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SPECIAL PROCEEDINGS

(2006 EDITION)
RULE 72 :SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES
SPECIAL PROCEEDINGS a remedy by which a party seeks to establish a status, a rig
ht or a particular fact. (Rule 1, Section 3c)
SPECIAL PROCEEDINGS ENUMERATED IN THE RULES OF COURT
1. settlement of estate of deceased persons;
2. escheat;
3. guardianship and custody of children;
4. trustees;
5. adoption;
6. rescission and revocation of adoption;
7. hospitalization of insane persons;
8. habeas corpus;
9. change of name;
10. voluntary dissolution of corporations;
11. judicial approval of voluntary recognition of natural children;
12. constitution of family home;
13. declaration of absence and death;
14. cancellation and correction of entries in the civil registry.

OTHER SPECIAL PROCEEDINGS


1. liquidation proceedings
2. intra-corporate controversies;
3. corporate rehabilitation;
4. recognition and enforcement of arbitration proceedings;
5. vacation, setting aside, correction or modification of an arbitral award.
6. any application with a court for arbitration assistance and supervision;

JURISDICTION
General rule: Regional Trial Court
EXCEPTION: MTC has jurisdiction in the following cases:
1. Probate proceedings, whether testate or intestate, where the gross value of t
he estate does NOT exceed P300,000 or does NOT exceed P400,000 in Metro Manila,
EXCLUSIVE of interest, damages of whatever kind, attorney s fees, litigation, expe
nses and costs.
2.DELEGATED JURISDICTION in Cadastral and Land Registration Cases covering lots
where there is no controversy or opposition or contested lots where the value of
which does not exceed P 100T.
NOTE: Appeal is taken to the CA, not to the RTC since MTC is equal to RTC in th
is instance.

3.SPECIAL JURISDICTION petitions for writ of Habeas Corpus in case of absence of


RTC judges.
4blue 95 notes: SC and CA have original jurisdiction over habeas Corpus cases, c
oncurrent with the RTC.
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DIFFERENT MODES OF SETTLEMENT OF ESTATE OF DECEASED PERSON
1. Extrajudicial Settlement of Estate; (Section 1, rule 74)
2. Summary settlement of Estate of Small Value; (Section 3, Rule 74)
3. Partition; (Rule 69)
4. Probate of Will; (Rule 75 to 79)
5. Petition for letter of Administration in cases of intestacy. (Rule 79)

PROCEDURE IN SETTLEMENT PROCEEDINGS


RULE 73 :VENUE AND PROCESS
Section 1. Where estate of deceased persons settled
VENUE
> INHABITANT (Resident) Of Philippines (whether citizen or alien) Court of the p
rovince/city where he resides at the time of death.
> INHABITANT (Resident) OF FOREIGN COUNTRY Court of any province wherein he has
his estate
Residence means his personal, actual or physical habitation, his actual residenc
e or place of abode.

2 Kinds of Settlement
A. EXTRAJUDICIAL SETTLEMENT(Rule 74, Section 1)
B. JUDICIAL SETTLEMENT Testate or Intestate Proceedings instituted in the court
where decedent has his residence.
EXTENT OF JURISDICTION
Probate courts are court of LIMITED jurisdiction. It may only determine and rule
upon issued relating to the settlement of the estate, namely:
1. administration of the estate;
2. liquidation of the estate; and
3. distribution of the estate.

GENERAL RULE: PROBATE COURT CANNOT DETERMINE ISSUE OF OWNERSHIP.


EXCEPTIONS:
1. Provisionally, ownership may be determined for the purpose of including prope
rty in inventory, without prejudice to its final determination in a separate act
ion; or
2. When all the parties are heirs and they submit the issue of ownership to the
probate court provided that the rights of third parties are not prejudiced; (Ber
nardo vs. CA, l-18148, Feb. 28, 1963)
3. Question is one of collation or advancement.
EXAMPLES OF OTHER QUESTIONS WHICH THE PROBATE COURT CAN DETERMINE
1. Who are the heirs of the decedent;
2. the recognition of a natural child;
3. The validity of disinheritance effected by the testator
4. status of a woman who claims to be the lawful wife of the decedent;
5. the validity of a waiver of hereditary rights;
6. the status of each heir;
7. whether property in inventory is conjugal or exclusive property of deceased s
pouse;
8. all other matters incidental or collateral to the settlement and distribution
of the estate.
PRINCIPLE OF EXCLUSIONARY RULE
The court first taking cognizance of the settlement of the estate of the deceden
t shall exercise jurisdiction to the exclusion of all other courts.
The probate court acquires jurisdiction from the moment the petition for the set
tlement of estate is filed with said court. It cannot be divested of such jurisd
iction by the subsequent acts of the parties as by entering into extrajudicial p
artition of the estate (Sandoval vs. Santiago 88 PHIL 784); or by filing another
petition for settlement in a proper court of concurrent venue (De Borja vs Tan,
77 PHIL 872)
EXCEPTION:Estoppel by LACHES
4blue95:Jurisdiction under Rule 73 Sec. 1 does NOT relate to jurisdiction per se
but to venue. Hence, institution in the court where the decedent is neither an
inhabitant nor have his estate may be viewed. (Uriarte vs. CFI, L-21938-39, May
29, 1970)
REMEDY IF THE VENUE IS IMPROPERLY LAID
ORDINARY APPEAL not CERTIORARI or MANDAMUS UNLESS want of jurisdiction appears o
n the record of the case.
NOTE: Testate proceedings take PRECEDENCE over intestate proceedings for the sam
e estate. If during the pendency of intestate proceedings, a will o the decedent
is discovered, proceedings for the probate of the will shall replace the intest
ate proceedings even if an administrator had already been appointed therein. (Cu
enco vs. CA, l-24742, Oct. 26, 1973)

Section 2. Where the estate settled upon dissolution of marriage


Upon the death of either the husband or the wife, the partnership affairs must b
e liquidated in the testate or intestate proceedings of the deceased husband or
wife. If both have died, liquidation may be made in the testate or intestate pro
ceedings of either.

Section 3. RTC may issue writs and processes.


WRIT OF EXECUTION
GENERAL RULE: Probate court cannot issue writs of execution.
Reason: Its orders usually refer to the adjudication of claims against the estat
e which the executor/administrator may satisfy without the need of executory pro
cess.
Exception: EXCLUSIVE (expressio unius est exlusio alterius)
1. To satisfy the CONTRIBUTIVE SHARE of the devisees, legatees and heirs when t
he latter had entered prior possession of the estate; (Sec. 6, Rule 88)
2. To enforce payment of the EXPENSES OF PARTITION; (Sec. 3, Rule 90)
3. To satisfy the cost when a person is cited for EXAMINATION in probate proceed
ings. (Sec 13, Rule 142)
Section 4. Presumption of Death
There can be no independent action for Declaration of Presumptive Death.
RULE 74:EXTRAJUDICIAL SETTLEMENT & SUMMARY SETTLEMENT OF ESTATE
GENERAL RULE: if a person dies, his estate is submitted to a judicial settlement
proceeding.
EXCEPTION: The heirs may resort to:
1. Extrajudicial settlement of estate; or
2. Summary settlement of estate must be conducted in accordance with regular pro
cedure NOT under rules of summary procedure.
NOTE: An administrator or executor need not be appointed under the exceptions.

EXTRAJUDICIAL SETTLEMENT (by agreement between heirs)


Requisites:
A. substantive
1. The decedent left
a) no will;
b)no debts; If no creditor files a petition for letter of administration within
2 years after the death of the decedent.
2. The heirs are all of age or the minors are represented by their judicial or l
egal representatives duly authorized for the purpose
B. Procedural
1. Division of estate must be in a PUBIC INSTRUMENT or by AFFIDAVIT of ADJUDICAT
ION in the case of a sole heir;
2. Filed with proper Registry of Deeds;
3. Publication of notice of the fact of extrajudicial settlement once a week for
3 CONSECUTIVE WEEKS
4. Bond filed equivalent to the value of PERSONAL property.
NOTE: The bond is required only when personal property is involved. If it is a r
eal estate , it shall be subject to a lien in favor of creditors, heirs or other
persons for the full period of 2 years from such distribution and such lien can
not be substituted by a bond.
NOTE: The bond is the value of the personal property certified by the parties un
der oath and CONDITIONED upon payment of just claims filed under Sec. 4, Rule 74
.
Is a public instrument necessary for the validity of an extrajudicial settlement
?NO. Private instrument/document or Oral agreement of partition is valid among t
he heirs who participated in the extrajudicial settlement. The requirement under
Sec 1, Rule 74 that it must be in public instrument does NOT constitute of the
validity but is merely evidentiary in nature.
However, Reformation may be compelled.
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4blue 95:While the rules provide that the decedent must not have left any debts,
it is sufficient if any debts he may have left have been paid at the time of th
e extrajudicial settlement is entered into
SUMMARY SETTLEMENT: GROSS VALUE of the estate must NOT exceed P10,000.
NOTE: The amount is jurisdictional.
IMPORTANT REQUIREMENTS
1. Application must contain allegation of gross value of estate;
2. Date for hearing;
a) Shall be set by court not less than 1 MONTH nor more than 3 MONTHS from date
of last publication of notice;
b) order of hearing published, ONCE A WEEK FOR 3 CONSECUTIVE WKS. In a newspaper
of general circulation.
3. Notice shall be served upon such interested persons as he court may direct;
4. Bond amount fixed by the court (not value of personal property) conditioned u
pon payment of just claims under Sec. 4
Section 3. Bond to be filed by distributes
Section 4. Liability of Distributees and Estate
REQUISITES OF TWO-YEAR PERIOD LIEN
1. persons have taken part or have notice of extrajudicial partition;
2. compliance with the provision of Sec. 1 Rule 74
BASIS TO COMPEL SETTLEMENT OF THE ESTATE
1. undue deprivation of lawful participation in the Estate;
2. existence of debts against the estate or undue deprivation of lawful particip
ation payable in money.

REMEDIES OF AGGRIEVED PARTIES AFTER SETTLEMENT OF ESTATE


1.WITHIN 2 YRS claim against the bond or the real estate;
Where the estate has been summarily settled, the unpaid creditor may, within 2 y
ears, file a motion in court wherein such summary settlement was had for the pay
ment of his credit. After the lapse of 2 years, an ordinary action may be instit
uted against the distributees within the statue of limitations BUT NOT against t
he bond.
If on the date of the expiration of the two-year period, the creditor or heir is
a) A minor or incapacitated; or
b) in prison; or
c) Outside the Philippines
he may present his claim within one year after such disability is removed. (Sec.
5 Rule 75)
The 2-year lien upon the real property distributed by extrajudicial or summary s
ettlement shall be annotated on the title issued to the distributes and after 2
years will be cancelled by the register of deeds without need o court order;
Such lien cannot be discharged nor the annotation be cancelled within the 2 year
period even if the distributees offer to post a bond to answer for contingent c
laims from which lien is established.

2.RESCISSION in case of PRETERITION of compulsory heir in partition tainted with


bad faith; (Article 1104, NCC)
3.RECONVEYANCE of real property;
An heir deprived of his share may file an action for reconveyance based on an im
plied or constructive trust which prescribes 10 years from the date of registrat
ion or date of issuance of certificate of title or from actual discovery of frau
d if the registration was made in bad faith. (Marquez vs. CA, 30 SCRA 653)

4.ACTION TO ANNUL A DEED of extrajudicial settlement on the ground of fraud whic


h should be filed within 4 years from the discovery of fraud.
RULE 75 :PRODUCTION OF WILL/ALLOWANCE OFWILL NECESSARY
Section .1. Allowance necessary, Conclusive as to execution
NATURE OF PROBATE PROCEEDINGS
1. IN REM binding on the whole world.
2. MANDATORY no will shall pass either real or personal property unless it is pr
oved and allowed in the proper court. HOWEVER, it has been held in one case that
a will may be sustained on the basis of Article 1080 of the Civil Code which re
ads as follows: if the testator should make a partition of his properties by an
act inter vivos, or by will, such partition shall stand in so far as it does not
prejudice the legitime of the forced heir, (Mang-Oy vs. CA, 144 SCRA 33)
3. IMPRESCRIPTIBLE because of the public policy to obey the will of the testator
.
4. The DOCTRINE OF ESTOPPEL DOES not apply.
Reason: presentation and probate of a will is required by public policy and invo
lves public interest. (Fernandez vs. Dimagiba, 21 SCRA 428)
General Rule: Probate does not look into the intrinsic validity of the will
Exception: Where the defect is apparent on its face, (Nugid vs. Nugid, 14 SCRA 4
49)

Section 2. Custodian of will to deliver :The custodian must deliver the will to
the court or to the executor within 20 days after he learns of the death of the
testator.
Section 3. Executor to present will and accept or refuse trust
Section 4. Custodian and executor subject to fine for neglect(fine not exceeding
P 2,000)
Section 5. Persons retaining will may be committed
RULE 76:ALLOWANCE OR DISALLOWANCE OF WILL
Probate or Allowance of Wills act of proving in a court a document purporting to
be the last will and testament of deceased person in order that it may be offic
ially recognized, registered and its provisions carried insofar as they are acco
rdance with law.
Section 1. who may petition for the allowance of will
1. any creditor as preparatory step for filing of his claim therein;
2. devises or legatee named in the will;
3. person interested in the estate; (e.i., heirs)
4. executor;
5. testator himself during his lifetime
Who may be a party in probate?
Generally, any person having a direct and material interest in the will or estat
e
Section 2. Contents of the Petition
1. The jurisdiction facts death of the testator and his residence at the time of
death or the province where estate was left by the decedent who is a non-reside
nt
2. the names, ages, and residence s of the heirs, legatees, devises of the testa
tor or decedent;
3. the probable value and character of the property of the estate;
4. the name of the person for whom the letter are prayed.
5. the name of the person having custody of the will if it has not been delivere
d to the court.
But no defect in the petition shall render void the allowance of the will, or th
e issuance of letters testamentary or of administration with the will annexed.
EFFECT OF THE PROBATE OF A WILL
It is conclusive as to the EXECUTION and he VALIDITY of the will (even against t
he State). Thus, a criminal case against the forger may not lie after the will h
as been probated.
ISSUE IN THE PROBATE OF A WILL
GENERAL RULE: Only determination of the extrinsic validity not the intrinsic val
idity or testamentary dispositions.
EXCEPTION: Where the entire or all testamentary dispositions are void and where
the defect is apparent on its face. (Acain vs. IAC GR No. 72706, Oct. 27, 1987;
Nepumuceno vs. CA, 139 SCRA 206)
EXTRINSIC VALIDITY means due execution of the will.
MEANING AND EXTENT OF DUE EXECUTION
Due execution means that:
1. that the will was executed strictly in accordance with the formalities requir
ed by law;
2. that the testator was of sound and disposing mind when he executed the will
3. no vitiation of consent through duress,fear or threats
4. not procured by undue or improper pressure or influence on the part of the be
neficiary or some other person for his benefit.
5. that the signature of the testator is genuine, ie., it was not procured throu
gh fraud and that the testator intended that what he executed was his last will
and testament.
Section 3. Court to appoint time for proving will. Notice thereof to be publishe
d
When does court acquire jurisdiction over interested persons and res?Upon Public
ation for 3 weeks successively of the order setting the case for hearing AND sen
ding NOTICES to all persons interested.
Section 4. heirs, devises, legatees and executors to be notified by mail or per
sonally
NOTICES MUST BE GIVEN TO;
1. designated or known heirs, legatees and devises; and
2. executor and co-executor if not the petitioner
MODES OF NOTIFYING
By mail: 20 days before hearing
Personal notice: 10 days before hearing
NOTE: 3 weeks successively is no strictly 21 days.
ANTE MORTEM
If petition for probate is on testator s own initiative during his lifetime
1. no publication is necessary (Sec. 3); and
2. notice shall be made only to the compulsory
Section 5. Proof at hearing. What sufficient in absence of contest
At the hearing, compliance of Publication and Notice must first be shown before
introduction of testimony in support of the will.
EVIDENCE in support of will:
1. UNCONTESTED WILL (Sec. 5)
a) Notarial Wills testimony of at least 1 of the subscribing witnesses is allowe
d.
- if all subscribing witnesses reside outside the province deposition is allowed
. (Sec. 7)
- if subscribing witnesses are dead insane or none of them resides in the Philip
pines. Court may admit testimony of the witnesses to rove the sanity of the test
ator, and the due execution of the will, and as evidence of the execution of the
will, it may admit proof of the handwriting of the testator and of the subscrib
ing witnesses or of any of them. (Sec. 8)
b) Holographic Wills the testimony of 1 witness who knows the handwriting and si
gnatures of the testator; in the absence thereof, testimony of an expert witness
.

