration. /etters can be granted to any person or any other applicant e'en if other competent persons are present if the latter fail to claim their letters when notified by the court. ha'e the higher interest and most influential moti'e to administer the estate correctly. (S!RA(6-R  !he )rder of appointment of Regular administrator is final and appealable.. !% 5$9 %''%se #!e iss-$nce %& (e##e"s= GENERAL RULE: Any person interested in the will. (o defect in the petition shall render 'oid the issuance of the letters of administration. . or both in the discretion of the court. impro'idence or mismanagement.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. A(D one or more of the &R1("1&A/ "R-51!)RS. <. &ublication for 3 >eeks and notice to heirs.)R ()#1(-10 1f the sur'i'ing spouse or the ne*t of kin or the person selected by them be incompetent or unwilling to ser'e. 20 1f there is no such creditor competent and willing to ser'e. it may be granted to such other person as the court may select. Rule . (Sec. 4ASIS FOR T2E PREFERENTIAL RIG2T !he underlying assumption is that those who will reap the benefits of a wise. CHAIRPERSONS: Allen Fariñas. if competent and willing to ser'e. <. C%n#en#s %& $ 'e#i#i%n &%" (e##e"s %& $d5inis#"$#i%n% (Sec. (Section 1 IN REMEDIAL LAW EXCEPTION: -'en where a person who had filed a petition for the allowance of the will of the deceased person had no right to do so in 'iew of his lack of interest in the estate. ne'ertheless. (/use $o vs. residence of heirs and creditorsE c) probable 'alue and character of the estateE and d) name of the person for whom letters is prayed for. or to such person as such sur'i'ing spouse or ne*t of kin. where the interested persons did not ob$ect to its application. (S0R2121(6 S&)0S. Rule .F. re9uest to ha'e appointed. !he filing of the petition may be considered as ha'ing been ratified by the interested parties. the defect in the petition would be deemed cured. >al5ores 97 &'(L 16!) &etition for )pposition may at the same time be filed for /etters of Administration with the will anne*ed.4 a) $urisdictional factsE b) name.. creditors and other persons belie'ed to ha'e an interest in the estate is re9uired before hearing. speedy and economical administration of the estate or on the other hand.Jeenice +e Sa0"n )Cri$inal Proce+"re. if competent and willing to ser'e. or if the sur'i'ing spouse or ne*t of kin neglects for 3+ days after the death of the decedent to apply for administration. G"%-nds &%" O''%si#i%n: /0 1n Le##e"s Tes#$5en#$"9 a) incompetence 10 1n Le##e"s %& Ad5inis#"$#i%n a) incompetenceE b) preferential right of the heir under Sec.. Maricris Oronea  E PS: Mar!essa N"ylan. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. age. suffer the conse9uences of waste.= RULE CE SPECIAL ADMINISTRATOR !en 5$9 $ '"%8$#e c%-"# $''%in# $ s'eci$( $d5inis#"$#%"= REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. C#arissi$ae %en!"ra.Elaine Mas"ka! )E*i+ence.San Beda College of Law 10" MEMORY AID O"de" O& P"e&e"ence /0 !he sur'i'ing husband or wife or the ne*t of kin.

5elay in granting of letters including appeal in the probate of the will. C#arissi$ae %en!"ra.D-AR 30 &erform all orders of the court.. (&$. CHAIRPERSONS: Allen Fariñas. !en d%es #!e '%Ae" %& $ s'eci$( $d5inis#"$#%" ce$se= After the 9uestions causing the delay are resol'ed and letters are granted to regular e*ecutor or administrator. &ossession and charge of the goods.1 !en &i(ed= @efore an e*ecutor or administrator enters upon e*ecution of his trust A5%-n#= Ai*ed by the court CONDITIONS /0 #ake an 1(2-(!)RD of property which came to his knowledge and possession within 3 #)(!:S. )e 7urrea.San Beda College of Law 10# MEMORY AID 1.. and that the order appointing the later lies within the discretion of the probate court. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re.. Sell )(/D a perishable propertyE and b those ordered by the courtE . !erms and effecti'ity of bond does not depend on payment of premium and does not e*pire until the administration is closed. -*ecutor is a claimant of the estate he represents.  1t is possible for the e*ecutor or administrator whose appointment is challenged by appeal to be appointed also as the special administrator pending such appeal. REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. ?ue rar. ORDER OF APPOINTMENT DISCRETIONARY !he preference accorded by Sec. As long as the probate court Is $''%in#5en# %& s'eci$( $d5inis#"$#%" $''e$($8(e= NO.uan vs. :owe'er. the bond contemplates a continuing liability. . 4. 1527) PO ERS AND DUTIES 1. DURATION OF PO ER OF SPECIAL ADMINISTRATOR 0ntil 9uestions causing the delay is decided and the regular administrator is appointed.. credits.F of the Rules of "ourt to sur'i'ing spouse refers to the appointment of a re%ular administrator. ADMINISTRATORFS 4OND G STATUTORY 4OND "onditions prescribed by statute forms part of bond agreement. rights.Alnai. Maricris Oronea  E PS: Mar!essa N"ylan. 124 &+$l. 20 Render an A"")0(! within )(. (Lu3on "ure#. and is not appealable. 127 "C8A 295). < of Rule . IN REMEDIAL LAW A5#1(1S!RA!)R is appealable because it is a final order. appointment of a R-60/AR retains $urisdiction of the estate. &ay debts )(/D as may be ordered by the court.Elaine Mas"ka! )E*i+ence. the same is 1(!-R/)"0!)RD. "ommence and maintain suit for the estateE 3. . the administrator shall ha'e the same powers as that of a general administrator. RULE C0 4ONDS OF EXECUTOR AND ADMINISTRATOR 4OND OF EXECUTOR@ADMINISTRATOR (Sec. and estate of the deceasedE 4. 10 A5#1(1S!-R the estate and from the proceeds pay all debts and charges.Jeenice +e Sa0"n )Cri$inal Proce+"re. chattels. !here is no harm in appointing the same person as special administrator because there is a 'ast of difference between the powers and duties of the two positions. vs. ()! to that of s1e2$al administrator.in this second instance.

L-27657. ALLO ANCE TO IDO AND FAMILY .Elaine Mas"ka! )E*i+ence. Au%.San Beda College of Law 110 MEMORY AID 4OND OF SPECIAL ADMINISTRATOR (Sec. Maricris Oronea  E PS: Mar!essa N"ylan. 1FF of the "i'il "ode. 3. or o4 ad5$n$s#ra#$on. 1. RULE C* REVOCATION OF ADMINISTRATION/ DEAT2/ RESIGNATION AND REMOVAL OF EXECUTORS AND ADMINISTRATORS 1f after letters of administration ha'e been granted on the estate of the decedent as if he had died intestate.. and the administrator shall forthwith surrender the letters to the court. CHAIRPERSONS: Allen Fariñas. (Sec. !0. ()e &arreno vs.  !he disco'ery of a will does ()! $1so 4a2#o nullify the letters of administration already issued until the will has been pro'ed and allowed pursuant to Rule F4 Sec. or remo'al are 'alid unless pro'en otherwise.. .Sec)31 A((%A$nce > monetary ad'ances sub$ect to collation and deductible from their share in the estate of the decedent. make in'entory.3 PO ERS OF NE EXECUTOR OR ADMINISTRATOR (Sec. the letters of administration shall be re'oked and all powers thereunder cease. (Sec. Such determination is only pro'isional and a prima facie finding of the issue of ownership. deli'er the same to person appointed e*ecutor or administrator or other authoriBed persons.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. 4 !hese grounds are -. +$s 6$ll $s allo6ed and 1roved . 4. the children need not be minors %" REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST.. render accounting when re9uired by court.4 G"%-nds /0 neglect to render accountsE (wCin 1 D-AR or when the court directs E 10 neglect to settle estate according to these rulesE 20 neglect to perform an order or $udgment of the court or a duty e*pressly pro'ided by these rulesE 30 abscondingE or IN REMEDIAL LAW or the "0 insanity or incapability unsuitability to discharge trust.Jeenice +e Sa0"n )Cri$inal Proce+"re. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. RULE C3 INVENTORY AND APPRAISAL PROVISION FOR SUPPORT OF FAMILY 1n'entory and appraisal must be made within 3 #)(!:S 4ro5 #+e %ran# o4 le##ers #es#a5en#ar.. (Sec. and render his account within such time as the court may direct. !% $"e en#i#(ed #% $((%A$nce d-"in6 '"%ceedin6s= /0 Le%$#$5a#e sur'i'ing spouse (Ne1o5u2eno vs CA)E and 10 "hildren of the decedent."/0S12-. /awful acts of an administrator or e*ecutor before the re'ocation. 78 No.  According to Art.Alnai. /0 collect and settle the estate not administeredE 10 prosecute or defend actions commenced by or against the former e*ecutor or administratorE and 20 reco'er e*ecution on $udgments in the name of former e*ecutor or administrator. C%ndi#i%ns 1. !he bond is effecti'e as long as the court has $urisdiction o'er the proceedings.1 Appro'al of an in'entory is not a conclusi'e determination of what assets constituted the decedent3s estate and of the 'aluation thereof. . 1982) RESIGNATION OR REMOVAL OF EXECUTOR@ ADMINISTRATOR (S-". C#arissi$ae %en!"ra. Aran3anso. resignation. #+e 2our#.

