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Rule 72 109


Settlement of estate of deceased persons, venue and process
Modes of Settlement of Estate
1. Extrajudicial
a. If only one heir: Affidavit of Self-adjudication
b. If two or more heirs: Deed of Extrajudicial Settlement or Partition
2. Judicial
a. Partition
b. Summary Settlement of Estate of Small Value
c. Petition for Letters of Administration
d. Probate of a Will
i. Petition for Letters Testamentary; or
ii. Petition for Letters of Administration with the will annexed (if no named
Which court has Jurisdiction
Exclusive original jurisdiction over all matters of probate, both testate and intestate, shall lie with

Within Metro Manila

MTC if gross value of estate does not

exceed P400,000
RTC if gross value exceeds P400,000
MTC if gross value of estate does not
exceed P300,000

Outside Metro Manila

RTC if gross value of estate exceeds
Court first taking cognizance shall exercise jurisdiction to the exclusion of all other courts and cannot
be divested by subsequent act of interested parties.
Testate proceedings take precedence over intestate proceedings of the same estate. (Sandoval vs.
Thus, if in the course of intestate proceedings pending before a court, it is found that the decedent had
left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if
at that stage an administrator had already been appointed, the latter being required to render final
account and turn over the estate in his possession to the executor subsequently appointed. This,
however, is understood to be without prejudice that should the alleged last will e rejected or is
disapproved, the proceeding shall continue as an intestacy. (Uriarte vs. CFI)

Venue in Judicial Settlement of Estate

Inhabitant of the Philippines at the time of
death (citizen or alien)

Court of the province where the decedent

resided at the time of death

Inhabitant of Foreign Country at the time

of death

Court of any province where decedent had an


Residence means his personal, actual or physical habitation, his actual residence or place of abode
and not to his permanent legal residence or domicile. (Fule vs. CA)
The question of residence is determinative ONLY of the venue and does not affect the jurisdiction of
the court. Hence, the institution of the proceeding in the province wherein the decedent neither had
residence nor estate DOES NOT vitiate the action of the probate.
Jurisdiction cannot be waived by parties because it is conferred by law. However, venue may be
waived upon submission of all parties to the proceeding.
If the proceeding was commenced with a court of improper venue, and such objection was seasonably
raised in the probate court, the petition should be dismissed and the proceedings should be instituted in
the proper court.
If instituted in TWO COURTS, and the question of venue is seasonably raised the court in which the
proceeding was first filed has exclusive jurisdiction to resolve the issue.
The probate court acquires jurisdiction over the proceeding from the moment the petition for
settlement is filed with said court
If venue is improperly laid:
GR: Ordinary appeal
Exceptions: Certiorari may be resorted to if impropriety of venue (due to residence or location of
estate) appears on the record.
Extent of Jurisdiction of Probate Court
A probate court is of limited jurisdiction. It may only determine and rule upon issues relating to
settlement of estates namely: (LAD)
1. Liquidation of estate;
2. Administration of estate; and
3. Distribution of estate.
GR: Questions as to title to property cannot be passed upon on testate or intestate proceedings.
1. In a provisional manner to determine whether said property should be included in the
inventory, without prejudice to final determination of title in a separate action (Cuizon vs.
2. With consent of all the parties, without prejudice to third persons (Trinidad vs. CA);
3. If the question is one of collation or advancement (Coca vs. Borromeo); and
4. When the estate consists of only one property (Portugal vs. Portugal-Beltran).
The court first taking cognizance of the settlement of estate of a decedent, shall exercise jurisdiction to
the exclusion of all courts.
Under the rule of venue, the court with whom a petition is first filed, must also first take cognizance of
the petition in order to exclude other courts.

Powers and Duties of Probate Court

It is the duty of courts of probate jurisdiction to guard jealously the estates of the deceased person by
intervening in the administration thereof in order to remedy or repair any injury that may be done
thereto (Dariano vs. Fernandez Fidalgo)
There seems, however, to be a general tendency, in the absence of express and specific restrictions to
the contrary, to uphold the exercise by the probate court of such incidental powers as are, within the
purview of their grant of authority, reasonably necessary to enable them to accomplish the objects for
which they were invested with jurisdiction and to perfect the same. (In Re: Baldomero Cosme)
Ancillary Powers of a Probate Court:
1. Issue warrants and processes to compel attendance of a witness and to carry into effect their
orders and judgments;
2. Issue warrant for apprehension and imprisonment of a person who refuses to perform and order
or judgment; and
3. All other powers granted to them by law.
Summary Settlement of Estates
General rule: The settlement of the estate of the decedent should be judicially administered through
an administrator or executor.
Law allows heirs to resort to:
1. Extrajudicial settlement of estate (decedent died intestate and left no debt); or
2. Summary settlement of estate (for estates of small value)
Ratio: When partition is possible, either in or out of court, the estate should not be burdened with an
administration proceeding without good and compelling reasons. (Pereira v. CA)
Extrajudicial Settlement vs. Summary Settlement
Extrajudicial Settlement

Summary Settlement

Does not require court intervention

Involves judicial adjudication although in a

summary proceeding

The value of the estate is immaterial

Applies only where the gross estate does not

exceed P10,000

Allowed only in intestate succession

Allowed in both testate and intestate estates

Proper only where there are no outstanding debts Available even if there are debts, as the court
of the estate at the time of settlement
will make provisions for the payment thereof
May be instituted by any interested party and
Can be resorted to only at the instance and by
even by a creditor of the estate, without the
agreement of all the heirs
consent of all the heirs
While Section 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort
to an ordinary action for partition, the said provision does not compel them to do so (not precluded
from instituting administration proceedings) if they have good reasons to take a different course of
action. Good reasons depend on circumstances of each case.