2. CONTESTED (Sec. 11)


a) Notarial Wills ALL subscribing witnesses AND notary public before whom the wi
ll was acknowledged.
HOWEVER, if any or all the witnesses (i) testify against the execution of the wi
ll, (ii) do not remember attesting thereto, to (iii) o doubtful credibility, the
will may be allowed if the court is satisfied from the testimony of other witne
sses and from all the evidence presented that the will was executed and attested
in the manner required by law. (One of the instances where a party may impeach
his own witness).
b) Holographic Wills 3 witnesses who know the handwriting of testator. In the ab
sence thereof, testimony of an expert witness ay be resorted to.
HOWEVER, In Codoy vs. Calugay, GR NO. 123486, Aug. 12, 1999, the SC ruled that i
f the holographic will is contested, 3 witnesses who know the handwriting and si
gnature of the testator are now required/mandatory to prove its authenticity and
for its allowance.
GENERAL RULE: Holographic will if destroyed CANNOT be probated.
EXCEPTION: if there exists a Photostatic or Xerox copy thereof. (Gen. vs. Yap,
104 Phil 509)

Section 6. proof of lost or destroyed will.


Facts which should be proved in order that a lost will may be allowed:
1. that the will has been duly executed by the testator
2. that the will was in existence when testator died, or if it was not, that it
has been, fraudulent or accidentally destroyed in the lifetime of he testator wi
thout his knowledge; and
3. the provisions of the will are clearly established by at least two credible w
itnesses.
Section 9. GROUNDS FOR DISALLOWING WILL
(EXCLUSIVE)
1. if not executed and attested as required by law;
2. if the testator was insane, or otherwise mentally incapable to make a will, a
t the time of its execution;
3. if it was executed under duress, or the influence of fear, or threats
4. if it was procured by undue and importer pressure and influence, on the part
of the beneficiary, or of some other person for his benefit;
5. if the signature of the testator was procured by fraud or trick, and he did n
ot intend that the instrument should be his will at the time of fixing his signa
ture thereto
> Separate wills which contain essentially the same provisions and pertain to pr
operly which in all probability are conjugal in nature, practical considerations
dictate their joint probate

Section 10. Contestant to file grounds of Contest


Section 11. Subscribing witnesses produced or accounted for here will contested

Section 12. proof where testator petitions for allowance of holographic will
If there is no contest, the fact that the testator affirms that the holographic
will and the signature is in his own handwriting shall be sufficient evidence of
the genuineness and due execution thereof.
In case of contest, the burden of proof is on the contestant
4blue95:Certificate of allowance attached to prove will. To be recorded in the O
ffice of Register of Deeds.
RULE 77:ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ES
TATE THEREUNDER

Section 1. Will probated outside Philippines may be allowed here


A will allowed or probated in a foreign country, must be RE-PROBATED in the Phil
ippines. If the decedent owns properties in difference countries separate admini
stration proceedings must be had in said countries.
TWO TYPES OF ESTATE PROCEEDINGS
1. domiciliary administration the proceedings instituted in last residence or th
e decedent
2. Ancillary administration - the administration proceedings where he left his
estate.
EVIDENCE NECESSARY FOR REPROBATE
1. the due execution of the will in accordance with the foreign laws;
2. the testator had his domicile in the foreign country and not in the Philippin
es.
3. the will has been admitted to probate in such country;
4. the fact that the foreign country on procedure and allowance of wills
NOTE: In the absence of proof of the foreign law, it is presumed that it is the
same as that in the Philippines. (Doctrine of Processual Presumption)
Section 2. Notice of hearing for allowance
REQUISITES OF ANCILLARY ADMINISTRATION

1. there must be a will (inferred from the wordings of Rule 77)


2. filing of:
a. copy of the will executed in foreign country
b. order or decree of foreign court allowing such will
c. authentication of a and b above
3. notice of time and place of hearing
4. hearing and
5. certificate of allowance

Section 3. When will allowed, and effect thereof

Section 4. Estate, how administered

EFFECTS OF ALLOWANCE
1. the will shall have the same effects as if originally proved and allowed in c
ourt of the Philippines
2. letters testamentary or administration with a will annexed shall extend to al
l estates of the Philippines
3. Residue of estate after payment of debts, etc., shall be disposed of as provi
ded by law in cases of estates in Philippines belonging to persons who are inhab
itants of another state or country.

RULE 78:LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM ISSUED


PERSONS WHO CAN ADMINISTER THE ESTATE
1. Executor;
2. Administrator, regular or special (Rule 80); and
3. Administrator with a will annexed (Rule 79, Section 1)
Executor (BAR) The one named by the testator in his will for the administration
of his property after his death.
Letter testamentary(BAR) Authority issued to an executor named in the will to ad
minister the estate.
Letters of administration with a will annexed(BAR) Authority issued by the court
to a COMPETENT person to administer the estate of the deceased it the executor
y named in the will refused to accept the office.

Administrator (BAR) One appointed by the Court in accordance with the Rules or go
verning statutes to administer and settle the intestate estate or such testate e
state, where the testator did not name any executor or that the executor so name
d refuses to accept the trust, or fails to file a bond, or is otherwise incompe
tent.
Administrator with a will annexed one appointed by the court in cases when, alth
ough there is a will, the will does not appoint any executor, or if appointed, s
aid person is either incapacitated or unwilling to serve as such.
Letters of administration(BAR) Authority issued by the court to a COMPETENT pers
on to administer the estate of the deceased who died intestate

WHO MAY SERVE AS EXECUTOR/ADMINISTRATOR (BAR)


Any COMPETENT person may serve as executor or administrator
Section 1. WHO ARE INCOMPETENT TO SERVE AS EXECUTORS OR ADMINISTRATORS (BAR)
1. a minor;
2. a non-resident
3. one who in the opinion of the court is unfit to exercise the duties of the tr
ust by reason of:
a) drunkenness;
b) improvidence;
c) want of understanding and integrity;
d) conviction for an offense involving moral turpitude.
Appointed by the court
Nominated
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and appointed
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e executor refused appointment (administrator with a will annexed) or if the wil
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Section 2. Executor of executor not to administrator estate
Section 3. Married women may serve
Order of Preference in Granting letters of Administration
1. The surviving husband or wife for the next of kin, or both in the discretion
of the court, or to such person as such surviving spouse or next of kin, request
to have appointed, if competent and willing to serve; (SURVIVING SPOUSE OR NOMI
NEE)
2. if the surviving spouse or the next of kin or the person selected by them be
incompetent or unwilling to serve, or if the surviving spouse or next of kin neg
lects for 30 days after the death of the decedent to apply for administration. A
NY one or more of the PRINCIPAL CREDITORS, if competent and willing serve;
3. if there is no such creditor competent and willing to serve, it may be grante
d to such other person as the court may select. (STRANGER)
NOTE: The order of Appointment of Regular Administrator is final and appealable.

BASIS FOR THE PREFERENTIAL RIGHT


The underlying assumption is that those who will reap the benefits of a wise, sp
eedy and economical administration of the estate or on the other hand, suffer th
e consequences of waste, improvidence or mismanagement, have the higher interest
and most influential motive to administer the state correctly.
4blue95: there could be co-administrators and such is upheld here in the Philipp
ines.

RULE 79:OPPOSING ISSUANCE OF LETTERS TESTAMENTARY, PETITION AND CONTENT FOR LETT
ERS OF ADMINISTRATION
Section 1. Opposition to issuance of letters testamentary, simultaneous petition
or administration
What is the MAIN ISSUE in an administration proceeding?
The main issue is the determination of the person who is rightfully entitled to
administration.
Who may oppose the issuance of letters?
General Rule: Any person interested in the will
EXCEPTION: Even where a person who had filed a petition for the allowance of the
will of deceased person had no right to do so in view of his lack of interest.
In the estate, nevertheless, where the interested persons did not object to its
application, the defect in the petition would be deemed cured, the filing of the
petition may be considered as having been ratified by the interested parties. (
Eusebio vs. Valmores 97 PHIL 163)
Opposition may be accompanied by a Petition for the issuance of Letters of Admin
istration with the will annexed.
Section 2. Contents of a petition for letters of administration
a) jurisdiction facts;
2005 notes: such facts must allege the person on whose estate the letters prayed
is in fact dead ; at time of death.he was resident of Philippines and if not re
sident, he left assets in the Philippines
b) name. age, residence of heirs and creditors;
c) probable value and character of the estate; and
d) name of the person for whom letters is prayed for.
No defect in the petition shall render void the issuance of the letters of admin
istration.
Publication for 3 Weeks and notice to heirs, creditors and other persons believe
d to have an interest in the estate is required before hearing.
Section 4. Opposition to petition for administration
Grounds for Opposition:
1. In letters Testamentary
a) Incompetence
2.In letters of Administration
a) incompetence;
b) preferential right of the heir under Sec. 6 Rule 76
Section 5. hearing and order for letters to issue
Section 6. When letters of administration granted to any applicant
Letters can be granted to any person or any other applicant even of other compet
ent person are present if the latter fail to claim their letters when notified b
y the court.

4blue 95: there could be 2/more co-administrators especially so when the propert
y is very huge or when it is located in different places or when the heirs or pa
rties are disputing among them their share in the estate.

RULE 80:SPECIAL ADMINISTRATION


Section 1. Appointment of special Administrator
When may a probate court appoint a special administrator?
1. Delay in granting of letters including appeal in the probate of the will;
2. Executory is a claimant of the estate he represents; (Section 8, Rule 86)
NOTE: in this second instance, the administrator shall have the same powers as t
hat of a general administrator.
4blue95: appointment of special administrator cannot be opposed by parties.
ORDER OF APPOINTMENT DISCRETIONARY
The preference accorded by Sec. 6 of Rule 78 of the Rules of Court to surviving
spouse refers to the appointment of a regular administrator, NOT to that of spec
ial administrator, and that the order appointing the latter lies within the disc
retion of the probate court, and is not appeallable (Pijuan vs. De Gurrea, 124 P
hil. 1527)

ADMINISTRATOR
SPECIAL
ADMINISTRATOR
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the
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and
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Appointed was disallowed
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Section 2. Powers and Duties of Special Administrator
1. Possession and charge of the goods, chattels, rights, credits, and estate of
the deceased;
2. Preserve the same;
3. Commence and maintain suit for the estate;
4. Sell ONLY;
a) perishable property; and
b) those ordered by the court;
5. Pay debts ONLY as may be ordered by the court.

Section 3.When powers of special administrator cease. Transfer of effects. Pendi


ng suits.

When does the power of a special administrator cease?


After the questions causing the delay are resolved and letters are granted to re
gular executor or administrator.

BAR: Is appointment of special administrator appealable?


NO. the same is INTERLOCUTORY, However, appointment of a REGULAR ADMINISTRATOR i
s appealable because it is a final order.
NOTE: It is possible for the executor or administrator whose appointment is chal
lenged by appeal to be appointed also as the special administrator pending such
appeal. There is no harm in appointing the same person as special administrator
because there is a vast of difference between the powers and duties of the two p
ositions.
RULE 81:BONDS OF EXECUTORS AND ADMINISTRATORS

Section 1. Bond to be given before issuance of letters. Amount. Conditions.


When filed?Before an executor or administrator enters upon the execution of his
trust.
Amount? Fixed by the court

CONDITIONS
1. make an inventory of property which came to his knowledge and possession with
in 3 MONTHS
2. ADMINISTER the estate and from the proceeds, pay all debts and charges;
3. Render an ACCOUNT within ONE YEAR;
4. PERFORM all orders of the court

ADMINISTRATOR S BOND STATUTORY BOND


Conditions prescribed by statute forms part of bond agreement
Terms and effectivity of bond does not depend on payment of premium and does not
expire until the administration is closed. As long as the probate court retains
, jurisdiction of the estate, the bond contemplates a continuing liability. (Luz
on Surely vs. Quebrar, 127 SCRA 295)
Section 2. Bond of executor where directed in will. When further bond required
Section 3. Bonds of joint executors and administrators
Section 4. bond of special administrator
Conditions:
1. make inventory
2. render accounting when required by court;
3. deliver the same to person appointed executor or administrator or other autho
rized persons.
The bond is effective as long as the court has jurisdiction over the proceedings
.
RULE 82:REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION AND REMOVAL OF EXECUTOR
S AND ADMINISTRATORS
Section 1. Administration revoked once a will is discovered
If after letter of administration have been granted on the estate o the decedent
as if he had died intestate, his will is allowed and proved by the court, the l
etters of administration shall be revoked and all powers thereunder cease, and t
he administrator shall forthwith surrender the letters to the court, and render
his account within such time as the court may direct.
NOTE: The discovery of al will does NOT ipso facto nullify the letters of admini
stration already issued until the will has been proved and allowed pursuant to R
ule 82 Sec. 1. (De Parreno vs. Aranzanso, GR. No. L-27657, Aug. 30, 1982)

Section 2. Court may remove or accept resignation of executor or administrator.


Proceedings upon death, resignation or removal.

GROUNDS FOR REMOVAL OF EXECUTOR/ADMINISTRATOR


1. neglect to render accounts; (within 1 YEAR or when he court directs)
2. neglect to settle estate according to these rules;
3. neglect to perform an order or judgment of the court or a duty expressly prov
ided by these rules;
4. absconding; or
5. insanity or incapability or unsuitability to discharge the trust
These grounds are NOT EXCLUSIVE. (an administrator may be removed due to unfitne
ss)

Section 3. Acts before revocation, resignation or removal to be valid


Lawful acts of an administrator or executor before the revocation, resignation,
or removal are valid unless proven otherwise.

Section 4. Powers of new executor or administrator. Removal of license to sell r


eal estate
POWERS OF NEW EXECUTOR OR ADMINISTRATOR
1. collect and settle the estate not administered
2. prosecute or defend actions commenced by or against the former executor or ad
ministrator; and
3. recover execution on judgment in the name of former executor or administrator
.

RULE 83 :INVENTORY AND APPRAISAL PROVISION FOR SUPPORT OF FAMILY


Section 1. Inventory and appraisal to be returned within three months
Inventory and appraisal must be made within 3 MONTHS from the grant of letters t
estamentary or of administration.
Approval of an inventory is not a conclusive determination of what assets consti
tuted this decedent s estate and of the valuation thereof. Such determination is o
nly provisional and a prima facie finding of the issue of ownership.
Section 2. Certain Articles not to be Inventoried
1. wearing apparel of surviving spouses and minor children;
2. marriage bed and bedding
3. provisions and other articles as will necessarily consumed in the subsistence
of the family of the deceased
Section 3. Allowance to widow and family Allowance monetary advances subject to
collation and deductible from their share in the estate of the decedent.
Who are entitled to allowance during proceedings?
1. Legitimate surviving spouse (Nepomuceno vs. CA,); and
2. Children of the decedent
NOTE: according to Art. 188 of the Civil Code, the children need not be minors o
r incapacitated to be entitled to allowance. (Santero vs. CFI of Cavite, GR No.
61700-03 Sept. 24, 1987) in fact ,even if they are of age or employed , they still ha
ve right to allowance since substantive law is superior than remedial.
Grandchildren are NOT entitled to allowance under Rule 83. (Heirs of Ruiz vs CA)
When liabilities exceed the asset of the estate, his widow and children are not
entitled to support pending the liquidation of the intestate estate, on the grou
nd that such support, having the character of an advance payment to be deducted
from the respective share of each heir during distribution. (Wagner vs. Moore)

RULE 84 :GENERAL POWERS OF EXECUTORS AND ADMINISTRATORS


General Powers can be summarized in 3 words:
1.Administration management and try to find what assets of the estate and if the
re is collectible assets, file case to collect it
2.Liquidation- determine liabilities of estate, pay creditors and pay the govern
ment the estate tax and other taxes. If no asset ,ask the court to sell a portio
n of the estate or to mortgage in order to raise cash.
3.Distribution- whatever is left, give it to heirs.
2006 notes: Administrator has control over the estate for the purpose of liquida
ting (bayaran ang utang!). So kung bayad na ang utang, administrator have no mo
re business, estate should be given to the heirs.