e'en at public or $udicial auction.San Beda College of Law 111 MEMORY AID incapacitated to be entitled to allowance. (<a%ner vs. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re.. 617000!. 78 No. either in person or mediation of IN REMEDIAL LAW 10 20 30 "0 $0 another. ha'ing the character of an ad'ance payment to be deducted from the respecti'e share of each heir during distribution. ("an#ero vs CF( o4 Cav$#e.Alnai. and possibly for the production of fruits. his widow and children are not entitled to support pending the li9uidation of the intestate estate. without his fault. GENERAL PO ERS OF EXECUTORS AND ADMINISTRATORS PO ERS OF EXECUTOR@ ADMINISTRATOR OF T2E ESTATE /0 !o ha'e access to. -oore RULE C.Jeenice +e Sa0"n )Cri$inal Proce+"re. "annot continue the business of the deceased unless authoriBed by the court.. 1987) 6randchildren are ()! entitled to allowance under Rule F3.Elaine Mas"ka! )E*i+ence. "annot borrow money without authority of the court. C#arissi$ae %en!"ra. CHAIRPERSONS: Allen Fariñas. might ha'e sustained. "e1#. . the property under administration. Maricris Oronea  E PS: Mar!essa N"ylan.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. "annot lease the property for more than one year.. REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. RULE C? ACCOUNTA4ILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS GENERAL RULE: !he e*ecutor or administrator is accountable for the whole estate of the deceased.F RULE: >ithin one year from the time of recei'ing letters testamentary or letters of administration. EXCEPTION TO T2E EXCEPTION: >hen through untruthfulness to the trust or his own fault or for lack of necessary action.ec-#%" %" $d5inis#"$#%" "ende" $n $cc%-n#= (Sec. ('e$rs o4 8u$3 vs CA) >hen liabilities e*ceed the asset of the estate. EXCEPTION: :e is not accountable for properties which ne'er came to his possession. EXPENSES OF ADMINISTRATION: those necessary for the management of the property. for protecting it against destruction or deterioration. "annot speculate with funds under administration. !en s!$(( e. re1a$rs9 30 !o possess and manage the estate when necessary% a) for the payment of debtsE and b) for payment of e*penses of administrationE "0 !o maintain in tenantable repairs houses and other structures and fences and to deli'er the same in such repair to the heirs or de'isees when directed so to do by the court. on the ground that such support. 24. the e*ecutor or administrator failed to reco'er part of the estate which came to his knowledge. SOME RESTRICTIONS ON PO ER OF ADMINISTRATOR@EXECUTOR /0 "annot ac9uire by purchase. "annot profit by the increase or decrease in the 'alue of the property under administration. Administrator or e*ecutor shall not profit by the increase of the estate nor be liable for any decrease which the estate. and e*amine and take copies of books and papers relating to the partnership in case of a deceased partnerE 10 !o e*amine and make in'oices of the property belonging to the partnership in case of a deceased partnerE 20 !o make impro'ements on the properties under administration with the necessary court appro'al e*cept for ne2essar.

Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. !en 5$9 $ c%-"# iss-e n%#ices #% c"edi#%"s #% &i(e #!ei" c($i5s= 1mmediately issued after granting letters testamentary or of administration."--51(6 1 #)(!: from the order allowing belated claims. CHAIRPERSONS: Allen Fariñas. they are @ARR-5 A)R-2-R. )therwise. REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. Statute of (on-"laims supersedes the Statute of /imitations insofar as the debts of deceased persons are concerned. 208 &+$l 678) C($i5s A!ic! s!%-(d 8e &i(ed -nde" #!e S#$#-#e %& N%n>c($i5s= /0 #oney claims.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. RULE CB CLAIMS AGAINST ESTATE C($i5 . )n application of a creditor who has failed to file his claim within the time pre'iously limited. allow such claim to be filed within a time ()! -. EXCEPTION: @elated "laims. $0 7udgment for money against decedent. Carlos. PURPOSE: for the speedy settlement of the affairs of the deceased person and early deli'ery of the property of the estate into the hands of the persons entitled to recei'e it. And the heirs. -'en if the testator acknowledged the debt in his will and instructed the e*ecutor to pay the debt. e'en after distribution are liable for such ta*es.Alnai.Elaine Mas"ka! )E*i+ence.any debt or pecuniary demand against the decedent3s estate. STATUTE OF NON>CLAIMS (Sec. "laims not yet due or contingent may be appro'ed at their present 'alue.San Beda College of Law 112 MEMORY AID EXCEPTION: An e*tension of time is allowed for presenting claims against or paying the debts of the estate for disposing of the estate but e'en in such cases.. Maricris Oronea  E PS: Mar!essa N"ylan. 4e($#ed C($i5s are claims not filed within the original period fi*ed by the court. for cause shown and on such terms as are e9uitable. the administration should be terminated in not more than two-years and a half.. @)!: statute of (on-"laims and Statute of /imitations #0S! ")("0R in order for a creditor to collect.. C($i5s A!ic! $"e n%# &i(ed Ai#!in #!e S#$#-#e %& N%n>C($i5s $"e 8$""ed &%"e:e" .Jeenice +e Sa0"n )Cri$inal Proce+"re. .@-A)Ran order of distribution is entered. (:lave vs. !he court in the e*ercise of its administrati'e control o'er the e*ecutor or administrator may direct the latter to pay such ta*es. the statute of non-claims IN REMEDIAL LAW must still be complied withE otherwise the claim may also be barred. at A(D !1#. C%n#in6en# C($i5 – conditional claim or claim that are sub$ect to the happening of a future uncertain e'ent.Sec)?1 "laims referred to under this section refer to claims for the reco'ery of money and which are not secured by a lien against the property of the estate. "laims arising AA!-R his death cannot be presented e*cept for% a) funeral e*pensesE and b) e*penses of the last sickness of the decedent. "laims for ta*es (inheritance and estate due and assessed after the death of the decedent need not be presented in the form of a claim. :owe'er. C#arissi$ae %en!"ra. the court #AD.4 !en s!%-(d #!e c($i5s 8e &i(ed= GENERAL RULE: >ithin in the time fi*ed in the notice which shall not more than 14 #)(!:S nor less than < #)(!:S after the date of the A1RS! &0@/1"A!1)(. debts incurred by deceased during his lifetime arising from contract 10 e*press or implied 20 due or not due 30 absolute or contingent "0 "laims for funeral e*penses and for the last illness of the decedent.

he may file a claim (contingent against the estate within the statute of non-claims.Jeenice +e Sa0"n )Cri$inal Proce+"re. CHAIRPERSONS: Allen Fariñas.. Agency coupled with an interest !he power to foreclose a mortgage is not an ordinary agency that contemplates e*clusi'ely the representation of the principal by the agent but is primarily an authority conferred upon the mortgagee for latter3s own protection. a creditor barred by the Statute of (on-claims may file a claim as a ")0(!-R"/A1# in any suit that the e*ecutor or administrator may bring against such creditor.and foreclose the name at anytime within the period REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. (@au2$an vs ?uero..Sec)031 7udgment against e*ecutor 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. MORTGAGE DE4T ESTATE (Sec. the a'ailment of one bars the a'ailment of other remedies.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s.. 7udgment of a probate court appro'ing or disappro'ing a claim is appealable.San Beda College of Law 113 MEMORY AID :)>-2-R. !8 &+$l 707l) J%in# %8(i6$#i%n %& deceden# !he claim must be confined to the portion belonging to the decedent. real or personal (tortuous acts !hese are actions that surv$ve the death of the decedent. SOLIDARY O4LIGATION OF DECEDENT (Sec. JUDGMENT ALLO ING CLAIM . C#arissi$ae %en!"ra.  !he mode of appeal is record on appeal and must be filed within 3+ 5ADS from notice of $udgment. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re.his mortgage or realiBe upon his security by action in court making e*ecutor or administrator a party defendant and if there is . !hat power sur'i'es the death of the mortgagor. An action for re'i'al of money $udgment may be filed against the administrator to preempt prescription of $udgment. 2ei" 5$9 n%# s-e -n#i( s!$"e $ssi6ned (Sec.. RULE C7 ACTIONS 4Y AND AGAINST EXECUTORS AND ADMINISTRATORS Ac#i%ns A!ic! 5$9 %" 5$9 n%# 8e 8"%-6!# $6$ins# e. (B$2ol "av$n%s and Loan Asso2$a#$on vs. 105 "C8A 762). CA) 20 R-/D S)/-/D )( :1S #)R!6A6.3 ALTERNATIVE REMEDIES O& T!e C"edi#%" 2%(din6 A C($i5 Sec-"ed 49 A M%"#6$6e O" O#!e" C%(($#e"$( Sec-"i#9 /0 A@A(5)( security and prosecute his claim against the estate and share in the same general distribution of the assets of the estateE 10 A)R-"/)S.< "laim should be filed against decedent as if he were the only debtor without pre$udice on the part of the estate to reco'er contribution from the other debtor.ec-#%" $nd $d5inis#"$#%" (Sec. Maricris Oronea  E PS: Mar!essa N"ylan. .1 1ndependent and separate of the probate proceeding% /0 reco'ery of real or personal property or any interest therein from the estate 10 enforcement of a lien thereon 20 action to reco'er damages for any in$ury to person or property. (8o5ualde3 vs.Alnai.ud%5en# 4or )/F(C(/NC=. *$%lao. DUE FROM IN REMEDIAL LAW of the statute of limitation but he cannot be admitted as creditor and shall not recei'e in the distribution of the other assets of the estateE  !hese remedies are al#erna#$ve.Elaine Mas"ka! )E*i+ence.

or alienated.San Beda College of Law 114 MEMORY AID @efore distribution is made or before any residue is known. .  !hese re9uisites need not be complied with if the grantee of the fraudulent con'eyance is the e*ecutor or administrator himself. P"%'e"#9 &"$-d-(en#(9 c%n:e9ed 89 #!e dece$sed 5$9 8e "ec%:e"ed) !en e.Jeenice +e Sa0"n )Cri$inal Proce+"re..Elaine Mas"ka! )E*i+ence.F !he responsible person shall be liable to an action in fa'or of the e*ecutor or administrator of the estate for double the 'alue of the property sold. Maricris Oronea  E PS: Mar!essa N"ylan. GENERAL RULE: !he probate court has no authority to decide whether or not the properties belong to the estate or to the person being e*amined since probate courts are courts of limited $urisdiction. !en #!e Ai(( '"%:ides &%" '$95en# %& de8#s/ Sec#i%n * 5-s# 8e &%((%Aed) Although testator acknowledged a specific debt on his will. 26. embeBBled. "e2. the creditor must still file his claim in the testate or intestate REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. IN REMEDIAL LAW RE3UISITES 4EFORE ACTION MAY 4E FILED 1. CA.-"0!)R )R A5#1(1S!RA!)R. the heirs and de'isees ha'e no cause of action against the e*ecutor or administrator for reco'ery of the property left by the decedent.= !his pro'ision applies when there is a deficiency of assets in the hands of the e*ecutor or administrator for the payment of the debts and e*penses for administration administration for it is under this circumstance that there may be con'eyances made by the deceased with intent to defraud the creditor. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. "e1#. 1990) E58eHH(e5en# 8e&%"e (e##e"s iss-ed (Sec.1 1f estate is insol'ent. 1059 and 22!9 #o 2251 o4 #+e C$v$l Code must apply. as in liabilities are more than the assets. the con'eyance made is 'oid (when there are badges of fraud 3.ec-#ed %" $d5inis#e"ed 5-s# 8"in6 $c#i%n (Sec. C#arissi$ae %en!"ra. RULE CC De8#s '$id in &-(( i& es#$#e s-&&icien# (Sec. sub$ect of con'eyance is liable for attachment in lifetime of decedent.< PURPOSE: !o elicit information or to secure e'idence from those persons suspected as ha'ing possessed or ha'ing knowledge of properties belonging to deceased. or of ha'ing concealed. P"%ceedin6s A!en '"%'e"#9 c%nce$(ed/ e58eHH(ed %" &"$-d-(en#(9 c%n:e9ed (Sec. a creditor may commence and prosecute the action if the following re9uisites are present% /0 !hat the e*ecutor or administrator has shown to ha'e no desire to file the action or failed to institute the same within the reasonable timeE 10 /ea'e is granted by court to creditor to file the actionE 20 @ond is filed by creditor as prescribed in this pro'isionE and 30 Action by creditor is in the name of the e*ecutor or administrator.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. to be reco'ered for the benefit of the estate. embeBBled or con'eyed away any properties of the deceased.. 78 No. CHAIRPERSONS: Allen Fariñas. in which e'ent the action should be in the name of all creditors.Sec)0E1 >hen a grantee in a fraudulent con'eyance is )!:-R !:A( !:-. 0se rule on preference of creditors 1f it is sufficient to satisfy claims of a class. deficiency in assets 4. !en c"edi#%" 5$9 8"in6 $c#i%n) Lien &%" c%s#s .Alnai.7 $n rela#$on #o Ar#. EXCEPTIONS: /0 &ro'isional determination of ownership for inclusion in the in'entoryE or 10 Submission to the court3s $urisdiction (Bernardo vs.. 8248!.