Extrajudicial Settlement by Agreement between heirs, when allowed

Requisites (Rule 74 Sec 1)
1. Decedent died intestate
2. Left no debts or heirs have already paid such at the time of partition
3. Heirs are all of age, minors represented by their legal or judicial representatives
1. If sole heir: Affidavit of Self-adjudication (of the whole estate)
2. If more than one heir: Deed of Extrajudicial Settlement or partition
Deed of Extrajudicial Settlement is resorted to if there is no disagreement among the heirs.
If there is a disagreement, then they may resort to an action for partition (which is judicial)
Division of estate in a public instrument or affidavit of adjudication.

Pubic instrument/affidavit filed with proper Registry of Deeds and posting of a bond if estate has
personal property (bond equivalent to amount of personal property).

Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a
newspaper of general circulation in the province, and after such other notice to interested persons as
the court may direct.
A public instrument is now required for registration. If the settlement is in a private instrument, it is
believed that the same is still valid and reformation of the instrument may be compelled.
While the rule provides that the decedent must not have left any debts, it is sufficient if any debts he
may have left been paid at the time the extrajudicial settlement is entered into.
A bond is required only when personalty is involved in the extrajudicial partition as the real estate is
subject to a lien in favor of creditors, heirs or other persons for the full period of two years from such
distribution and such lien cannot be substituted by a bond. The value of the personal property which
must be covered by the bond is determined from the sworn declaration of the parties in the instrument
of settlement or affidavit of adjudication or, if not mentioned therein, in an affidavit stating such
valuation which the register of deeds shall require them to execute.
An extrajudicial settlement, despite the publication thereof in a newspaper, shall not be binding on any
person who has participated therein or who had no notice thereof. A summary settlement is likewise
not binding upon heirs or creditors who were not parties therein or had no knowledge thereof. Said
heirs or creditors may vindicate their rights either by proceeding against the estate, the distributes or
against the bond within the two-year period, or even thereafter but within the statute of limitations, but
this time, they can no longer proceed against the bond.
The requirement of publication is geared for the protection of creditors and was never intended to
deprive heirs of their lawful participation in the decedent's estate. (Benatiro v. Heirs of Cuyos)

Oral partition is valid. Because there is no law that requires partition among heirs to be in writing to be
valid. (Pada Kilario v. CA)
Compromise agreement is VALID, binding upon the parties as individuals, upon the perfection of the
contract, even without previous authority of the court to enter into such agreement. (Borja v. Vda. De
The action to annul a deed of extrajudicial settlement on the ground of fraud should be filed within
four years from the discovery of the fraud (Gerona, et al. vs. De Guzman)
It is settled doctrine that if special proceedings are pending or there is a need to file one, for the
determination of heirship, that issue should be determined in said special proceedings. Where those
special proceedings had been finally terminated and the putative heir had lost his right to be declared
therein as co-heir, an ordinary civil action can be timely filed for his declaration as an heir.
Affidavit of Self-adjudication by Sole Heir
If there is only one heir, he may adjudicate to himself the entire estate by means of an AFFIDAVIT
filed in the office of the register of deeds.
He shall also file a bond with the said register of deeds, in an amount equivalent to the value of the
PERSONAL PROPERTY involved as certified under oath by the party concerned.
Summary Settlement of Estates of Small Value
When allowed: Whenever the gross value of estate of the decedent does not exceed P10, 000.
Procedural Requirements:
1. Petition by an interested person alleging fact that estate does exceed P10,000
2. Hearing which shall be
a. Held not less than 1 month nor more than 3 months
b. Counted from the date of the last publication of a notice
3. Notice
a. Which shall be published once a week for 3 consecutive weeks
b. In a newspaper of general circulation in the province
c. It is not required that publication be for a complete 21 days. What is required is that it
be published for once a week for 3 consecutive weeks.
4. Other notice to interested persons as the court may direct [Rule 74 Sec 2]
5. Bond in an amount to be fixed by court if personal property is to be distributed [Rule 74 Sec 3]
Upon fulfillment of the requisites, the court may proceed summarily without the appointment of an
executor/administrator and without delay,
1. to grant, if proper, allowance of the will, if there be any
2. to determine who are persons legally entitled to participate in the estate
3. to apportion and divide among them after the payment of such debts of the estate
4. persons in own right if of lawful age, or their guardians, will be entitled to receive and enter
into possession of the portions of the estate so awarded to them respectively. [Rule 74 Sec 2]