Section 1. Executor or administrator to have access to partnership books and pro


perty. How right enforced.
Section 2. Executor or administrator to keep buildings in repair
Section 3. Executor or administrator to retain whole estate to pay debts and to
administer estate not willed.
POWERS OF EXECUTOR/ADMINISTRATOR OF THE ESTATE
1. To have access to, and examine and take copies of books and papers retaining
to the partnership in case of a deceased partner;
2. To examine and make invoices of the property belonging to the partnership in
case of deceased partner;
3. To make improvements on the properties under administration with the necessar
y court approval except for necessary repairs;
4. To possess and manage the estate when necessary;
a.) for the payment of debts; and
b) for payment of expenses of administration;
5. to maintain in tenantable repairs houses and other structures and fences and
to deliver the same in such repair to the heirs or devisees when directed so to
do by the court.

SOME RESTRICTIONS ON POWER OF ADMINISTRATOR/EXECUTOR


1. Cannot acquire by purchase, even at public or judicial suction, either in per
son or mediation of another, the property under administration;
2. Cannot borrow money without authority of the court;
3. Cannot speculate with funds under administration;
4. Cannot lease the property for more than one year;
5. Cannot continue the business of he deceased unless authorized by the court;
6. Cannot profit by the increase or decrease in the value of the property under
administration.

RULE 85: ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS


Section 1. Executor or administrator chargeable with all estate and income
General Rule: The executor or administrator is accountable for the whole estate
of the deceased.
Exception: He is not accountable for properties which never came to his possessi
on
EXCEPTION TO THE EXCEPTION: when through untruthfulness to the trust or his own
fault or for lack of necessary action, the executor or administrator failed to r
ecover part of the estate which came to his knowledge.
Section 2. Not a profit by increase or lose by decrease in value.
Administrator or executor shall not profit by the increase of the estate not be
liable for any decrease which the estate, without his fault, might have sustaine
d.
Section 3. When not accountable for debts due estate
> Executor or administrator not accountable is debt remains uncollected without
his fault
Section 4. Accountable for income from realty use by him
> If executor or administrator uses or occupies real estate under administration
, he must account for it.

Section 5. Accountable if he neglects or delays to raise or pay money


> If an executor or administrator neglects or unreasonably delays to raise money
, by collecting the debts or selling the real or personal estate of the deceased
, or neglects to pay over the money he has in his hands, and he value of the est
ate is lessened or unnecessary cost or interest accrues, or the persons interest
ed suffer loss, he shall be liable for damages.

Section 6. when allowed money paid as costs.

Section 7. What expenses and fees allowed executor or administrator; Not to char
ge for services as attorney. Compensation by will controls unless renounced.
Expenses of administration: those necessary for the management of the property,
for protecting it against destruction or deterioration, and possibly for the pro
duction of fruits.
COMPENSATION IF THERE IS NO PROVISION IN THE WILL
> P4.00 a day for the time actually and necessarily employed; OR
> COMMISSION

Section 8. When executor or administrator to render an account.


RULE: Within one year from the time of receiving letters testamentary or letters
of administration.
EXCEPTION: An extension of time is allowed for presenting claims against or pay
ing the debts of the estate for disposing of the estate but even in such cases,
the administration should be terminated in not more than two-years and a half.

What if administrator hire another lawyer ,who will pay for Atty s fees?
HELD: The lawyer cannot charge the estate, claim such fee to the administrator s
ince it is the latter who is the client of the lawyer. The administrator will th
en claim it from the estate as part of expenses for administration.
When the deceased by will makes some other provision for the compensation of his
executor, that provision shall be a full satisfaction for his services unless b
y a written instrument filed in the court he renounces all claim to the compensa
tion provided by the will.
Conditions when greater compensation may be given to the administrator
1. estate is large
2. settlement has been attended with great difficulty, and
3. settlement has required a high degree or capacity on the part of the executor
or administrator
GR: Executor s compensation provided in the will shall be a full satisfaction for
his services.
Exception: Executor files a written renunciation of all claim to the compensatio
n provided in the will.

Section 9. Examinations on oath with respect to account.


Section 10. Account to be settled on notice
Section 11. Surely on bond may be party to accounting

RULE 86: CLAIMS AGAINST ESTATE


Claim any debt or pecuniary demand against the decedent s estate.

When may a court issue notices to creditors to file their claims?


Immediately issued after granting letters testamentary or of administration.
PURPOSE: for the speedy settlement of the affairs of the deceased person and ear
ly delivery of the property of the estate into the hands of the persons entitled
to receive it.
Claims arising AFTER his death cannot be presented except for:
a) funeral expenses; and
b) expenses of the last sickness of the decedent
Claims for taxes (inheritance and estate) due and assessed after the death of th
e decedent need not be presented in the form of a claim. The court in the exerc
ise of its administrative control over the executor or administrator may direct
the latter to pay such taxes. And the heirs, even after distribution, are liable
for such taxes.
Section 2. Time within which claims shall be filed

STATUTE OF NON-CLAIMS period fixed by the rule for the filing of the claims agai
nst the estate (this supersedes the prescriptions)
When should the claims be filed?
General Rule: Within the time fixed in the notice which shall not be more than 1
2 MONTHS nor less than 6 MONTHS after the date of the FIRST PUBLICATION. Otherwi
se, they are BARRED FOREVER.
Even if the testator acknowledged the debt in his will and instructed the execut
or to pay the debt, the statute or non-claim must still be complies with the oth
erwise the claim may also be barred.
EXCEPTION: Belated Claims
Belated claims are claims not filed within the original period fixed of the cour
t. On application of a creditor who has failed to file his claim within the time
previously limited, at ANY TIME BEFORE an order of distribution is entered, the
court MAY, for cause shown and on such terms as are equitable, allow such claim
to be filed within a time NOT EXCEEDING 1 MONTH from the order allowing belated
claims.
Statute of Non-claims SUPERSEDES the Statute of limitations insofar as the debts
of deceased persons are concerned because if a creditor fails to file his claim
within the time fixed by the court in the notice, then the claim is barred fore
ver, However, BOTH statute of Non-claims and Statute of Limitations MUST CONCUR
in order for a creditor to collect.
NOTE: HOWEVER, a creditor barred by the Stature of Non-claims may file a claim
as a COUNTERCLAIM in any suit that the executor or administrator may bring again
st such creditor.
Section 3. Publication of notice to creditors
> Publish the notice for 3 successive weeks in a newspaper of general circulatio
n in the province and post the same in 4 public places in the province and in 2
public places in the municipality where the decedent last resided.
Section 4. Filing copy of printed notice.

Section 5. Claims which must be filed under notice, if not filed, barred; except
ions.
Claims referred to under this section refer to claims for the recovery of money
and which are not secured by a lien against the property of the estate. (Olave v
s. Carlos, 208 Phil 678)
Claims which should be filed under the Statute of Non-claims (ACTIONS WHICH DO N
OT SURVIVE)
1. Money claims, debts incurred by deceased during his lifetime arising from con
tract:
a. express or implied(arising from tort or law);
b. due or not due;
absolute or contingent.
2. Claims for funeral expenses; and
3. for the last illness of the decedents;
4. Judgment for money against decedent (under Rule 3 whereby one party to a case
died)

4blue 95:claim not covered by non-claims can be filed anytime like claim for ta
xes.
4blue 95: the BIR can levy and sell properties even w/o approval of the court (h
owever, court is not allowed to distribute the estate if no certification that i
t paid taxes already)
(BAR) Before the case is to be decided, there is still a decision required for b
ut the defendant died. Is there a substitution? No need since an action for reco
very of money as debt does not survive, as such ,the procedure is to dismissed t
he case and file it as claim against the estate.
2006 notes: the creditor is still obliged to file a claim since upon death of t
he testator (who acknowledges that he has a debt to such creditor), his entire e
state is bonded fro the payment of his debts. No creditor shall be entitled prio
rity ,all are equal. Decedent could not provide for preference in his will.

Absolute Claim is such a claim as, if contested between living persons, would be
proper subject of immediate legal action and would supply a basis of a judgment
for a sum certain.
Contingent Claim conditional claim or claim that is subject to the happening of
a future uncertain event (such event is the uncertainty of liability and not of
payment..
BAR:X borrowed money from you and Y acted as surety. X died. Creditor can still
file a claim against surety, so he sued the surety. During trial, the right of t
he surety is to claim reimbursement against the estate, if such will not file,
then such is barred from claiming, last remedy is to file a contingent claim ag
ainst the estate.
X borrowed P1M from Maycel and mortgage X s land. X died. Maycel appraised the la
nd and turned out it is not P1M but only P600T. If there is deficiency, file cla
im as probable deficiency against the estate, if not file, and if Maycel foreclo
se mortgage, and it is not sufficient, Maycel can no longer run against the esta
te to correct deficiency.
4blue95:Claims not yet due or contingent ay be approved at their present value.
A claim that is extinguished by death should be distinguished from an action whi
ch does not survive. A claim is extinguished by reason of death if the action is
personal to either parties such as in cases of legal separation, annulment or d
eclaration of nullify of marriage.
4blue 95: even if testator state in his will and told executor to pay the debt,
still the creditor had to file claim .

If claim is contingent, you are not supposed to pay the debt. Its only an approv
al claim, but you will be paid when the liability becomes certain.
How to determine claim? Claims not yet due or contingent may be approved at thei
r present value.

ALTERNATIVE REMEDIES OF THE CREDITOR HOLDING A CLAIM SECURED BY A MORTGAGE OR OT


HER COLLATERAL SECURITY (sec7)
1. ABANDON the security and prosecute his claim against the estate and share in
the general distribution of the assets of the estate;
2. FORECLOSURE his mortgage or realize upon his security by action in court maki
ng the executor or administrator a party defendant and if there is judgment for
DEFICIENCY, he may file a claim (contingent) against the estate within the statu
te of non-claims;
2005 notes:What if you do not know if there is possible deficiency, you estimate
the probable deficiency and before the deadline, file a claim against the estat
e as a contingent claim
2005 notes:If foreclosure was filed while mortgagor was still alive and while ca
se was pending, debtor died,as such, this is an action w/c survives since you ar
e not directing it against the person of the debtor and you are not enforcing th
e principal (since foreclosure), this is an action quasi-in rem, directed agains
t the party.
--correct procedure is that foreclosure should be dismissed, instead, there shou
ld be substitution of party defendant and the civil action can succeed,there is
no reason why I cannot file an action against the mortgagor during his lifetime
and once he is dead, there will be substitution (proper since action to foreclos
e mortgage is not action to collect a loan, or a claim of money)

3. RELY SOLELY ON HIS MORTGAGE and foreclosure (judicial or extrajudicial) the s


ame at anytime within the period of the statute of imitations but he cannot be a
dmitted as creditor and shall not receive in the distribution of the other asset
s of the estate.
NOTE: These remedies are alternative, the availment of one bars the availment of
other remedies

4blue 95: extrajudicial foreclosure instituted after death of decedent is permit


ted by law, and that , the special power of attorney may extend even beyond the
lifetime of decedent, that s why there s sec 7 (whereby the mortgagee is given 3 opt
ions)
4blue 95:power to foreclose is not an ordinary agency so it survives the death o
f the mortgagor.

Section 6. Solidary obligations of decedent.


Claim should be filed against decedent as if he were the only debtor without pre
judice on the part of the estate to recover contribution from the other debtor.
(Jaucian vs. Quero, 38 Phil 771)
Joint obligation of decedent:The claim must be confirmed to the portion belongin
g to the decedent.
2005 notes: But if creditor believes that decedent is poorer than the other debt
or, he may file a civil case against the other debtor to collect the whole debt.
It is the other debtor who will now file a claim against the estate[Imperial I
ns. Co. v. David, 133 SCRA 317 (1984)]

Section 8. Claim of executor or administrator against an estate.


> One of the instances where a special administrator is appointed

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


rator
HOW TO FILE A CLAIM
1. deliver the claim with the necessary vouchers to the clerk of the court;
2. serve a copy thereof on the executor or administrator;
3. if the claim is due, it must be supported by affidavit stating the amount due
and the fact that there has been no offsets;
4. if the claim is not due or contingent, it must be accompanied by affidavit st
ating the particulars thereof.

Section 10. Answer of executor or administrator. Offsets.


> executor may file answer within 15 days from service of claim.
> Answer must set forth claims which decedent has against claimant or else it wi
ll forever be barred.

Section 11. Disposition of admitted claim


> if executor or administrator admits claim, the heir, legatee or devisee may op
pose it
Section 12. Trial of contested claims
> The court may refer the claim to a commissioner.
Section 13. judgment appealable
Judgment against executor and administrator shall not create any lien upon the p
roperty of the estate or does not constitute a specific lien which may be regist
ered on such property.
Judgment of a probate court approving or disapproving a claim is appealable.
4blue95 Note: The mode of appeal is record on appeal and must be filed within 30
DAYS from notice of judgment.
Section 14. Costs

RULE 87:ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS


Section 1. Actions which may and which may not be brought against executor and a
dministrator.
Actins which may be commenced directly against the executor or administrator:
1. recovery of real or personal property or any interest therein from the estate
;
2. enforcement of a lien thereon;
3. action to recover damages for any injury to person or property, real or perso
nal (tortuous acts)
These are actions that survive the death of the decedent.
2005 notes: 1-3,if you file a case during lifetime of testator and he died, case
not dismissed, there should be proper substitution by the executor /administrat
or
2005 notes: Action upon a claim for the recovery of money or debt or interest th
ereon shall not be brought against the executor/administrator, the correct proce
dure is Rule 86

An action for revival of money judgment may be filed against the administrator t
o preempt prescription of judgment. (Romualdez vs. Tiglao, 105 SCRA 762)
Section 2. Executor or administrator may bring or defend actions which survive.
Section 3. Heir may not sue until share assigned.
Before distribution is made or before any residue is known, the heirs and devise
es have no cause of action against the executor or administrator for recovery of
the property left by the decedent.
Section 4. Executor or administrator may compound with debtor.
Section 5. Mortgage due estate may be foreclosed.
Section 6. Proceedings when property concealed, embezzled or fraudulently convey
ed.
PURPOSE: To elicit information or to secure evidence from those persons suspecte
d as having possessed or having knowledge of properties belonging to deceased, o
r of having concealed, embezzled or conveyed away any properties of the deceased
.
General Rule: The probate court has no authority to decide whether or not the pr
operties belong to the estate or to the person being examined since probate cour
ts are courts of limited jurisdiction.
EXCEPTION:
1. Provisional determination of ownership for inclusion in the inventory; or
2. When the parties are all heirs and they voluntarily submitted the issue to th
e probable court and the determination of which will not prejudice the rights of
3rd person. (Bernardo vs. CA, GR. No. 82483, SEPT. 26, 1990)
Section 7. Persons entrusted with estate compelled to render account.
Section 8. Embezzlement before letters issued.
The responsible person shall be liable to an action in favor if the executor or
administrator of the estate for double the value of the property sold, embezzled
, or alienated, to be recovered for the benefit of the estate.
Section 9. Property fraudulently conveyed by the deceased may be recovered. When
executor or administrator must bring action.
This provision applies when three is a deficiency of assets in the hands of the
executor or administrator for he payment of the debts and expenses for administr
ation.
Section 10. When creditor may bring action. Lien for costs

REQUISITES BEFORE ACTION MAY BE FILED BY CREDITORS


1. There is a DEFICIENCY of assets in administrator for the payment of debts and
expenses of administration;
2. the deceased in his lifetime had made or attempted to make a FRAUDULENTLY CON
VEYANCE of his property or had so conveyed such property that by law the conveya
nce would be void as against his creditors;
3. the subject of the attempted conveyance would be liable t ATTACHMENT in his l
ifetime;
4. the executor or administrator has shown NO DESIRE TO FILE action the action o
r failed to institute the same within a reasonable time;
5. LEAVE is granted by the court to the creditor to file the action;
6. a BOND is filed by the creditor;
7. the action by the creditor is in the NAME of the executor or administrator.
NOTE: HOWEVER, the last three requisites are unnecessary where the grantee is th
e executor or administrator himself, in which event the action should be in the
name of all the creditors.

If the claim against a deceased is


1. a money claim (liquidated)
a. already instituted the decedent is substituted, case continues until final ju
dgment, then the judgment is presented as a claim before the estate proceedings
(The creditor must file a contingent claim under the statute of non-claims)
b. not yet instituted file a claim in the estate proceedings within the statute
of non-claims
2. to recover real or personal property, or an interest therein, from the estate
, or to enforce a lien thereon, and actions to recover damages for an injury to
person or property, real or personal
a. already instituted the decedent is substituted, case continues until final ju
dgment, then the judgment is presented as a claim before the estate proceedings
(The creditor must file a contingent claim under the statute of non-claims)
b. not yet instituted sue the executor or administrator in a separate action (Th
e creditor must file a contingent claim under the statute of non-claims)
What if before X could file a case against Y, latter died:
-If claim for damages for injury to person or property arise from a contract, fi
le a claim against estate of deceased
-If it is an action for damages arising from culpa aquilana where there is no c
ontract, then it can be maintained against executor/administrator.