Jeenice +e Sa0"n )Cri$inal Proce+"re. 10 Special procedure is for the court to order the sale to satisfy the claim. who are liable in proportion to the shares in the estate respecti'ely recei'ed by them..= 1n the administration taken in the &hilippines of the estate of the 1(S)/2-(! his estate in the &hilippines shall be disposed of that his creditors in and outside in the &hilippines in proportion to their respecti'e credits. :owe'er the benefit of Sections = and 1+ cannot be e*tended to the creditors of foreign country where the property of the deceased therein is not e9ually apportioned to creditors residing in the &hilippines and other creditors. RE3UISITES /0 contingent claim is duly filedE 10 court is satisfied that the claim is 'alidE and 20 !he claim has become absolute. @ut court e*tend on application of e*ecutor or administrator and after hearing and notice thereof. -*tension must not e*ceed si* months for single e*tension. it may order the e*ecutor or administrator to retain in his hands sufficient estate to pay a portion e9ual to the di'idend of the creditors. 125 "C8A 682) Es#$#e %& Ins%(:en# n%n"esiden#/ !%A dis'%sed (Sec. 98 &+$l 680) 1f the contingent claim matures after the e*piration of the two years. !he contingent claims must first ha'e been established and allowed in the probate court before the creditors can file an action directly against the distributees. are funds of the estate. the creditors may sue the distributees. !he "ourt has $urisdiction o'er them and it could compel the heirs to deli'er to the administrator of the estate the necessary portion of such funds for the payment of any claims against the estate. "$son vs. otherwise his claim will be barred..a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s.San Beda College of Law 115 MEMORY AID proceedings. 2%A c%n#in6en# c($i5 8ec%5in6 $8s%(-#e in #A% 9e$"s $((%Aed $nd '$id (Sec. within two years from the time limited for other creditors to present their claims. ((n re *es#a#e /s#a#e o4 -ar%ar$#a )av$d. because% /0 &ayment appro'ing a claim does not create a lien upon a property of the estate. ()e Bau#$s#a vs. )e 7u35an. !he residual funds within the estate. Ti5e &%" '$9in6 De8#s $nd Le6$cies (Sec. Maricris Oronea  E PS: Mar!essa N"ylan. C#arissi$ae %en!"ra.. Is e. su1ra) IN REMEDIAL LAW 1t has been ruled that the only instance wherein a creditor can file an action against a distributee of the debtor3s assets is under Sec. 1f the court is satisfied that contingent claim duly filed is 'alid.ec-#i%n $ '"%'e" "e5ed9 #% s$#is&9 $n $''"%:ed c($i5= NO. >hole period allowed to the original e*ecutor or administrator shall not e*ceed 4 years (section 1? successor of dead e*ecutor or administrator may be gi'en an e*tension not to e*ceed < months.1+ "laims pro'en outside the &hilippines where the e*ecutor had knowledge and opportunity to contest its allowance therein may be added to the list of claims in the &hilippines against the estate of an 1(S)/2-(! R-S15-(! and the estate will be distributed e9ually among those creditors. (@au2$an vs.1? (eed not e*ceed 1 year in the first instance. ?uerol.? 1f such contingent claim becomes absolute and is presented to the court. Es#$#e #% 8e "e#$ined #% 5ee# c%n#in6en# c($i5s (Sec. Rule FF of the Rules of "ourt. although already in the possession of the uni'ersal heirs.. or to the e*ecutor or administrator.Elaine Mas"ka! )E*i+ence. CHAIRPERSONS: Allen Fariñas.Alnai. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. . *eodoro. ?. REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. !en $nd !%A c($i5 '"%:ed %-#side #!e P!i(i''ines $6$ins# ins%(:en# "esiden#Fs es#$#e '$id (Sec.

the disposition is not for any of the reasons specified by the rulesE )R 4. under Section 3 Rule F=. (Section = RE3UISITES a) application of -*ecutorCAdministratorE b) written notice to person interestedE and c) hearing  Assets in the hands of e*ecutorCadministrator will not be reduced to pre'ent a creditor from recei'ing his full debt or diminish his di'idends.  >ithout notice and hearing. any person interested in the estate gi'es a bond conditioned to pay the debts. C#arissi$ae %en!"ra. funeral e*penses. e*penses and legaciesE 30 1f deceased was in his lifetime under contract. Since they succeed to all the rights and obligation of the deceased from the moment of the latter3s death. Baun. (-ane2lan% vs. mortgage or encumber property of the estate may be denied by the court if% 1... e*penses of administration and legacies.Jeenice +e Sa0"n )Cri$inal Proce+"re. e*penses for REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. ? >hen 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 e*penses.!$-s#ed= (Sec.San Beda College of Law 11 MEMORY AID IN REMEDIAL LAW RULE CD SALES/ MORTGAGE AND OT2ER ENCUM4RANCES OF T2E PROPERTY OF T2E DECEASED O"de" %& s$(e %& 'e"s%n$(#9 (Sec. mortgage or encumbrance is 'oid. Reason% !he reason behind this re9uirement is that the heirs are the presumpti'e owner.1 RULE: )R5-R )A 51S!R1@0!1)( shall be made AA!-R payments of all debts.1 !he court may order the whole or part of the personal estate to be sold if necessary% /0 to pay debts and e*pense of administrationE 10 to pay legaciesE or 20 to co'er e*penses for the preser'ation of the estate. RULE DE DISTRI4UTION AND PARTITION OF T2E ESTATE Li7-id$#i%n means the determination of all assets of the estate and payment of all debts and e*penses. 208 "C8A 179) M$9 #!e c%-"# $-#!%"iHe s$(e/ 5%"#6$6e %" %#!e" enc-58"$nce %& es#$#e #% '$9 de8#s $nd (e6$cies in %#!e" c%-n#"ies= (Sec. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. !en c%-"# 5$9 $-#!%"iHe s$(e/ 5%"#6$6e %" %#!e" enc-58"$nces %& "e$(#9 #% '$9 de8#s $nd (e6$cies #!%-6! 'e"s%n$(i#9 n%# e. (oncompliance therewith under the sale is null and 'oid.Alnai. Maricris Oronea  E PS: Mar!essa N"ylan. e*penses of administration and legaciesE 10 1f sale of personal estate may in$ure the business or interests of those interested in the estateE 20 1f testator has ()! made sufficient pro'ision for payment of such debts. e*cept in the manner pro'ided by law.Elaine Mas"ka! )E*i+ence.. binding in law to deed real property to beneficiaryE (Section F "0 1f the deceased during his lifetime held real property in trust for another person. (otice is mandatory. . the sale.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. Application for authority to sell. 4 /0 1f personal estate is ()! sufficient to pay debts. !en %"de" &%" dis#"i8-#i%n %& "esid-e 5$de (Sec. they are the person directly affected by the sale or mortgage and therefore cannot be depri'ed of the property. CHAIRPERSONS: Allen Fariñas.

PRO2I4ITION AGAINST INTERFERENCE 4Y OT2ER COURTS As long as the order of distribution of the estate has not been complied with. 1f not appealed. determine the share of each heir. the court shall% 1.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. 1n these proceedings.the court shall% 1. !e"e #% &i(e= R!" of last residence or of location of his estate in the &hilippines if he is a nonresident. #ake an )R5-R )A :-AR1(6 8 hearing shall not be more than < #)(!:S AA!-R -(!RD )A )R5-R. for the heir who has not recei'ed his REMEDIAL LAW COMMITTEE IN REMEDIAL LAW share. administrator or person interested in the estate applied for suchE and 10 !he re9uirements as to notice and hearing upon such application ha'e been fulfilled. (*$5 ol vs. . pro'ided the prescripti'e period therefore has not elapsed. !% &i(es= Solicitor 6eneral or his representati'e in behalf of the &hilippines. howe'er. or for the reopening of the probate or administrati'e proceedings if it had already been closed. su1ra). the probate probate proceedings cannot be deemed closed and terminated. An order which determines the distributi'e shares of heirs is appealable.San Beda College of Law 11! MEMORY AID administration. C#arissi$ae %en!"ra.. A separate action for the declaration of heirs is not necessary. )nly after partition is appro'ed and not before.Alnai. because a $udicial partition is not final and conclusi'e and does not pre'ent the heirs from bringing an action to obtain his share. allowance of widow and inheritance ta* is effected. !he probate court lose $urisdiction o'er the settlement proceedings only upon payment of all debts and e*penses of the obligor and deli'ery of the entire estate to all the heirs. !en is #i#(e :es#ed= Arom A1(A/1!D of order of distribution. 5irect publication of the copy of order 8 at least once a week for < ")(S-"0!12. Cano.Jeenice +e Sa0"n )Cri$inal Proce+"re. the S!A!. and not through an independent action. RULE D0 ESC2EATS 3 INSTANCES %& ESC2EATS /0 >hen a person dies intestate lea'ing no heir but lea'ing property in the &hilippines (Section 1 10 R-2-RS1)( &R)"--51(6S 8 Sale in 'iolation of the "onstitutional pro'ision 20 0nclaimed @alance Act under @anking /aws !$# is #!e 8$sis %& #!e s#$#eFs "i6!# #% "ecei:e '"%'e"#9 in esc!e$#= )rder of succession under the "i'il "ode.is the last heir of the decedent. is to demand his share through proper motion in the same probate or administrati'e proceedings.  CHAIRPERSON: Jinky Ann Uy  ASST. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re.>--GS. collateE 4. CHAIRPERSONS: Allen Fariñas. Cano. Maricris Oronea  E PS: Mar!essa N"ylan. !he better practice.. 1f petition is sufficient in A)R# and S0@S!A(". the court may order the deli'ery to the heirs of their respecti'e shares e*cept when the heir file a bond conditioned to pay the debts.. 4. determine heirsE and 3. 1 "C8A 1271) CONDITIONS PRECEDENT #% 8e c%5'(ied Ai#! &%" #!e iss-$nce %& $n %"de" %& dis#"i8-#i%n /0 Showing that the e*ecutor. (*$5 ol vs. it becomes final.Elaine Mas"ka! )E*i+ence. which would be tried by another court or $udge which may thus re'erse a decision or order of the probate or intestate court already final and e*ecuted and re-shuffle properties long ago distributed and disposed of.

