Special-Proceedings-Memory-Aid - PDF Version 1 PDF

San Beda College of Law
100
MEMORY AID IN REMEDIAL LAW
SPECIAL PROCEEDINGS
SPECIAL PROCEEDINGS - A remedy by

which a party seeks to establish a status, supplemented by by ordinary rules
a right or a particular fact. (Rule 1, special rules
Section 3) heard by courts of heard by courts of
general jurisdiction limited jurisdiction
JURISDICTION
GENERAL RULE: Regional Trial Court Initiated by a Initiated by means of
EXCEPTION: MTC has jurisdiction in the pleading and parties a petition and parties
respond through an respond by means of
following cases: answer an opposition
1. Probate proceedings whether testate
or intestate where the gross value of
DIFFERENT MODES OF SETTLEMENT OF
the estate does NOT exceed
ESTATE OF DECEASED PERSON
P300,000 or P400,000 in Metro
1. Extrajudicial Settlement of
Manila, EXCLUSIVE of interest,
Estate (Section 1, Rule 74)
damages of whatever kind,
2. Partition (Rule 69)
attorney’s fees, litigation expenses
3. Summary Settlement of
and costs.
Estate of Small Value (Section 3,
2. DELEGATED JURISDICTION
Rule 74)
– in Cadastral and Land
4. Probate of Will (Rule 75 to
Registration Cases covering lots
79)
where there is no controversy or
5. Petition for letters of
opposition or contested lots where
Administration in cases of
the value of which does not exceed P
Intestacy (Rule 79)
100T.
– appeal is taken to the CA, not
PROCEDURE IN SETTLEMENT
to the RTC since MTC is equal to RTC
PROCEEDINGS
in this instance.
3. SPECIAL JURISDICTION
– petitions for writ of Habeas Probate of the Will if
Corpus in case of absence of RTC any (Rule 75 –76)
judges.
 SC and CA have original jurisdiction Issuance of Letters

over Habeas Corpus cases, concurrent Testamentary/Administration
with the RTC. (A special administrator may be
appointed) (Rule 77-80)
ORDINARY SPECIAL
ACTION PROCEEDING
Filing of Claims
to protect or involves the (Rule 86)
enforce a right or establishment of the
prevent or redress a right, status or fact
wrong Payment of Claims
Sale/Mortgage/Encumbrance
involves two or may involve only of Properties of the Estate
more parties one party
governed by governed by special Distribution of Residue, if any

ordinary rules rules supplemented (But this can be made even before
payment if a bond is filed by the heirs)
REMEDIAL LAW COMMITTEE

 CHAIRPERSON: Jinky Ann Uy  ASST. CHAIRPERSONS: Allen Fariñas, Maricris Oronea  EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  SUBJECT HEADS: Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
101
2. When all the parties are heirs and

they submit the issue of ownership
to the probate court provided that
the rights of third parties are not
prejudiced. (Bernardo vs. CA, L-
RULE 73 18148, Feb. 28, 1963)
VENUE AND PROCESS
EXAMPLES OF OTHER QUESTIONS
VENUE WHICH THE PROBATE COURT CAN
 INHABITANT OF DETERMINE
PHILIPPINES (whether citizen or 1. Who are the heirs of the
alien) – Court of province/city decedent;
where he resides at the time of 2. The recognition of a natural
death. child;
 INHABITANT OF FOREIGN 3. The validity of disinheritance
COUNTRY – RTC of any province effected by the testator;
wherein he had his estate. 4. Status of a woman who claims to
be the lawful wife of the
Residence – means his personal, actual decedent;
or physical habitation, his actual 5. The validity of a waiver of
residence or place of abode. (Fule vs. hereditary rights;
CA, L-40502, Nov. 29, 1976) 6. The status of each heir;
7. Whether property in inventory is
Where estate of deceased persons conjugal or exclusive property of
settled. (Sec.1) deceased spouse;
8. All other matters incidental or
2 KINDS OF SETTLEMENT collateral to the settlement and
A. EXTRAJUDICIAL SETTLEMENT - distribution of the estate.
(Rule 74, Section 1)
PRINCIPLE OF EXCLUSIONARY RULE
The court first taking cognizance of the
B. JUDICIAL SETTLEMENT - Testate or settlement of the estate of the
Intestate Proceedings instituted in
decedent, shall exercise jurisdiction to
the country where decedent has his
the exclusion of all other courts.
residence
The probate court acquires jurisdiction
EXTENT OF JURISDICTION
from the moment the petition for the
Probate courts are courts of LIMITED
settlement is filed with said court. It
jurisdiction. It may only determine and
cannot be divested of such jurisdiction
rule upon issues relating to the
by the subsequent acts of the parties as
settlement of the estate, namely:
by entering into extrajudicial partition
1. administration of the estate;
of the estate (Sandoval vs. Santiago, 88
2. liquidation of the estate;
PHIL 784); or filing another petition for
and
settlement in a proper court of
3. distribution of the estate.
concurrent venue (De Boria vs. Tan, 77
Phil 872).
GENERAL RULE: Probate court cannot
determine issue of ownership.
EXCEPTION:
EXCEPTIONS:
Estoppel by LACHES
1. Provisionally, ownership may be
determined for the purpose of
 Jurisdiction under Rule 73 Sec. 1
including property in inventory,
does NOT relate to jurisdiction per se
without prejudice to its final
but to venue. Hence, institution in the
determination in a separate action;
court where the decedent is neither an
or