4blue95:Administrator or Executor can also bring an action in behalf of plaintif


f(action to collect debt etc ) what is not allowed is if the deceased is the debto
r or defendant.
Thus ,if debtor during his lifetime conveyed his prop in fraud of creditors coz
debtor fraudulently conveyed his property E/A can protect creditors to recover pro
p conveyed by debtor during his lifetime.

RULE 88:PAYMENT OF THE DEBTS OF THE ESTATE


Section 1. Debts paid in full if estate sufficient.
Writ of execution is not the proper procedure to satisfy debts. Court must ORDER
THE SALE OR MORTGAGE of the properties of decedent, the proceeds of which will
satisfy the debts and expenses.
Is execution a proper remedy to satisfy an approved claim?
NO, because:
1. Payment approving a claim does not create a lien upon a property of the estat
e;
2. Special procedure is for the court to order the sale to satisfy the claim.
Section 2. part of estate from which debts paid when provisions made by will.
If the testator makes a provision in his will or designates the estate to be app
ropriated for the payment of his debts, that will be followed. But if it is not
sufficient, such part of the estate as is not disposed of by will, if any, shal
l be appropriated for that purpose.
Section 3. Personality first chargeable for debts, then realty.
2 INSTANCES WHEN REALTY IS LIABLE FOR DEBTS AND EXPENSES:
1. when the personal estate of the decedent is not sufficient for that purpose;
2. where the sale of such personality would be to the detriment of the participa
nts of the estate.
Section 4. Estate to be retained to meet contingent claims.
If the court is satisfied that contingent claim duly filed is valid, it may orde
r the executor or administrator to retain in his hands sufficient estate to pay
a portion equal to the dividend of the creditors.
REQUISITES
1. Contingent claim is duly filed;
2. Court is satisfied that the claim is valid;
3. The claim has become absolute
Section 5. How contingent claim becoming absolute in two years allowed and paid,
Action against distribute later.
If such contingent claim becomes absolute and is presented to the court, or to t
he executor or administrator, within two years from the time limited for other c
reditors to present their claims, it may be allowed by the court.
If the contingent claim matures after the expiration of the two years, the credi
tors may sue the distributes, who are liable in proportion to the shares in the
estate respectively received by them. (Jaucian vs. Querrol, supra)
It has been ruled that the only instance wherein a creditor can file an action a
gainst a distributee of the debtor s assets in under Sec. 5, Rule 88 of the Rules
of Court. The contingent claims must first have been established and allowed in
the probate court before the creditors can file an action directly against the d
istributees. (De Bautista vs. De Guzman, 125 SCRA 682)
Section 6. Court to fix contributive shares where devisees, legatees, or heirs h
ave been in possession.
Section 7. order of payment if estate insolvent.
If estate is insolvent, as in liabilities are more than the assets, Sec. 7 in re
lation to Art, 1059 and 2239 to 2251 of the Civil Code (Concurrence and Preferen
ce of Credits) must apply.
Section 8. Dividends to be paid in proportion to claims.
Section 9. Estate of insolvent nonresident, how disposed of.
In case administration is taken in the Philippines of the estate o a person who
was at the time of his death an inhabitant of another country, and who died INSO
LVENT , his estate in the Philippines shall be so disposed of that his creditors
in an outside the Philippines may receive an equal share, in proportion to thei
r respective credits.
Section 10. When and how claim proved outside the Philippines against insolvent
resident s estate paid.
Claims proven outside the Philippines against insolvent resident s estate paid.
Claims proven outside he Philippines where the executor as knowledge and opportu
nity to contest its allowance therein may be added to the list o claims in the P
hilippine against the estate of an INSOLVENT RESIDENT and the estate will be dis
tributed equally among those creditors.
However, the benefit of Section 9 and 10 cannot be extended to the creditors in
another country if the property of such deceased person there founds is not equa
lly apportioned to the creditors residing in the Philippines. (Principle of Reci
procity)
Section 11. Order of payment of debts.
Section 12. orders relating to payment of debts where appeal is taken.
Section 13. When subsequent distribution of assets ordered.
Section 14. Creditors to be paid in accordance with terms of order
Section 15. Time for paying debts and legacies fixed, or extended after notice,
within what periods.
Need not exceed 1 year in the first instance. But court may extend on applicatio
n of executor or administrator and after hearing and notice thereof
Extension must not exceed six months for single extension. Whole period allowed
to the original executor or administrator shall not exceed 2 years.
Section 16. Successor of dead executor or administrator may have time extended o
n notice within a certain period.
Successor of deceased executor or administrator may be given an extension not to
exceed 6 months.

4blue 95:before claim is paid, it must be approved first


RULE 89:SALES, MORTGAGES AND OTHER ENCUMBRANCES OF THE PROPERTY OF THE DECEDENT
The court may order the whole or part of the PERSONAL estate to be sold if neces
sary;
1. to pay debts and expenses of administration
2. to pay legacies; or
3. to cover expenses for the preservation of the estate
When court may authorize safe, mortgage or other encumbrance of realty to pay de
bts and legacies though personalty not exhausted.
1. if personal estate is NOT sufficient to pay debts expenses of administration
and legacies; or
2. if sale of personal estate may injure the business or interests of those inte
rested in the estate; and
3. if testator has NOT made sufficient provision for payment of such debts, expe
nses and legacies.
4. if deceased was in his lifetime under contract, binding in law to deed real p
roperty to beneficiary; (Section 8)
5. if the deceased during his lifetime held real property in trust for another p
erson. (Section 9)
REQUISITES
a) application of executor/administrator;
b) written notice to person interested; and
c) hearing
NOTE: assets in the hands of executor/administrator will not be reduced to preve
nt a creditor from receiving his full debt or diminish his dividends.
NOTE: Without notice and hearing, the sale, mortgage or encumbrance is void. Not
ice is mandatory, noncompliance therewith under the sale is null and void.
Reason. The reason behind this requirement is that the heirs are the presumptive
owner. Since hey succeed to all the rights and obligation of the deceased from
the moment of the latter s death, they are the person directly affected by the sal
e or mortgage and therefore cannot be deprived of the property, except in the ma
nner provided by law.
Section 3. Persons interested may prevent such sale, etc. by giving bond.
Section 4. when court may authorize sale of estate as beneficial to interested p
ersons. Disposal of proceeds.
Section 5. when court may authorize sale, mortgage or other encumbrance of estat
e to pay debts and legacies in other countries.
When it appears from records and proceeding of a probate court of another countr
y that the estate of the deceased in foreign country is not sufficient to pay de
bts and expenses.
Section 6. When court may authorize sale, mortgage or other encumbrance of realt
y acquired on execution or foreclosure

Section 7. Regulations for granting authority to sell, mortgage or otherwise enc


umber estate (MANDATORY).
Application for authority to sell, mortgage or encumber property of the estate a
y be denied by the court if:
1. the disposition is not for any of the reasons specified by the rues; OR
2. under Section 3 rule 89, any person interested in the estate gives a bond con
ditioned to pay the debts, expenses of administration and legacies.
4blue 95:if heir sells/mortgages his share, judicial approval not needed since l
atter is needed only if it involves the decedent and not the heirs
Section 8. When court may authorize conveyance of realty which deceased contract
ed to convey. Notice. Effect of deed
Section 9. When court may authorize conveyance of lands which deceased held in t
rust.

RULE 90 :DISTRIBUTION AND PARTITION OF THE ESTATE


Liquidation means the determination of all assets of all assets of the estate an
d payment of all debts and expenses.
GENRULE: ORDER OF DISTRIBUTION shall be made AFTER payments of all debts, funera
l expenses, expenses for administration , allowance of widow and inheritance tax
is effected.
EXCEPT: if the distributees or any of them gives a bond conditioned for the paym
ent of said obligation , the ORDER OF DISTRIBUTION may be made even BEFORE payme
nts of all debts, etc.
In these proceedings, the court shall:
1. collate;
2. determine heirs; and
3. determine the share of each heir.
A separate action for the declaration of heirs is not necessary.
When is title vested?
From FINALITY of order or distribution.
An order which determines the distributive shares of heirs is appealable. If not
appealed, it becomes final
NOTE: The probate court loses jurisdiction over the settlement proceedings only
upon payment of all debts and expenses of the obligor and delivery of the entire
estate to all the heirs. (Timbol vs. Cano, 1 SCRA 1271)
CONDITIONS PRECEDENT to be compiled with for the Issuance of an order of distrib
ution
1. Showing that the executor, administrator or person interested in the estate a
pplied for such; and
2. The requirements as to notice and hearing upon such application have been ful
filled.
PROHIBITION AGAINST INTERFERENCE BY OTHER COURTS.
As long as the order of distribution of the estate has not been compiled with, t
he probate proceedings cannot be deemed closed and terminated, because a judicia
l partition is not final and conclusive and does not prevent he heirs from bring
ing an action to obtain his share, provided the prescriptive period therefore ha
s not elapsed. The better practice, however, for the heir who has not received h
is share, is to demand his share through proper motion in the same probate or ad
ministrative proceedings, or for the reopening of the probate or administrative
proceedings if it had already been closed, and no through an independent action,
which would be tried by another court or judge which may this reverse a decisio
n or order of the probate or intestate court already final and executed and re-s
huffle properties long ago distributed and disposed of (Timbol vs. Cano, supra)
Section 2. Question as to advancement to be determined.
Section 3. By whom expenses of partition paid : One of the instances where writ
of execution may be issued.
Section 4. Recording the order of partition of estate.

Who distribute the shares?


Court is the only one empowered to do it but generally the court require adminis
trators to prepare what is known as PROJECT PARTITION(outline on how to divide p
roperty)
Administrators then shows this to the heirs ,if heirs not satisfied, court will
ask them to submit their counter project and then they will determine which is t
he best.
Once project of partition is approved, estate is now closed,such project cannot
be revoked. (although sometimes, partial partition is allowed but generally dis
couraged)

RULE 91 :ESCHEATS
4blue95:person dies without a will and no heirs.
ESCHEAT is a proceeding whereby the real and personal property of a deceased per
son in he Philippines, ho dies without leaving any will or legal heirs, become t
he property of the State upon his death.

3 INSTANCES OF ESCHEATS
1. When a person dies intestate leaving no heir but leaving properly in the Phil
ippines; (Section 1)
2. REVERSION PROCEEDINGS Sale in violation of the Constitutional provision;
3. Unclaimed Balances Ac. (dormant accounts for 10 years shall be escheated)
What is the basis of the state s right to receive property in escheat?
Order of succession under the Civil Code, the STATE is the last heir of the dece
dent.
Who files?Solicitor General or his representative in behalf of the Philippines.
Where to file?RTC of last residence or of location of his estate in the Philippi
nes if he is anon-resident.
Secion 2. Order for heaing.
If petition is sufficient in FORM and SUBSTANCE the court shall:
1. Make an ORDER OF HEARING hearing shall not be more than 6 MONTHS AFTER ENTRY
OF ORDER;
2. Direct the publication of a copy of the order at least one a week for 6 CONSE
CUTIVE WEEKS.
REQUISITES
1. Publication of the order;
2. person dies intestate;
3. he is seized of real/personal property in the Philippines
4. he left no heir or person entitled to such property;
5. there is no sufficient cause to the contrary

TO WHOM WILL THE PROPERTY ESCHEATED BE ASSIGNED


1. personal property, city or municipality where he last resided
2. if real property where the property is situated.
3. if deceased never resided in the Philippines. Where the property may be found
.
4blue95:The court, at the instance of an interested party, or on its own motion
, may order the establishment of a PERMANENT TRUST, so that only the income from
the property shall be used.

Section 4. When and by whom claim to estate filed


Who may file a claim on the escheated property?
Any devise. Legates, heir, widow/er, or other person entitled thereto
4blue95:the scenario here in sec4 is that during escheat proceeding ,there sudde
nly appear a heir to the estate of the deceased.
When to file?
Within 5 YEARS FROM THE DATE OF JUDGMENT, otherwise forever barred.
Section 5. OTHER ACTIONS FOR ESCHEATS
> Actions for reversion of property alienated in violation of Constitution or an
y statute
> These shall be governed by Rule 91. HOWEVER, the action must be instituted in
the province where the land lies in whole or in part.
Period. Within 6 years from the date of judgment; (under ART. 1014 of the Civil
Code, THE 5-YEAR PERIOD IS RECKONED FROM THE DATE THE PROPERTY WAS DELIVERED TO
THE STATE and further provides that if the property had been sold, the municipal
ity or city shall be accountable only for such part of the proceeds as may not h
ave been lawfully spent)
By whom: person with interest

Can court convert escheat proceedings into ordinary special proceedings or vice-
versa?
NO. This is not allowed for the two action have different requirements in acquir
ing jurisdiction. In special proceedings, publication is once a week for 3 weeks
while in escheat, one a week for 6 weeks.
NOTE: Escheat under the Unclaimed Balance law must be filed in RTC of the place
where the dormant deposits are found

RULE 92:GUARDIANSHIP
NOTE: guardianship of minors is now governed by the Rule an guardianship of Mino
rs (A.M. NO. 03-02-05 SC) which took effect on May 1, 2003. While guardianship o
f incompetents is still governed by the provisions of the Rules of Court on guar
dianship (Rule 92 to Rule 97)
Section 1. Where to institute proceedings.
Jurisdiction:
> Incompetents RTC of his residence or where hi property is located in case of n
on-resident (Sec. 1)
> Minor Family Court of his residence or where his property is located in case o
f non-resident (Sec. 3, AM 03-02-05)
KINDS OF GUARDIANS
A. According of scope:
1. General over the person of the ward or over his property
2. Limited over the property only
B. According to constitution
1. general guardian
2. legal guardian without judicial appointment
3. guardian ad litem appointed by courts of justice to prosecute or defend a min
or, insane or person declared to be incompetent, in an action in court.
Section 2 . Meaning of the word Incompetent
INCOMPETENT includes:
1. those suffering from penalty of civil interdiction;
2. hospitalized lepers;
3. prodigals;
4. deaf and dumb ho are unable to read and write;
5. those o unsound mind though they have lucid intervals
6. persons not of unsound mind but by reason of age, disease, weak mind and othe
r similar causes cannot, without outside aid, take care of themselves or manage
their property.
Section 3. Transfer of Venue

RULE 94:BONDS OF GUARDIANS


Section 1. Bond to be given before Issuance of letters. Amount. Conditions.
Before an appointed guardian enters upon the execution of his trust he shall giv
e a BOND CONDITIONS:
1. To make and return to the court, within three (3) months, a true and complete
INVENTORY of all he estate of his ward which shall come to his possession or kn
owledge or to the possession or knowledge of any other person for him;
2. To faithfully EXECUTE THE DUTIES of his trust, to manage and dispose of the e
state according to these rules for the best interests of the ward and to provide
for he proper care, custody, and education of the ward.
3. to render a true and jus ACCOUNT of all the estate of the ward in his hands,
and on all proceeds or interest derived therefrom, and of the management and dis
position of the same, at the time designated by these rules and such other times
as the court and deliver and pay over all the estate, effects, and moneys remai
ning in his hands, or due from him on such settlement, to the person lawfully en
titled thereto;
4. to PERFORM all orders of the court by him to be performed.
Section 2. When new bond may be required and the old sureties discharged.
Section 3. bonds to be filed. Actions thereon.

