General Provision

RULE 72: SUBJECT MATTER AND APPLICABILITY OF

GENERAL RULES

72.1

 A special proceeding is an application to establish the status or right of a party or a particular

fact, or any remedy other than an ordinary suit in a court of justice.
o It is generally commenced by application, petition or special form of pleading as may
be provided for by the particular rule or law.

 Although (c) refers only to “children”, guardianship is not limited to children but extends to
“incompetents”.
o Proceedings for custody of a child whose parents are separated may be an
independent proceeding or an incident in any other proceeding
o But that for a vagrant or abused child is an independent proceeding in itself

 While (m) speaks of declaration of “absence and death” there cannot be a special
proceeding instituted just to obtain a declaration of death
o Actual or presumptive death cannot be the subject of a judicial pronouncement or
declaration if it is the only question or matter involved in a case or upon which a
competent court has to pass
o Such declaration may be made only in connection with the proceedings for the
settlement of the estate of the alleged decedent
o Rule 107 (absentees) is only limited to a declaration of absence.
o Family code authorizes a summary proceeding for the declaration of the presumptive
death of the absentee spouse to enable the spouse present to contract a subsequent
marriage.

72.2

 There are certain specific provisions for special proceedings – allegations required to be
contained in the pleadings, venue and service of pleadings and processes.

 Distinction between final and interlocutory orders in civil actions for purposes of determining
appealability is not strictly applicable to orders in special proceedings.
o Rule 109 specifies appealable orders, some of which are interlocutory in civil actions.

 Rule 33 regarding judgment on demurrer to evidence is applicable to specpro.

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 Settlement of the Estates of Deceased Persons
RULE 73: VENUE AND PROCESS

Section 1. Where estate of deceased persons settled. — If the decedents is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of First Instance in the province in which he
resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance
of any province in which he had estate. The court first taking cognizance of the settlement of the estate
of a decedent, shall exercise jurisdiction to the exclusion of all other courts (Doctrine of Preferential
Jurisdiction). The jurisdiction assumed by a court, so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an
appeal from that court, in the original case, or when the want of jurisdiction appears on the
record.

Notes:

1. Residence of decedent at time of his death is determinative of the venue of the proceeding.
2. Residence means his personal, actual or physical habitation, his actual residence or place of
abode and not his permanent legal residence or domicile.
3. It is only where the decedent was a non-resident of the Philippines at the time of his death that
venue lies in any province in which he had estate. Hence, only in this case where doctrine of
preferential jurisdiction is applicable.
4. RTC thereof first taking cognizance acquires jurisdiction to the exclusion of other courts.
5. Question of residence is determinative only of the venue and does not affect jurisdiction of the
court. Venue may be waived. Submission of affected parties to proceeding is a waiver of
objection to error in venue.
6. The probate court acquires jurisdiction over the proceeding from the moment the petition for
settlement is filed. It cannot be divested of such jurisdiction by subsequent acts of the interested
parties, as in entering into an extrajudicial partition of the estate or by filing another petition for
settlement in a proper court of concurrent venue. This rule, however, is limited only to Philippine
courts. A will allowed to probate in a foreign country must be probated again in the Philippines.
The rule on venue provided in Rule 73 shall be observed.
7. If the decedent had properties in different countries, separate administration proceedings must
be had in said countries. The proceeding in his last domicile being the principal administration
and any other administration proceeding being termed as ancillary administration.
8. SC may however order a change of venue under its supervisory authority and to prevent
obstruction of justice.
9. Impropriety of venue may be raised in two instances:
a. In an appeal from the court, in the original case
b. When the want of jurisdiction appears on the record.
10. A probate court exercises limited jurisdiction, hence, it is primarily concerned with the
administration, liquidation, and distribution of the estate. The probate court may pass upon the
question of title to property only where
a. interested parties who are all heirs of the deceased consent thereto and interests of third
parties are not prejudiced (as where the parties are all heirs of the deceased)
b. in a provisional manner, to determine whether the property should be included in or
excluded from the inventory, without prejudice to the final determination of title in a
separate action (especially where property is in possession of a third party who has
certificate of title thereto)
11. Probate court has the power to determine questions as to
a. who are the heirs of the decedent
b. the recognition of a natural child
c. the validity of disinheritance effected by the testator
d. the status of a woman who claims to be the lawful wife of the decedent
e. validity of waiver of hereditary rights
f. whether property in the inventory is conjugal or exclusive property of the deceased
spouse.
** Declaration of heirship, as a rule, cannot be made in the civil action for the reason that
such a declaration can only be made in a special proceedings. However, such declaration may
be dispensed with for the sake of practicality, as when parties in a civil case had voluntarily
submitted the issue to the trial court and already presented their evidence regarding the issue
of heirship.

12. Its jurisdiction extends to matters incidental or collateral to the settlement and distribution of the
estate.
13. Probate court generally cannot issue writs of execution because its orders usually refer to
adjudication of claims against the estate which the executor or administrator may satisfy
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 without the need of executor processes.
14. The rules specify instances wherein probate court may issue writ of execution
a. To satisfy contributive shares of devisees, legatees and heirs in possession of
decedent’s assets
b. To enforce payment of expenses of partition
c. To satisfy costs when a person is cited for examination in probate proceedings
15. Inclusion unius est exclusion, these would be the only instances when probate court may issue
writ of execution.

Section 2. Where estate settled upon dissolution of marriage. — When the marriage is dissolved by the
death of the husband or wife, the community property shall be inventoried, administered, and
liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If
both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate
proceedings of either.

Notes:

1. Conjugal partnership shall be liquidated in the proceedings for the settlement of the estate of
the deceased spouse, or if both died, in proceedings for either estate.
2. If separate proceedings were instituted, they may be consolidated if filed with the same court.
3. Probate court has jurisdiction to determine whether the property is conjugal as it has to
liquidate the conjugal partnership to determine the estate of the decedent.
4. Since liquidation may be made in either proceeding where both are still pending, it is a matter
of sound judicial discretion in which one it should be made.
5. Upon death of spouse no action can be maintained against the surviving spouse for recovery
of a debt chargeable against the conjugal partnership, claim should be filed in the settlement
proceeding of the estate of the deceased spouse. Neither may surviving spouse enter into an
agreement novatory of a contract executed by both of them during lifetime of deceased. (See
Sec. 5 Rule 86) Reason: The power of administration of surviving spouse ceases upon death of
one spouse.
6. Estates of deceased spouses may be settled in one proceeding.
7. In all other instances, even if they are related as ascendants and descendants, their separate
estates must be settled in different proceedings.
8. If in determination of conjugal nature of such property a question of title thereto is raised by a
third person, the probate court has no jurisdiction to determine the title to said property as the
issue should be threshed out in a proper action.
9. Especially true in summary proceedings and to avoid delay, as distribution is always subject to
the results of the appropriate suit and the claimant’s rights can be protected by notice of lis
pendens.
10. The doctrine of lis pendens refers to the jurisdiction, power or control which a court acquires
over a property involved in a suit, pending the continuance of the action, and until final
judgment. Its purposes are (1) to protect the rights of the party causing the registration of the lis
pendens, and (2) to advise third persons who purchase or contract on the subject property that
they do so at their peril and subject to the result of the pending litigation. A notice of lis pendens
is proper in the following cases: (a) an action to recover possession of real estate; (b) an action
to quiet title thereto; (c) an action to remove clouds thereon; (d) and action for partition; and
(e) and any other proceedings of any kind in Court directly affecting the title to the land or the
use or occupation thereof or the buildings thereon (Magdalena etc. vs. CAS, 184 SCRA 325).
11. Inventory of the conjugal properties is unnecessary if the widow and the children have reached
a compromise for an extrajudicial partition of the property.

Section 3. Process. — In the exercise of probate jurisdiction, Courts of First Instance (RTC) may issue
warrants and process necessary to compel the attendance of witnesses or to carry into effect theirs
orders and judgments, and all other powers granted them by law. If a person does not perform an order
or judgment rendered by a court in the exercise of its probate jurisdiction, it may issue a warrant for the
apprehension and imprisonment of such person until he performs such order or judgment, or is
released.

Notes:

1. This rule simply reiterates the principles in Section 6, Rule 135 of the Rules of Court
2. This power is also an inherent power of every court under Sec. 5, Rule 135.

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Section 4. Presumption of death. — For purposes of settlement of his estate, a person shall be
presumed dead if absent and unheard from for the periods fixed in the Civil Code. But if such person
proves to be alive, he shall be entitled to the balance of his estate after payment of all his debts. The
balance may be recovered by motion in the same proceeding.

Notes:
1. Absentee shall be presumed dead for purposes of opening his succession after absence of 10
years
2. But if he disappeared after age of 75 years, 5 year absence is sufficient
3. If absentee was on board vessel lost during sea voyage or airplane which is missing, was in
armed forces and has taken part in war or has been in danger of death under other
circumstances, only 4 years is required.
4. Taken conjointly with Art. 392 of the Civil Code, recover of the returning absentee of his estate
is subject to the conditions that all his debts must have been paid. He shall recover his property
in the condition in which it may be found, together with the price of any property that may have
been alienated or the property acquired therewith, but he cannot claimed either fruits or rents.
This is true because succession has not really taken place.
5. Extraordinary prescription counted from the time the heir is in possession in the concept of
owner, may prevent recovery. (RP – 10 years GF, 30 years BF and PP – 4 years GF, 8 years -
BF). In other words, the heir may have acquired the property not by succession but by
prescription.
6. There is no independent action for the declaration of presumptive death except for the purpose
of remarriage under the Family Code. The petition is for a declaration, even if judicially made,
would not improve the petitioner's situation, because such a presumption is already established
by law. A judicial pronouncement to that effect, even if final and executory, would be a prima
facie presumption only. It is still disputable. It is for that reason that it cannot be the subject of
judicial pronouncement or declaration, if it is that only question or matter involved in a case, or
upon which a competent court has to pass (Matias vs Republic of the Phil. GR No. 230751
April 25, 2018).
7. Death, in ordinary absence, is presumed to have taken place after 10 years from
disappearance, except for 75 years old or above, after 5 years from disappearance.
8. In extraordinary absence, the date of death is presumed to be on the date of disappearance.
9. In all of these presumed death, succession is only provisional because there is a chance the
absentee may still be alive.
10. The balance may be recovered by motion in the same proceeding. Therefore, no separate
proceeding is necessary.

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 RULE 74: SUMMARY SETTLEMENT OF ESTATES

Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left no will and no
debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives
duly authorized for the purpose, the parties may without securing letters of administration, divide
the estate among themselves as they see fit by means of a public instrument filed in the office of the
register of deeds, and should they disagree, they may do so in an ordinary action of partition
(Rule 69). If there is only one heir, he may adjudicate to himself the entire estate by means of an
affidavit filed in the office of the register of deeds. The parties to an extrajudicial settlement, whether
by public instrument or by stipulation in a pending action for partition, or the sole heir who
adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and
as a condition precedent to the filing of the public instrument, or stipulation in the action for partition, or
of the affidavit in the office of the register of deeds, a bond with the said register of deeds, in an
amount equivalent to the value of the personal property involved as certified to under oath by
the parties concerned and conditioned upon the payment of any just claim that may be filed under
section 4 of this rule. It shall be presumed that the decedent left no debts if no creditor files a
petition for letters of administration within two (2) years after the death of the decedent.