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inhabitant or have his estate may be 1. Extrajudicial settlement of estate;

waived. (Uriarte vs. CFI, L-21938-39, or
May 29, 1970) 2. Summary settlement of estate – must
be conducted in accordance with
 Improper venue must be seasonably regular procedure NOT under rules
raised. (Eusebio v. Eusebio, 100 PHIL of summary procedure. (Regalado)
593)
REMEDY IF THE VENUE IS IMPROPERLY  In these exceptions an administrator
LAID or executor need not be appointed.
ORDINARY APPEAL not certiorari or EXTRAJUDICIAL SETTLEMENT BY
mandamus UNLESS want of jurisdiction AGREEMENT BETWEEN HEIRS (Sec.1)
appears on the record of the case. Requisites:
A. Substantive
 RTC may issue writs and processes. 1. The decedent left -
(Sec.3, Rule 73) a) no will
b) no debts
GENERAL RULE: Probate court cannot 2. The heirs are all of age or the
issue writs of execution. minors are represented by their
Reason: its orders usually refer to the judicial or legal representatives
adjudication of claims against the estate duly authorized for the purpose
which the executor/administrator may
satisfy without the need of executory B. Procedural
process. 1. Division of estate must
EXCEPTIONS: EXCLUSIVE (expressio be in a PUBLIC INSTRUMENT or
unius est exclusio alterius) by AFFIDAVIT of ADJUDICATION
1. To satisfy the in the case of a sole heir.
contributive share of the 2. Filed with proper
devisees, legates and heirs when Registry of Deeds
the latter had entered prior 3. Publication of notice of
possession over the estate. (Sec. the fact of extrajudicial
6, Rule 88) settlement once a week for 3
2. To enforce payment of CONSECUTIVE WKS.
the expenses of partition. (Sec. 4. Bond filed equivalent to
3, Rule 90) the value of PERSONAL property.
Where the estate settled upon  The bond is required only when
dissolution of marriage (Sec.2) personalty is involved or the real estate
Upon the death of either the husband or is subject to a lien in favor of creditors,
the wife, the partnership affairs must be heirs or other persons for the full period
liquidated in the testate or intestate of 2 years from such distribution and
proceedings of the deceased husband or such lien cannot be substituted by a
wife. If both have died, liquidation may bond.
be made in the testate or intestate
proceedings of either.  The bond is the value of the personal
property certified by the parties under
oath and CONDITIONED upon payment of
RULE 74 just claims filed under Sec. 4, Rule 74.
SUMMARY SETTLEMENT OF ESTATE
BOND
GENERAL RULE: If a person dies, his 1. equivalent to the value of
estate is submitted to a judicial personal property
settlement proceeding. 2. certified by parties under oath
EXCEPTION: The heirs may resort to: by an affidavit