RULE 95:SELLING /ENCUMBERING PROPERTY OF WARD


Section 1. Petition of guardian for leave to sell or encumber estate
A. Grounds
1. when income of estate is insufficient to maintain the ward and his family or
2. when income of estate is insufficient to maintain and educate ward when a min
or; or
3. when I appears that it is for the benefit of the ward.
B. Requirements
1. petition must be verified.
2. notice must be given to the next of kin; and
3. hearing so that they may show cause why petition should no be granted.
Section 2. Order to show cause thereupon.
Next of kin pertains to hose relative who are entitled to share in the estate of
the ward under the law on Intestate Succession including those who inherent per
stirpes or by right or representation.
NOTE: Notice to next of kin and interested persons is JURISDICTIONAL
Sale of the ward s realty by the guardian without authority form the court is VOID
. Under the law, a parent acting merely as legal administrator of the property o
f his/her children, does NOT have the power to dispose of, or alienate, the prop
erty of said minor without judicial approval
Section 3. Hearing on return of order.
Section 4. Contents of order for sale or encumbrance, and how long effective.
The order of Sale must specify the grounds.
Duration of the order for sale and encumbrance of property: Within 1 year from t
he granting of the order. It is presumed that if the property was not sold withi
n 1 year, the ward has sufficient income.
The authority to sell or encumber shall not extend beyond 1 year unless investme
nt of proceeds and direct management of estate.
RULE 96:GENERAL POWERS AND DUTIES OF GUARDIANS
Section 1. To what guardianship shall extend.
Section 2. Guardian to pay debts of ward.
Section 3 Guardian to settle accounts, collect debts and appear in actions for w
ard.
Section 4. Estate to be managed frugally and proceeds applied to maintenance of
ward.
Section 5. Guardian may be authorized to join in partition proceedings after hea
ring.
Section 6. Proceedings when person suspected of embezzling or concealing propert
y of ward.
Section 7. Inventories and accounts of guardians, and appraisement of estate.
Section 9. When guardian s accounts presented for settlement, expenses and compen
sation allowed.

GENERAL POWERS AND DUTIES OF GUARDIANS


1. have the care and custody of the person of the ward, and the management f his
estate, or the management of his estate, or the management of the estate only,
as the case may be (Sec. 1);
2. pay the debts of the ward (Sec. 2);
3. settle accounts, collect debts and appear in actions for ward (Sec. 3);
4. manage the estate of the ward frugally, and apply the proceeds to maintenance
of the ward (Sec. 4);
5. render verified inventory within 3 MONTHS after his appointment and annually
thereafter upon application of interested persons (Sec. 7); and
6. render to court for its approval an accounting of the property for 1 YEAR fro
m his appointment & every year thereafter (Sec. 8)
RULE 93: APPOINTMENT OF GUARDIANS

Section 1. Who may petition for appointment of guardian for resident.


MINOR
1.
INCOMPETENT
any relative; or
2. other person on behalf of a minor; or
3. the minor himself if 14 years of age or over; or
4. the Secretary of Social Welfare and Development AND by the Secretary of Healt
h in case of an insane minor who needs to be hospitalized . (Sec. 2 AM 03-02-05
1. any relative;
SC)
2. friend; or
3. other person on behalf of the resident incompetent who has no parents or lawf
ul guardian; or
4. the Director of Health in favor of an insane person who should be hospitalize
d or in favor of an isolated leper; (Sec. 1)
5. any one interested in the estate of anon-resident incompetent. (Sec. 6)
The father and the mother shall jointly exercise legal guardianship over the per
son and property of their minor without he necessity of a court appointment. In
such case, this Rule shall be suppletory to the provisions of the Family Code on
Guardianship.
4blue95:guardianship has same rules to executor&administrator, the only differen
ce is in latter ,the property is owned by the deceased while in former the perso
n is still alive.
Section 2. Contents of Petition
a) the jurisdictional facts;
INCOMPETENT
MINOR
b) the name, age and residence of the prospective ward;
c) the ground rendering the appointment necessary or convenient;
d) he death of the parents o the minor or the termination, deprivation or suspen
sion of their parental authority;
e) the remarriage of the minor s surviving parent;
f) the names, ages, and residences of relative within the 4th civil degree of mi
nor, and f persons having him in their care and custody
g) the probable value, character and location of the property of the minor; and
h) the name, age and residence of the person for whom letters of guardianship ar
e prayed. (Sec. 7, AM 03-02-05 SC)
a) the jurisdictional facts;
b) the incompetency rendering the appointment necessary or convenient;
c) the probable value and character of his estate;
d) the names, ages, and residences of the relatives of the incompetent, and of t
he persons having him in their care;
e) the name of the person for whom letters of guardianship are prayed. (Sec. 2 R
ule 93)
NOTE: The petition involving minors is required to be VERIFIED and accompanied b
y certification against FORUM SHOPPING while that involving incompetent must be
verified only. HOWEVER, no defect in the petition or verification shall render v
oid the issuance of letters of guardianship.
Section 3. Court to set time for hearing.
Notice thereof.
There is NO requirement for publication only notice however, in guardianship pro
ceedings for non-resident wards/incompetent, publication of notice is an option
.
HOWEVER, service of NOTICE upon minor if 14 years of age or over or upon incompe
tent is mandatory and jurisdictional.
If the person is insane, service of notice upon the Director of Hospital where h
e is hospitalized is sufficient.
Grounds for opposition
Any interested person may, by filing a written opposition, contest the petition
1.majority of the alleged minor
2.competency of the alleged incompetent, or
3.unsuitability of the person for whom letters are prayed

Sec. 5. Hearing and order for letters to issue. At the hearing of the petition t
he alleged incompetent must be present if able to attend, and it must be shown t
hat the required notice has been given. Thereupon the court shall hear the evide
nce of the parties in support of their respective allegations, and, if the perso
n in question is a minor, or incompetent it shall appoint a suitable guardian of
his person or estate, or both, with the powers and duties hereinafter specified
.
2006 notes: It is the incompetent wards, if able, who is required to attend the
guardianship hearings. Minors wards are not required to attend.
Procedure:
a. filing of petition
b. court shall set the case for hearing;
c. cause notices to be served to the person mentioned in the petition, including
minor, if 14 years and above;
d. court shall receive evidence;
e. declaration of the property of the petition
f. issue letter of guardianship
Section 6. When and how guardian for nonresident appointed. Notice
> Any relative friend or any one interested in the estate of a person liable to
be out under guardianship may file a petition for guardianship over the propert
y of such person.
> Notice shall be given through publication or otherwise.
Sec. 7. Parents as guardians. xxx (repealed by the Arts. 225 of the Family Code)
Art. 225. The father and the mother shall jointly exercise legal guardianship ov
er the property of the unemancipated common child without the necessity of a cou
rt appointment. In case of disagreement, the father's decision shall prevail, un
less there is a judicial order to the contrary.
Where the market value of the property or the annual income of the child exceeds
P50,000, the parent concerned shall be required to furnish a bond in such amoun
t as the court may determine, but not less than ten per centum (10%) of the valu
e of the property or annual income, to guarantee the performance of the obligati
ons prescribed for general guardians.
A verified petition for approval of the bond shall be filed in the proper court
of the place where the child resides, or, if the child resides in a foreign coun
try, in the proper court of the place where the property or any part thereof is
situated.
The petition shall be docketed as a SUMMARY SPECIAL PROCEEDING in which all inci
dents and issues regarding the performance of the obligations referred to in the
second paragraph of this Article shall be heard and resolved.
2006 notes: The ordinary rules on guardianship shall be merely suppletory except
when the child is under substitute parental authority, or the guardian is a str
anger, or a parent has remarried, in which case the ordinary rules on guardiansh
ip shall apply (on this exceptions,the rule on guardianship applies).
Section 8. Service of Judgment: served upon the Civil Registrar of the place whe
re the minor or incompetent resides or where the property is situated shall be s
erved with a copy of the judgment.
RULE 97: GENERAL GUARDIANS AND GUARDIANSHIP: TERMINATION OFGUARDIANSHIP
Section 1. Petition that competency of ward be adjudged and proceedings thereupo
n.
> Petition shall be verified by oath and shall state that such person is then co
mpetent.
A. Grounds for termination
MINOR
1.
INCOMPETENT
the ward has come of age; or
2. has died;
3. competency
1. death of guardian.
of the ward
(Sec.has25,been
AM judicially
03-02-05 SC)determined ;
2. guardianship is no longer necessary;
3. death of guardian;
4. death of ward.
Section 2. when guardian removed or allowed to resign.
1. insanity;
2. incapability or unsuitability to discharge functions;
3. wastage or mismanagement of the property of the ward; and
4. failure to render an account or make a return within 30 days after it was du
e.
Section 3. Other termination of guardianship.
Section 4. record to be kept by Justice of the Peace or Municipal Judge.
Section 5. Service of Judgment
SALIENT FEATURES and SPECIAL RULES ON GUARDIANSHIP OF MINORS (A.M. No. 03-02-05
SC, effective May 1, 2003)

A. Grounds for Petition (Sec. 4) (BARS)


1. Continued ABSENCE, or Incapacity or Death of his parent;
2. SUSPENSION, Termination or Deprivation of parental authority;
3. REMARRIAGE of his surviving parent, if the latter is found unsuitable to exer
cise parental so requires.
4. When the BEST INTEREST of his minor so requires.

B. Consolidation in Appointing Guardianship


1. Moral character;
2. Physical, mental and physiological condition;
3. Financial status;
4. Relationship of trust with the minor;
5. Availability to exercise the powers and duties of a guardian for the full per
iod of guardianship;
6. lack of conflict of interest with the minor;
7. ability to manage the property of the minor.

C. Who may be appointed guardian of the person or property, or both, of a minor


(Sec. 6)
In default of parents or a court appointed guardian, the court may appoint a gua
rdian of a minor, observing as far as practicable, the following ORDER OF PREFER
ENCE: (ASOO)
1. the SURVIVING GRANDPARENT and in case several grandparents survive, the court
shall select any of them taking into account all relevant considerations.
2. the OLDEST BROTHER OR SISTER of the minor over twenty-one years of age, unles
s unfit or disqualified;
3. the ACTUAL CUSTODIAN of the minor over twenty-one years of age, unless unfit
or disqualified.
4. any OTHER PERSON, who in the sound discretion of the court would serve the b
est interest of the minor.
D. Case Study Report (Sec. 9)
The court shall order a social worker to conduct a case study of the minor and a
ll prospective guardians and submit report and recommendation to he court for it
s guidance before the scheduled hearing.
E. Bond of parents as guardians of property of minor (Sec. 16)
If the market value of the property or the annual income of the child exceeds P5
0,000, the parent concerned shall furnish a bond in such amount as the court may
determine, but in no case less than 10% of the value of such property or income
, to guarantee the performance of the obligations prescribed for general guardia
ns.
A verified petition for approval of the bind shall be filed in the Family Court
of the place where the child resides or, if the child resides in a foreign count
ry, in the Family court of the place where the property or any part hereof is si
tuated.
The petition shall be docketed as a summary special proceeding in which all inci
dents and issued regarding the performance of the obligations of a general guard
ian shall be heard be heard and resolved.
F. Removal or Resignation of Guardians (Sec. 24)
No motion for removal or resignation shall be granted unless the guardian has su
bmitted the proper accounting of the property of the ward and the court has appr
oved the same.
G. Grounds for termination of guardianship
(Sec. 25).
The court motu propio or upon verified motion of any person allowed to file a
petition for guardianship may terminate the guardianship on the ground that the
ward has COME OF AGE or has DIED. The guardian shall notify the court of such fa
ct within 10 days of its occurrence.
RULE 98:TRUSTEES
EXECUTOR/
Accounts are not under oath and except for initial and final submission of accou
TRUSTEE
GUARDIAN
ADMINISTRATOR
nts, they
Accounts
Court thatmust
whichshall
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beunder
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onlymay
and
isatMTC
filed
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such
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(incompetent)
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RTC ifasappointed
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the effect
(Minors)
court. pro
visions of a will, if trustee dies, resigns or removed in a contractual trust, R
TC has
May sell,
jurisdiction
encumber orinmortgage
the appointment
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debts, expenses of administration or legacies, or for the preservation of prope
rty sell
May or iforsaleencumber
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beneficialoftoward heirs,
if income
legateesof estate
or devisees
is insufficient to mai
ntain ward and his family and educate ward or the dale encumbrance is for the be
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May of or
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upon order
property
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into
ttime
for
settle
effect
limit
onlyestate
he1 provisions
yearofafter
decedent
grant
of a will
of the
or written
same instrument (co
ntractual
Not exampledtrust)
from filing bond even if such exception is provided in the will (bo
nd isbealways
Must
May only
exempted
conditioned
filefromas bond
filing
upon bond
paymentif provided
of debts)in the will or if beneficiaries req
uested exemption
Services of executor or administrator is terminated upon payment of debts of the
Guardianship
estate and distribution
is terminatedofupon property
attainment
to heirs
of age of majority of the minor or up
on gaining competency in the case of an incompetent (need coir order for the lat
Trusteeship is terminated upon turning over the property to beneficiary after ex
ter)
piration
Must
No obligation
pay the
of trust
debts
debs
to pay(period
of
ofdebts
the
theward
may
estate
of beneficiary
be provided or fortrustor.
in the will or trust contract)
Jurisdiction: RTC or MTC in which the will was allowed, if it be a will allowed
in the Philippines, otherwise by the RTC of the province in which the property,
or some portion thereof, affected by the trust, is situated.
A trustee is necessary to carry into effect:
a) A will where the testator omitted to appoint a trustee in the Philippines (Te
stamentary Trust): and
b) Other written instruments where he trustee therein declines, resigns, dies, o
r I removed before accomplishment of trust (Contractual Trust)
Section 2. Appointment and power of trustee under will, executor of former trust
ee need not administer trust.
No persons succeeding to a trust as executor or administrator of a former trust
ee shall be required to accept such trust.

Section 3. Appointment and powers of new trustee under written instrument

Section 4. Proceedings where trustee appointed abroad.


When land in the Philippines is held in trust for a resident by a trustee who de
rives his authority from abroad, such trustee must petition the RTC where the la
nd is situated, otherwise, the trust will be vacant and a new trustee will be a
ppointed.
When a trust is created abroad for property in the Philippines, judicial approva
l is till needed though trustor is alive.

Section 5. Trustee must file bond.


Neglect of trustees to file a bond will be interpreted by the court as resignati
on or decline to accept the trust.
However, he may be exempted from bond when requested by:
a. testator
b. all persons beneficially interested in the trust.
However, the court may cancel such exemption anytime.
Section 6. Conditions Included in bond:
1. That the trustee will make and return to the court, at such time as it may or
der, a true INVENTORY of all the estate belonging to him as trustee, which at t
he time of the making of such inventory shall have come to his possession or kno
wledge.
2. that he will MANAGE and dispose of all such estate, and faithfully discharge
his trust in relation thereto, according to law and the will of the testator or
the provisions of the instrument or order under which he is appointed.
3. That he will render upon oath at least once a year until his trust is fulfill
ed a true ACCOUNT o the property in his hands and of the management and disposit
ion thereof;
4. That at the expiration of his trust he will SETTLE his accounts in court and
pay over and deliver all the estate remaining in his hands or due from him on su
ch settlement, to the person or p persons entitled.
Section 7. Appraised Compensation of trustee
Section 8. Removal or resignation of trustee
REQUISITES
1. Petition filed by parties beneficially interested;
2. Notice to trustee; and
3. hearing
Who may petition?Parties beneficially interested
Grounds
1. removal appears essential in the interest of petitioners
2. insanity
3. incapability of discharging trust
4. unsuitability
Section 9. Proceedings for sale or encumbrance of trust estate
Rules on Sale and Encumbrance of Trust Estate shall conform as nearly as may be
to the provisions on Sale and Encumbrance by guardians.
ADOPTION
4blue95: The provisions of the Rules of Court on Adoption have been repealed by
the Domestic Adoption Act of 1998 and the Intercountry Adoption Act of 1995. Sec
. 6 of rule 99 was already amended by Administrative Circular # 02-1-19-SC.Effec
tive August 22, 2002, there is a new Rule on Adoption.
NATURE AND CONCEPT OF ADOPTION
Adoption is a juridical act, a proceeding IN REM, which creates between two pers
ons a relationship similar to that which results from legitimate paternity and f
iliation.
PURPOSE OF ADOPTION
The promotion of the welfare of the child and the enhancement of his opportuniti
es for a useful and happy life, and every intendment is sustained to promote tha
t objective.
WHAT DOES THE COURT DETERMINE IN ADOPTION CASES
1. capacity of the adopters;
2. whether the adoption would be for the best interest f the child
Adoption is strictly personal between the adopter and the adopted. (Teotico vs.
Del Val. L-18753, March 1956)
Judicial
Extrajudicial
Adoption
Adoption
Proper
Under the
in jurisdiction
domestic adoption
inter-country ofadoption
the Inter-Country
Family Court (where
adoption
adopter
Boardresides)
(but a petition may a
lso be filed with the Family court (where adoptee resides) which will turn it ov
er to custody
Trial ICAB) is in the Philippines for 6 months (but court may reduce period or
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partiesisfor
in the
trialcountry
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doption isforissued
Petition adoption
(expenses
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mulated birth or declaration that child is a founding, abandoned, dependent or n
eglected for
Petition
Legitimate child
oradoption
illegitimate
only.child of a spouse or even a person who is of legal ag
e mayabechild
Only adopted
legally available for domestic adoption may be the subject of inter
-countrytaxadoption
Income returns, police clearance, character reference, family picture, birth
Income
certificate
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of adopter
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areclearance,
not requiredcharacter
to be annexed
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ulation
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Application
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4blue95: di pwede ang judicial confirmation of de facto adoption, dapat adoption
as provided herein, no more no less.