The fact of the extrajudicial settlement or administration shall be published in a newspaper of general
circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall
be binding upon any person who has not participated therein or had no notice thereof.

Notes:
1. This rule actually provides for two exceptions to the requirement that the estate should be
judicially administered through an administrator or executor: a. Extrajudicial settlement and b.
Summary settlement of estates of small value (not exceeding P10,000).
2. The salient distinctions between these two methods of settlement are as follows:
Extrajudicial settlement Summary settlement
Does not require court intervention Involves judicial adjudication
although in summary proceeding
Value is immaterial Applies only where gross estate value does not
exceed P10,000 (amount is jurisdictional)
Only in intestate succession Allowed both in testate and intestate
Proper only when no outstanding Available even if there are debts (court will
debts at time of settlement make provisions for payment thereof)
Only at the instance and by agreement May be instituted by any interested party and
of all heirs even by a creditor without consent of all the
heirs
Bond is equal to the value of personal Bond determined by the court
property as established by instrument
of adjudication. It is determined by the
parties themselves certified under
oath.
3. Requisites of a valid extrajudicial settlement:
Essential requisites
a. Decedent died intestate
b. No outstanding debts of the estate at time of the settlement
c. Heirs are all of age or the minors are represented by their judicial guardian or legal
representatives
d. Existence of estate
Formal requisites
a. Settlement made in a public instrument, stipulation or affidavit duly filed with the register
of deeds
b. The fact of such extrajudicial settlement must be published in a news paper
c. Bond
4. Extrajudicial settlement presupposes concurrence among all heirs to the partition of the estate
as provided in the instrument.
a. If they cannot agree on the manner of the partition they may institute a special civil
action for partition (Rule 69) unless the same is prohibited by an agreement, by the
donor or testator, or by law.
b. If despite such action they subsequently arrive at an agreement, they may enter into
the corresponding stipulation and register the same with the register of deeds.
5. Extrajudicial partition is mandatory on the part of the heirs of the decedent who left no
debts, a dissenting heir cannot insist on instituting administration proceedings which would be
superfluous and unnecessary unless he can establish compelling or good reasons for not
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 resorting to an action for partition. Reason: Judicial settlement is costly, burdensome and
lengthily.
6. Sole heir may adjudicate to himself the entire estate by means of an affidavit filed in the Office
of the Registrar of Land Titles and Deeds without previous judicial declaration of heirship. A
notice of such adjudication, not the affidavit itself, shall be published in a newspaper of general
circulation in the place where the settlement took place or where the bulk of the properties are
located, for three consecutive weeks. The publisher need not be accredited by the court.
7. Public instrument is now required for registration. If the settlement is in a private
instrument, it is believed that the same is still valid and reformation of the instrument may be
compelled (Art. 1359, CC). The partition is not covered by statue of fraud because it is not a
conveyance of property but merely an affirmation of inchoate rights of the heirs. The right to
succession is transmitted from the time of the death of the decedent.
8. The purpose of registration is to notify third parties who wish to acquire the property that it is
subject to an encumbrance of 2 years, counted from the date of registration.
9. While the rule provides that the decedent must have not left any debts, it is sufficient if any
debts he may have left have been paid at the time the extrajudicial settlement is entered into. It
is presumed that decedent left no debts if no creditor files a petition for letters of administration
within 2 years after death of decedent. (rebuttable presumption). This presumption is not
applicable when the heirs knew the existence of debt.
10. The discovery of unpaid debts after the partition of the estate does not destroy the partition. It
simply furnishes grounds for the application by the creditor for the appointment of an
administrator, or for the payment of credits. In other words, the division of the estate is
conclusive, unless there has been Fraud.
11. A bond is required only when personalty is involved in the extrajudicial partition, real estate is
subject to a lien in favor of creditors, heirs or other persons for the full period of two years from
such distribution and such lien cannot be substituted by a bond. Value of personal property
which must be covered by bond is determined from sworn declaration of the parties in the
instrument of settlement or affidavit of adjudication, or if not mentioned therein in an affidavit
stating such valuation which the register of deeds shall require them to execute.
12. Minor distributee in an extrajudicial settlement should be represented therein by a judicial
guardian or legal guardian.
13. The heir, without knowledge and consent, shall not prejudice their right in the inheritance
regardless of the lapse of two years. The publication of settlement does not constitute
constructive notice to the heirs who had no knowledge or did not take part in it because the
same was noticed after the fact of execution. The action to annul a deed of extrajudicial
settlement on the ground of fraud should be filed within four years from the discovery of fraud.
14. The contract of extrajudicial partition is void if one heir is excluded therein being contrary to
law. The remedy resorted to by the excluded heirs which was upheld by the SC, was an action
for annulment of said deed. An action for annulment of extrajudicial settlement is
imprescriptible.

Section 2. Summary settlement of estate of small value. — Whenever the gross value of the estate of a
deceased person, whether he died testate or intestate, does not exceed ten thousand pesos, and
that fact is made to appear to the Court of First Instance (now in the MTC) having jurisdiction of the
estate by the petition of an interested person and upon hearing, which shall be held not less than one (1)
month nor more than three (3) months from the date of the last publication of a notice which shall be
published once a week for three (3) consecutive weeks in a newspaper of general circulation in the
province, and after such other notice to interest persons as the court may direct, the court may proceed
summarily, without the appointment of an executor or administrator, and without delay, to grant, if
proper, allowance of the will, if any there be, to determine who are the persons legally entitled to
participate in the estate, and to apportion and divide it among them after the payment of such debts of
the estate as the court shall then find to be due; and such persons, in their own right, if they are of lawful
age and legal capacity, or by their guardians or trustees legally appointed and qualified, if otherwise,
shall thereupon be entitled to receive and enter into the possession of the portions of the estate so
awarded to them respectively. The court shall make such order as may be just respecting the costs of
the proceedings, and all orders and judgments made or rendered in the course thereof shall be recorded
in the office of the clerk, and the order of partition or award, if it involves real estate, shall be recorded in
the proper register's office.

Notes:
1. Summary settlement of estates of small value is now within the jurisdiction of inferior courts.
2. The amount of bond to be filed by the distributees of personal property in summary settlement is
determined by the court.
3. As a rule, probate court cannot pass upon issue of title in summary proceedings when one of
heirs asserts an adverse claim to the property involved therein, where it is clear that the property
really belongs to the decedent, probate court may determine in a summary settlement who are

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 the parties entitled thereto since in such a proceedings it is directed to act summarily and without
delay.

4. Requisites for summary distribution:

a. Gross value of estate does not exceed P10,000.00;
b. Application is filed in proper court, rule on venue as prescribed in Rule 73 shall be
observed;
c. Publication, once a week for 3 consecutive weeks;
d. Proper notices as ordered by the Court;
e. Debts, if the be any, are all paid.

Section 3. Bond to be filed by distributees. — The court, before allowing a partition in accordance with
the provisions of the preceding section, my require the distributees, if property other than real is to be
distributed, to file a bond in an amount to be fixed by court, conditioned for the payment of any just claim
which may be filed under the next succeeding section.

Notes:
1. Bond is a condition precedent to the filing of the public instrument, stipulation in the action for
partition, or of the affidavit of self-adjudication in the office of the Register of Deeds.
2. Bond applies only in personal property because it can easily be disposed of by the heirs.
3. Bond is a protection for creditor or any interest party in the estate of the deceased.

Section 4. Liability of distributees and estate. — If it shall appear at any time within two (2) years after
the settlement and distribution of an estate in accordance with the provisions of either of the first two
sections of this rule, that an heir or other person has been unduly deprived of his lawful
participation in the estate, such heir or such other person may compel the settlement of the estate in
the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. And
if within the same time of two (2) years, it shall appear that there are debts outstanding against the
estate which have not been paid, or that an heir or other person has been unduly deprived of his
lawful participation payable in money, the court having jurisdiction of the estate may, by order
for that purpose, after hearing, settle the amount of such debts or lawful participation and order
how much and in what manner each distributee shall contribute in the payment thereof, and may
issue execution, if circumstances require, against the bond provided in the preceding section or against
the real estate belonging to the deceased, or both. Such bond and such real estate shall remain charged
with a liability to creditors, heirs, or other persons for the full period of two (2) years after such
distribution, notwithstanding any transfers of real estate that may have been made.

Notes:
1. This rule speaks of the liabilities within 2 years of the distributee in extrajudicial partition and in
summary settlement of estate of small value:
a. For claims of an heir or other person unduly deprived of participation in the estate;
b. For claims of an heir or other person unduly deprived of participation in the estate
payable in money;
c. For debts outstanding against the estate, and not yet paid.
2. These liabilities of the distributee may be enforced in the following manner:
A. If the estate was extrajudicially settled or partitioned under Sec. 1 of Rule 74
a. The person prejudiced may compel judicial settlement of the estate. However, the
distributee may prevent this by: Agreeing on another extrajudicial partition where the
prejudiced person will be a party; or the prejudiced person who is an heir agrees to be
paid in money and the distributees contribute and pays him; or if prejudiced person is
a creditor, the heirs or distributees agree to pay him and is paid.
B. If the estate was summarily settled in court under Sec. 2 of Rule 74
a. The prejudiced person may file a motion to reopen the summary settlement
proceeding
C. If there is fraud employed by the distributees
a. Action to annul extrajudicial partition or the judgement on summary settlement
proceeding on the ground of fraud within 4 years from the discovery of fraud without
prejudice to the applicability of prescription.
3. The rules specify instances wherein probate court may issue writ of execution
a. To satisfy contributive shares of devisees, legatees and heirs in possession of
decedent’s assets
b. To enforce payment of expenses of partition
c. To satisfy costs when a person is cited for examination in probate proceedings

4. The 2-year lien upon the real property distributed by extrajudicial or summary settlement shall be
annotated on the title issued to the distributees and, after the lapse of the period, may be
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 cancelled by the register of deeds without need of a court order.
** Lien cannot be discharged nor the annotation cancelled within the 2-year period even
if the distributes offer to post a bond to answer for the contingent claims for which the lien is
established
5. The discovery of unpaid debts after the extrajudicial settlement has been effected does not ipso
facto invalidate the partition.
a. In such a case, the creditor may ask for administration of enough property of the estate
sufficient to pay the debt, but the heirs can prevent such administration by paying the
obligation
b. Or the creditor can file an ordinary action against the distributees for his claim without
prejudice the application of statute of limitation.
6. Where estate has been summarily settled, unpaid creditor may, within 2-year period, file a
motion in the court wherein such summary settlement was had for the payment of his credit.
After the lapse of the period, an ordinary action may be instituted against the distributees within
the statute of limitations, but not against the bond.
7. Said heirs or creditors may vindicate their rights either by proceeding against the estate, the
distributees or against the bond within the 2-year period, or even thereafter but within the
statute of limitations, but, this time, they can no longer proceed against the bond.
8. The action to annul a deed of extrajudicial settlement on the ground of fraud should be filed
within four years from the discovery of fraud.
9. If special proceedings are pending or there is a need to file one, for the determination of
heirship, that issue should be determined in said special proceedings. Where those special
proceedings had been finally terminated and the putative heir had lost his right to be declared
therein as a co-heir, an ordinary civil action can be timely filed for his declaration as an heir.
10. An heir who did not participate in the partition may file an action for re-conveyance within 10
years which is based on an implied or constructive trust. In this case, the heir has notice of
partition. However, an action for reconveyance is imprescriptible when the plaintiff, the legal
owner, and not the defendant registered owner, is in the possession of the land to be
reconveyed. Please take note that the action for reconveyance can be exercised only by the
heir.
11. Principle of nemodat quod non habet which means no one can give more than what he has.
Hence, when the partition is invalid, it transmitted no right.