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3. conditioned upon the payment of left have been paid at the time of the
just claims filed under Sec. 4. extrajudicial settlement is entered into.
(Guico vs. Bautista, 110 Phil 584)
If they cannot agree to the manner of
partition among themselves, they may DISPUTABLE PRESUMPTION THAT
resort to Ordinary Action of Partition. If DECEDENT LEFT NO DEBTS
despite the institution of such action If no creditor files a petition for letters
they subsequently arrived at an of administration within 2 years after
agreement, they may enter into the the death of the decedent.
corresponding stipulation and register SUMMARY SETTLEMENT OF ESTATE OF
the same with the Register of Deeds. SMALL VALUE (Sec.2)
(Regalado) GROSS VALUE of the estate must NOT
EXCEED P10, 000.
Is a Public Instrument necessary for the
validity of an extrajudicial settlement?  This is jurisdictional. (Del Rosario vs.
NO. Private instrument/document or Conanan, L-37903, March 30, 1977)
Oral agreement of partition is valid
among the heirs who participated in the IMPORTANT REQUIREMENTS
extrajudicial settlement. The 1. Application must contain
requirement under Sec. 1, Rule 74 that allegation of gross value of
it must be in public instrument is NOT estate.
constitutive of the validity but is merely 2. Date for hearing
evidentiary in nature. (Hernandez vs a) shall be set by court not less
Andal) than 1 MONTH nor more
than 3MONTHS from date of
However, Reformation may be last publication of notice;
compelled. (Regalado) b) published, ONCE A WEEK FOR
3 CONSECUTIVE WKS in a
EXTRAJUDICIAL JUDICIAL newspaper of general
SETTLEMENT SETLLEMENT circulation.
No court intervention requires summary 3. Notice shall be served upon such
judicial adjudication interested persons as the court
value of the estate gross estate must not may direct.
immaterial exceed P10T 4. Bond - amount fixed by the
allowed only in allowed in both court (not value of personal
intestate succession testate and intestate prop) conditioned upon payment
there must be no available even if of just claims under Sec.4.
outstanding debts of there are debts; it is
the estate at the the court which will LIABILITY OF DISTRIBUTEES AND
time of settlement make provision for ESTATE (Sec.4)
its payment
resorted at the May be instituted by REQUISITES OF TWO-YEAR PERIOD LIEN
instance and by ANY INTERESTED 1. persons have taken part or
agreement of ALL PARTY even a have notice of extrajudicial
heirs creditor of the partition
estate without the 2. compliance with the
consent of all heirs provisions of Sec.1, Rule 74
amount of bond is bond to be (Sampilo vs. CA)
equal to the value of determined by the
personal property court BASIS TO COMPEL SETTLEMENT OF THE
ESTATE
While the Rules provide that the 1. undue deprivation of lawful
decedent must not have left any debts, participation in the estate.
it is sufficient if any debts he may have

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2. existence of debts against the 1. IN REM -binding on the

estate or undue deprivation of lawful whole world.
participation payable in money. 2. MANDATORY - no will
shall pass either real or personal
REMEDIES property unless it is proved and
1. WITHIN 2 YRS. - claim against allowed in the proper court.
the bond or the real estate. HOWEVER, it has been held in
2. Action to Annul a deed of one case that a will may be
extrajudicial settlement on the sustained on the basis of Article
ground of FRAUD – within 4 1080 of the Civil Code which
YEARS from the discovery of reads as follows:
fraud. “If the testator should make a
3. Reconveyance of real property. partition of his properties by an
act inter vivos, or by will, such
Where the estate has been summarily partition shall stand in so far as
settled, the unpaid creditor may, within it does not prejudice the
2 years, file a motion in the court legitime of the forced heir.”
wherein such summary settlement was (Mang-Oy vs. CA, 144 SCRA 33).
had, for the payment of his credit. 3. IMPRESCRIPTIBLE –
because of the public policy to
EXCEPTION: If on the date of the obey the will of the testator.
expiration of the two-year period, the 4. The DOCTRINE OF
creditor or heir is - ESTOPPEL does not apply.
a) A minor or incapacitated, or Reason: presentation and
b) In prison or probate of will is required by
c) Outside the Philippines, public policy and involves public
he may present his claim within one year interest. (Fernandez vs.
after such disability is removed. (Sec. 5 Dimagiba)
Rule 75)
The 2-year lien upon the real property RULE 76