4blue95:written consent of parent is necessary,but if child is abandoned ,then w


ritten consent is waived.
RULES ON DOMESTIC ADOPTION(Secs. 1-25, A.M. NO. 02-6-02)
WHO MAY ADOPT (Sec, 4)
1. any Filipino citizen -
a) of legal age;
b) in possession of full civil capacity and legal rights;
c) of good moral character
d) has not been convicted of any crime involving moral turpitude;
e) emotionally and psychologically capable of caring for children;
f) in a position to support and care for his/her children in keeping with the me
ans of the family.
g) at least 16 YEARS older than the adoptee.
2. Any alien possessing the same qualifications as above; provided
a) That his/her country has diplomatic relations with the Philippines;
b) that he/she has been living in the Philippine for at least 3 CONTINUOUS YEARS
prior to the filing of the application for adoption;
c) maintains residence until the adoption decree is entered;
d) Certified to have legal capacity to adopt, by his/her country; and
e) That his/her government allows the adoptee to enter his/her country as his/he
r adopted sort/daughter.
3. The guardian with respect to the ward after the termination of the guardiansh
ip and clearance of his financial accountabilities.
The requirement of 16 YEARS difference between the adopter and the adoptee is NO
T applicable if the adopter is:
1. the biological parent of the adoptee
2. the spouse of the adoptee s parent
The requirement on residency and certification of alien s qualification to adopt m
aybe WAIVED for the following
1. The adopter is a former Filipino citizen who seeks to adopt a relative within
the 4th degree of consanguinity or affinity.
2. One who seeks to adopt the legitimate son/daughter of his/her Filipino spouse
:
3. One who is married to a Filipino citizen and seeks to adopt jointly with his/
her spouse a relative within the 4th degree of consanguinity or affinity of the
Filipino spouse.
WHO MAY BE ADOPTED (SEC. 5)
1. Any person below eighteen (18) years of age who has been judicially declared
available for adoption OR voluntary committed to DSWD
2. The legitimate child of one spouse by the other spouse;
3. An illegitimate child by a qualified adopter to raise the status of the forme
r to that of legitimacy;
4. A person of legal age regardless of civil status, if, prior to the adoption,
said person has been consistently considered and treated by the adopters as thei
r own child since minority;
5. A child whose adoption has been previously rescinded;
6. A child whose biological or adoptive parents have died;
7. A child not otherwise disqualified by law or these rules.
4blue95: A child legally available for adoption refers to a child who has been vol
untarily or involuntarily committed to the DSWD or to a duty licensed and accred
ited child-placing or child caring agency, freed of the parental authority of hi
s biological parents.
2 WAYS TO COMMIT A CHILD
1. Administrative/Voluntary in this case, the parent or guardian of the child vo
luntarily committed him to the DSWD or any duly licensed child placement or chil
d caring agency. The child must be surrendered in WRITING. Such written instrume
nt must be notarized and signed in the presence of an authorized representative
of the department after counseling has been made to encourage the parents to kee
p the child. (Sec. 5 AM 02-1-19-SC)
2. Judicial/Involuntary follow the procedure in AM 02-01-19 SC.

GENERAL RULE: Husband and wife shall jointly adopt.


Exceptions:
1. If one spouse seeks to adopt the legitimate son/daughter of the other;
2. if one spouse seeks to adopt his/her own illegitimate son/daughter
3. if the spouses are legally separated from each other.
VENUE (Sec 6)
Family Court where the prospective adoptive parents reside.
CONTENTS OF THE PETITION (Sec. 7)
1) if the adopter is a Filipino citizen, the petition shall allege the following
:
a) The jurisdictional facts;
b) that the petitioner is of legal age, in possession of full civil capacity and
legal rights, is of good moral character; has not been convicted of any crime i
nvolving moral turpitude; is emotionally and psychologically capable of caring f
or children, is at least sixteen (16) years older than the adoptee, unless the a
dopter is the biological parent of the adoptee or is the spouse of the adoptee s p
arent; and is in a position to support and care for his children in keeping with
the means of the family and has undergone pre-adoption services as required by
Section 4 of Republic Act No. 8552.
2) if the adopter is an alien, the petition shall allege the following:
a) The Jurisdictional facts;
b) Sub-paragraph 1(b) above;
c) that his country has diplomatic relations with the Republic of the Philippine
s;
d) That he has been certified by his diplomatic or consular office or any approp
riate government agency to have the legal capacity to adopt in his country and
his government allows the adoptee to enter his country as his adopted child and
reside there permanently as an adopted child; and
e) That he has been living in the Philippines for a least three (3) continuous y
ears prior to the filing of the petition and he maintains such residence until t
he adoption decree is entered.
The requirements of certification of the aliens qualification to adopt in his co
untry and of residency may be waived the alien.
(i) is a former citizen who seeks to adopt a relative within the fourth degree o
f consanguinity or affinity; or
(ii) seeks to adopt the legitimate child of his Filipino spouse; or
(iii) is married to a Filipino citizen and seeks to adopt jointly with his spous
e a relative within the fourth degree of consanguinity or affinity of the Filipi
no spouse
3) If the adopter is the legal guardian of the adoptee, the petition shall alleg
e that guardianship had been terminated and the guardian had cleared his financi
al accountabilities.
4) If the adopter is married, the spouse shall be a co-petitioner for joint adop
tion except if:
a) one spouse seeks to adopt the legitimate child of the other; or
b) if one spouse seeks to adopt his own illegitimate child and the other spouse
signified written consent thereto; or
c) if the spouses are legally separated from each other;
5) If the adoptee is a founding, the petition shall allege the entries which sho
uld appear in his birth certificate, such as name of child, date of birth, place
of birth, if known; sex, name and citizenship of adoptive mother and father, an
d the date and place of their marriage.
6) If the petition prays for a change of name, it shall also state the cause or
reason for the change of name.
In all petitions, it shall be alleged:
(a) The first name, surname or names, age and residence of the adoptee as shown
by his record of birth, baptismal or founding certificates and school records;
(b) That the adoptee is not disqualified by law to be adopted
the probable value and character of the estate of the adoptee;
(d) the first name, surname or names by which the adoptee is to be known and reg
istered in the Civil Registry.
Petition shall be verified and specifically state at the heading of the initiato
ry pleading whether the petition contains an application for a change of name, r
ectification of simulated birth, voluntary or involuntary commitment of children
, or declaration of child as abandoned, dependent or neglected.
A certification of non-forum shopping shall be included pursuant to Section 5. R
ule 7 of the 1997 Rules of Civil Procedure.
ANNEXES TO THE PETITION (Sec. 11)
A. Birth, baptismal or founding certificates, as the case may be, and school rec
ords showing the name, age and residence of the adoptee:
B. Affidavit of consent of the following;
1. the adoptee, if ten (10) years of age or over;
2. the biological parents of the child, if known, or the legal guardian, or the
child-placement agency, child-caring agency, or the proper government instrument
ally which has legal custody of the child;
3. the legitimate and adopted children of the adopter and of the adoptee, if any
, who re ten (10) years of age or over;
4. the illegitimate children of the adopter living with him who are ten (10) yea
rs of age or over; and
5. The spouse, if any, of the adopter or adoptee.
C. Child study report on the adoptee and his biological parents;
D. If the petitioner is an alien, certification by his diplomatic or consular of
fice or any appropriate government agency that he has the legal capacity to adop
t in his country and that his government allows the adoptee to enter his country
as his own adopted child unless exempted under Section 4(2);
E. Home study report on the adopters. If he adopter is an alien or residing abro
ad but qualified to adopt, the home study report by a foreign adoption agency du
ly accredited by the Inter-Country Adoption board; and
F. Decree of annulment, nullify of legal separation of the adopter as well as th
at of the biological parents of the adoptee, if any.

RE: PROPOSED RULE ON COMMITMENT OF CHILDREN


(AM 02-1-19-SC)
Who may file? (Sec. 4a)
1. The Secretary of the DSWD
2. His authorized representative;
3. Any child placement or child caring agencies
Venue (Sec. 4b)
Family court of the province or city in which the parent or guardian resides or
where the child I found.
Who shall be summoned? (Sec. 4d)
1. Parent or guardian of the child;
2. Office of the public prosecutor
When may summons not be issued? (Sec. 4d)
1. If it appears from the petition that both parents of the child are dead; or
2. That neither parent can be found in the province or city where the court is l
ocated and the child has no guardian residing therein.
NOTE: In case no summons is issued, the court has the duty of appointing a guard
ian ad litem and shall proceed with the hearing of the case with die notice to t
he provincial or city prosecutor.
NOTE: There is no answer here. Only hearing is required.
Child s Right to counsel (Sec. 4g)
The court upon request of the child capable of forming his own views or upon req
uest of his guardian ad litem, shall appoint a lawyer to represent him in the pr
oceedings.
Duty of the public prosecutor (Sec. 4h)
The provincial or city prosecutor shall appear for the State and ascertain if th
ere has been due notice to all parties concerned and that there is justification
for the declaration of dependency, abandonment or neglect.
Judgment (Sec. 4j)
If, after hearing, the court shall find the child to be dependent, abandoned, or
neglected, it shall render judgment committing him to the care and custody of t
he DSWD or any child placement or child caring agency.
However, if the court finds that the abandonment or neglect of the child may be
remedied, the child may be allowed to stay in his home under the care and custod
y of his parent, subject to the supervision of the DSWD.

PROCEDURE
A. ORDER OF HEARING (Sec. 12)
- must be published at lease once a week for 3 CONSECUTIVE WKS.
- at the discretion of the court, copies of the order of hearing shall be furni
shed to the office of the Sol. Gen. through the provincial or city prosecutor, t
he DSWD and the biological parents of the adoptee, IF KNOWN.
- If a change in the name of the adoptee is prayed for in the petition, notice t
o the Sol. Gen. shall be MANDATORY.
Contents of Order:
1) the registered name of the adoptee in the birth certificate and the names by
which the adoptee has been known which shall be stated in the caption;
2) the purpose of the petition;
3) the complete name which the adoptee will use the petition is granted.
4) the defendant place of hearing which shall be set within 6 months from the da
te of the issuance of the order and shall direct that a copy thereof be publishe
d before the date of hearing at least once a week for three successive weeks in
a newspaper of general circulation in the province or city where the court is si
tuated; Provided, that in case of application for change of name, the date set f
or hearing shall not be within four (4) months after the last publication of the
notice nor within thirty (30) days prior to an election.
The newspaper shall be selected by raffle under the supervision of the Execution
Judge.
5) a directive to the social worker of the court, the social service office of t
he local government unit or any children placing or child-caring agency, or the
Department to prepare and submit child and home study reports before the hearing
if such reports had not been attached to the petition due to unavailability at
the time of the filing of the latter; and
6) a directive to the social worker of the court to conduct counseling sessions
with the biological parents on the matter of adoption of the adoptee and submit
her report before the date of hearing.
B. CHILD & HOME STUDY REPORTS (Sec. 13)
- social worker verifies with the Civil registry the real identity and the name
of adoptee and the fact that he is legally available for adoption.
- social worker may make recommendations to the court if he finds some grounds t
o deny the petition.
C. HEARING (Sec. 14)
- to be held within 6 MONTHS from the date of the issuance of the order.
EXCEPT: In case of APPLICATION FOR CHANGE OF NAME which hearing must not be with
in 4 MONTHS after LAST PUBLICATION nor within 30 DAYS prior to election.
- the petitioner and the adoptee must personally appear and the former must test
ify in court.
D. SUPERVISED TRIAL CUSTODY (STC) (Sec. 15)
Before issuance of decree of adoption the court shall give the adopter trial cus
tody of the adoptee for at east 6 MONTHS.
Reason: So the parties will adjust psychologically and emotionally to each other
and establish a bonding relationship.
NOTE: Court may reduce or exempt parties from Supervised Trial Custody.
GENERAL RULE:
Alien adopter must complete the 6 MONTHS STC.
EXCEPTION:
Same as Exemptions from requirements of residency and certification.

E. DECREE OF ADOPTION
If issued, this will take effect as of the date of filing of the original petiti
on.
In case of chance of name, the decree shall be submitted to the Civil Registrar
where the court issuing the same is situated.
An amended birth certificate shall be issued,. The original birth certificate sh
all be stamped concealed and shall be sealed in the Civil registry records.
NOTE: The new birth certificate to be issued to the adoptee shall not bear any n
otation that it is an amended issue.
EFFECTS OF ADOPTION:
1. adopter will exercise parental authority;
2. all legal ties between biological parents and the adoptee shall be severed, e
xcept when biological parent is spouse of adopter;
3. adoptee shall be considered legitimate child of adopter for all intents and p
urposes;
4. adopters shall have reciprocal rights of succession without distinction from
legitimate filiation.
All hearings and records are confidential.
(Sec. 18)

RESCISSION ADOPTION

Under the domestic Adoption Act of 1998, the ADOPTER CAN NO LONGER RESCIND the a
doption, he can merely disinherit the adoptee in accordance with the provisions
of the Civil code.
RESCISSION relates only as to the date of the judgment. Hence, vested rights pri
or to rescission should be respected
Who files? (only the child or the guardian/counsel)
1. ADOPTEE
a) over 18 years of age or
b) if minor with assistance of DSWD
2. GUARDIAN or COUNSEL, if over 18 but incapacitated
Grounds
1. repeated physical violence and verbal maltreatment by the adopter despite ha
ving undergone counselling.
2. attempt on the life of the adoptee;
3. sexual assault or violence; or
4. abandonment failure to comply with parental obligation
Venue (Sec. 20)
FAMILY COURT of the city or province where the adoptee resides
Period within which to file VERIFIED petition (Sec. 21)
Within 5 YEARS from reaching age of majority or after recovery from incompetency
.
Adverse party shall file his ANSWER within 15 days from receipt of order of cour
t requiring him to answer. (Sec. 22)

EFFECTS OF JUDGMENT OF RESCISSION


1. parental authority of biological parent or legal custody of DSWD will be rest
ored.
2. reciprocal rights of adoptee and adopter will be extinguished;
3. vested rights acquired prior to judicial rescission shall be respected;
4. successional rights shall revert to its status prior to adoption, as of the d
ate of judgment of judicial rescission.
5. adoptee shall use the name stated in his original birth or founding certifica
te.
6. civil registrar will reinstate his original birth or founding certificate;
Unlike in revocation of guardianship, revocation of adoption is a separate proce
eding from the adoption
INTER-COUNTRY ADOPTION

Where to the Petition?


1. A verified petition to adopt a Filipino child may be filed by a foreign nati
onal or Filipino citizen permanently residing abroad with the Family court havin
g jurisdiction over the place where the child resides or may be found;
2. it ay be filed directly with the inter-country Adoption Board.
WHO MAY ADOPT
1. any alien or Filipino citizen permanently residing abroad who is at least twe
nty-seven (27) years of age;
2. other requirements same as with RA 8552.
WHO MAY BE ADOPTED (Sec. 29)
Only a child legally available for domestic adoption may be the subject of inter
-country adoption.
A child under the inter-country Adoption Act is defined as any person below fift
een (15) years of age.
CONTENTS OF PETITION (SEC. 30)
PETITIONER MUST ALLEGE:
a) his age and the age of the child to be adopted, showing that he is at least t
wenty-seven (27) years of age and at least sixteen (16) years older than the chi
ld to be adopted at the time of application, unless the petitioner is the parent
by nature of the child to be adopted or the spouse of such parent, in which cas
e the age difference does not apply;
b) if married, the name of the spouse who must be joined as co-petitioner except
when the adoptee is a legitimate child of his spouse;
c) that he has the capacity to act and assume all rights and responsibilities of
parental authority under his national laws, and has undergone the appropriate c
ounseling from an accredited counselor in his country;
d) that he has not been convicted of a crime involving moral turpitude;
e) that he is eligible to adopt under his national law;
f) that he can provide the proper care and support and instill the necessary mor
al values and example to all his children, including the child to be adopted.
g) that he agrees to uphold the basic rights of the child, as embodied under Phi
lippine laws and the U.N. Convention on the Rights of the Child, and to abide by
the rules and regulations issued to implement the provisions of Republic Act. N
o. 8043;
h) that he comes from a country with which the Philippines has diplomatic relati
ons and whose government maintains a similarly authorized and accredited agency
and that adoption of a Filipino child is allowed under his national laws; and
i) that he possesses all the qualification and none of the disqualifications pro
vided in this Rule, in Republic Act. No. 8043 and in all other applicable Philip
pine laws.