Section 5. Period for claim of minor or incapacitated person. — If on the date of the expiration of the
period of two (2) years prescribed in the preceding section the person authorized to file a claim is a
minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his
claim within one (1) year after such disability is removed.

Notes:
1. The following persons, even outside the 2-year period, may present their claim within one year:
a. Upon reaching the age of majority age, if a minor;
b. Upon regaining his mentality, if insane;
c. Upon release from prison, if a prisoner;
d. Upon returning to the Philippines, if outside of the Philippines.

1998 Bar: A, claiming to be an illegitimate child of the deceased D, instituted an intestate proceeding to settle
the estate of the latter. He also prayed that he be appointed administrator of the said estate. S, surviving
spouse, opposed the petition and A‘s application to be appointed the administrator on the ground that he was
not the child of her deceased husband D. The court however appointed A as the administrator of said estate.
Subsequently, S, claiming to be the sole heir of D, executed an Affidavit of Adjudication, adjudicating unto
herself the entire estate of her deceased husband D. S then sold the entire estate to X.
Was the action of S in adjudicating the entire estate of her late husband to herself legal? (3%)

Answer: No. An affidavit of self-adjudication is allowed only if the affiant is the sole heir of the deceased (Rule 74,
Sec. 1). In this case, A also claims to be an heir. Moreover, it is not legal because there is already a pending judicial
proceeding for the settlement of the estate.

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 RULE 75: PRODUCTION OF WILL. ALLOWANCE OF WILL
NECESSARY

Section 1. Allowance necessary. Conclusive as to execution. — No will shall pass either real or
personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such
allowance of the will shall be conclusive as to its due execution.

Notes:
1. Probate is the act of proving before a competent court the due execution of a will by a person
possessed of testamentary capacity, as well as approval thereof by said court.
2. The probate of a will is a proceeding in rem and therefore a notice by publication is necessary,
to give notice to the entire world, and when a probate is granted, the judgement of the court is
binding upon everybody.
3. The probate of a will refers to its due execution and settles only formal or extrinsic validity of
the will: a. whether the testator being of sound mind freely executed the will in accordance with
the formalities prescribed by law and b. It does not affect or pertain to the intrinsic validity of the
provisions thereof which determination normally comes after allowance of the will.
2. Such allowance in a final judgment is conclusive on that issue and cannot be assailed in
another proceeding, except on the ground of fraud in the procurement of the decree.
3. The doctrine of estoppel does not apply in probate proceedings since the presentation and the
probate of a will are required by public policy and they involve public interest.
4. The court has no power to pass upon the validity of any provision made in the will. In
exceptional cases, as where the defect is apparent on its face, the probate court may
determine the intrinsic validity of the will even before its formal validity is established, as the
probate of a will may become a useless ceremony if the will is intrinsically invalid. A last will and
testament admitted to probate but declared intrinsically void in an order that has become final
and executory cannot be given effect.
5. To reiterate, a probate court has no right to determine with finality the ownership thereof.

Section 2. Custodian of will to deliver. — The person who has custody of a will shall, within twenty (20)
days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the
executor named in the will.

Section 3. Executor to present will and accept or refuse trust. — A person named as executor in a will
shall, within twenty (20) days after he knows of the death of the testate, or within twenty (20) days after
he knows that he is named executor if he obtained such knowledge after the death of the testator,
present such will to the court having jurisdiction, unless the will has reached the court in any other
manner, and shall, within such period, signify to the court in writing his acceptance of the trust or his
refusal to accept it.

Section 4. Custodian and executor subject to fine for neglect. — A person who neglects any of the
duties required in the two last preceding sections without excused satisfactory to the court shall be fined
not exceeding two thousand pesos.

Section 5. Person retaining will may be committed. — A person having custody of a will after the death
of the testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the
court having jurisdiction, may be committed to prison and there kept until he delivers the will.

Notes:

1. The 20-day period starts from the time he came to know of the death of the testator.
2. Section 2 relates to the time of presenting the will to the court which must be within 20 days
after the custodial of the will has learned of the death of the testator, while Section 3 speaks of
the time within which the executor named in the will must accept the trust, or, refuse the same.
Such acceptance, or refusal, must be in writing.
3. If the custodian of the will delivers it to the executor named therein, such executor must in, turn,
deliver that will to the court within 20 days therefrom and signify whether he accepts the trust.
4. Delivery of the will is made to the clerk of court of the RTC having jurisdiction over the estate.
5. Testate proceedings take precedence over intestate proceedings for the same estate. If during
the pendency of intestate proceedings, a will of the decedent is discovered, proceedings for the
probate of the will shall replace the intestate proceedings even if an administrator had already
been appointed therein. Should the will not be allowed to probate, then the proceedings shall
be continued as an intestacy.
6. Doubts should be resolved in favor of testacy, especially where the will shows the intent of the

9
 testator to dispose of his whole estate.
7. It is not proper for the probate court to make a finding in an intestate proceeding that a will
discovered after the intestate proceeding have been revoked. The court should order the filing
of a petition for the probate of said will by the party interested therein.

2006 Bar: Sergio Punzalan, 50 years old, married and residing at Ayala alabang Village, Muntinlupa City, of
sound and disposing mind, executed a last will and testament in English, a language spoken and written by
him prfociently. He disposed of his estate consisting of a parcel of land in Makati City and cash deposit at the
City Bank in the sum of P 300 Million. He bequethed P 50 Million each to his 3 sons and P 150 Million to his
wife. He devised a piece of land worth P 100 Million to Susan, his favorite daughter-in-law. He named his best
friend, Cancio Vidal, as executor of the will without bond.
1. Is Cancio Vidal, after learning of Sergio‘s death, obliged to file with the proper court a petition of probate of
the latter‘s will and testament? (2%)
2. Supposing the original copy of the last will and testament was lost, can Cancio compel Susan to produce a
copy in her possession to be submitted to the probate court? (2%)
3. Can the probate court appoint the widow as executor of the will? (2%)
4. Can the widow and her children settle extrajudicially among themselves the estate of the deceased? (2%)
5. Can the widow and children initiate a separate petition for partition of the estate pending the probate of the
last will and testatment? (2%)

Answer:
1. Cancio Vidal is obliged to file a petition for probate and for accepting or refusing the trust within the
statutory period of 20 days under Sec. 3, Rule 75.
2. Yes, Cancio can compel Susan to produce the copy in her possession. A person having custody of the will
is bound to deliver the same to the court of competent jurisdiction or to the executor, as provided in Sec. 2,
Rule 75.
3. Yes, the probate court can appoint the widow as executor of the will if the executor does not qualify, as
when he is incompetent, refuses the trust, or fails to give bond (Sec. 6, Rule 75).
4. No, the widow and her children cannot settle the estate extrajudicially because of the existence of the will.
No will shall pass either real or personal estate unless it is proved and allowed in the proper court (Sec. 1,
Rule 75).
5. No, the widow and her children cannot file a separate petition for partition pending the probate of the will.
Partition is a mode of settlement of the estate (Sec. 1, Rule 75).

10
 RULE 76: ALLOWANCE OR DISALLOWANCE OF WILL

Section 1. Who may petition for the allowance of will. — Any executor, devisee, or legatee named in a
will, or any other person interested in the estate, may, at any time after the death of the testator, petition
the court having jurisdiction to have the will allowed, whether the same be in his possession or not,
or is lost or destroyed. The testator himself may, during his lifetime, petition the court for the
allowance of his will.

Notes:
1. Two kinds of probate:
A. Probate during lifetime;
B. Probate after the testator’s death
2. Who may petition for probate of a will: DELTA a. Devisee, Executor, Legatee, Testator himself
and Any other person interested in the State.
3. The time to probate a will does not prescribe. It may be filed at any time after the testator’s
death. Petition for probate of the will is not subject to bar by the statute of limitations and does
not prescribe, as such petition may be filed “at any time” and is required by public policy.

Section 2. Contents of petition. — A petition for the allowance of a will must show, so far as known to
the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, legatees, and devisees of the testator or
decedent;
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters are prayed;
(e) If the will has not been delivered to the court, the name of the person having custody of it.

But no defect in the petition shall render void the allowance of the will, or the issuance of letters
testamentary or of administration with the will annexed.

Notes:
1. The probate hearing and probate order should not include among others the following (because
they affect intrinsic validity)
a. the exclusion of the widow from the inheritance
b. the disinheritance of a daughter
c. titles to property and annulment of alleged fraudulent sales
2. These matters may be brought in different or later proceedings, but not in the probate (proper)
proceedings, and even if passed upon thereon, it has no effect of res judicata.
3. Provisionally, the question of title can be passed upon for the purpose of inclusion into, or
exclusion from, the inventory, without prejudice to a final determination of the question in a
separate action.
4. The determination, however, can be final if the parties interested are all heirs of the deceased
and said parties so consent.
5. The jurisdictional facts required to be alleged in the petition for probate are:
a. That a person died leaving a will
b. In the case of a resident, that he died in his residence within the territorial jurisdiction of
the court, or in the case of a non-resident, that he left an estate within such territorial
jurisdiction, and
c. That the will has been delivered to the court.
6. A creditor of the decedent may file a petition for the settlement of the latter’s estate as a
preparatory step for the filing of the former’s claim therein, but an heir who has assigned or
renounced his hereditary rights has no legal interest as would authorize him to initiate such
proceedings.

11
Section 3. Court to appoint time for proving will. Notice thereof to be published. — When a will is
delivered to, or a petition for the allowance of a will is filed in, the court having jurisdiction, such court
shall fix a time and place for proving the will when all concerned may appear to contest the allowance
thereof, and shall cause notice of such time and place to be published three (3) weeks successively,
previous to the time appointed, in a newspaper of general circulation in the province.