distributed by extrajudicial or summary ALLOWANCE OR DISALLOWANCE OF
settlement shall be annotated on the WILL
title issued to the distributees and after
2 years will be cancelled by the register Probate or Allowance of Wills - act of
of deeds without need of court order proving in a court a document purporting
(LRC CIRCULAR 143) to be the last will and testament of a
deceased person in order that it may be
Such lien cannot be discharged nor the officially recognized, registered and its
annotation be cancelled within the 2 provisions carried insofar as they are in
year period even if the distributees offer accordance with law.
to post a bond to answer for contingent
claims from which lien is established. Who may petition for allowance of will?
(Rebong vs. Ibanez, 79 Phil 324) (Sec.1)
1. any creditor - as preparatory
step for filing of his claim
RULE 75 therein (Regalado, p.26)
PRODUCTION OF WILL/ ALLOWANCE OF 2. devisee or legatee named in the
WILL NECESSARY will
3. person interested in the will
Section 1. Allowance necessary, (e.i., heirs)
conclusive as to execution. 4. testator himself – during his
lifetime the possession of the
NATURE OF PROBATE PROCEEDINGS will is not necessary

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1. the testator is of sound and

Who may be a party in probate? disposing mind when he
Generally, any person having a direct executed the will;
and material interest in the will or 2. the will was NOT executed under
estate. duress, fraud or other
circumstances that vitiates
CONTENTS OF THE PETITION (Sec.2) consent;
1. the jurisdictional facts – death 3. the required formalities have
of the testator and his residence been strictly complied with; and
at the time of death or the 4. the will is genuine and not a
province where estate was left forgery.
by the decedent who is a non-
resident; COURT APPOINTS TIME FOR PROVING
2. the names, ages, and residences WILL. NOTICE THEREOF TO BE
of the heirs, legatees, devisees PUBLISHED (Sec.3)
of the testator or decedent;
3. the probable value and character When does court acquire jurisdiction
of the property of the estate; over interested persons and res?
4. the name of the person for Upon PUBLICATION for 3 WKS
whom the letters are prayed; successively of the order setting the case
5. the name of the person having for hearing AND sending NOTICES to all
custody of the will if has not persons interested.
been delivered to the court. NOTICES MUST BE GIVEN TO:
1. designated or known heirs,
But no defect in the petition shall render legatees and devisees; and
void the allowance of the will, or the 2. executor and co-executor if not
issuance of letters testamentary or of the petitioner.
administration with the will annexed.
MODES OF NOTIFYING
EFFECT OF THE PROBATE OF A WILL By mail: 20 days before hearing
It is conclusive as to the EXECUTION and Personal notice: 10 days before hearing
the VALIDITY of the will (even against
the state). Thus, a criminal case against  3 weeks successively is not strictly 21
the forger may not lie after the will has days.
been probated.
ANTE MORTEM
ISSUE IN THE PROBATE OF A WILL If petition for probate is on testator’s
GENERAL RULE: own initiative during his lifetime -
Only determination of the extrinsic 1. no publication is necessary; and
validity not the intrinsic validity or 2. notice shall be made only to the
testamentary dispositions. compulsory heirs.
EXCEPTION: Where the entire or all
testamentary dispositions are void and PROOF OF HEARING (Sec.5)
where the defect is apparent on its face. At the hearing, compliance of
(Acain vs. IAC GR No. 72706, Oct. 27, Publication and Notice must first be
1987; Nepumuceno vs. CA, 139 SCRA shown before introduction of testimony
206) in support of the will.
EXTRINSIC VALIDITY - means due EVIDENCE in support of will:

execution of the will. 1. UNCONTESTED WILL (Sec.5)
a) Notarial Wills - testimony of at
MEANING AND EXTENT DUE EXECUTION least 1 of the subscribing
Due execution means that: witnesses is allowed.

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- if all subscribing witnesses