1+1. years of age or o'erE or . friendE or 3. 1n special proceedings. CHAIRPERSONS: Allen Fariñas. once a week for < weeks. . OT2ER ACTIONS FOR ESC2EATS . C$n c%-"# c%n:e"# esc!e$# '"%ceedin6s in#% %"din$"9 s'eci$( '"%ceedin6s %" :ice>:e"s$= NO. Pe"i%d% >ithin ? 9e$"s from the date of $udgmentE (under AR!. the Secretary of Social >elfare and 5e'elopment A(5 by the Secretary of :ealth in case of an insane minor who needs to be hospitaliBed.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s.Jeenice +e Sa0"n )Cri$inal Proce+"re..Alnai. other person on behalf of the resident incompe-tent who has no parents or lawful guardianE or . other person on behalf of a minorE or 3. !his is not allowed for the two actions ha'e different re9uirements in ac9uiring $urisdiction. publication is once a week for 3 weeks while in escheat. +3-+4-+?-S" which took effect on #ay 1. heir. C#arissi$ae %en!"ra.#. the minor himself if 1. 1 ?. . IN REMEDIAL LAW 20 if deceased ne'er resided in the &hilippines.. 49 A!%5% person of interest TO 2OM ILL T2E PROPERTY ESC2EATED 4E ASSIGNED: (Sec. !%= @y de'isee.. where the property may be found. (o. RULE D* GUARDIANS2IP  6uardianship of minors is now go'erned by the Rule on 6uardianship of #inors (A. of the "i'il "ode. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. legatee.>ithin ? D-ARS AR)# 5A!. CLAIM 4Y PERSONS ENTITLED TO T2E ESTATE (Sec. any one interested in the estate of a non- REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. at the instance of an interested party.)A 7056-#-(! otherwise fore'er barred.. 4++3. in the municipality or city where he last resided. widowCer. the ?-year period is reckoned from the date the property was deli'ered to the State and further pro'ides that if the property had been sold. 10 if real property. the action must be instituted in the pro'ince where the land lies in whole or in part. 4 A# +3-+4-+?S" INCOMPETENT 1. the 5irector of :ealth in fa'or of an insane person who should be hospitaliBed or in fa'or of an isolated leper.Elaine Mas"ka! )E*i+ence. any relati'eE or 4. or on its own motion. where the property is situated. . :)>-2-R. (Sec. or other person entitled thereto !en #% &i(e= . Maricris Oronea  E PS: Mar!essa N"ylan. may order the establishment of a &-R#A(-(! !R0S!. >hile guardianship of incompetents is still go'erned by the pro'isions of the Rules of "ourt on 6uardianship (Rule =4 to Rule =.Sec) ?1 . . (Sec.actions for re'ersion of property alienated in 'iolation of "onstitution or any statute. 3 /0 if personal property. MINOR 1. any relati'eE 4..!hese shall be go'erned by Rule =1. so that only the income from the property shall be used.San Beda College of Law 11" MEMORY AID RE3UISITES /0 publication of the order 10 person died intestate 20 he is seiBed of realCpersonal property in the &hilippines 30 he left no heir or person entitled to such property "0 there is no sufficient cause to the contrary !he court. the municipality or city shall be accountable only for such part of the proceeds as may not ha'e been lawfully spent.

o'er the person of the ward or o'er his property 10 /imited . guardian ad litem INCOMPETENT inc(-des: (Sec. 4 Rule =3 REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. any one interested in the estate of a nonresident incompetent (Sec. and of the persons ha'ing him in their careE the name of the person for whom letters of guardianship. general guardian 4.Elaine Mas"ka! )E*i+ence. RULE D3 APPOINTMENT OF GUARDIANS !% 5$9 'e#i#i%n &%" $''%in#5en# %& 6-$"di$n= !he father and the mother shall $ointly e*ercise legal guardianship o'er the person and property of their minor without the necessity of a court appointment.. age and residence of the person for whom a b c d e f the $urisdictional factsE the minority or incompetency rendering the appointment necessary or con'enientE the probable 'alue and character of his estateE the names.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. and residences of relati'e within the . A# +3-+4-+F +INDS OF GUARDIANS A) Acc%"din6 #% sc%'e: /0 6eneral . .14 resident incompetent (Sec.o'er the property only 4) Acc%"din6 #% c%ns#i#-#i%n: 1.. ages. and residences of the relati'es of the minor or incompetent. legal guardian 3.Jeenice +e Sa0"n )Cri$inal Proce+"re. C%n#en#s %& Pe#i#i%n MINOR INCOMPETENT J-"isdic#i%n:  1ncompetents 8 R!" of his residence or where his property is located in case of non-residents (Sec.th ci'il degree of minor. this Rule shall be suppletory a b c d e f g h the $urisdictional factsE the name. ages.Alnai. disease. 4 /0 those suffering from penalty of ci'il interdiction 10 hospitaliBed lepers 20 prodigals 30 deaf and dumb who are unable to read and write "0 those of unsound mind though they ha'e lucid inter'als $0 persons not of unsound mind but by reason of age. age and residence of the prospecti'e wardE the ground rendering the appointment necessary or con'enientE the death of the parents of the minor or the termination. 1n such case. weak mind and other similar causes cannot take care of themsel'es or manage their property. C#arissi$ae %en!"ra. Maricris Oronea  E PS: Mar!essa N"ylan. 3.San Beda College of Law 11# MEMORY AID ?. and of persons ha'ing him in their care and custodyE the probable 'alue. character and location of the property of the minorE and the name. depri'ation or suspension of their parental authorityE the remarriage of the minor3s sur'i'ing parentE the names. CHAIRPERSONS: Allen Fariñas. < IN REMEDIAL LAW to the pro'isions of the Aamily "ode on 6uardianship.. 1  #inor 8 Aamily "ourt of his residence or where his property is located in case of non-resident (Sec. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. (Sec.

:)>-2-R. including minor. 1992). years and abo'e d. only notice -. 1f the person is insane.. if 1. Maricris Oronea  E PS: Mar!essa N"ylan. hearing so that they may show cause why petition should not be granted.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. the property of said minor without $udicial appro'al (L$nda$n vs.Elaine Mas"ka! )E*i+ence. and the REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. ser'ice of notice upon the 5irector of :ospital where hospitaliBed is sufficient. 78 No. or alienate.# %& Iin > pertains to those relati'es who are entitled to share in the estate of the ward under the /aw on 1ntestate succession including those who inherit per stirpes or by right of representation. 4) Re7-i"e5en#s 1. he shall gi'e a @)(5 (Sec. 5$<%"i#9 of alleged minor 4. . no defect in the petition or 'erification shall render 'oid the issuance of letters of guardianship. filing of petition b. or upon incompetent is mandatory and $urisdictional. C) D-"$#i%n %& #!e %"de" &%" s$(e $nd enc-58"$nce %& '"%'e"#9 > >ithin 1 year from the granting of the order. !here is () re9uirement for &0@/1"A!1)(. 20. Au%."-&! in case of nonresident minorCincompetent. Sale of the ward3s realty by the guardian without authority from the court is 2)15. court shall set the case for hearing c. years of age or o'er. SELLING AND ENCUM4ERING PROPERTY OF ARD: A) G"%-nds 1. !he authority to sell or encumber shall not e*tend beyond 1 year unless renewed by the court.  (otice to ne*t of kin and interested persons is 70R1S51"!1)(A/. when it appears that it is for the benefit of the ward.. does ()! ha'e the power to dispose of.San Beda College of Law 120 MEMORY AID letters of guardianship are prayed. 1 Rule =. -ns-i#$8i(i#9 of the persons for whom letters are prayed P"%ced-"e a.Alnai. OPPOSITION TO PETITION (Sec. petition must be 'erifiedE 4. :)>-2-R. G"%-nds 1.upon minor if 1. notice must be gi'en to the ne*t of kinE and 3. 0nder the law. when income of estate is insufficient to maintain ward and family or to maintain and educate ward when a minorE or 4.Jeenice +e Sa0"n )Cri$inal Proce+"re. . c%5'e#enc9 of alleged incompetent 3. cause notices to be ser'ed to the persons mentioned in the petition.  !he )rder of Sale must specify the grounds. court shall recei'e e'idence e. 1t is presumed that if the property was not sold within 1 year. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. ser'ice of ()!1". C#arissi$ae %en!"ra. CHAIRPERSONS: Allen Fariñas. 95!05. IN REMEDIAL LAW  !he petition in'ol'ing minors is re9uired to be 2-R1A1-5 and accompanied by certification against A)R0# S:)&&1(6 while that in'ol'ing incompetent must be 'erified only. the ward has sufficient income. . Ne. a parent acting merely as legal administrator of the property of hisCher children. GENERAL PO ERS AND DUTIES OF GUARDIANS /0 ha'e the care and custody of the person of the ward. declaration of the propriety of the petition f.. CA. issue letters of guardianship 4ONDS OF GUARDIANS @efore an appointed guardian enters upon the e*ecution of his trust.