But no newspaper publication shall be made where the petition for probate has been filed by the testator
himself.

Notes:
1. The probate of a will is a proceeding in rem and the publication provided for by this Rule is a
jurisdictional requirement. The personal service of notice upon the heirs is a matter of
procedural convenience and not a jurisdictional requisite. However, where the names of the
heirs and their residences are known, notice of the hearing of the petition in accordance with
Sec. 4, Rule 76 must be forwarded to them and such requirement cannot be satisfied by mere
publication.
2. The requirement of three successive weeks of publication in Sec. 3 does not mean that three
full weeks or 21 days should intervene between the first publication and the date of hearing. It
is sufficient that publication has been made once a week successively three times, even if less
than 21 days intervened between the first publication and the hearing.
3. Where the testator himself petitions for the probate of his will in his lifetime, no publication is
required and notice is required only for his compulsory heirs. Such notice should, under
these circumstances, be considered a jurisdictional requisite.

Section 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. — The court
shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to
the designated or other known heirs, legatees, and devisees of the testator resident in the Philippines at
their places of residence, and deposited in the post office with the postage thereon prepaid at least
twenty (20) days before the hearing, if such places of residence be known. A copy of the notice must
in like manner be mailed to the person named as executor, if he be not the petitioner; also, to any
person named as coexecutor not petitioning, if their places of residence be known. Personal service of
copies of the notice at lest (10) days before the day of hearing shall be equivalent to mailing.

If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory
heirs.

Notes:
1. The personal service of notice upon the heirs is a matter of procedural convenience and not a
jurisdictional requisite. However, where the names of the heirs and their residences are known,
notice of the hearing of the petition in accordance with Sec. 4, Rule 76 must be forwarded to
them and such requirement cannot be satisfied by mere publication.
2. Where the testator himself petitions for the probate of his will in his lifetime, no publication is
required and notice is required only for his compulsory heirs. Such notice should, under
these circumstances, be considered a jurisdictional requisite.
3. The personal service or service by mail should be made only when the address of such
persons are known. This requirement is merely procedural and non-compliance therewith
cause a harmless error, unless prejudiced has been caused.

Section 5. Proof at hearing. What sufficient in absence of contest. — At the hearing, compliance with
the provisions of the last two preceding sections must be shown, before the introduction of
testimony in support of the will. All such testimony shall be taken under oath and reduced to writing. It no
person appears to contest the allowance of the will, the court may grant allowance thereof on the
testimony of one of the subscribing witnesses only, if such witness testify that the will was executed as is
required by law.

In the case of a holographic will, it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the will and the signature are in the
handwriting of the testator. In the absence of any such competent witness, and if the court deem it
necessary, expert testimony may be resorted to.

Notes:

1. Before the introduction of any evidence in the probate of a will it is necessary to produce to the
court proof of publication and proof of service.
2. Sec. 5 provides for the requisite proof where the petition for the probate of the will, notarial or
holographic, is not contested. In the absence of any opposition to such probate, the evidence
12
 for the petitioner may be received ex parte.
3. In the case of a holographic will, and there is no contest, only one witness is required and in his
absence, expert evidence may be resorted to. If the testator of the holographic will himself test
4. In the case of a contested notarial will, it is the duty of the petitioner to produce all the available
attesting witnesses and the notary public, but he is not concluded by the testimony witnesses,
even if adverse, as the court may still admit the will to probate on the basis of other
satisfactory evidence.
5. This is an exception to the rule that a party is generally bound by the testimony or
evidence that he presents, because here, unlike ordinary actions, he has no choice in the
evidence as he is duty-bound to account for all attesting witnesses.
6. It has been held that the testimony of the notary before whom the will was acknowledged will
prevail over that of the two attesting witnesses who claim undue execution of the will.
7. In the case of a holographic will, it is not mandatory that witnesses be first presented before
expert testimony may be resorted to, unlike notarial wills wherein the attesting witnesses must
be presented or accounted for. This is so because holographic wills are not required to be
witnessed and the existence of a qualified witness may be beyond the control or knowledge of
the proponent of the will.

76.6

7. This section provides the requisite quantum of evidence to prove a lost or destroyed notarial
will in the absence of contest, and constitutes an exception to the rule on secondary evidence
in Sec. 5, Rule 130.

8. The witnesses required here, who need not be attesting witnesses (although testimony of the
latter would be entitled to greater weight) must clearly establish
a. The due execution and formal validity of the will
b. The existence of the will at the time of the death of the testator or its fraudulent or
accidental destruction in the lifetime of the testator and without his knowledge, and
c. The provisions of said will, to be testified to by at least two credible witnesses.

9. If however, the probate of such lost or destroyed notarial will is contested, then Sec. 11 of this
Rule has to be complied with, that is, all the subscribing witnesses and the notary public must
be accounted for and, if available, their testimony must be secured, and all the facts stated in
Sec. 6 must be established by them or by two credible witnesses.

10. Where a lost will is shown to have been in the possession of the testator when last seen or that
the testator had ready access to the will and it cannot be found after his death, the presumption
is that he destroyed or cancelled it and not that it was destroyed by other persons without his
knowledge or authority.

11. This section applies to a lost or destroyed notarial will and not a holographic will. A lost or
destroyed holographic will cannot be proved by the bare testimony of witnesses who have seen
and/or read such will as the probate thereof requires identification of the handwriting and
signature of the testator presupposing the availability of the holographic will in court.

13
 a. The SC however intimated that perhaps it may be proved by photographic, photostatic
or carbon copies or similar means, it was definitely held that the lost holographic will
could be proved by photostatic or Xerox copies thereof.

76.7, 76.8

12. In the case of a notarial will where none of the attesting witnesses are available, the court may
admit other witnesses and admit proof of the handwriting of the testator and the attesting
witnesses.

76.9, 76.10, 76.13

RULE 77: ALLOWANCE OF WILL PROVED OUTSIDE OF

PHILIPPINES AND ADMINISTRATION OF ESTATE
THEREUNDER

77.1, 77.2, 77.3

13. A will allowed to probate in a foreign country must be probate again in the Philippines. The
venue for the petition for reprobate is the same as that provided in Rule 73.
a. If the decedent had properties in different countries, separate administration
proceedings must be had in said countries, the proceeding in his last domicile being the
principal administration and any other administration proceeding being termed the
ancillary administration.
b. These two proceedings are separate and independent of each other, but a Philippine
court may grant ancillary letters to the domiciliary representative, if the relatives of the
decedent mentioned in the order of preference are unsuitable for the trust. The court
may in the exercise of its sound discretion also appoint some other person.

14. At the proceedings for reprobate in the Philippines, the proponent must prove
a. That the testator was domiciled in the foreign country
b. That the will has been admitted to probate in such country
c. That the foreign court was under the laws of said foreign a probate court with jurisdiction
over the proceedings
d. The law on probate procedure in said foreign country and proof of compliance therewith,
and
e. The legal requirements in said foreign country for the valid execution of the will.

15. In the absence of proof of the foreign law, it is presumed that it is same as that in the
Philippines.

77.4

16. The local administrator has power only over the property of the decedent in the Philippines.
a. However such property of a foreigner in the Philippines shall be disposed of in
accordance with his national law, especially on the matter of the order of succession,
the amount of successional rights and the intrinsic validity of the provisions thereof.

14
 17. Any surplus of the estate in the hands of the Philippine ancillary administrator shall be remitted
to the domiciliary jurisdiction, but the SC has also noted that it would be advisable for Philippine
courts to retain in custodia legis a sufficient amount to protect Philippine claimants with
contingent claims, such as when there are pending cases for payment thereof or for the
determination of the status or right of one who claims as an heir to the estate, since said
administrator also represents the interests of Philippine creditors, heirs or legatees.

18. See Rule 88 Secs 9 & 10.

RULE 78: LETTERS TESTAMENTARY AND OF

ADMINISTRATION, WHEN AND TO WHOM
ISSUED

78.1, 78.3

19. An executor is the person named in the will to administer the decedent’s estate and carry out
the provisions thereof.
a. An administrator is the person appointed by the court to administer the estate where
the decedent died intestate, or where the will was void and not allowed to probate, or
where no executor was named in the will, or the executor named therein is
incompetent or refuses to serve as such.

20. A corporation or association authorized to conduct the business of a trust company in the
Philippines may be appointed as an executor or administrator of an estate in the same manner
as an individual.

78.2, 78.4, 78.5

21. More than one executor may be issued letters testamentary in accordance with the nomination
in the will. Also, while as a rule the court appoints only one administrator for intestate estates,
more than one administrator may also be appointed by the court.

22. The general practice is that co-executors or co-administrators will exercise joint supervision
over the entire estate, but the court for justifiable reasons may charge a co-administrator with
powers over a particular portion of the estate for administration by him independent of his co-
administrator, but he must act in close cooperation with the latter.

78.6

23. This is the order of preference in the appointment of an administrator but the same may be
disregarded for valid cause.
a. A full-dress hearing to determine the competence of the person named as administrator
should be conducted. The directive of the testator in his will is not conclusive as
supervening circumstances may have rendered unfit the person named to the trust.

24. In the appointment of the administrator of the estate of a deceased person, the principal
consideration is the interest in the said estate of the one to be appointed as administrator.

15
 a. The underlying assumption for this rule is that those who will reap the benefits of a
wise, speedy and economical administration of the estate, or on the other hand suffer
the consequences of waste, improvidence or mismanagement have the higher interest
and most influential motive to administer the estate correctly.
b. However, the order of preference does not rule out the appointment of co-
administrators and the same may be resorted to by the probate court in the exercise of
sound discretion.
c. Thus appointment of co-administrators has been upheld for various reasons
1. To have the benefit of their judgment and, perhaps, at all times to have different
interests represented
2. Where justice and equity demand that opposing parties or factions be
represented in the management of the estate
3. Where the estate is large or, from any cause, an intricate and perplexing one to
settle
4. To have all interested persons satisfied and the representatives – to work in
harmony for the best interests of the estate, and
5. When a person entitled to the administration of an estate desires to have another
competent person associated with him in the office.

25. The term “next of kin” has been defined as those persons who are entitled under the statute of
distribution to the decedent’s property.
a. Generally, the nearest of kin, whose interest is more preponderant, is preferred in the
choice of administrator. Among members of a class, the strongest ground for
preference is the amount or preponderance of interest. As between next of kin, the
nearest of kin is to be preferred.

26. A party indebted to the decedent’s estate cannot compatibly perform the duties of an
administrator and should not be appointed as such. Where such fact of indebtedness was only
subsequently discovered after the administrator had been duly appointed, he should not be
removed, absent any other lawful ground.