reside outside the province – GENERAL RULE: Holographic will if
deposition is allowed. destroyed CANNOT be probated.
- if subscribing witnesses EXCEPTION: If there exists a Photostat
reside is dead, insane, or none or Xerox copy thereof. (Gan vs. Yap, 104
reside in the Philippines – Court Phil 509)
may admit testimony of the
witnesses to prove the sanity of
the testator, and the due Proof of lost or destroyed will (Sec.6)
execution of the will, and as Facts which should be proved in order
evidence of the execution of the that a lost or destroyed will may be
will, it may admit proof of the allowed:
handwriting of the testator and 1. due execution and validity of the
of the subscribing witnesses or of will;
any of them. 2. will was in existence when
b) Holographic Wills - the testator died, or if it was not,
testimony of 1 witness who that it has been fraudulently or
knows the handwriting and accidentally destroyed in the
signature of the testator. In the lifetime of the testator without
absence thereof, testimony of an his knowledge; and
expert witness. 3. the provisions of the will are
clearly established by at least
2. CONTESTED (Sec.11) two credible witnesses.
a) Notarial Wills - ALL subscribing
witnesses AND notary public.
RULE 77
 HOWEVER, if any or all the ALLOWANCE OF WILL PROVED OUTSIDE
witnesses (i) testify against the OF PHILIPPINES AND ADMINISTRATION
execution of the will, (ii) do not OF ESTATE THEREUNDER
remember attesting thereto, or
(iii) of doubtful credibility, the A will allowed or probated in a foreign
will may be allowed if the court country, must be RE-PROBATED in the
is satisfied from the testimony of Philippines. If the decedent owns
other witnesses and from all the properties in different countries,
evidence presented that the will separate administration proceedings
was executed and attested in must be had in said countries.
the manner required by law.
TWO TYPES OF ESTATE PROCEEDINGS:
b) Holographic Wills - 3 witnesses 1. Domicilliary administration -
who knows the handwriting of the proceeding instituted in last
testator. In the absence thereof, residence of the decedent.
testimony of an expert witness 2. Ancillary administration - the
may be resorted to. administration proceedings
where he left his estate.
 HOWEVER, in Codoy vs.
Calugay, GR NO. 123486, Aug. REQUISITES OF ANCILLARY
12, 1999, the SC ruled that if the ADMINISTRATION (Sec.2)
holographic will is contested, 3 1. there must be a will
witnesses who know the (inferred from the wordings of
handwriting and signature of the Rule 77);
testator are now 2. filing of:
required/mandatory to prove its a) copy of the will
authenticity and for its executed in foreign country;
allowance.

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b) order or decree of LETTERS TESTAMENTARY AND OF

foreign court allowing such ADMINISTRATION WHEN AND TO WHOM
will; and ISSUED
c) authentication of
requisites a and b above; PERSONS WHO CAN ADMINISTER THE
3. notice of time and place ESTATE
of hearing; 1. Executor;
4. hearing; and 2. Administrator, regular or special
5. certificate of allowance. (Rule 80); and
3. Administrator with a will
Can a will executed and proved in a annexed (Rule 79, Section 1).
foreign country be allowed in the
Philippines under Rule 77? Executor - The one named by the
YES. Provided that the following must testator in his will for the administration
be proved: of his property after his death.
1. foreign court must have
jurisdiction over the proceeding; Administrator - One appointed by the
2. domicile of testator/decedent in Court in accordance with the Rules or
the foreign country and not in governing statutes to administer and
the Philippines; settle the intestate estate or such
3. that the will has been admitted testate estate, where the testator did
to probate in such country; not name any executor or that the
4. it was made with the formalities executor so named refuses to accept the
prescribed by the law of the trust, or fails to file a bond, or is
place in which the decedent otherwise incompetent.
resides, or according to the
formalities observed in his Administrator with a will annexed - one
country, or in conformity with appointed by the court in cases when,
the formalities prescribed by our although there is a will, the will does not
Civil Code; and appoint any executor, or if appointed,
5. due execution of the will in said person is either incapacitated or
accordance with the foreign unwilling to serve as such.
laws. (Regalado)
WHO MAY SERVE AS EXECUTOR/
EFFECTS ADMINISTRATOR?
1. the will shall have the same Any COMPETENT person may serve as
effect as if originally proved and executor or administrator.
allowed in court of the
Philippines. WHO ARE INCOMPETENT TO SERVE AS
2. letters testamentary or EXECUTOR/ADMINISTRATOR?
administration with a will 1. a minor
annexed shall extend to all 2. a non-resident
estates of the Philippines. 3. one who in the opinion of the
3. Residue of estate after payment court is unfit to exercise the
of debts, etc. shall be disposed duties of the trust by reason of:
of as provided by law in cases of a) drunkenness
estates in Philippines belonging b) improvidence
to persons who are inhabitants c) want of understanding and
of another state or country. integrity
d) conviction for an offense
involving moral turpitude
RULE 78