+3-+4-+?-S". collect debts and appear in actions for wardE manage the estate of the ward frugally. mental and psychological condition 20 Ainancial status 30 Relationship of trust with the minor "0 A'ailability to e*ercise the powers and duties of a guardian for the full period of guardianship $0 /ack of conflict of interest with the minor 70 Ability to manage the property of the minor.. . C) !% 5$9 8e $''%in#ed 6-$"di$n %& #!e 'e"s%n %" '"%'e"#9/ %" 8%#!/ %& $ 5in%" (Sec. if the latter is found unsuitable to e*ercise parental authorityE 30 >hen the best interest of the minor so re9uires. C#arissi$ae %en!"ra. IN REMEDIAL LAW 10 20 30 "0 10 Suspension.#. /0 "ontinued Absence. unless unfit or dis9ualifiedE 20 the A"!0A/ "0S!)51A( of the minor o'er twenty-one years of age. insanityE 4. the )R5-R )A &R-A-R-("-% /0 the S0R2121(6 6RA(5&AR-(! and in case se'eral grandparents sur'i'e. CHAIRPERSONS: Allen Fariñas. as the case may beE pay the debts of the wardE settle accounts.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. 4) 3-$(i&ic$#i%ns %& G-$"di$ns (Sec. effecti'e #ay 1. unless unfit or dis9ualifiedE and 30 any )!:-R &-RS)(. = REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. Termination or Depri'ation of parental authorityE (STD) 20 Remarriage of his sur'i'ing parent. the court may the following obser'ing as far as. or the management of the estate only. who in the sound discretion of the court would ser'e the best interests of the minor.< 1n default of parents or a court appointed guardian. SALIENT FEATURES $nd SPECIAL RULES FOUND IN T2E RULE ON GUARDIANS2IP OF MINORS (A. .Jeenice +e Sa0"n )Cri$inal Proce+"re. Incapacity or Death of parentsE (AID) or his D) C$se S#-d9 Re'%"# (Sec. and apply the proceeds to maintenance of the wardE render ver$4$ed in'entory 'erified within 3 #)(!:S after his appointment and annually thereafter upon application of interested personsE and render to court for its appro'al an accounting of the property for 1 D-AR from his appointment J e'ery year thereafter. practicable. ? /0 #oral character 10 &hysical.Alnai.. (o. the court shall select any of them taking into account all rele'ant considerationsE 10 the )/5-S! @R)!:-R )R S1S!-R of the minor o'er twentyone years of age. Maricris Oronea  E PS: Mar!essa N"ylan.San Beda College of Law 121 MEMORY AID management of his estate. 4++3) A) G"%-nds &%" Pe#i#i%n (Sec. failure to render an account or make a return within 3+ days after it was due. wastage or mismanagement of the property of the wardE and ... $0 TERMINATION OF GUARDIANS2IP A) G"%-nds &%" #e"5in$#i%n MINOR INCOMPETENT /0 !he ward has /0 competency come of ageE or of the ward 10 has died has been $udicially determined 10 guardianship is no longer necessary 4) G"%-nds &%" "e5%:$( %& $ 6-$"di$n: 1.Elaine Mas"ka! )E*i+ence. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. incapability or unsuitability to discharge functionsE 3.

. 4? . 1< 1f the market 'alue of the property on the annual income of the child e*ceeds &?+. TRUSTEE APPOINTED A4ROAD (Sec. RULE DC TRUSTEES REMEDIAL LAW COMMITTEE IN REMEDIAL LAW J-"isdic#i%n: R!" in which the will was allowed. or some portion thereof. >hen land in the &hilippines is held in trust for a resident by a trustee who deri'es his authority from abroad.Elaine Mas"ka! )E*i+ence. if it be a will allowed in the &hilippines. All persons beneficially interested in the trust.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. ? (eglect of trustees to file a bond will be interpreted by the court as resignation or decline to accept the trust. 4. >hen a trust is created abroad for property in the &hilippines. the parent concerned shall furnish a bond in such amount as the court may determine. C#arissi$ae %en!"ra.San Beda College of Law 122 MEMORY AID !he court shall order a social worker to conduct a case study of the minor and all prospecti'e guardians and submit report and recommendation to the court for its guidance before the scheduled hearing. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. Maricris Oronea  E PS: Mar!essa N"ylan.. otherwise. resigns. A 'erified petition for appro'al of the bond shall be filed in the Aamily "ourt of the place where the child resides or. he may be e*empted from bond when re9uested by% a.Alnai. :owe'er. G"%-nds &%" #e"5in$#i%n %& 6-$"di$ns!i' (Sec.s o4 $#s o22urren2e. .. such trustee must petition the R!" where the land is situated. :owe'er. A trustee is necessary to carry into effect% a) A will where the testator omitted to appoint a trustee in the &hilippines . or is remo'ed before accomplishment of trust . F  CHAIRPERSON: Jinky Ann Uy  ASST.Jeenice +e Sa0"n )Cri$inal Proce+"re.. the trust will be 'acant and a new trustee will be appointed. dies. the court may cancel such e*emption anytime. $udicial appro'al is still needed though trustor is ali'e. to guarantee the performance of the obligations prescribed for general guardians. in the Aamily court of the place where the property or any part thereof is situated. !he guardian shall notify the court of such fact within 10 da. (o motion for remo'al or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has appro'ed the same. REMOVAL OR RESIGNATION OF GUARDIAN (Sec. CHAIRPERSONS: Allen Fariñas.Tes#$5en#$"9 T"-s#1E and b) )ther written instruments where the trustee therein declines. (o persons succeeding to a trust as e*ecutor or administrator of a formal trustee shall be re9uired to accept such trust. affected by the trust is situated.C%n#"$c#-$( T"-s#1. but in no case less than 1+K of the 'alue of such property or income. 4OND OF TRUSTEES (Sec. otherwise by the R!" of the pro'ince in which the property.+++. !he court 5o#u 1ro1$o or upon 'erified motion of any person allowed to file a petition for guardianship may terminate the guardianship on the ground that the ward has ")#.)A A6. testatorE b.or has 51-5. E) 4%nd %& '$"en#s $s 6-$"di$ns %& '"%'e"#9 %& 5in%" (Sec. if the child resides in a foreign country. REMOVAL OR RESIGNATION OF T2E TRUSTEE (Sec. !he petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations of a general guardian shall be heard and resol'ed.

capacity of the adopters DOMESTIC ADOPTION 2O MAY ADOPT 1. 4. a proceeding 1( R-#. whether the adoption would be the best interest of the child Adoption is strictly personal between the adopter and the adopted. and e'ery intendment is sustained to promote that ob$ecti'e. !% 5$9 'e#i#i%n= &arties beneficially interested. there is a new Rule on Adoption.. ADOPTION AND CUSTODY OF MINORS  !he pro'isions of the Rules of "ourt on Adoption ha'e been amended by the D%5es#ic Ad%'#i%n Ac# %& 0DDC and the In#e"c%-n#"9 Ad%'#i%n Ac# %& 0DD? EXCEPT: Secs < J . )nly an adoption made through the court. (otice to trusteeE and 3. 4++4.. Maricris Oronea  E PS: Mar!essa N"ylan. NATURE AND CONCEPT OF ADOPTION Adoption is a $uridical act. CHAIRPERSONS: Allen Fariñas.Elaine Mas"ka! )E*i+ence. Any Ailipino "itiBen a) of legal ageE b) in possession of full ci'il capacity and legal rightsE c) of good moral characterE d) has not been con'icted of any crime in'ol'ing moral turpitudeE e) emotionally and psychologically capable of caring for childrenE f) in a position to support and care for hisCher children in keeping with the means of the familyE and () at least 1< D-ARS older than the adoptee. parties IN REMEDIAL LAW 4. &etition filed by beneficially interestedE 4.. . by hisCher countryE and e) !hat hisCher go'ernment allows the adoptee to enter hisCher country as hisCher adopted sonCdaughter. of Rule ==  -ffecti'e August 44. 2AT DOES T2E COURT DETERMINE IN ADOPTION CASES 1. 3. !he guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities. !he re9uirement of 1< D-ARS difference between the adopter and the adoptee is ()! applicable if the adopter is% REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s.Secs) 0>*?1 G"%-nds 1. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. or in pursuance with the procedure laid down under Rule on Adoption is 'alid in this $urisdiction. which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. :earing. PURPOSE OF ADOPTION !he promotion of the welfare of the child and the enhancement of his opportunities for a useful and happy life. incapability of discharging trustee .Jeenice +e Sa0"n )Cri$inal Proce+"re. essential in the interest of petitioners 4. C#arissi$ae %en!"ra..San Beda College of Law 123 MEMORY AID RE3UISITES 1. Any alien possessing the same 9ualifications as abo'eE pro'ided% a) !hat hisCher country has diplomatic relations with the &:1/1&&1(-SE b) !hat heCshe has been li'ing in the &hilippines for at least 3 ")(!1(0)0S D-ARS prior to the filing of the application for adoptionE c) #aintains residence until the adoption decree is enteredE d) "ertified to ha'e legal capacity to adopt. (*eo4$2o vs. unsuitability Rules on Sale and -ncumbrance of !rust -state shall conform as nearly as may be to the pro'isions on Sale and -ncumbrance by 6uardians. insanity 3.Alnai. )el >al) RULES ON ADOPTION .

through the pro'incial or city prosecutor. VENUE (Sec. 1f one spouse seeks to adopt hisCher own illegitimate sonCdaughter. 4. 3.. &etition shall be 'erified and specifically state at the heading of the initiatory pleading whether the petition contains an application for a change of name. A certification of non-forum shopping shall be included pursuant to Section ?. C.to be held within < #)(!:S from the date of issuance of the order EXCEPT: in case of A&&/1"A!1)( A)R ":A(6. ?. . copies of the order of hearing shall be furnished to the office of the Sol. 3. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. B.Elaine Mas"ka! )E*i+ence. 1f the spouses are legally separated from each other.. A child not otherwise dis9ualified by law or these rules. CHAIRPERSONS: Allen Fariñas. A child whose adoption has been pre'iously rescinded. GENERAL RULE: :usband and wife shall $ointly adopt. notice to the Sol. )ne who seeks to adopt the legitimate sonCdaughter of hisCher Ailipino spouse.)A (A#. the 5S>5 and the biological parents of the adoptee. A child whose biological or adopti'e parents ha'e died. PROCEDURE A.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. . the spouse of the adoptee3s parent !he re9uirement on residency and certification of alien3s 9ualification to adopt may be >A12-5 for the following% 1. 'oluntary or in'oluntary commitment of children. if. 4.>GS. REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST.th degree of consanguinity or affinity of the Ailipino spouse. dependent or neglected. <. or declaration of child as abandoned. IN REMEDIAL LAW 3. 1f one spouse seeks to adopt the legitimate sonCdaughter of the other. 2O MAY 4E ADOPTED 1.must be published at least once a week for 3 ")(S-"0!12.San Beda College of Law 124 MEMORY AID 1. prior to the adoption. rectification of simulated birth. Rules of "i'il &rocedure.. social worker may make recommendations to the court if he finds some grounds to deny the petition.social worker 'erifies with the "i'il Registry the real identity and the name of adoptee and the fact that he is legally a'ailable for adoption.Alnai. EXCEPTIONS: 1. )ne who is married to a Ailipino citiBen and seeks to adopt $ointly with hisCher spouse a relati'e within the . said person has been consistently considered and treated by the adopters as their own child since minority.< Aamily "ourt where the prospecti'e adopti'e parents reside. 6en. 4. the biological parent of the adoptee 4. ORDER OF 2EARING (Sec. C#arissi$ae %en!"ra..Jeenice +e Sa0"n )Cri$inal Proce+"re.1. An illegitimate child by a 9ualified adopter to raise the status to that of legitimacy. Shall be #A(5A!)RD. . Rule . 1A G()>(. !he adoptee is a former Ailipino citiBen who seeks to adopt a relati'e within the .. 2EARING (sec. C2ILD J 2OME STUDY REPORTS (Sec.14 . of the 1==.th degree of consanguinity or affinity.which hearing must not be within . . Maricris Oronea  E PS: Mar!essa N"ylan.6en.if a change in the name of the adoptee is prayed for in the petition. > at the discretion of the court.13 . !he legitimate child of one spouse by the other spouse. A person of legal age regardless of ci'il status. Any person below eighteen (1F years of age who has been $udicially declared a'ailable for adoption )R 'oluntarily committed to 5S>5. .