27. An administrator is not supposed to represent the interests of any particular party and his acts
are deemed to be objectively for the protection of the rights of everybody concerned with the
estate of the decedent.
a. On the other hand, however, it is evidently implicit in Sec. 6, fixing the priority among
those to whom letters of administration should be granted, that the criterion in the
selection of the administrator is not his impartiality alone, but more importantly, the
extent of his interest in the estate, so much so that the one assumed to have greater
interest is preferred to another who has less.

28. Clerks of court and other court personnel of the probate courts should not be appointed as
administrators or receivers of estates of deceased persons so as not to compromise their
objectivity and impartiality in the performance of their regular functions.

16
 RULE 79: OPPOSING ISSUANCE OF LETTERS
TESTAMENTARY, PETITION AND CONTEST FOR LETTERS OF
ADMINISTRATION

79.1, 79.2

29. When a petition for probate of the will has been filed, Sec. 1 authorizes a person interested in
the estate not only to challenge the qualifications of the person nominated therein as executor
but, at the same time and in anticipation of such disqualification, to file a petition for
administration with the will annexed.
a. The court will thus have two petitions pending before it nut in the event the nomination
of the executor is approved by the court with the issuance of letters testamentary to
him, the petition for administration with the will annexed must necessarily be denied.

30. Testate proceedings take precedence over intestate proceedings. Hence if intestate
proceedings had been filed and a will is discovered, probate proceedings may be instituted in a
separate proceeding or by appropriate motion in the same court. Should the probate be denied,
the proceeding shall continue as an intestacy.

31. In order to be a party, a person must have material and direct and not one that is only indirect
or contingent interest. Hence, where the right of a claimant is dependent on the disallowance of
the second will and the incapability to inherit of the legatees instituted by the testator in the first
will, such contingent interest does not make the claimant an interested party.

32. Where an heir has validly assigned all his rights to the estate before the institution of settlement
proceedings thereover, he no longer has the requisite interest to participate therein.
a. Where the assignment is made during the pendency of the settlement proceedings, it
requires the approval of the court for its validity.
b. However, it has been held that in this situation, even if that assignment has been
approved by the court, such approval is not deemed final until the proceeding over the
estate is closed, as such approval can still be vacated, hence the assignor remains as
an interested party in the proceeding.

79.3, 79.4, 79.5, 79.6

33. Sec. 6 (b), Rule 78, provides that the preference given to the surviving spouse or next of kin
may be disregarded by the court where said persons neglect to apply for letters of
administration for 30 days after decedent’s death. Sec. 6 of this Rule reiterates such provision.

RULE 80: SPECIAL ADMINISTRATOR

80.1

34. This section authorizes the appointment of a special administrator. The other instance when
special administrator may be appointed is when the regular administrator or executor has a
claim against the estate, in which case a special administrator shall be appointed by the court
with respect to such claim.

17
 35. Clerks of court and court employees should not be appointed special administrators as their
objectivity and impartiality may be compromised by extraneous considerations.

36. The order of preference in the appointment of regular administrators does not apply to the
appointment of a special administrator, but such order of preference may be followed by the
judge in the exercise of sound discretion.

37. The grounds for the removal of the regular administrator do not apply strictly to the special
administrator as he may be removed by the court on other grounds in its discretion.

38. The order appointing a special administrator is an interlocutory order and is not appealable.

80.2, 80.3

39. The special administrator also has the duty to submit an inventory and to render and
accounting of his administration as required by the terms of his bond.

40. While a special administrator may commence and maintain suits under Sec. 2 he cannot be
sued by a creditor for the payment of a debt of the deceased. Such suit must await the
appointment of a regular administrator.
a. However, it was subsequently held that a special administrator may be made a
defendant in a suit against the estate where the creditor would suffer the adverse
effects of the running of the statute of limitations against them if the appointment is
delayed.
b. A mortgagee may bring an action for the foreclosure of a mortgage of a property of the
estate against a special administrator, otherwise the very purpose for which the
mortgage was constituted will be defeated.

RULE 81: BONDS OF EXECUTORS AND ADMINISTRATORS

81.1, 81.2

41. The bond posted by administrators and executors is intended as an indemnity to the creditors,
the heirs and the estate. The court shall fix the amount thereof and hold it accountable for
breach of duty on the part of the administrator or executor. The enforcement of such liability
may be sought by motion in the administration proceedings or in a separate civil action.

42. Under Sec. 2 even if the testator has directed in his will that his executor serve without bond,
the court may still require him to file a bond conditioned only to pay the debts of the testator;
and thereafter, based on the circumstances, the court may require further bond from said
executor to answer for breaches in his administration.

81.3, 81.4

18
 RULE 82: REVOCATION OF ADMINISTRATION, DEATH,
RESIGNATION AND REMOVAL OF EXECUTORS OR
ADMINISTRATORS

82.1

43. It is only when the newly-discovered will has been admitted to probate that the letters of
administration may be revoked by the probate court.

82.2, 82.3, 82.4

44. The mere fact that it was subsequently discovered that the duly appointed administrator was
indebted to the decedent is not a ground for his removal, absent any other circumstance
indicative of bad faith or lack of integrity on his part.
45. The fact that the administratix was later held to be without the right to intervene in the
settlement of the estate as an heir is not a ground for her removal as such adminsitratix since
even a stranger can be appointed as such.

RULE 83: INVENTORY AND APPRAISAL PROVISION FOR SUPPORT OF FAMILY

83.1

46. The 3 month period provided herein is not mandatory and the court retains jurisdiction even if
the inventory is filed after said period, but such delay, if not satisfactorily explained, may be a
ground for the removal of the administrator under Sec. 2, Rule 82.

83.2, 83.3

47. Property claimed by third persons may be included in the inventory as part of the assets of the
estate and the probate court may order such inclusion, but such order of the probate court is
only a prima facie determination and does not preclude the claimants from maintaining an
ordinary civil action for the determination of title.

48. Sec. 3 allows support to be given to the surviving spouse and the “minor or incapacitated
children” of the decedent during the settlement of the estate.
a. The allowances for support are subject to collation and deductible from the share in the
inheritance of said heirs insofar as they exceed the fruits or rents pertaining to them.

RULE 84: GENERAL POWERS AND DUTIES OF EXECUTORS AND

ADMINISTRATORS 84.1, 84.2, 84.3

49. An administrator or executor has all the powers necessary for the administration of the estate
and which powers he can exercise without leave of court. The constitution of a lease over
property of the estate is an act of administration and leave of court is not required.

19
 o Any interested party who desires to impugn the same must do so in an ordinary civil
action as the probate court has no jurisdiction over the lessee.

50. If the lease contract exceeds one year, the same is no longer considered a mere act of
administration, and leave of court should ordinarily be required.
a. A view is held, however, that the aforesaid provisions on agency should not apply to
leases entered into by an executor or administrator, under the theory that they
represent not only the estate but also the parties interested therein, that they are
required to file a bond and that their acts are subject to specific provisions of law and
orders of the probate court, which circumstances are not true with respect to agents.

51. Regarding sale, mortgage or other encumbrance on property of the estate, the same are
regulated by Rule 89.

RULE 85: ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND

ADMINISTRATORS 85.1, 85.2, 85.3, 85.4, 85.5, 85.6

52. These sections provide for the accountability of administrators or executors with respect to their
omissions or for acts performed by them in the administration of the estate.

85.7

53. The administrator or executor is entitled to charge in his accounts all expenses of
administration incurred by him.

54. Not proper expenses of administration, therefore not chargeable against the estate:
a. Services rendered by administrator in favor of an heir which services were not beneficial
to the estate
b. Premiums for his bond
c. Expenses for the repair of property of the estate being occupied and used by him
d. Expenses for the keeping of ordinary records and receipts involved in his administration
work.
e. Losses incurred in the conduct of business with the use of the funds of the estate.

55. Where an attorney renders services to the administrator or executor personally to aid in the
execution of his trust, the administrator or executor is liable for the fees, but he can move for
reimbursement and charge such fees as expenses of administration where the same is
reasonable and proved beneficial to the estate.

56. Where however attorney’s services were rendered in a litigation involving such administrator or
executor in his capacity as trustee of the estate and for the protection of the interest of such
estate, the attorney’s fee is chargeable to the estate.

57. To recover attorney’s fees, the attorney may either bring an independent action personally
against the executor or administrator, or file a petition in the administration proceedings for the

20
 probate court to allow the same and to direct the payment of his fee as an expense of
administration.

58. The compensation of the executor shall primarily be that fixed in the will and if there is no such
provision or he renounces the same, then it will be as provided in Sec. 7.

85.8, 85.9, 85.10, 85.11

59. Even if the final accounts of the executrix had already been approved but said executrix
subsequently received funds of the estate, she must account for the same; and this duty cannot
be waived by the act of the heirs in receiving dividends from said funds without requiring said
accounting.

RULE 86: CLAIMS AGAINST ESTATE

86.1, 86.2

60. The period fixed by Sec. 2 for filing of claims is sometimes referred to as the “statute of non-
claims” and supersedes the ordinary statute of limitations.
a. The period for filing of such claim starts to run from the date of the first publication of
notice referred to in Sec.1 and runs even against the State.

61. Sec.2 means that the filing of claims contemplated therein should be during a period of 6
months starting from the 6th month after the date of the first publication of the notice own to the
12th month. Within the range of said period, the probate court is permitted to set the period for
filing of claims and the period once fixed by the court is mandatory.

62. The court for good cause shown may grant a 1 month period for a creditor to file a claim which
he failed to file during the original period granted for filing of claims. Such motion for leave to
file a claim beyond original period may be file at any time during the administration proceedings
provided no order of distribution has yet been entered.
a. Sec.2 should not be interpreted to mean that 1 month period commences to run from
the expiration of the original period for filing claims.
b. What it means is that said claims must be filed within a time not exceeding 1 month
from the order of the court allowing the filing of such particular claim.

86.3, 86.4

63. A notice to creditors to file their claims is not proper if only a special administrator has been
appointed, he is generally not empowered to pay debts of the deceased and his bond unlike
that of a regular administrator is not conditioned upon the payment of such debts.

64. The publication of the notice to the creditors is constructive notice to all, hence a creditor
cannot be permitted to file his claim beyond the period fixed in said notice on the bare ground
that he had no knowledge of the administration proceedings, since the proceeding for filing
claims is in rem.

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 65. As the period for the filing of claims starts to run from the first publication of the notice to
creditors, unless such publication is effected by the administrator or the executor, the result
would be to correspondingly extend the time for the presentation of claims.

66. Where a claimant with a claim under a judgment for money against the deceased files a
petition for the issuance of letters of administration over the estate of the decedent within the
10 year period from the finality of its judgment, and after said 10 year period filed a claim
against the estate of the deceased under administration, said claim retroacts to the date of the
filing of the petition for letters of administration and therefore has not prescribed.

86.5, 86.6

67. The claims referred to in Sec. 5 must be for money which are not secured by a lien against
property of the estate.
a. If the claim is for recovery of real or personal property from the estate or the
enforcement of any lien thereon, an action should be instituted for that purpose against
the executor or administrator.
b. These claims must have arisen from liabilities contracted by the decedent before his
death and money claims arising after his death cannot be presented, except funeral
expenses and expenses of his last illness.