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 Executor of executor shall not, as the estate or on the other hand, suffer
such, administer the estate of the first the consequences of waste,
testator. (Sec. 2) improvidence or mismanagement, have
the higher interest and most influential
Letters testamentary - Authority issued motive to administer the estate
to an executor named in the will to correctly.
administer the estate.
RULE 79
Letters of administration – Authority OPPOSING ISSUANCE OF LETTERS
issued by the court to a COMPETENT TESTAMENTARY PETITION AND
person to administer the estate of the CONTENTS FOR LETTERS OF
deceased who died intestate. ADMINISTRATION
What is the MAIN ISSUE in an

administration proceeding?
Who is the person rightfully entitled to
administration.
Who may oppose the issuance of
TO WHOM LETTERS OF letters?
ADMINISTRATION GRANTED GENERAL RULE: Any person interested
in the will. (Section 1)
Order Of Preference EXCEPTION: Even where a person who
1. The surviving husband or wife or had filed a petition for the allowance of
the next of kin, or both in the the will of the deceased person had no
discretion of the court, or to right to do so in view of his lack of
such person as such surviving interest in the estate, nevertheless,
spouse or next of kin, request to where the interested persons did not
have appointed, if competent object to its application, the defect in
and willing to serve. (SURVIVING the petition would be deemed cured.
SPOUSE OR NOMINEE) The filing of the petition may be
2. If the surviving spouse or the considered as having been ratified by the
next of kin or the person interested parties. (Eusebio vs.
selected by them be Valmores 97 PHIL 163)
incompetent or unwilling to
serve, or if the surviving spouse Petition for Opposition may at the same
or next of kin neglects for 30 time be filed for Letters of
days after the death of the Administration with the will annexed.
decedent to apply for
administration, ANY one or more Contents of a petition for letters of
of the PRINCIPAL CREDITORS, if administration: (Sec.2)
competent and willing to serve. a) jurisdictional facts;
3. If there is no such creditor b) name, age, residence of heirs
competent and willing to serve, and creditors;
it may be granted to such other c) probable value and character of
person as the court may select. the estate; and
(STRANGER) d) name of the person for whom
letters is prayed for.
 The Order of appointment of Regular
administrator is final and appealable. No defect in the petition shall render
void the issuance of the letters of
BASIS FOR THE PREFERENTIAL RIGHT administration.
The underlying assumption is that those
who will reap the benefits of a wise, Grounds for Opposition:
speedy and economical administration of 1. In Letters Testamentary

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a) incompetence 4. Pay debts ONLY as may be

2. In Letters of Administration ordered by the court.
a) incompetence;
b) preferential right of the DURATION OF POWER OF SPECIAL
heir under Sec. 6, Rule 78. ADMINISTRATOR
Until questions causing the delay is
Publication for 3 Weeks and notice to decided and the regular administrator is
heirs, creditors and other persons appointed.
believed to have an interest in the
estate is required before hearing. When does the power of a special
administrator cease?
Letters can be granted to any person or After the questions causing the delay are
any other applicant even if other resolved and letters are granted to
competent persons are present if the regular executor or administrator.
latter fail to claim their letters when
notified by the court. (Sec. 6, Rule 79)
RULE 80
SPECIAL ADMINISTRATOR Is appointment of special administrator
appealable?
When may a probate court appoint a NO, the same is INTERLOCUTORY.
special administrator? However, appointment of a REGULAR
1. Delay in granting of ADMINISTRATOR is appealable because it
letters including appeal in the is a final order.
probate of the will.
2. Executor is a claimant of  It is possible for the executor or
the estate he represents. administrator whose appointment is
- in this second instance, the challenged by appeal to be appointed
administrator shall have the also as the special administrator pending
same powers as that of a such appeal. There is no harm in
general administrator. appointing the same person as special
administrator because there is a vast of
ORDER OF APPOINTMENT difference between the powers and
DISCRETIONARY duties of the two positions.
The preference accorded by Sec. 6 of
Rule 78 of the Rules of Court to surviving
spouse refers to the appointment of a RULE 81
regular administrator, NOT to that of BONDS OF EXECUTOR AND
special administrator, and that the order ADMINISTRATOR
appointing the later lies within the
discretion of the probate court, and is BOND OF EXECUTOR/ADMINISTRATOR
not appealable. (Pijuan vs. De Gurrea, (Sec.1)
124 Phil. 1527)
When filed?
POWERS AND DUTIES Before an executor or administrator
1. Possession and charge of enters upon execution of his trust
the goods, chattels, rights, Amount? Fixed by the court
credits, and estate of the
deceased; CONDITIONS
2. Commence and maintain 1. Make an INVENTORY of property
suit for the estate; which came to his knowledge
3. Sell ONLY and possession within 3 MONTHS.
a) perishable property; and
b) those ordered by the court;