Maricris Oronea  E PS: Mar!essa N"ylan. C#arissi$ae %en!"ra. D.1? @efore issuance of decree of adoption the court shall gi'e the adopter trial custody of the adoptee for at least < #)(!:S.Jeenice +e Sa0"n )Cri$inal Proce+"re. years of ageE 4. adoptee shall be considered legitimate child of adopter for all intents and purposes.San Beda College of Law 125 MEMORY AID #)(!:S after /AS! &0@/1"A!1)( nor within 3+ 5ADS 1r$or #o ele2#$on. . 4.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s.the petitioner and the adoptee must personally appear and the former must testify in court. adopters shall ha'e reciprocal rights of succession without distinction from legitimate filiation. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. the decree shall be submitted to the "i'il Registrar where the court issuing the same is situated. other re9uirements same as with RA C??*. REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. An amended birth certificate shall be issued. adopter will e*ercise parental authority. e*cept when biological parent is spouse of adopter. 2O MAY 4E ADOPTED )nly a legally free child may be the sub$ect of inter-country adoption. RESCISSION AND REVOCATION OF ADOPTION 0nder the D%5es#ic Ad%'#i%n Ac# %& 0DDC. he can merely d$s$n+er$# the adoptee in accordance with the pro'isions of the "i'il "ode. IN REMEDIAL LAW 3. CHAIRPERSONS: Allen Fariñas. this will take effect as of the date of filing of the original petition. E. it relates only as to the date of the $udgment. any alien or Ailipino citiBen permanently residing abroad who is at least twenty-se'en (4.Elaine Mas"ka! )E*i+ence.. the A5)&!-R "A( () /)(6-R R-2)G.  All hearings and confidential.1F records are INTER COUNTRY ADOPTION (Secs. . EXCEPTION: Same as -*emptions from re9uirements of residency and certification.1t may be filed directly with the In#e"> C%-n#"9 Ad%'#i%n 4%$"d) 2O MAY ADOPT 1.  !he new birth certificate to be issued to the adoptee shall not bear any notation that it is an amended issue. .. EFFECTS OF ADOPTION 1.  A child under the 1nter-"ountry Adoption Act is defined as any person below fifteen (1? years of age.Alnai.the adoption. 'ested rights prior to rescission should be respected.. 1n case of change of name. :ence in re'ocation. (Sec. all legal ties between biological parents and the adoptee shall be se'ered. Re$s%n: So the parties will ad$ust psychologically and emotionally to each other and establish a bonding relationship. 4<-34 !e"e #% &i(e Pe#i#i%n= A 'erified petition to adopt a Ailipino child may be filed by a foreign national or Ailipino citiBen permanently residing abroad with the F$5i(9 C%-"# ha'ing $urisdiction o'er the place where the child resides or may be found.. !he original birth certificate shall be stamped HcancelledI and shall be sealed in the "i'il Registry records.  "ourt may reduce or e*empt parties from S!". SUPERVISED TRIAL CUSTODY .STC1 (Sec. DECREE OF ADOPTION 1f issued. 1n re'ocation. GENERAL RULE: Alien adopter must complete the < #)(!:S S!". .

&arentalC#aternal grandparents 4.. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re... PROCEDURE REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. &arents ha'e abandoned the child by reason of long absence or legal or physical impossibilityE 3. 41 ? D-ARS from reaching age of ma$ority or from reco'ery of incompetency. &arents cannot support the childE . Maricris Oronea  E PS: Mar!essa N"ylan.. Any suitable asylum. po'erty ORDER OF PREFERENCE in c$se #!e '$"en#s $"e -n&i# 1. 'ested rights re9uired prior to $udicial rescission shall be respected . ci'il registrar will reinstate his original birth or foundling certificate 0nlike in re'ocation of guardianship. counsels or e*amplesE <. (Sec. attempt on the life of the adopterE 3.. by reason of moral depra'ity 4.. 4+ Pe"i%d Ai#!in A!ic! #% &i(e VERIFIED 'e#i#i%n (Sec.Jeenice +e Sa0"n )Cri$inal Proce+"re. of Rule == of the Rules of "ourt referring to "ustody of #inors are still 'alid pro'isions. re'ocation of adoption is a separate proceeding from the adoption.. A5)&!-a o'er 1F years of age or b if minor with assistance of 5S>5 4. RULE DD/ SECTIONS B J 7 IN REMEDIAL LAW  Sections < and . abandonment or failure to comply with parental obligations. adoptee shall use the name stated in his original borth or foundling certificate ?.Alnai. unless the court fins there are compelling reasons therefor. &arents treat the child with e*cessi'e harshnessE ?. R-(e DD/ Sec#i%n B) P"%ceedin6s $s #% c!i(d A!%se '$"en#s $"e se'$"$#ed) !he 9uestion as to the care and custody and control of a child or children of their marriage is brought before a Regional !rial "ourt by &etition or as an incident to any other proceedings. &arents gi'e the child corrupting orders. reciprocal rights of adoptee and adopter will be e*tinguished 3.Elaine Mas"ka! )E*i+ence. Some reputable or discreet person . R-(e DD/ Sec#i%n 7) C-s#%d9 %& V$6"$n# %" A8-sed C!i(d J-"isdic#i%n $nd Ven-e Aamily "ourts of the territory where the petitioner resides. . incapacity . "hild3s oldest brother or sister 3. (o child under se'en (. &arents of the minor are deadE 4. 44 EFFECTS OF JUDGMENT OF RESCISSION 1. C#arissi$ae %en!"ra. CHAIRPERSONS: Allen Fariñas. (Sec. Ven-e AA#1/D ")0R! of the city or pro'ince where the adoptee resides. &arents cause or allow the child to engage in beggingE . G"%-nds 1.. &arents cause or allow child to commit offenses against the law.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. habitual drunkenness 3. parental authority or legal custody will be restored 4. repeated physical 'iolence and 'erbal maltreatment by the adopter despite ha'ing undergone counselingE 4. !en '$"en#s c%nside"ed -n&i# #% #$Ie c!$"6e %& #!e c!i(d 1.San Beda College of Law 12 MEMORY AID !% &i(es= 1.. 60AR51A( if o'er 1F but incapacitated or ")0(S-/ G"%-nds 1. se*ual assault or 'iolenceE or . years of age shall be separated from its mother. children3s home or bene'olent society. Ad'erse party shall file his A(S>-R within 1? days from receipt of order of court re9uiring him to answer.

26. (-on2u1a vs. it shall not be suspended e*cept in cases of in'asion or rebellion when public security re9uires it (Art. re9uiring him to produce the body of the person detained at a designated time and place. C#arissi$ae %en!"ra.Elaine Mas"ka! )E*i+ence.Alnai. EXCEPTION: >hen there are restraints attached to his release which precludes freedom of action. whether permanent or temporary. Ser'ice of 7udgment 8 upon the "i'il Registrar of the city or municipality where the court issuing the same is situated. :earing and )rder . LuA an) !he pri'ilege of writ is so sacred that.>-/AAR. (>$llav$2en2$o vs. !% &i(es= 5irector of :ealth with assistance of city or pro'incial fiscal. Re7-isi#es 1. Maricris Oronea  E PS: Mar!essa N"ylan. A1r. 78 No.1 1.. .#ends #%: (Sec. /nr$le. /nr$le. if li'ing 3..a command directed to the person detaining another. LuA an) !e#!e" #!e S#$#e c$n "ese":e #!e '%Ae" #% "e>$""es# $ 'e"s%n &%" $n %&&ense $&#e" $ c%-"# %& c%5'e#en# REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. (>$llav$2en2$o vs. whose principal purpose is to set the indi'idual at liberty..of said person 4. RULE 0E0 PROCEEDINGS FOR 2OSPITALIKATION OF INSANE PERSONS Ven-e R!" of pro'ince where the person alleged to be insane is found.San Beda College of Law 12! MEMORY AID 1. 1? . in which case the court can still in9uire into the nature of his in'oluntary restraint. Show "ause )rder 8 directed to parents or in case the parents are dead or cannot be found. CHAIRPERSONS: Allen Fariñas. 111. 61107. effecti'e and material. IN CASES OF ILLEGAL CONFINEMENT OR DETENTION GENERAL RULE: !he release. re9uiring the fiscal of the pro'ince to show cause.. Such person or one ha'ing charge of him is opposed or his being taken to hospital or asylum DISC2ARGE OF INSANE (Sec.or for !:. Ailing of &etition 8 by a reputable resident of the pro'ince 4. why the child should not be taken from its parents. and to relie'e a person therefrom if such restraint is illegal. cases of illegal confinement or detention by which a person is depri'ed of his libertyE and IN REMEDIAL LAW 4. 5irector of :ealth may file this petition when he is of the opinion that the person is permanently or temporarily cured or may be released without danger RULE 0E* 2A4EAS CORPUS 2$8e$s c%"'-s e. and to produce and to show cause and to e*plain the reason for detention. cases by which the rightful custody of the person is withheld from the person entitled thereto  !he restraint must be actual. 198!) "i# %& 2$8e$s C%"'-s .a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. according to our ")(S!1!0!1)(. of a detained person renders the petition for habeas corpus moot and academic. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. PURPOSE !he essential ob$ect and purpose of the writ of habeas corpus is to in9uire into all manner of in'oluntary restraint as distinguished from 'oluntary. su1ra) And any further rights of the parties are left untouched by decision on the writ. . !he person need not actually be confined as long as freedom of action is limited. Sec. (-on2u1a vs. 5irector of :ealth is of the opinion that the commitment of the person alleged to be insane is for &0@/1" >-/AAR.Jeenice +e Sa0"n )Cri$inal Proce+"re.