68. First type of money claims required to be filed under this section is one arising from contract,
express or implied, which was entered into by the decedent in his lifetime. Consequently, a
money claim against the estate arising from a crime or a quasi-delict committed by the
decedent is not included in the concept of claims which have to be filed under this Rule, but
should be the subject of an action against the executor or administrator or against the heirs.
a. Also claims by the Government for unpaid taxes, filed within the period of limitations
prescribed in the NIRC are not covered by the statute of non-claims as these are
monetary obligations created by law.
b. Claims for taxes due and assessed after the death of the decedent need not even be
presented in the form of a claim; the probate court may just direct the executor or
administrator to pay the same.
c. In fact, even after the distribution of the estate, claims for taxes may be enforced
against the distributees in proportion to their shares in the inheritance.
d. However, a claim based upon a quasi-contract shall be deemed included in the concept
of claims under Sec. 5 which speaks of “implied” contracts.

69. A contingent claim is one which depends for its demandability upon the happening of a future
uncertain event (includes claims subject of suspensive condition).
a. Claims which are not yet due, or are contingent, may be approved at their present
value but as no payment thereof can yet be authorized by the court until their
demandability arises, a portion of the estate may be reserved for payment of the claims.

70. Claims not filed within the period for filing claims are barred, but if the claimant is sued by the
administrator or executor either within the period or thereafter, such claim may be availed of by

22
 the defendant as a counterclaim and if he proves the same, he may recover thereon against
the estate.

71. A money claim upon a liability contracted by the deceased must be duly filed even if the
deceased in his will acknowledged and ordered payment of such debt.

72. Where the defendant dies before final judgment in the FCI and the action is for recovery of
money, debt or interest thereon the case shall not be dismissed but shall continue until entry of
judgment.

73. If at the time of death of a decedent, an action is pending against him but for the primary
purpose of recovery of money, debt or interest, his heirs or other legal representatives will
merely be substituted for the decedent in said action without the appointment of an executor or
administrator (3.16).

74. If final judgment had already been rendered against the decedent prior to his death, but without
levy on execution having been effected against his property such judgment for a sum of money
must also be filed as a claim against the estate in the manner provided by this Rule.
a. If levy had already been made before his death, execution shall proceed (39.7c).
b. However if the final judgment rendered against the decedent in his lifetime is for the
recovery of personal property other than money or the enforcement of a lien thereon
then the claimant has merely to obtain a writ of execution for enforcement against the
executor, administrator or successor-in-interest of the deceased (39.7b)

75. Where the defendant dies while the action for a sum of money against him is pending in the CA
he shall be substituted therein by his legal representative but the final judgment of the
appellate court cannot be enforced by a writ of execution but should be filed in the probate
court as a money claim in accordance with 86.5.

76. An action or a sum of money based on culpa contractual for the death of a passenger cannot
be maintained against the heirs of the bus operator who had died thereafter. Plaintiff heirs
should have filed their claims against, and in the settlement of, the estate of the deceased
operator since such claims were based on a contract of carriage. Even if the action was filed
after the settlement of the estate of the deceased operator, neither can the suit be maintained
against his heirs as the distributees of his estate, since that may be done only if a contingent
claim had been filed in the estate settlement in accordance with 88.5.

86.7

77. The first option granted to the mortgage creditor is to abandon his security and prosecute his
claim.
a. By filing his claim against the estate as a money claim, he is deemed to have
abandoned the mortgage and he can not thereafter file a foreclosure suit in the event
he fails to recover his money claim against the estate.

78. The second alternative is for the mortgage creditor to institute a foreclosure suit and recover
upon the security.

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 a. The foreclosure suit should be against the executor or administrator as party defendant.
b. If the creditor fails to obtain full recovery, he may obtain a deficiency judgment and file it
as a claim against the estate, provided he does so within the period for filing claims
against the estate, otherwise it will be barred.
c. The safer recourse is for the mortgage creditor to file a claim, for any probable
deficiency within the period for filing claims. It has been held that a deficiency judgment
is a contingent claim.

79. The third recourse of the mortgage creditor is to rely solely upon his mortgage and foreclose
the same at any time within the statute of limitations.
a. If at the time he files the foreclosure suit the administration proceedings are still
pending, the executor or administrator shall be made the party defendant.
b. However, if at the time of the foreclosure suit there has been an order of distribution,
then the party defendants should be the heirs to whom the mortgaged property has
been awarded.
c. This includes extrajudicial foreclosure and with the same consequences as a judicial
foreclosure, the mortgage creditor waives any further deficiency claim.

80. Where the mortgagor died during the pendency of a judicial foreclosure suit against him, the
decision therein shall be enforced by the trial court by writ of execution in the foreclosure
proceeding.
a. Such enforcement cannot be delegated to the probate court handling the settlement of
the estate of the decedent, since the probate court as a court of limited jurisdiction has
no authority to enforce a mortgage lien.

81. It has been held that the mortgagee can also resort to preliminary attachment of sufficient
property of the mortgagor where the mortgaged property is insufficient to satisfy the mortgage
account and the properties of the mortgagor are being disposed of in fraud of creditors.

86.8

82. Pertains to the second instance wherein a special administrator may be appointed by the court.
The special administrator shall have authority to act only with respect to the claim of the regular
administrator or the executor.

86.9, 86.10, 86.11, 86.12, 86.13

83. A judgment of the probate court approving or disapproving a claim shall be appealable as in
ordinary cases – with a record on appeal and with a 30-day reglementary period.

86.14

84. If there is no instrument evidencing the debt of the decedent and no writing is offered as proof
thereof, the claim cannot be proved. This appears to be sustained by the Dead Man Statute
(disqualifies parties surviving parties under the circumstances from testifying to any matter of
fact occurring before the death of the decedent).

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 a. It is assumed however that said provision does not apply to money claims for funeral
expenses or for the last sickness of the deceased as these are claims arising after
death.

85. A probate court has no jurisdiction to entertain a claim in favour of the estate against a third
person as the same should be the subject of an ordinary action generally to be prosecuted by
the executor or administrator under 87.2.
a. Exception is 86.10 which authorized executor or administrator to interpose any
counterclaim in offset of a claim against the estate. Such counterclaim regardless of its
basis is treated like a compulsory counterclaim since its failure to file it shall bar the
claim forever.

RULE 87: ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

87.1

86. An administrator or executor may be sued in either his personal or representative capacity.
a. Actions authorized under this rule are brought against him in his representative
capacity.
b. The general rule is that if the action would result in a direct charge upon the estate the
executor or administrator is to be sued in representative capacity.
c. For violation of or noncompliance with duties of the trust such executor or administrator
shall be sued in his personal capacity.

87. Does not bar a suit against the administratrix for the revival of a judgment for a sum of money
adjudged in that judgment but merely to keep alive said judgment so that the sums awarded in
the action for revival may be presented as claims against the estate.

88. A legatee may bring an action against the executor against the executor or administrator to
compel the payment of the legacy. But qualified by 88.15 wherein probate court may allow him
sufficient period of time within which to pay such legacy.

87.2

89. While the heirs have no standing in court to sue for the recovery of property of the estate
represented by an executor or administrator it has been held that the heirs may maintain such
action if the executor or adminsintrator is unwilling to bring suit, when he is alleged to have
participated in the act complained of.
a. 3.10 – he would be in a position of an unwilling co-plaintiff.

90. Even if administration has been commenced heirs may still bring suit in behalf of the estate if
administrator hasn’t been appointed (rights to succession transmitted upon death).

91. In an action by the administrator to recover properties of the estate the judgment of the court
ordering the possessors to surrender the property and to account for the fruits thereof, is a final
and appealable judgment.

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87.3, 87.4, 87.5,

92. The prohibition in sec 3 applies only to heirs and devisees and not to be a done inter vivos who
may sue the administrator for the delivery of the property donated or a reserve who can sue to
recover the property which the deceased was bound to reserve.

93. Where in his lifetime a final judgment had been rendered in favour of the deceased said
judgment shall be enforced by execution on motion of the executor or administrator.

87.6, 87.7, 87.8

94. These proceedings are merely in the nature of fact-finding inquiries. If in the proceedings
authorized under this section the persons alleged to have converted the property of the estate
assert title thereto, the probate court cannot determine the issue of title. The executor or
administrator must file an ordinary action in court for the recovery of the properties or damages
thereto.

87.9, 87.10

95. These sections contemplate fraudulent transfers or fictitious contracts of the decedent in fraud
of creditors. The executor or administrator may, on his own initiative or on motion of the
creditors and as directed by the court institute an action for the recovery of said property, but
since said action is for the benefit of the creditors the court may direct the creditors to defray
part of the costs and expenses of the suit.
a. If the executor or administrator still fails to bring such action, any of the creditors may
bring suit in his own name, with leave of court, upon the filing of an indemnity bond for
such costs and expenses as may arise from suit.
b. Where, the action is against the executor or administrator himself, the suit shall be in
the names of all the creditors and leave of court and the indemnity bond shall not be
required.

RULE 88: PAYMENT OF THE DEBTS OF THE

ESTATE 88.1, 88.11, 88.12, 88.13, 88.14, 88.15

96. Provisions of section 15 for the payment of debts and legacies is directory and extensions of
the period may be granted by the court taking into account the circumstances attending the
distribution of the estate.

88.2, 88.3, 88.6

97. The payment of the debts of the estate as a general rule, must be taken (a) from the portion or
property designated in the will (b) from the personal property and (c) from the real property in
that order. The court on petition of the interested parties may modify such order of disposition.

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 98. A legacy is not a debt of the estate, hence the probate court cannot issue a writ of execution for
the payment or satisfaction thereof.

99. On the other hand section 6 authorizes execution against the contributive shares of the
devisees, legatees and heirs in possession of the decedent’s assets to satisfy the debts of the
estate.

88.4, 88.5

100. These two sections provide for the payment of contingent claims. If the contingent claim
becomes absolute and is presented to the courts as an absolute claim within two years from
the time allowed for the presentation of claims, it will be paid in the same manner as the other
absolute claims. After said period, the creditor may proceed against the distributees, provided
said contingent claims had been seasonably filed in and allowed by the probate court. The
property reserved for the payment of such contingent claims may therefore be retained by the
administrator or executor only within said two-year period a thereafter the same shall be
included among assets for distribution to the heirs.

88.7, 88.8

101. Under these provisions, the preference of credits has been specifically incorporated in the
rule, to be followed in the payment of debts where the estate is not sufficient therefor.