Death of the decedent

Petition for summary settlement with an allegation that

the gross value of the estate does not exceed P10K

Publication of notice of the fact of summary settlement

once a week for 3 consecutive weeks in a newspaper
of general circulation in the province, and after such
other notice to interested persons as the court may

Hearing to be held not less than 1 month nor more than

3 months from the date of the last publication of notice

Court to proceed summarily, without appointing an

executor/administrator (executor/administrator), and to
make orders as may be necessary such as:
(1) Grant allowance of will, if any;
(2) Determine persons entitled to estate;
(3) Pay debts of estate which are due;

Filing of bond fixed by the court

Partition of estate
Remedies of Aggrieved Parties after Extrajudicial Settlement of Estate
1. Claim on the bond
2. Claim on lien on real property notwithstanding any transfers of real property that may have
been made.
3. Reopening by intervention before rendition of judgment
4. Action to Annul Settlement
When applicable: there is an heir or other person who
1. has been unduly deprived of his lawful participation in the estate:
a. He shall have a right to compel the settlement of the estate in the courts for the purpose
of satisfying such lawful participation

2. has been unduly deprived of his lawful participation payable in money: The court having
jurisdiction of the estate may, by order for that purpose, after hearing,
a. settle the amount of such debts or lawful participation, and
b. may issue execution against the bond or against the real estate belonging to the
deceased, or both. [Rule 74 Sec 4]
When not applicable:
1. To persons who have participated or taken part or had notice of the extrajudicial partition
2. When the provisions of Sec. 1 of Rule 74 have been strictly complied with (all persons or heirs
of the decedent have taken part in the extrajudicial settlement or are represented by themselves
or through guardians)
Additional Period for Claim of Minor or Incapacitated Person
If on the date of the expiration of the period of 2 years, the person authorized to file a claim is:
1. a minor or mentally incapacitated,
2. is in prison or
3. outside the Philippines,
He may present his claim within 1 year after such disability is removed. [Rule 74 Sec 5]
Within the reglementary period, the judge of a probate court has the power to reopen estate
proceedings even after the issuance of an order approving a project of partition and closing the
proceedings. Rather than requiring an allegedly preterited party to air his grievances in a separate and
independent action, he may within the reglementary period claim his relief sought in the same case by
reopening the same even after a project of partition and final accounting had been approved. This is
proper to avoid needless delay in the resolution of cases (Jerez v. Nietes)
1. Action for reconveyance of real property based on an implied trust, reckoned 10 years from
issuance of title (Marquez v. CA)
2. Rescission in case of preterition of compulsory heir in partition tainted with bad faith [Art
1104 NCC]
3. Petition for Relief on ground of fraud, accident, mistake, excusable negligence within 60
days after petitioner learns of judgment final order or other proceedings to be set aside and not
more than 6 months after such judgment or order is entered or taken [Rule 38]
Production and Probate of Will
1. In rem proceedings
2. Mandatory no will shall pass either real or personal property unless it is proved and allowed
in the proper court [Rule 75 Sec 1]
3. Right to ask for probate does not prescribe [Guevara v. Guevara (1943)]
4. Doctrine of estoppel does not apply [Fernandez v. Dimagiba (1967)]
Before any will can have force or validity, it must be probated. Until admitted to probate, a will has no
effect whatsoever and no right can be claimed thereunder. [Sps Pascual v. CA (2003)]
The presentation of the will for probate is mandatory and is a matter of public policy. Unless the will is
probated, the right of a person to dispose of his property may be rendered nugatory. [Maninang v. CA
Duty of custodian, executor
The person who has custody of the will shall deliver the will to the court having jurisdiction or, to the
executor within 20 days after he knows of the death of the testator. [ Rule 75 Sec 2]

The person named executor shall present the will to the court having jurisdiction, unless the will has
reached it in any manner, and signify acceptance/refusal of the trust within 20 days after he knows of
the death of the testator or after he knows that he is named executor.[Rule 75 Sec 3]
Penalty for neglect without excuse satisfactory to the court: Fine not exceeding P2,000 [Rule 75
Sec 4]
Person retaining will may be committed to prison if:
1. Has custody of will
2. There is a court order directing him to deliver the will; and
3. Neglects without reasonable cause to deliver the same [Rule 75 Sec 5]
Who may Petition for Probate; Persons Entitled to Notice
A will may be probated:
1. Before the testators death - By testator himself
Rationale: Easier for courts to determine mental condition of testator. Fraud intimidation and
undue influence are minimized. And if will does not comply with requirements prescribed by
law, they can be easily corrected.
2. After the testators death By executor, devisee, or legatee named in the will or any person
interested in the estate
An interested party is one who would be benefited by the estate such as an heir or one who has claim
against the estate like a creditor. [Sumilang v. Ramagosa (1967)]
Persons entitled to notice
1. Known heirs, legatees and devisees;
2. Named executor his co-executor if they are not the petitioner[Rule 76 Sec 4]
3. Compulsory heirs, if the testator himself asks for probate of his own will.
Periods to give notice
1. Personal service: At least 10 days before hearing
2. By mail: at least 20 days before hearing