.Jeenice +e Sa0"n )Cri$inal Proce+"re. ser'ice of writ by sheriff or other officerE e. the moment a person is ac9uitted on a criminal charge he can no longer be detained or re-arrested for the same offense. lack of $urisdiction of the court to impose the sentence 3. a writ of habeas corpus may be used with the writ of certiorari for the purpose of re'iew. 1996)  :abeas "orpus can ne'er be a substitute for appeal. command officer to produceE d. NO. e*cessi'e penalty Re7-isi#es &%" #!e iss-$nce %& #!e "i# in c$ses 89 A!ic! #!e "i6!#&-( c-s#%d9 %& #!e 'e"s%n %& $ 5in%" is Ai#!!e(d &"%5 #!e 'e"s%n en#i#(ed #!e"e#% 1. CA. S" or any member thereon 4. (7alve3. :ence.. returnE and f. /nr$le) GROUNDS FOR RELIEF 1. CA. CHAIRPERSONS: Allen Fariñas. the filing of the application for the writ of habeas corpus. hearing on return. super'ening e'ents may bar release of discharge from custody. >hat is to be in9uired into is the legality of detention as of. :owe'er. . Maricris Oronea  E PS: Mar!essa N"ylan. 7.. 0nder this principle. ("o5 on% vs. S-'e":enin6 E:en#s M$9 4$" Re(e$se -'en if the arrest of a person is illegal.1995). "A or any member thereof 3. e# al.in the absence of R!" $udges P"%ced-"e &%" 6"$n# %& A"i# a.San Beda College of Law 12" MEMORY AID <-"isdic#i%n !$s $8s%(:ed !i5 %& #!e %&&ense) >e hold that such a reser'ation is repugnant to the go'ernment of laws and not of men principle. -. allowance of writE c. C#arissi$ae %en!"ra. that the petitioner has the right to the custody o'er the minor 4. 2!7 "C8A 685). Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. @ul. D%es :%(-n#$"9 "es#"$in# c%ns#i#-#e !$8e$s c%"'-s= As a 6-(-RA/ R0/-. habeas corpus does not lie where the petitioner has the remedy of appeal or certiorari because it will not be permitted to perform the functions of a writ of error or appeal IN REMEDIAL LAW for the purpose of re'iewing mere errors or irregularities in the proceedings of a court ha'ing $urisdiction o'er the person and the sub$ect matter."-&! when a person restrained is a minor and the petitioner is the father or mother or guardian or a person ha'ing custody of the minor. A writ of certiorari reaches the record but not the body... that the rightful custody of the minor is being withheld from the petitioner by the respondent 3. R!" or any $udge thereof . that it is to the best interest of the minor concerned to be in the custody of the petitioner and not that of respondent. CA.  2oluntariness is 'iewed from the point of 'iew of the person entitled to custody. at the earliest.4 1. vs.  !he person on bail is not entitled to habeas corpus because his detention is legal and technical.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. @anuar. 'erified petition signed by the party for whose relief it is intendedE some other person in his behalfE b. (-on2u1a vs.Alnai. !e#!e" #!e 'e#i#i%n &%" #!e A"i# %& !$8e$s c%"'-s 5$9 8e '"%'e"(9 &i(ed #%6e#!e" Ai#! #!e 'e#i#i%n &%" ce"#i%"$"i $nd 5$nd$5-s !he "ourt ruled that the writs of habeas corpus and certiorari may be ancilliary to each other where necessary to gi'e effect to the super'isory powers of the higher courts. (>elas2o vs. e# al. REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. !1. depri'ation of any fundamental or constitutional right 4. but not the record. P"e(i5in$"9 Ci#$#i%n > issued by the court to show cause whether or not the writ should be issued !% 5$9 6"$n# #!e 'e#i#i%n (Sec. A writ of habeas corpus reaches the body and the $urisdictional matters. #!" .Elaine Mas"ka! )E*i+ence.

>E. #ake the return of the writ together with the day and the cause of caption or restraint. &risoner is deli'ered to an inferior officer to carry to $ail 3. the return shall be considered &R1#A AA"1. taking into account all rele'ant considerations. court shall order his discharge but such discharge shall not be effecti'e until a copy of the order has been ser'ed on the office or person detaining the prisoner. Maricris Oronea  E PS: Mar!essa N"ylan.>SC1 !% 5$9 &i(e Pe#i#i%n= (Sec. 1n case of fire.A 'erified petition for the rightful custody of a minor may be filed by any person claiming such right.3 1f a prisoner is in custody under a warrant of commitment in pursuance of law or under a $udicial order. !en #!e "e#-"n e:idence/ $nd A!en %n(9 $ '(e$ (Sec. within .a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s.Aamily "ourt of the pro'ince or city where the petitioner resides or where the minor may be found.Elaine Mas"ka! )E*i+ence. 1f person detaining him does not appeal. !en '"is%ne" disc!$"6ed i& n% $''e$() (Sec..Jeenice +e Sa0"n )Cri$inal Proce+"re..-215-(")A !:..Alnai. De&ec# %& &%"5 (Sec. !%Ae:e" it shall only be plea of the facts set forth if restraint is by pri'ate authority. person in whose custody or under whose restraint the party imprisoned or restraint is held.1? 1f one is unlawfully imprisoned. and 4. !en '"is%ne" 5$9 8e "e5%:ed &"%5 %ne c-s#%d9 #% $n%#!e" (Sec.)A R-S!RA1(!. . 2%A A"i# is e."A0S.3 .13 As far as practicable. especially the choice of the minor REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST.S-R21". @y order of proper court or $udge be remo'ed from one place to another within the &hil. "on'ey the person so imprisoned before the $udge. insurrection or other necessity or public calamity. RULE ON CUSTODY OF MINORS AND RIT OF 2A4EAS CORPUS IN RELATION TO T2E CUSTODY OF MINORS .1F 1. for trial.F O&&ice" s!$((% 1.)A >R1!.< 5irected to officer and commands him to% 1.3 .A)M) N%) E3>E. the following order of preference shall be obser'ed in the award of custody% a. An appeal in habeas corpus cases shall be perfected by filing with the clerk of court or the $udge. unless from sickness or infirmity. -ither parent. without danger be brought before the court. a notice of appeal. C#arissi$ae %en!"ra. . the prisoner shall be released. CHAIRPERSONS: Allen Fariñas. court or $udge before whom he is to be brought. epidemic. 4.= () writ can be disobeyed for defect in form 1A it sufficiently states% 1. @oth parents $ointlyE b. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re.San Beda College of Law 12# MEMORY AID T% A!%5 A"i# di"ec#ed $nd A!$# #% "e7-i"e) (Sec.F hours from notice of $udgment. P"%:isi%n$( O"de" AA$"din6 C-s#%d9 (Sec. such person cannot.ec-#ed $nd "e#-"ned (Sec. @y legal process IN REMEDIAL LAW 4. APPEAL IN 2A4EAS CORPUS CASES !he appeal in habeas corpus cases may be taken in the name of the person detained or of the officer or person detaining him. !en d%es c%-"# $c7-i"e <-"isdic#i%n %:e" 'e"s%n %& "es'%nden#= !he writ itself plays the role as summon in ordinary actionsE court ac9uires $urisdiction o'er the person of the respondent @D #-R. show cause of the imprisonment or restraint. ha'e the body of person before the courtE and 4.. !e"e #% &i(e 'e#i#i%n= (Sec.

. #)(!:S after the /AS! &0@/1"A!1)( of notice of hearing. C#arissi$ae %en!"ra.  the petition may howe'er be filed with the regular court in the absence of the presiding $udge of three Aamily "ourt. &etition shall be signed and 'erified by person desiring his name changed or some other person in his behalf. "A. grandparent chosen by the minor o'er se'en years of age and of sufficient discernment. Te5'%"$"9 Visi#$#i%n Ri6!#s (Sec. or with any of its members and. Pe#i#i%n &%" "i# %& 2$8e$s C%"'-s (Sec. RULE 0E3 C2ANGE OF NAME Ven-e (Sec.Elaine Mas"ka! )E*i+ence. Any other person or institution the court may deem suitable to pro'ide proper care and guidance for the minor.Jeenice +e Sa0"n )Cri$inal Proce+"re. that petitioner is a bonafide resident of the pro'ince where petition is filed for at least three years prior to the date of filingE 4. pro'ided howe'er that the regular court shall refer the case to the family "ourt as soon as its presiding $udge returns duty. Re9uirement of 'erification is formal. name asked for. the 'erified petition should be published for three successi'e weeks in some newspaper of general circulation in the pro'inceE 4. ()! $urisdictional re9uisite. 52 "C8A !22).. E&&ec#s %& Disc"e'$nc9 in #!e Pe#i#i%n $nd P-8(is!ed O"de" REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. unless the grandparent chosen is unfit or dis9ualifiedE d.shall not be within 3+ days prior to an election nor within . Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. !he writ may be made returnable to a Aamily court or to any regular court within the region where the IN REMEDIAL LAW petitioner resides or where the minor may be found for hearing and decision on the merits. 4+  shall be filed with the Aamily court.  shall be enforceable within its $udicial region to which the Aamily "ourt belongs.custodial parent or parents.4 1t shall set forth% 1. CHAIRPERSONS: Allen Fariñas.. !he grandparent or if there are se'eral grandparents.  petition may also be filed with the S". cause for change of nameE . ("e2an BoA vs.Alnai. unless the former is unfit or dis9ualifiedE or f. C%n#en#s %& Pe#i#i%n (Sec. Maricris Oronea  E PS: Mar!essa N"ylan. unless the court finds said parent or parents unfit or dis9ualified. J-"isdic#i%n$( Re7-i"e5en#s 1. all names by which petitioner is knownE 3. !he eldest brother or sister o'er twenty years of age unless he or she is unfit or dis9ualifiedE e. 1 R!" of the pro'ince in which he resides.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. if so granted the writ shall be enforceable anywhere in the &hilippines. .. 2e$"in6 .1? !he court shall pro'ide in its order awarding pro'isional custody appropriate 'isitation rights to the non. 1t is not a ground for dismissing petition. 8e1u l$2. !he actual custodian of the minor o'er twenty years of age. that both the title and caption of the petition and its body shall recite% a) name Cnames or aliases of the applicantE b) cause for which the change of name is soughtE c) new name asked for.San Beda College of Law 130 MEMORY AID o'er se'en years of age and of sufficient discernment unless the parent chosen unfitE c.