ANNEXES (Sec. 31)


a) Birth certificate of petitioner;
\b) marriage contract, if married, and if applicable, the divorce decree, or jud
gment dissolving the marriage;
c) Sworn statement of consent of petitioner s biological or adopted children above
ten (10) year of age;
d) Physical, medical and psychological evaluation of the petitioner certified by
a duly licensed physician and psychologist;
e) Income tax returns or any authentic document showing the current financial ca
pability of the petitioner;
f) Police clearance of petitioner issue within six (6) months before the filing
of the petitioner;
g) Character reference from the local church/minister, the petitioner s employer a
nd a member of the immediate community who have known the petitioner for at leas
t five (5) years;
h) Full body postcard-size pictures of the petitioner and his immediate family t
aken at least six (6) months before the filing of the petition.
RULE 101 : PROCEEDINGS FOR HOSPITALIZATION OF INSANE PERSONS

Venue: RTC of province where the person alleged to be insane is found.


Who files? Director of Health with assistance of city or provincial fiscal
Requisites
1. Director of Health is of the opinion that the commitment of the person allege
d to be insane is for PUBLIC WELFARE or for THE WELFARE of said person;
2. such person or the one having charge of him is opposed to his being taken to
a hospital or asylum

Sec. 2. Order for hearing. If the petition filed is sufficient in form and subst
ance, the court, by an order reciting the purpose of the petition, shall fix a d
ate for the hearing thereof, and copy of such order shall be served on the perso
n alleged to be insane, and to the one having charge of him, or on such of his r
elatives residing in the province or city as the judge may deem proper. The cour
t shall furthermore order the sheriff to produce the alleged insane person, if p
ossible, on the date of the hearing.
Note that there is no publication requirement for hospitalization of insane pers
ons.
Sec. 3. Hearing and judgment. Upon satisfactory proof, in open court on the date
fixed in the order, that the commitment applied for is for the public welfare o
r for the welfare of the insane person, and that his relatives are unable for an
y reason to take proper custody and care of him, the court shall order his commi
tment to such hospital or other place for the insane as may be recommended by th
e Director of Health. The court shall make proper provisions for the custody of
property or money belonging to the insane until a guardian be properly appointed
.
Sec. 4. Discharge of insane. When, in the opinion of the Director of Health, the
person ordered to be committed to a hospital or other place for the insane is t
emporarily or permanently cured, or may be released without danger he may file t
he proper petition with the Court of First Instance which ordered the commitment
.
Sec. 5. Assistance of fiscal in the proceeding. It shall be the duty of the prov
incial fiscal or in the City of Manila the fiscal of the city, to prepare the pe
tition for the Director of Health and represent him in court in all proceedings
arising under the provisions of this rule.

RULE 102: HABEAS CORPUS


CERTIORARI
PROHIBITION
AND MANDAMUS
HABEAS
Special
Reaches
Direct
Collateral
Failure CORPUS
attack
civil
proceeding
the
of attack
respondent
record;
body
action
butconcerned
under
not
to file
theRule
record;
with
comment
65.errors
inquiry
willcommitted
notonbethepunished
by a court
legality
byofcontempt
the detention
and will
not even
Failure
Court
Respondent
andtobeprevailing
file
is
declared
thereturn
detainer.
inconstitutes
party
default
are namedcontempt
as respondents.
(indirect)
Section 1. To what habeas corpus extends.
1. cases of illegal confinement detention by which a person is deprived of his l
iberty(RESTRAINT IN LIBERTY); and
2. cases by which the rightful custody of the person is withheld from the person
entitled thereto.
NOTE: Actual physical restraint not required; any restraint which will prejudice
freedom of action is sufficient.

WRIT OF HABEAS CORPUS is a writ directed to the person detaining another an comm
anding him to produce the body of the prisoner at a certain time and place, with
the day and the cause of his caption and detention, to do submit to, and receiv
e whatsoever the court or judge awarding the writ shall consider to that behalf.
WHEN AVAILED OF (as a consequence of a judicial proceeding
1. there has been deprivation of a constitutional right resulting in the restra
int of a person;
2. the court had no jurisdiction to impose the sentence
3. an excess penalty has been imposed, as such sentence is void as to such exces
s;
4. where the law is amended, as when he penalty is lowered.
NATURE:Petitioner for habeas corpus is LIKE A PROCEEDING IN REM because it is an
inquisition by the government, at the suggestion and instance of an individual,
most probably, but still in the name and capacity of the sovereign. It is also
instituted for the purpose of fixing the status of a person and that there can b
e no judgment entered against anybody since there is no real plaintiff and defen
dant. (Alimpos vs. CA, 106 SCRA 159)
PURPOSE:The essential object and purpose of the writ of habeas corpus is to inqu
ire into all manner of involuntary restraint as distinguished from voluntary, an
d to relieve a person therefrom if such restraint is illegal.
And any further rights of the parties are left untouched by decision on the writ
, whose principal purpose is to set the individual at liberty. (Villavicencio vs
. Lukban, 39 PHIL 778)

Moncupa vs. Ponce Enrile:The petitioner was arrested and detained but subsequent
ly released on several conditions. One is that she has to regularly report to t
he Ministry of Defense. Second: she could not give interviews to local and fore
ign media without the approval of the Ministry of national Defense. Third: sh
e could not change residence without the approval of the Ministry. She filed a
petition for Habeas Corpus.
Respondents argued that she s no longer detained; she has been released.
SC said, it is not limited to physical incarceration. A release from detention
with condition, is a form of involuntary restraint on the freedom of action or l
ocomotion. That can be inquired into by a writ of habeas corpus.
GROUNDS FOR SUSPENSION OF THE WRIT UNDER THE CONSTITUTION
1. Invasion, when public safety requires it;
2. rebellion, when public safety requires it.

Effects when the privilege is suspended:


1. Even if the privilege is suspended, the writ is still issued upon application
if the petition is sufficient in form and in substance.
Meaning, even if there is a suspension of the privilege and the person is detain
ed, you apply for a writ, the judge will issue the writ. The only thing that wi
ll happen is that, if the person detained is detained for an offense covered by
the suspension (rebellion and offenses inherent in invasion), the detention beco
mes valid. But if otherwise, he should be released, the detention being invalid
.
2. The right to bail shall not be affected. The accused can still apply for bai
l.
3. If you are detained for a covered offense, it legitimizes the detention only
for three days.
The periods under Art. 172 on Arbitrary detention are extended. From the 12-18-
36 hours, for slight- less grave- less grave felonies, if the offense is covered
by the suspension, it is extended to three days (72 hours).
Under Art. VII, Sec. 18, even if the privilege has been suspended and you are ar
rested for rebellion or any other offense inherent in or connected with invasion
, you must be judicially charged within three days.
It does not mean that with the suspension of the privilege, one can be detained
without charge for more than three days. You must be charged in court within a
period of three days. If you are not charged, even if arrested for rebellion, y
ou must be released. If you are not released, then you can file a petition for
habeas corpus.

4blue 95:the moment a case is filed against you (or warrant is issued on you) th
en, habeas corpus is moot and academic.
4blue 95:writ of amparo is a writ use for enforcement of a constitutional right
as against an invalid government act.
4blue 95:if person is out in bail, he is not entitled to writ since his detentio
n is legal and technical and not actual restraint. Exception, in immigration cas
es, an immigrant under bond may contest an adverse decision of the immigration c
ommissioner by means of a petition for habeas corpus (Choa Fun v Sec of labor)

IN CASES OF ILLEGAL CONFINEMENT OR DETENTION


GENERAL RULE: The release, whether permanent or temporary, of a detained person
renders the petition for habeas corpus moot and academic.
EXCEPTION: When there are restraint attached to his release which precludes free
dom of action, in which case the court can still inquire into the nature of his
involuntary restraint. (Villavicencio vs. Lukban, supra)

VOLUNTARY RESTRAINT
General Rule: Writ not available if restraint is voluntary
Exception: Writ will lie to enable the parents (or person having substituted par
ental authority) to recover custody of a minor child although she is in custody
of a 3rd person on her own volition.
NOTE: Voluntariness is viewed from the point of view of the person entitled to c
ustody.
Section 3. Requisites for application thereto.
VERIFIED PETITION MUST SET FORTH:
1. that the person in whose behalf the application is made is imprisoned or rest
rained of his liberty;
2. the name of the person, detaining another;
3. the place where he is imprisoned or restrained of his liberty
4. the cause of his detention

Section 4. when writ not allowed or discharged authorized.


1. if the person is in the custody of an officer under process issued by a court
or by virtue of a judgment or order of a court of record which has jurisdiction
to issue the process, render the judgment or make the order;
2. if jurisdiction appears after the writ is allowed;
3. if the person is charged with or convicted of an offense in the Philippines
4. if the person is suffering imprisonment under lawful judgment.
SUPERVENING EVENTS MAY BAR RELEASE
Even if the arrest of a person is, illegal, supervening events may bar release o
r discharge from custody. What is to be inquired in to is the legality of detent
ion as of, at the earliest, the filing of the application for the writ if habeas
corpus. (Velasco vs. CA, July 7, 1995).

Who may grant writ.


> the RTC, CA, and SC have concurrent jurisdiction to issue writs of habeas corp
us. The MTC can issue the writ in case there is no available RTC judge. Hierarch
y of courts is not observed
> Sandiganbayan may issue writs of habeas corpus only, if it is in aid of its ap
peallate jurisdiction.
DISTINCTION OF WRIT IN TERMS OF ISSUANCE :
COLLEGIATE
Enforcementonly
RTC
COURT
Enforceable
Returnable toonly
throughout
anytowithin
court
itself
the
their
Philippines
respective judicial region

WHEN PETITION FOR HABEAS CORPUS NOT PROPER


1. for asserting or vindicating denial of right to bail;
2. for correcting errors in appreciation of facts/appreciation of law.
NOTE: Habeas Corpus can never be a substitute for appeal.
Whether the petition for the writ of habeas corpus may be properly filed togethe
r with the petition for certiorari and mandamus.
The Court ruled that the writs of habeas corpus and certiorari may be ancillary
to each other where necessary to give effect to the supervisory powers of the hi
gher courts. A writ of habeas corpus reaches the body and the jurisdictional mat
ters, but not the record. A writ of certiorari reaches the record but not the bo
dy. Hence, a writ of habeas corpus may be used with the writ of certiorari for
the purpose of the review. However, habeas corpus does not lie where the petitio
ner has the remedy of appeal or certiorari because it will not be permitted to p
erform the functions of a writ of error or appeal for the purpose of reviewing m
ere errors or irregularities in the proceedings of a court having jurisdiction o
ver the person and the subject matter. (Galvez, et al. vs. CA, et al., 237 SCRA
685)
Section 5. When writ must be granted and issued.
PRELIMINARY CITATION citation to the government officer having the person in his
custody to show cause why the writ of habeas corpus should not issue (detention
not patiently illegal)
PEREMPTORY WRIT issued when the cause of the detention appears to be patently il
legal and the non-compliance wherewith is punishable.
Procedure for grant of writ
1. verified petition signed by the party for whose relief it is intended; or by
some other person in his behalf
2. allowance of writ;
3. command officer to produce;
4. service of writ by sheriff or other officer;
5. return; and
6. hearing on return
Section 6. To whom writ directed and what to require.
Directed to officer and commands him to:
1. produce the body of person before the court; and
2. show cause of the imprisonment or restraint.
Section 7. How prisoner designated and writ served.
Section 8. How writ is executed and returned.
Officer shall:
1. Convey the person so imprisoned before the judge, unless from sickness or inf
irmity such person cannot, without danger be brought before the court.
2. make he return of the writ together with the day and the cause of caption or
restrain.
Section 9. Defect of form
NO writ can be disobeyed for defect in form IF it sufficiently states:
1. person in whose custody or under whose restraint the party imprisoned or rest
raint is held; and
2. court or judge before whom is to be brought.
Section 10. Contents of return.
(a) Whether he has or has not the party in his custody or power, or under restra
int;
(b) if he has the party in his custody or power, or under restraint, the authori
ty and the true and whole cause thereof, set forth at large, with a copy of the
writ, order, execution, or other process, if any, upon which the party is held;
(c) if the party is in his custody or power or is restrained by him, and is not
produced, particularly the nature and gravity of the sickness or infirmity of su
ch party be reason of which, he cannot, without danger, be brought before the co
urt or judge.
(d) if he has had the party in his custody or power, or under restraint, and has
transferred such custody or restraint to another, particular to whom, at what t
ime, for what cause, and by what authority such transfer was made.
Section 11. return to be signed and sworn to.
Section 12. hearing of return. Adjournments.
Section 13. When the return evidence, and when only a plea.
> if detention is by public authority, the petitioner has burden of proof to sho
w that the restraint is illegal.
> If detention is by reason of private authority, the return is considered, only
a plea of the facts assorted therein and the person responsible for the detenti
on has the burden of proof to establish that the detention is legal and justifie
d.
Section 14. When person lawfully imprisoned recommitted, and when let to bail.
Section 15. when prisoner discharged if no appeal.
If one is unlawfully imprisoned, court shall order his discharge but such discha
rge shall not be effective until a copy of the order has been served on the offi
cer or person detaining the prisoner. If person detaining him does not appeal, t
he prisoner shall be released.
PERIOD OF APPEAL; Within 48 hours from notice of the judgment or final order app
ealed from (Sec. 39, BP 129) Form of appeal is NOTICE OF APPEAL.
SECTION 16. Penalty for refusing to issue writ, or for disobeying the same.
Section 17. person discharged not to be again imprisoned.
Whether the State can reserve the power to re-arrest a person for an offense aft
er a court of competent jurisdiction has absolved him of the offense.
We hold that such a reservation is repugnant to the government of laws and not o
f men principle. Under this principle, the moment a person is acquitted on a cri
minal charge he can no longer be detained or re-arrested for the same offense. (
Moncupa vs. Enrile, supra)

Section 18. When prisoner may be removed from one custody to another
1. By legal process;
2. Prisoner is delivered to an inferior officer to carry to jail;
3. By order of proper court of judge directing that he be removed from one place
to another within the Philippines for trial;
4. In case of fire, epidemic, insurrection, or other necessity or public calamit
y.

Section 19. record of writ, fees and costs


When does court acquire jurisdiction over person of respondent?
The writ itself plays the role of summons in ordinary actions. Court acquires ju
risdiction over the person of the respondent BY MERE SERVICE OF WRIT.

Habeas corpus is available only if the detention is involuntary. If voluntary ,i


t is not.
However rule is not absolute, since if person being detained is a minor and the
petitioner is a parent, since in such a case, denial of the writ would amount to
deprivation of parental authority w/c cannot be countenanced except in the inst
ance authorized by law (Salvana v Gaela)
BAR: X was charged w/ slight physical injuries. He was convicted but the court s
entenced him to prision mayor. Is the writ available to release him after servin
g his sentence for physical injuries w/c is arresto menor?YES, since penalty is
excessive,then it can be corrected by habeas corpus (Sotto v Dir of Prisons)
JURISDICTION IN CASES OF HABEAS CORPUS WITH RESPECT TO CUSTODY OF MINORS
Although the Family Court where the petitioner resides or where the minor may be
found has exclusive and original jurisdiction to hear petitions for habeas corp
us with respect to custody of minors, the Supreme Court and the Court of Appeals
can take cognizance of such petition in order that it can be enforceable within
the Philippines. However, the RETURN can be heard in the FC/RTC (if there is no
FC in the judicial region) and there is no need to file a separate petition for
custody because the issue an be ventilated in the petition for writ.
4blue 95: RETURNED , it means once it is returned by SC/CA, di na pwede ipasa pa mu
li ng lower court pa sa iba so it will conduct a hearing as if it is its own cas
e and that it is appeallable once there s decision.