88.9, 88.10, 88.16

RULE 89: SALES, MORTGAGES, AND OTHER

ENCUMBRANCES OF PROPERTY OF
DECEDENT

89.1, 89.2, 89.4, 89.5, 89.6

102. The court may allow only the sale of personal property for the purposes in section 1 and not
encumbrance thereof.

103. With respect to real property the court may permit the same to be sold, mortgaged or
otherwise encumbered under sections 2, 4, 5, 6.
a. Under both sections 4 and 6, if it will not be for the convenience of or beneficial to the
heirs and not for payment of debts, administration expenses and legacies, real property
can only be allowed to be sold and not encumbered.

104. As a rule, unless the testator had made provisions to the contrary in his will, the personal
property of the estate must first be sold for the payment of debts, expenses of administration or
legacies. If the same is still insufficient, the real property may be proceeded against.
Nevertheless, personalty may always be sold at any time if it is necessary for the preservation
of its value.

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 105. The sale or encumbrance of real property may be allowed by the court if the petition
therefore avers: (a) that the personal estate is not sufficient to pay the debts, expenses of
administration and legacies or that the sale of such personalty may injure the business or the
interests of persons interested in the estate; (b) that the testator has not otherwise made
sufficient provisions for the payment of such debts, expenses of administration and legacies;
and (3) that such sale or encumbrance would be beneficial to the parties interested in the
estate.
a. The averment as to the value of the personal estate is a requisite in the petition for sale
of real property, without such averment court has no jurisdiction to authorize sale of
realty. Sale of such is null and void.

106. Personal property may be sold, or the real property may be sold, mortgaged or otherwise
encumbered for the following reasons
a. Payment of debts, expenses of administration and legacies in the Philippines;
b. When such sale would be beneficial to the persons interested in the estate
c. Payment of debts, expenses of administration and legacies involved in the settlement
of the estate of a decedent in a foreign country.

107. If the administrator or executor sells property of estate without the requisite authority of the
court, such sale is null and void. The same rule would apply to encumbrances of real property
without authority of the court.

108. Also such application for authority to sell or encumber property of the estate must be with
notice to the heirs, devisees and legatees. Otherwise, the sale is void. Such notice is presumed
to have been given absent proof to the contrary and order of the court granting such authority
cannot be assailed in a collateral proceeding.

109. Prohibitions
a. Executors and administrators cannot purchase the property of the estate under
administration.
b. Also justices, judges, prosecuting attorneys, clerks of court and other officers and
employees connected with the administration of justice cannot purchase the property
and rights in litigation or levied upon an execution before the court within whose
jurisdiction or territory they exercise their respective functions.
c. Same prohibition applies to lawyers with respect to the property and rights which may
be the object of any litigation in which they may take part by virtue of their profession.
Any sale covered by this prohibition will be null and void.

89.3

110. If the opposition to the sale is based on the fact that the oppositor claims title to the property
sought to be sold, the court can hold in abeyance the authority to sell such property until the
issue of title has been settled in an ordinary civil action, as the probate court generally has no
power to adjudicate the question of ownership in the administration proceedings.

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89.7

111. After the sale or encumbrance of the property is effected in accordance with this section, the
document of sale must be submitted for the approval of the court. The court may also require
the administrator or executor to deposit the proceeds of the sale in a banking institution.

89.8, 89.9

112. The authority granted to the probate court by section 8 presupposes that there is no
controversy as to the contract contemplated therein and that the assets of the estate will not be
reduced to the extent of depriving the creditor of full payment of his claim or his just dividend. If
such objections obtain, the remedy of the person seeking the execution of the contract is an
ordinary and separate action to compel the same.

113. Under section 9 the court can authorize such conveyance only if there is no controversy and
even if creditors may be affected since unlike the situation in section 8, the properties
contemplated do not form part of the estate of the deceased who merely held the same in trust.

114. Notice of such application must be given to all interested parties, otherwise both the order of
the court and the conveyance made pursuant thereto are completely void.

RULE 90: DISTRIBUTION AND PARTITION OF THE ESTATE

90.1

115. Partial distribution of the decedent’s estate pending the final termination of the estate or
intestate proceeding should as much as possible be discouraged by the courts and except in
extreme cases such form of advances of inheritance should not be countenanced.

116. Before the court can issue an order of distribution, the debts, funeral charges, expenses of
administration, allowance to the widow and inheritance tax must first have been paid.

117. While it speaks only of allowance to the widow, it should also include the allowance to the
children of the deceased as the payment of such allowances during the pendency of the
administration proceedings. Legacies must have been paid (88.15), an advance or partial
distribution may be allowed provided the forgoing obligations are secured by a bond.

118. Under this section the probate court is specifically granted jurisdiction to determine who are
the lawful heirs of the deceased as well as their shares. Hence there is no further need to
institute an independent civil action to pass upon the status of a person who claims to be an
heir.
a. The order of distribution must also be at the same time a declaration of heirs since a
separate action for the declaration of heirs is not proper.
b. If the proceedings have been closed the same may be reopened to pass upon the
status of one claiming to be an heir.

29
 119. The heirs may also by agreement submit a project of partition to serve as a basis of the order
of distribution. The heirs who do not agree may submit a counter project of partition.

120. In approving a project for partition it is not necessary for the court to state the specific
property adjudicated to an heir but may award the same to the heirs in pro indiviso shares.

121. If they cannot agree on their respective specific participations they can thereafter resort to an
action for partition.

122. The judicial decree of distribution vests title in the distributees and any objection thereto
should be duly raised in a seasonable appeal, otherwise it will have binding effect like any other
judgment in rem.

123. After the institution of the testate or intestate proceedings, the assignment pendent lite by
one heir of his hereditary share requires the approval of the probate court.

124. The sale by a widow of land belonging to the conjugal partnership is valid with respect to her
one-half share therein even if the sale was made before partition, except where there are
numerous assets of the partnership as in that case the particular and corporeal share of the
widow cannot be determined until after the liquidation and partition thereof.

90.2, 90.3, 90.4

125. The probate court loses jurisdiction of an estate under administration only after payment of
all debts and the delivery of the remaining estate to the heirs.
a. The finality of the approval of the project of partition does not terminate the probate
proceeding.

126. As long as the order of distribution has not been complied with, the probate proceedings
cannot be deemed terminated because a judicial partition is not final and conclusive and does
not prevent the heir from bringing an action to obtain his share within the prescriptive period.

127. The better practice for the heir who has not received his share is to demand the same
through a proper motion in the same probate or administration proceedings or for reopening of
said proceedings if already closed but still within the reglementary period for appeal and not
through an independent action.

128. Where the order closing the intestate proceeding was already final and executory the same
cannot be reopened on a motion therefor filed after the lapse of the reglementary period.

RULE 91: ESCHEATS

91.1

129. Petitions for escheats may only be filed in the name of the republic of the Philippines by the
solicitor general or his representative such as the provincial or city prosecutor.

30
 130. Even if the decedent died testate but his will was not allowed to probate, it is as if he died
intestate and if he has not known heirs and there are no persons entitled to his property, the
same can still be escheated.

91.2, 91.3, 91.4

131. Art. 1014 provides that the 5-year period is to reckoned from the date the property was
delivered to the state and further directs that if the property had been sold the municipality or
city shall be accountable only for such part of the proceeds as may not have been lawfully
spent.

91.5

132. Actions for reversion are proper in illegal sales of land to disqualified aliens. Unlike petition
for escheat the action for reversion shall be filed in the province where the land lies in whole or
in part.

133. The 1987 constitution requires that the Congress shall provide efficacious procedures and
adequate remedies for the reversion to the State of all lands of the public domain and real
rights connected therewith which were acquired in violation of the Constitution or the public
land laws, or through corrupt practices.

Guardianship
RULE 92:
VENUE

92.1

134. There are three kinds of guardians under the law.

a. The legal guardian is such by provision of law, without need of appointment, as in the
case of the parents over the persons of their minor children or father or in his absence
the mother with respect to property of minor children not exceeding P 50,000.00 in
value.
b. The guardian ad litem who may be any competent person appointed by the court for
purposes of a particular action or proceeding involving the minor.
c. The judicial guardian who is a competent person appointed by the court over the
person and/or property of the ward to represent the latter in all his civil acts and
transactions, and is one contemplated in the aforementioned rules.

135. Judicial guardianship may be with respect only to the person of the ward, or his property or
of both. Where the ward has no property, guardianship may be only with respect to his person;
in case of a non-resident ward, guardianship may be with respect only to his property.

136. While there is no prohibition against appointment of different judicial guardians, one for
person and one for property, the practice is to appoint judicial guardians for both unless
otherwise called for by the circumstances.

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 137. Under BP 129 inferior courts no longer have concurrent jurisdiction to appoint guardians over
persons or properties of incompetents.
a. However, where the minor or incompetent is a party to an action in a n inferior court, he
may be assisted by or may sue or be sued therein through his legal guardian or the
inferior court may appoint a guardian for him.

138. Where in a guardianship case an issue arises as to who has a better right or title to the
properties in the course of the proceedings, the controversy should be threshed out in a
separate ordinary action as the dispute is beyond the jurisdiction of the guardianship court.
a. However, where the right or title of the ward to the property is clear and indisputable,
the guardianship court may issue an order directing its delivery or return.

92.2, 92.3

RULE 93: APPOINTMENT OF GUARDIANS

93.1, 93.2, 93.6

139. The courts should not appoint as a guardian any person who is not personally subject to their
jurisdiction, such as nonresidents of the Philippines.

140. In case of a minor, the petition may be filed by the DSWD and in case of an insane minor
who needs to be hospitalized, by the Secretary of Health.

141. Notice of the petition for the appointment of a general guardian must now be given to all
relatives of the ward, instead of only to the next of kin required in the old rules. The giving of
notice to relatives is a jurisdictional requirement.

93.3

142. Service of notice upon a minor who is more than 14 years if age or an incompetent is
jurisdictional.

93.4, 93.5

143. In the appointment of a guardian the courts should take into consideration the competency,
character and financial condition of the prospective guardian. No person should be appointed
guardian if his interests conflict with those of the ward or if he is a non-resident of the
Philippines.

144. The court has no jurisdiction to appoint a guardian over the person of a non-resident minor
but there can be guardianship over the property of such non-resident minor.

145. The appointment of a guardian is good until set aside and despite an appeal therefrom, the
guardian can do whatever is necessary under the direction of the court, for the protection of the
ward or his property.

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93.7

146. Amended by FC Art. 225.

93.8

RULE 94: BOND OF GUARDIANS

94.1, 94.2, 94.3

RULE 95: SELLING AND ENCUMBERING PROPERTY

OF WARD 95.1, 95.2, 95.3, 95.4, 95.5

147. For the sale or encumbrance of property of the ward, a verified petition therefor is required,
but no such verification is required for that purpose with respect to the estate of a decedent and
a mere motion therein will suffice.

148. The notice to next of kin required by section 2 is jurisdictional. The next of kin referred does
not mean next of kindred but relatives whose relationships are such as to entitle them to shares
in the estate as distributees.