third person appears showing that he ac9uired title o'er the property of the absentee . legitimated childE 3.. years continuous absence shall be sufficient for present spouse to remarry. ha'ing continuously used and been known since childhood by a Ailipino name. GROUNDS FOR TERMINATION OF T2E ADMINISTRATION 1. a sincere desire to adopt a Ailipino name to erase signs of former alienage. as to the spelling of the name of the petitioner. Series of 4++. such petition is unnecessary.  Aor administrati'e procedure for "hange of (ame.. all in good faith and without pre$udicing anybody. absentee death is pro'en and heirs appear 3.. 78 No. All the names or aliases must appear in the title or caption of the petition.San Beda College of Law 131 MEMORY AID !he defect in the petition and the order. Actual or presumpti'e death cannot be the sub$ect if it is the onlt 9uestion or matter in'ol'ed in a case or upon which a competent court has to pass. if absentee left no properties. because it did not correctly identify the party to said proceedings. 4 years only under e*traordinary circumstance @eyond .. years -------&etition for declaration of absence may be filed "onsidered dead for all intents and purposes e*cept for purposes of succession Aor purposes of marriage% .. is substantial. name is ridiculous. 117209. innocuous errors. necessity to a'oid confusionE .Alnai. years under e*traordinary circumstance PURPOSE OF PETITION > to appoint an administrator o'er the properties of the absentee.Elaine Mas"ka! )E*i+ence. CHAIRPERSONS: Allen Fariñas. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. IN REMEDIAL LAW RULE 0E7 A4SENTEES A4SENTEE CONSE3UENCE +-4 years 4 years to . ( 8e1u l$2 vs. 1996 . 8492. tainted with dishonor and e*tremely difficult to write or pronounceE 4. name asked for. clerical errorsE and 4. unaware of her alien parentageE ?. :ence.g. TITLE OF PETITION MUST CONTAINED T2E FOLLO NG 1. C#arissi$ae %en!"ra. G"%-nds &%" c!$n6e %& n$5e 1. ("e2an BoA vs. all aliasesE and 3. (LuA an vs. )fficial name (birth certificate 8 be 'ery particular with the spelling because it may a'oid or annul the proceedingsE it is $urisdictionalE 4. because the reader usually merely glances at the title of the petition and may only proceed to read the entire petition if the title is of interest to him.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s.su1ra). 8e1u l$2. 1956) REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. Fe ruar. 8e1u l$2. Maricris Oronea  E PS: Mar!essa N"ylan. 'ernande3. Fe ruar. 78 N:. refer to Administrati'e )rder 1. 29. 1t only applies to% 1.. A decree of adoption grants the adoptee the right to use the adopter3s surname but not to change the former3s first name which relief must be sought in a discrete petition under Rule 1+3. 9. conse9uence of a change of statusE e. years (absence of . absentee personally appears through an agent 4. .Jeenice +e Sa0"n )Cri$inal Proce+"re.

within 1? days from notice of the petition or from the last date of publication of such notice. 4++1 substantially amended Article . !here is no increase or diminution of substanti'e right.F which was passed by "ongress on Aebruary F.L(o entry in a ci'il register shall be changed or corrected without a $udicial order. !he status corrected would not ha'e a superior 9uality for e'identiary purposes.San Beda College of Law 132 MEMORY AID N% inde'enden# $c#i%n &%" Dec($"$#i%n %& P"es-5'#i%n %& De$#! E. respondent. !he order of the hearing must be published once a week for three consecuti'e weeks.. what is left for the scope of operation of Rule 1+F are substantial changes and corrections in entries of the ci'il register. Maricris Oronea  E PS: Mar!essa N"ylan. 3.. CA. :2#o er 11. "lerical or typographical errors in entries of the ci'il register are now to be corrected and changed without need of a $udicial order and by the city or municipal ci'il registrar or consul general. 2001).ce'#i%n: the need for declaration of presumpti'e death for purposes of marriage (Article .  &roceedings for the correction of entries should not be considered as establishing one3s status in a manner conclusi'ely beyond dispute. (C+$ao Ben L$5 vs. :ence. 4.Elaine Mas"ka! )E*i+ence.40252. L. Cosa. !he ci'il registrar and any person ha'ing or claiming any interest under IN REMEDIAL LAW the entry whose cancellation or correction is sought may.Alnai. &etition is filed by &etition is filed by person desiring to any person change his name interested in any A"!. )R5-R or 5-"R-)rder for hearing )rder shall also be shall be published published once for once a week for three consecuti'e three consecuti'e weeks and court weeks shall cause reasonable notice to persons named in petition Ser'ice of $udgment shall be upon the ci'il register concerned PETITIONS FOR C2ANGE OF NAME REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST.Jeenice +e Sa0"n )Cri$inal Proce+"re. !he abo'e law speaks clearly. e*cept for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal ci'il registrar or consul general in accordance with the pro'isions of this Act and its implementing rules and regulations. to wit% SECTION 0) Authority to "orrect "lerical or !ypographical -rror and "hange of Airst (ame or (ickname. CHAIRPERSONS: Allen Fariñas. Re7-isi#es %& Ad:e"s$"i$( '"%ceedin6s 1. 1986) PETITIONS FOR T2E CORRECTION/ CANCELLATION OF ENTRIES &etition to be filed 2erified petition in the R!" where filed in the R!" the petitioner where the resides corresponding "i'il registry is located Solicitor 6eneral "i'il registrar must be notified concerned is made by ser'ice of a a party to the copy of the proceeding as a petition. )e2e5 er 29.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. (otice thereof must be gi'en to the "i'il Registrar and all parties affected thereby. C#arissi$ae %en!"ra. 118!87.14 of the (ew "i'il "ode.. . =+. ?. !he ob'ious effect is to remo'e from the ambit of Rule 1+F the correction or changing of such errors in entries of the ci'il register. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. . (Lee vs. Aull blown trial. -2-(!.8. !he Solicitor 6eneral must also be notified by ser'ice of a copy of the petition. file his opposition thereto. &roper petition is filed where the "i'il Registrar and all parties interested are impleaded..1 of the Aamily "ode . RULE 0EC CANCELLATION OR CORRECTION OF ENTRIES IN T2E CIVIL REGISTRY Republic Act (o. 7. No.

.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. )rder made in administration proceedings relating to inclusion or e*clusion of items of property in the in'entory of e*ecutor or administratorE 3.. )rder granting or denying a motion for new trial or for reconsideration. any claim against the estate of a deceased person. trustee or guardianE ?.R-(e 0E31 and petition for cancellation or correction of entries are 51S!1("! &R)"--51(6S. Allows or disallows a willE 4. 5etermines who are the lawful heirs of a deceased person.Elaine Mas"ka! )E*i+ence. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. or the administration of a trustee or guardian. administrator..Alnai.1 An interested person may appeal in special proceedings from such order or $udgment rendered which% 1. or the distributi'e share of the estate to which such person is entitledE 3. Bal5ore) RULE 0ED APPEALS IN SPECIAL PROCEEDINGS O"de"s %" <-d65en#s &"%5 A!ic! $''e$(s 5$9 8e #$Ien (Sec. ORDERS T2AT ARE NOT APPEALA4LE 1. Maricris Oronea  E PS: Mar!essa N"ylan.Jeenice +e Sa0"n )Cri$inal Proce+"re. in the proceedings relating to the settlement of the estate of a deceased person. "onstitutes.. 1s the final order or $udgment rendered in the case. (8e1u l$2 v. a final determination in the lower court of the rights of the party appealing appealing. )rder directing administrator to take action to reco'er amount due to the estateE 4. CHAIRPERSONS: Allen Fariñas. in whole or in part.San Beda College of Law 133 MEMORY AID &etition for change of name . APPEAL IN ORDINARY CIVIL ACTION &-R1)5% 1? days R-M01R-#-(!S (otice of Appeal and 5ocket Aees (o e*tension APPEAL IN SPECIAL PROCEEDINGS 3+ days Record on Appeal and 5ocket Aees #ay be e*tended on meritorious grounds VENUE AND JURISDICTION OF SPECIAL PROCEEDINGS REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST.. or any claim presented on behalf of the estate in offset to a claim against itE . and affects the substantial rights of the person appealing. )rder appointing special administratorE . Allows or disallows. C#arissi$ae %en!"ra. . Settles the account of an e*ecutor. a party cannot change name and correct an entry in a single petition without satisfying the $urisdictional re9uirements. unless it be an order granting or denying a motion for a new trial or for reconsideration. e*cept that no appeal shall be allowed from the IN REMEDIAL LAW appointment of a special administratorE and <. :ence.

Pe"s%n dies in#es#$#e (e$:in6 n% !ei" 8 Resident of the decedent or if non-resident. Appointment of !rustees >here the will was allowed or where the property or portion thereof affected by the trust is situated >here the adopter resides >here the adoptee resides >here the detainee is detained (if the petition is filed with the R!" >here petitioner resides >here the absentee resided before his disappearance R!" .+++.. Appointment of 6uardians >here the minor or incompetent resides Aamily "ourt (in case of #inors R!" (Regular courtsLin cases other than minors <. or &. . CHAIRPERSONS: Allen Fariñas.San Beda College of Law 134 MEMORY AID SPECIAL PROCEEDING 1.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. Maricris Oronea  E PS: Mar!essa N"ylan. Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re. R!". "A. "hange of (ame 11. Appointment of Representati'e of AbsenteeC5eclaration R!" REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST. Adoption Aamily "ourt F. C#arissi$ae %en!"ra. Unc($i5ed 4$($nce 8 >here the dormant deposits are located R!" R!" R!" ?.. place where he had an estate IN REMEDIAL LAW JURISDICTION #!" if the gross 'alue of the estate does not e*ceed &4++.Alnai.++.. in the place where he had an estate.Jeenice +e Sa0"n )Cri$inal Proce+"re. #!" in the pro'ince or city in case there is no R!" $udge R!" 1+.Elaine Mas"ka! )E*i+ence. b.. Rescission of Adoption =. :abeas "orpus Aamily "ourt S".+++ in #etro #anila R!" if the gross 'alue of the estate e*ceeds the abo'e amounts 4. -scheat a. Settlement of the -state VENUE Resident of the 5ecedent or if the decedent is a non-resident. Re:e"si%n 8 >here the land lies in whole or in part c.

CHAIRPERSONS: Allen Fariñas.San Beda College of Law 135 MEMORY AID of Absence 14. C#arissi$ae %en!"ra..Alnai..Elaine Mas"ka! )E*i+ence. . Jocelyn &a'ala  SU(JECT HEA S: Jona O'iña )Ci*il Proce+"re.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s. Maricris Oronea  E PS: Mar!essa N"ylan. "ancellationC"orrectio n of -ntries in the "i'il Registries >here the corresponding "i'il Registry is located R!" IN REMEDIAL LAW REMEDIAL LAW COMMITTEE  CHAIRPERSON: Jinky Ann Uy  ASST..Jeenice +e Sa0"n )Cri$inal Proce+"re.