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2. ADMINISTER the estate and from court, and render his account within
the proceeds pay all debts and such time as the court may direct.
charges.
3. Render an ACCOUNT within ONE  The discovery of a will does NOT ipso
YEAR facto nullify the letters of administration
4. Perform all orders of the court. already issued until the will has been
proved and allowed pursuant to Rule 82
ADMINISTRATOR’S BOND — STATUTORY Sec. 1. (De Parreno vs. Aranzanso, GR
BOND No. L-27657, Aug. 30, 1982)
Conditions prescribed by statute forms
part of bond agreement. RESIGNATION OR REMOVAL OF
EXECUTOR/ ADMINISTRATOR (SEC.2)
Terms and effectivity of bond does not Grounds
depend on payment of premium and 1. neglect to render accounts;
does not expire until the administration (w/in 1 YEAR or when the court
is closed. As long as the probate court directs);
2. neglect to settle estate
according to these rules;
3. neglect to perform an order or
judgment of the court or a duty
retains jurisdiction of the estate, the expressly provided by these
bond contemplates a continuing liability. rules;
(Luzon Surety vs. Quebrar, 127 SCRA 4. absconding; or
295). 5. insanity or incapability or
unsuitability to discharge the
BOND OF SPECIAL ADMINISTRATOR trust. (Sec. 2)
(Sec.4) These grounds are EXCLUSIVE.
Conditions
1. make inventory. Lawful acts of an administrator or
2. render accounting when executor before the revocation,
required by court. resignation, or removal are valid unless
3. deliver the same to proven otherwise. (Sec.3)
person appointed executor or
administrator or other POWERS OF NEW EXECUTOR OR
authorized persons. ADMINISTRATOR (Sec. 4)
1. collect and settle the estate not
The bond is effective as long as the administered;
court has jurisdiction over the 2. prosecute or defend actions
proceedings. commenced by or against the
former executor or
administrator; and
RULE 82 3. recover execution on judgments
REVOCATION OF ADMINISTRATION, in the name of former executor
DEATH, RESIGNATION AND REMOVAL OF or administrator.
EXECUTORS AND ADMINISTRATORS
If after letters of administration have RULE 83

been granted on the estate of the INVENTORY AND APPRAISAL PROVISION
decedent as if he had died intestate, his FOR SUPPORT OF FAMILY
will is allowed and proved by the court,
the letters of administration shall be Inventory and appraisal must be made
revoked and all powers thereunder within 3 MONTHS from the grant of
cease, and the administrator shall letters testamentary or of
forthwith surrender the letters to the administration. (Sec.1)

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111
2. To examine and make invoices of

Approval of an inventory is not a the property belonging to the
conclusive determination of what assets partnership in case of a
constituted the decedent’s estate and of deceased partner;
the valuation thereof. Such 3. To make improvements on the
determination is only provisional and a properties under administration
prima facie finding of the issue of with the necessary court
ownership. approval except for necessary
repairs;
ALLOWANCE TO WIDOW AND FAMILY 4. To possess and manage the
(Sec.3) estate when necessary:
Allowance - monetary advances subject a) for the payment of debts;
to collation and deductible from their and
share in the estate of the decedent. b) for payment of expenses of
administration;
Who are entitled to allowance during 5. To maintain in tenantable
proceedings? repairs houses and other
1. Legitimate surviving spouse structures and fences and to
(Nepomuceno vs CA); and deliver the same in such repair
2. Children of the decedent. to the heirs or devisees when
directed so to do by the court.
 According to Art. 188 of the Civil
Code, the children need not be minors SOME RESTRICTIONS ON POWER OF
or incapacitated to be entitled to ADMINISTRATOR/EXECUTOR
allowance. (Santero vs CFI of Cavite, GR 1. Cannot acquire by purchase,
No. 61700-03, Sept. 24, 1987) even at public or judicial
auction, either in person or
Grandchildren are NOT entitled to mediation of another, the
allowance under Rule 83. (Heirs of Ruiz property under administration.
vs CA) 2. Cannot borrow money without
authority of the court.
When liabilities exceed the asset of the 3. Cannot speculate with
estate, his widow and children are not funds under administration.
entitled to support pending the 4. Cannot lease the property for
liquidation of the intestate estate, on more than one year.
the ground that such support, having the 5. Cannot continue the business of
character of an advance payment to be the deceased unless authorized
deducted from the respective share of by the court.
each heir during distribution. (Wagner 6. Cannot profit by the increase or
vs. Moore) decrease in the value of the
property under administration.
RULE 84
GENERAL POWERS OF EXECUTORS AND RULE 85
ADMINISTRATORS ACCOUNTABILITY AND COMPENSATION
OF EXECUTORS AND ADMINISTRATORS
POWERS OF EXECUTOR/
ADMINISTRATOR OF THE ESTATE GENERAL RULE: The executor or
1. To have access to, and examine administrator is accountable for the
and take copies of books and whole estate of the deceased.
papers relating to the
partnership in case of a EXCEPTION: He is not accountable for
deceased partner; properties which never came to his
possession.