149. An order empowering the guardian to sell property of his ward shall not be effective for more
than one year after it has been granted. In the case of mortgages and other encumbrances, the
one-year period does not apply.

150. A guardian may lease property of the ward, but if the lease is to be recorded there must be
proper authority by the court.
a. It is believed that the same is required if the term of the lease is more than one year as
such is an act of dominion.

151. Appeal, not certiorari or mandamus is the proper remedy against an order of the court a quo
authorizing the sale of ward’s property.

RULE 96: GENERAL POWERS AND DUTIES OF

GUARDIANS 96.1, 96.2, 96.3, 96.4, 96.5, 96.6, 96.7

152. The executor or administrator must render within one year and at any other time when
required by the court. In case of a guardian he has to render an inventory and account
annually.

153. A guardian just like a trustee is prohibited from making a donation of the properties entrusted
to him (Art. 736).

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 154. Since only the estate of the ward should be included in the inventory in the case of a married
woman under guardianship by reason of insanity her half of the property in a subsisting
conjugal partnership should not be included in the inventory since the determination thereof
requires the prior liquidation of the conjugal partnership.

96.8

RULE 97: TERMINATION OF GUARDIANSHIP

97.1, 97.2

155. The court which appointed the guardian is also the court competent to decide the petition for
restoration to capacity which is merely a continuation of the original guardianship proceeding.

156. The petition for the removal of the guardian must be filed in the same guardianship
proceeding. It must be based only on the grounds in section2 which must be satisfactorily
proved.

157. The notice to the guardian and the ward required in section 1 is only procedural, not
jurisdictional, the lack of which only affects the validity of the proceeding only when prejudice is
caused thereby.

97.3

158. Marriage or voluntary emancipation terminates guardianship only over the person but not the
property of the ward.

97.4, 97.5

AM 03-02-05-SC

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 RULE 98: TRUSTEES

98.1

159. This rule applies only to express trusts as these are understood in 1443-1446 of civil code,
does not apply to implied trusts which arise by operation of law.

160. Express trusts necessarily involve three parties – the trustor, the trustee, and the beneficiary
also known as cestui que trust.

161. A petition for the appointment of a trustee may also be filed in the administration proceedings
over a testate estate where the appointment of such trustee is necessary to carry into effect the
provisions of a will, as where testator has provided therein that certain portions of his property
be placed in trust.

162. Section 1 determines the venue of the petition for the appointment of a trustee.

98.2, 98.3, 98.4, 98.5, 98.6, 98.7, 98.8, 98.9

163. An executor will not be exempted from posting a bond even if such exemption is provided in
the will, but a trustee appointed in the will may be exempted from such bond when so directed
in the will.

164. Accounts of trustees must be under oath and shall be filed annually.
a. The latter requirement also applies to guardians although the same need not be under
oath.
b. While those of administrators or executors are not required to be under oath and except
for the initial and final submission of their accounts, they shall be filed only at such
times as may be required by the court.
c. It is the duty of a trustee to deliver the trust property to the cestui qui trust free from
liens and encumbrances.

RULE 99: ADOPTION AND CUSTODY OF MINORS

165. In case of separation of parents, parental authority shall be exercised by the parent
designated by the court. The court shall take into account all relevant considerations especially
the choice of the child over 7 years of age unless the parent chose is unfit.

166. No child under 7 shall be separated from the mother unless the court finds compelling
reasons to order otherwise.

A.M. No. 02-06-02-SC

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 RULE 100: RESCISSION AND REVOCATION OF ADOPTION

RULE 101: PROCEEDINGS FOR HOSPITALIZATION OF INSANE

PERSONS

101.1

167. The petition may be filed by the person in custody or having charge of insane person.
a. If he refuses to do so and where it is required for the welfare of the insane person or of
the public, the petition shall be field by the Director of Health or the present authorized
officer.

101.2, 101.3, 101.4, 101.5

168. Where insane person was judicially committed to the hospital or asylum, the Director of
Health cannot order his release without the approval of the CFI which ordered the confinement.
a. Also said court cannot order his release without recommendation of the Director of
Health.

169. An imbecile or insane person who has committed a felony can also be directly ordered
committed by the trial court and he cannot be released without the permission of said court
(Art. 12, RPC).

RULE 102: HABEAS CORPUS

102.1

170. The writ of habeas corpus is a writ directed to the person detaining another and commanding
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 receive whatsoever the court or judge
awarding the writ shall consider in that behalf.

171. Habeas corpus under this rule is the remedy in cases of illegal confinement or detention or
where the rightful custody of a person is withheld from one entitled to such custody.
a. Actual and effective, and not merely nominal or moral restraint is required.
b. However, actual physical restrain is not always required; any restraint which will
prejudice freedom of action is sufficient.

172. Writ may also be availed of where as a consequence of a judicial proceeding

a. There has been a deprivation of a constitutional right resulting in the restraint of a
person
b. The court had no jurisdiction to impose the sentence or
c. An excessive penalty has been imposed, such sentence being void as to the excess.

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 173. It is necessary that the judgment of the court which resulted in illegal deprivation of liberty is
no longer appealable, in which case the writ is in the nature of a collateral attack against a final
but void judgment.
a. If it is still appealable, remedy of the person detained is to duly appeal therefrom as
habeas corpus is not a substitute for appeal.

174. Generally writ shall not issue if restrain is voluntary, but it will
a. To enable parents to recover custody of minor daughter although she is in custody of a
third person on her own volition
b. Or to enable to regain custody of a minor younger sister living voluntarily in adulterous
relations with another.
c. However, where daughter is of legal age, living with a married man who is not
restraining her of her liberty, the writ is not available.

102.2, 102.3

175. Writ is enforceable throughout the judicial region, may now be filed in RTC in the region
where it is sought to be enforced.

176. Petition is required to be verified but the defect in form will not be fatal.

177. It is the duty of a court to issue the writ if there is evidence that a person is unjustly
restrained of liberty within its jurisdiction even if there is no application therefor.

102.4, 102.5, 102.6

178. Preliminary citation - Where the person is detained under governmental authority and
illegality of his detention is not patent from the petition for the writ, court may issue a citation to
the government officer having custody to show cause why the writ of habeas corpus should not
issue.

179. Peremptory writ – issued when the cause of detention appears to be patently illegal and the
non-compliance therewith is punishable.

102.7, 102.8, 102.9, 102.10, 102.11, 102.12, 102.13

180. If detention is by reason of public authority, the return is considered prima facie evidence of
the validity of the restraint and the petitioner has burden of proof to show that restraint is illegal.

181. If detention is by reason of private authority, return is considered only a plea of facts
asserted therein and the person responsible for the detention has the burden of proof to
establish that the detention is legal and justified.

102.14

182. Where prisoner has been detained and held without bail although the offense is bailable he
may in a habeas corpus proceeding be allowed to post bail.

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 183. If the offense is not bailable, he cannot obtain his provisional liberty on bail by habeas corpus.

102.15, 102.16, 102.17, 102.18, 102.19

184. Habeas corpus is not the proper mode to question conditions of confinement.

185. Writ of Amparo addressed other fundamental human rights in the constitution not covered by
habeas corpus (Spanish for protection)

186. Writ of Habeas Data can be invoked by persons to find out the information collated about
him, particularly by law enforcement agencies, and to compel them to disclose the use and
purpose of such information.
a. Reliefs may seek the updating, rectification, suppression or destruction of the database
or information and in case of threats a plea for an order enjoining the act complained of.

RULE 103: CHANGE OF NAME

103.1

187. Procedure in rule 103 and 108 are separate and distinct, if both reliefs are sought,
requirements for both must be complied with.

188. An alien can petition for a change of name, but he must be domiciled in the Philippines.

189. The name that can be change is the one that appears in the civil register, not one in
baptismal certificate or that by which person is known in community.

190. First name in civil registry is “Baby” – petition for change is proper remedy.

103.2

191. Petition must be filed by the person desiring to change name, as proper party in the petition,
even if it may be signed and verified by some other person.

192. Petition for correction of name in birth certificate is actually a petition for change of name and
covered by this Rule and not Rule 108.

193. Married woman’s status is not affected by a decree of legal separation as the vinculum is not
severed, hence she must continue to use her married name. Change of name cannot be
justified by legal separation.

194. A change of name should not be permitted if it would give a false impression of family
relationship to another, but not if the proposed change of name would not cause prejudice to
the family whose surname it is.

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103.3

195. A petition for change of name is a proceeding in rem and the publication of the order is a
jurisdictional requisite.
a. To be valid and to confer jurisdiction upon the court, such publication must give the
correct information, and a defect in such publication is fatal.

196. All aliases of the applicant must be set forth in the title of the petition, otherwise though the
petition has been duly published, such defect would be fatal even if said other aliases are
contained in the body.

103.4, 103.5, 103.6

197. A change of name granted by the court affects only the petitioner.
a. A separate petition for change of name must be filed for his wife and children.
b. Inceptively, a joint petition for all the qualified member of said family as co-petitioners
would have been permissible and should have been the appropriate remedy.

198. Art 364-380 of Civil Code regulate the use of surnames.

a. No person can change his name or surname without judicial authority.

199. A decree of adoption grants the adoptee right to use that adopter’s surname but not to
change the former’s first name which relief must be sought in a discrete petition under 103.

RULE 104: VOLUNTARY DISSOLUTION OF CORPORATIONS

RULE 105: JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR

NATURAL CHILDREN RULE 106: CONSTITUTION OF FAMILY HOME

200. Applicable only to such proceedings which took place prior to the effectivity of the Family
Code on August 3, 1988.
a. The family home is deemed constituted on a house and lot from the time it is occupied
as a family residence. No judicial or extrajudicial constitution is required (FC).

RULE 107: ABSENTEES

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

201. The proceedings under 108 may in effect be either summary or adversary in nature.
a. If the correction sought to be made in the civil register is clerical, the procedure to be
adopted is summary.

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 b. If the rectification affects the civil status, citizenship or nationality of a party, it is
deemed substantial and the procedure to be adopted is adversarial.

202. RA 9048 authorizes the City or Municipal Registrar or the Consul General to correct a
clerical or typographical error in an entry and/or change of first name or nickname in the civil
register without need of a judicial order.

203. A person’s first name cannot be changed on the ground of sex reassignment. All entries in
the birth certificate of the petitioner were correct since sex of a person is determined at birth.
a. However an intersexual, may have name changed on basis of the sex he/she wishes to
adopt.

Change of Name Corrections or

Cancellation of
Entries
Venue is the residence of the Venue is the place where civil
petitioner registry
is located
Solicitor general must be notified Civil registrar concerned is made
by service of a copy of the petition a party to the proceeding as a
respondent

RULE 109: APPEALS IN SPECIAL PROCEEDINGS

204. Under ordinary civil actions, some orders in 109.1 may be interlocutory; the nature of special
proceedings declares them as appealable orders, exceptions to 41.2.

205. Reglementary period of 30 days is provided for the perfection of appeals in special
proceedings.

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