Requisites for the Issuance of the Writ in cases where the rightful custody over
the person of a minor is withheld from the person entitled thereto.
1. that the petitioner has the right to the custody over the minor;
2. that the rightful custody of the minor is being withheld form the petitioner
by the respondent;
3. that it is to the best interest of the minor concerned to be in the custody o
f the petitioner and not that of respondent. (Sombong vs. CA, January 31, 1996)
RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATIONTO THE CUSTODY OF
MINORS
(AM No. 03-04-04 SC)

Who may file Petition? A verified petition for the rightful custody of a minor m
ay be filed by any person claiming such right.
Where to file petition? FAMILY Court of the province or city where the petition
er resides or where the minor may be found.
Contents of VERIFIED petition (Sec. 4)
1. the personal circumstances of the petitioner and respondent;
2. the name., age and present whereabouts of the minor and his or her relationsh
ip to the petitioner and respondent.
3. the material operative facts constituting deprivation of custody;
4. such other matters which are relevant to the custody of minor.
NOTE: Motion to dismiss is not allowed except on the ground of lack of jurisdict
ion over the subject matter or over the parties.
NOTE: Respondent must file verified answer within 5 days from the service of sum
mons and copy of petition.

Provisional Order Awarding Custody


As far as practicable, the following order of preference shall be observed in th
e award of custody:
1. Both parents jointly;
2. Either parent, taking into account all relevant considerations, especially th
e choice of the minor over seven years of age and of sufficient discernment unle
ss the parent chosen is unfit.
3. the grandparent or if there are several grandparents, grandparent chose by t
he minor over seven years of age and of sufficient discernment, unless the grand
parent chosen in unfit or disqualified.
4. The eldest brother or sister over twenty one (21) years of age unless the for
mer is unfit or disqualified; or
5. The actual custodian of he minor over twenty one (21) years of age, unless th
e former is unfit or disqualified; or
6. any other person or institution the out may deem suitable to provide proper c
are and guidance for the minor.

Temporary Visitation Rights (Sec. 15)


The court shall provide in its order awarding provisional custody appropriate vi
sitation rights to the non-custodial parent or parents unfit of disqualified.
Hold Departure Order (Sec. 16)
The minor child subject of the petition shall not be brought out of the country
without prior order from the court while the petition is pending.
The court, motu proprio or upon application under oath, may issue an ex parte ho
ld departure order.
Petition for Writ of Habeas Corpus (Sec. 20)
> shall be filed with the Family court where petitioner resides or where minor m
ay be found.
> Shall be enforceable within its judicial region to which the Family Court belo
ngs.
> The petition may however be filed with the regular court in the absence of the
presiding judge of the Family court, provided however that the regular court sh
all refer the case to the Family court as soon as is presiding judge returns to
duty.
> Petition may also be filed within the SC, CA, or if any of its members and, if
so granted the writ shall be enforceable anywhere in the Philippines. The writ
may be made returnable to a Family Court or o any regular court or to any regula
r court within the region where the petitioner resides or where the minor may be
found for hearing and decision on the merits.
RULE 103:CHANGE OF NAME
Section 1. Venue
RTC of the province where the petitioner has been residing for 3 year prior to h
e filing of he petition.
Section 2. Contents of Petition
It shall set forth:
1. that petitioner is a bona fide resident of the province where petitioner is f
iled for a t lest three years prior to the date of filing;
2. all names by which petitioner is known;
3. cause for change of name;
4. name asked for
Petition shall be signed and verified by person desiring his name changed or som
e other person in his behalf.
Requirement of verification is FORMAL. NOT jurisdictional requisite. It is not a
ground for dismissing petition.

Jurisdiction Requirements
1. the verified petition should be published for three successive weeks in some
newspaper of general circulation in the province;
2. that both the title and caption of the petition and its body shall recite:
a) name/names or aliases of the applicant;
b) cause for which the change of name is sought;
c) new name asked for.

Section 3. Order of hearing


> hearing shall not be within 30 days prior o an election nor within 4 MONTHS af
ter the LAST PUBLICATION

Effect for Discrepancy in the Petition and Published Order


The defect in the petition and the order, as to the spelling of the name of the
petitioner, is substantial, because it did not correctly identify the party to s
aid proceedings.
Grounds for change of name
1. name is ridiculous, tainted with dishonor an extremely difficult to write or
pronounce;
2. consequence of a change of status; e.g., legitimated child;
3. necessity to avoid confusion;
4. having continuously used and been known since childhood by a Filipino name, u
naware of her alien parentage.
5. a sincere desire to adopt a Filipino name to erase signs of former alienage,
all in good faith and without prejudicing anybody.

TITLE OF PETITION MUST CONTAIN THE FOLLOWING


1. Official name (birth certificate ) be very particular with the spelling becau
se it may avoid or annul the proceedings; it is jurisdiction.
2. all aliases; and
3. name asked for.
NOTE: all the names or aliases must appear in the title or caption of the petiti
on, because the reader usually merely glances at the title of the petition and m
ay only proceed to read the entire petition, if the title is of interest to him.
(Secan Kok vs. Republic, supra)
A decree of adoption grants the adoptee the right to use the adopter s surname but
not to change the former s first name which relief must be sought in a petition u
nder Rule 103. (Repblic vs. Hernandez, GR NO. 117209, February 9, 1996)

Section 4. Hearing
Section 5. Judgment
Section 6. Service of Judgment:Civil Registrar of the city or municipality where
the court is situated shall be furnished with a copy of the judgment.

For administrative procedure for Change of Name, refer to Administrative Order 1


, Series of 2004. it only applies to:
1. clerical errors; and
2. innocuous errors
RULE 103
CHANGE
RA 9048OF NAME
CORRECTION OF
CLERICAL OR
TYPOGRAPHICAL
Judicial (RTC)(local civil registrar or consul general in case of nonresident ci
ERROR
Extrajudicial
Includesclerical
tizen)
Covers change or
in typographical
surname error and change of first name or nickname

RULE 107: ABSENTEES


ABSENTEE
One
INCOMPETENT
who disappears from his domicile and his whereabouts being unknown and witho
ut having left an agent to administer his property or the power of the agent has
Includes
expired.persons suffering the penalty of civil interdiction or who are hospital
ized lepers, prodigals, deaf and dumb who are unable to read and write, those wh
o are of unsound mid, and person s who are unable to take are of themselves and
manage their property by reason of age,sex, weak mind and other similar causes
RTC will appoint first a representative and after an absence of 2 years, a petit
ion for declaration of absence may be filed and a administrator of trustee may b
e appointed
Order of hearing must be published once a week for 3 consecutive weeks in a news
paper of general circulation in the province or city where absentee resides and
declaration of absence will only take effect 6 months after its publication in
a newspaper of general circulation designated by court and in the Official Gazet
Notice of petition for guardianship for NONRESIDENT may be published when court
te
deems it proper.

PERIOD
0-2
CONSEQUENCE
2Petition
years
years
oftofor
ABSENCE
7 declaration
Appointment of absence
years Representative
and appointment of administrator or trustee
may be 7filed.
Beyond years
(absence ofdead
Considered 4 years
for all
underintents
extraordinary
an purposes
circumstance)
except for purpose of succession (un
der disappearance under extraordinary circumstances, considered dead for all pur
poses, even succession);
for purposes of marriage: 4 years continuous absence shall be sufficient for pre
sent spouse to remarry(2 years only under extraordinary circumstance)
WHO MAY FILE A PETITION FOR APPOINTMENT OF ADMINISTRATOR OR TRUSTEE:
1. the spouse present;
2. the heirs instituted in a will, who may present an authentic copy of the same
;
3. the relatives who would succeeded by the law of intestacy.
4. those who have over the property of the absentee some right subordinated to t
he condition of his death.
PURPOSE OF PETITION to appoint an administrator over the properties of the absen
tee. Hence, if absentee left no properties, such petition is unnecessary.
Section 3. Contents of petition.
1. The jurisdiction facts;
2. The names, age, and residences of the heirs instituted in the will, copy of w
hich shall be presented, and of the relatives who would succeed by the law of in
testacy;
3. The names and residence of creditors and others who may have any adverse inte
rest over the property of the absentee.

Section 4. Time for hearing; notice and publication thereof


> copies of the notice of the time and place fixed for the hearing shall be serv
ed upon the known heirs, legatees, devisees, creditors and other interested pers
ons, at least ten (10) days before the day of the hearing, and shall be publishe
d one a week prior to the time designated for the hearing, in a newspaper of gen
eral circulation in the province or city where the absentee resides, as the cour
t shall deem best.
Section 5. Opposition.
Section 6. Proof at hearing; order
Section 7. Who may be appointed.
1. spouse present; or
2. any competent person.

GROUNDS FOR TERMINATION OF THE ADMINISTRATION


1. Absentee appears personality or through an agent.
2. absentee s death is proven and heirs appear;
3. third person appears showing that he acquired title over the property of the
absentee.
General Rule: No independent action for Declaration of Presumption of Death.
Exception: the need for declaration of presumptive death for purposes of remarri
age (Article 41 of the Family Code)

RULE 108: CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY


SECTION 1. Who may file petition
> Any person interested in any act, event, order or decree concerning the civil
status of persons.
> RTC of the province where the corresponding civil registrar is located
Requisites of Adversarial Proceedings
1. Proper petition is filed where the Civil Registrar and all parties interested
are impleaded;
2. The order of the hearing must be published one a week for three consecutive w
eeks;
3. Notice thereof must be given to the Civil Registrar and all parties affected
thereby;
4. The civil registrar and any person having or claiming any interest under the
entry whose cancellation or correction is sought may, within 15 days from notic
e of the petition or from the last date o publication of such notice, file his o
pposition thereto;
5. Full blown trial
Note: Proceedings for the correction of entries should not be considered as esta
blishing one s status in a manner conclusively beyond dispute. The status correcte
d would not have a superior quality or evidentiary purposes. There is no increas
e or diminution of substantive right. (Chiao Ben Lim vs. Zosa, L-40252, December
29, 1986)
Section 2. entries subject to cancellation or correct
1. births;
2. marriages;
3. deaths;
4. legal separations
5. judgments o annulments of marriage;
6. judgments declaring marriages void from the beginning;
7. legitimations;
8. adoptions;
9. acknowledgments of natural children;
10. naturalization;
11. election, loss or recovery of citizenship;
12. civil interdiction;
13. judicial determination of filiation;
14. voluntary emancipation of minors;
15. change of name.
Section 3. Parties.
1. civil registrar;
2. all persons who have or claim any interest which would be affected thereby.
Section 4. Notice and Publication.
> order of hearing shall be published once a week for 3 consecutive weeks in a n
ewspaper of general circulation in the province and all persons named in the pet
ition shall be notified.
Section 5. Opposition.
Within 15 days from notice of the petition or from date of last publication.
Section 6 Expediting proceedings.
Section 7. Order
> Civil Registrar shall be given a copy of the judgment and annotate the same on
his record.
PETITIONS FOR
CHANGE OF
PETITIONS FOR THE
NAME
CORRECTION,
CANCELLATION OF
Petition petition
ENTRIES
Verified to be filed filed
in in
thethe
RTCRTC
where
where
thethe
petitioner
corresponding
residescivil registry is loc
Solicitor
ated
Civil register
General
concerned
must beisnotified
made a party
by service
to theofproceeding
a copy of as theapetition
respondent. The
solicitor
Petition
Petitions
Order forishearing
shallGeneral
is filed
also
filedbeshall
must
by
bypublished
person
any
also
beperson
published
beonce
desiring
notified
interested
a week
to change
oncebyfor
aservice
inthree
weekhisforACT,
any ofconsecutive
name
three
a EVENT,
copyconsecutive
ofORDER
the petition
weeks orand
weeks
DECREE
court
shall name
First causeorreasonable
last namenotice
(theretomust
persons
be valid
namedground
in petition
with respect to the latter)
may betypographical
Only
Service changed
of judgmenterrorsshall be
mayupon
be changed.
the civil register concerned

Republic Act No. 9048 which was passed by Congress on February 8, 2001 substanti
ally amended Article 412 of the New Civil Code, to wit;
Section 1. Authority to Correct Clerical or Typographical Error and Change of Fi
rst Name or Nickname No entry in a civil register shall be changed or corrected
without a judicial order, except for clerical or typographical errors and change
of first name or nickname which can be corrected or changed by the concerned ci
ty or municipal civil registrar or consul general in accordance with the provisi
ons of this Act and its implementing rules and regulations.
The above law speaks clearly. Clerical typographical in entries of the civil reg
ister are not to be corrected and changed without need of a judicial order and b
y the city or municipal civil registrar or consul general. The obvious effect is
to remove from the ambit of Rule 108 the correction or changing of such errors
in entries of the civil register. Hence, what is left for the scope of operation
of Rule 108 are substantial changes and correction is entries of the civil regi
ster. (Lee vs. CA, G.R. No. 118387, October 11, 2001)
Petition for change of name (Rule 103) and petition for cancellation or correcti
on of entries are DISTINCT PROCEEDINGS.
Hence, a party cannot change name and correct an entry in single petition witho
ut satisfying the jurisdictional requirements.
( Republic v. Balmore)
RULE 109 :APPEALS IN SPECIAL PROCEEDINGS
An interested person may appeal in special proceedings from such order or judgme
nt rendered which:
1. Allows or disallows a will;
2. Determination who are the lawful heirs or the distributive share of the estat
e to which such person is entitled;
3. Allows or disallows, in whole or in part, any claim against the estate of a d
eceased person, or any claim presented on behalf of he estate in offset to a cla
im against it;
4. Settles the account of an executor, administrator, trustee or guardian;
5. Constitutes, in the proceedings relating to the settlement of the estate of a
deceased person, or the administration of a trustee or guardian, a final determ
ination in the lower court of the rights of the party appealing, EXCEPT that no
appeal shall be allowed from the appointment of a special administrator; and
6. Is the final order judgment rendered in the case, and affects the substantial
rights of the person appealing, UNLESS it be an order granting or denying a mot
ion for a new trial or for reconsideration.

ORDERS THAT ARE NOT APPEALABLE


1. Order directing administrator to take action to recover amount due to the est
ate;
2. Order made in administration proceedings relating to inclusion or exclusion o
f items of property in the inventory of executor or administrator;
3. Order appointing special administrator;
4. Order granting or denying a motion for new trial or for reconsideration.

Section 2. Advance distribution in Special proceedings.


APPEAL IN
ORDINARY CIVIL
APPEAL IN
ACTION
SPECIAL
15 examination.
PROCEEDINGS
30
Notice
Record
No
Maybe
daysextended
of Appealonand
on meritorious
docket fees
grounds.
SUMMARY OF VENUE AND JURISDICITON IN SPECIAL PROCEEDINGS
Resident
SPECIAL
1.
JURISDICTION
VENUE
Settlement
PROCEEDING
of theofDecedent
the Estate
or if the decedent is a non-resident, place where he ha
d anifestate
MTC the gross value of the estate does not exceed P300,000 or does not exceed
P400,000 in Metro Manila
a. Person
RTC
2. Escheat
if thediesgrossintestate
value ofleaving
the estateno heir
exceeds
Resident
the above
of the
amounts
decedent or if non-resid
c.
RTC
3.
Where
Family
ent,
b. Unclaimed
Appointment
Reversion
in
the
Court
theminor
place
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(In
Where
oforCase
Guardians
where
incompetent
the
OfWhere
heland
Minors)
hadthe
lies
resides
andormant
estate.
in whole
deposits
or in part
are located
RTC
4. Appointment
Where(Regular
the will courts
of Trustees
was allowed
in caseor where
of Incompetents)
he property or portion thereof affected by t
he Inter-counter
5.
RTC
6.
Where
Family
trust
Domestic
the
Court
isadoptee
adopter
situated
Adoption
or theAdoption
resides
Inter-country
if filed with the Family Court
Adoption
7.
Family
8.
Where
SC, Rescission
Habeas
CA,the
Court
RTC,
Board
adoptee
Corpus
detainee
MTC
of inAdoption
resides
isthedetained
province(iforthe
citypetition
in caseisthere
filediswith
no RTC
thejudge;
RTC)
Sandiganbayan
Habeas
Family
9.
10.
11.Cancellation/Correction
Where
RTC Change
Appointment
petitioner
the
Corpus
Court,
petitioner
of
absentee
corresponding
Name
only
in
CA,ofresides
relation
and
inresides
Representative
resided
aidCivil
SC ofof
tobefore
its
minor
or
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registry
where
appellate
of Absentee/Declaration
his the
disappearance
is located
minor
jurisdiction
may be foundof Absence
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