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112
a) funeral expenses; and

EXCEPTION TO THE EXCEPTION: When b) expenses of the last sickness of
through untruthfulness to the trust or his the decedent.
own fault or for lack of necessary action,
the executor or administrator failed to Claims for taxes (inheritance and estate)
recover part of the estate which came to due and assessed after the death of the
his knowledge. decedent need not be presented in the
form of a claim. The court in the
Administrator or executor shall not profit exercise of its administrative control
by the increase of the estate nor be over the executor or administrator may
liable for any decrease which the estate, direct the latter to pay such taxes. And
without his fault, might have sustained. the heirs, even after distribution are
liable for such taxes.
EXPENSES OF ADMINISTRATION: those
necessary for the management of the STATUTE OF NON-CLAIMS (Sec.2)
property, for protecting it against
destruction or deterioration, and When should the claims be filed?
possibly for the production of fruits. GENERAL RULE: Within in the time fixed
in the notice which shall not more than
12 MONTHS nor less than 6 MONTHS after
the date of the FIRST PUBLICATION.
When shall executor or administrator Otherwise, they are BARRED FOREVER.
render an account? (Sec.8) Even if the testator acknowledged the
RULE: Within one year from the time of debt in his will and instructed the
receiving letters testamentary or letters executor to pay the debt, the statute of
of administration. non-claims must still be complied with;
EXCEPTION: An extension of time is otherwise the claim may also be barred.
allowed for presenting claims against or
paying the debts of the estate for EXCEPTION: Belated Claims.
disposing of the estate but even in such
cases, the administration should be Belated Claims are claims not filed
terminated in not more than two-years within the original period fixed by the
and a half. court. On application of a creditor who
has failed to file his claim within the
time previously limited, at ANY TIME
RULE 86 BEFORE an order of distribution is
CLAIMS AGAINST ESTATE entered, the court MAY, for cause shown
and on such terms as are equitable,
Claim - any debt or pecuniary demand allow such claim to be filed within a
against the decedent’s estate. time NOT EXCEEDING 1 MONTH from the
order allowing belated claims.
When may a court issue notices to
creditors to file their claims? Statute of Non-Claims supersedes the
Immediately issued after granting letters Statute of Limitations insofar as the
testamentary or of administration. debts of deceased persons are
concerned. However, BOTH statute of
PURPOSE: for the speedy settlement of Non-Claims and Statute of Limitations
the affairs of the deceased person and MUST CONCUR in order for a creditor to
early delivery of the property of the collect.
estate into the hands of the persons
entitled to receive it. Claims which are not filed within the
Statute of Non-Claims are barred
Claims arising AFTER his death cannot be forever (Sec.5)
presented except for:

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113
Claims referred to under this section distribution of the assets of the

refer to claims for the recovery of estate;
money and which are not secured by a 2. FORECLOSE his mortgage or
lien against the property of the estate. realize upon his security by
(Olave vs. Carlos, 208 Phil 678) action in court making executor
or administrator a party
Claims which should be filed under the defendant and if there is
Statute of Non-claims? judgment for DEFICIENCY, he
1. Money claims, debts incurred by may file a claim (contingent)
deceased during his lifetime against the estate within the
arising from contract statute of non-claims.
2. express or implied
3. due or not due Agency coupled with an interest
4. absolute or contingent The power to foreclose a mortgage is
5. Claims for funeral expenses and not an ordinary agency that
for the last illness of the contemplates exclusively the
decedent. representation of the principal by
6. Judgment for money against the agent but is primarily an
decedent. authority conferred upon the
mortgagee for latter’s own
Contingent Claim – conditional claim or protection. That power survives the
claim that are subject to the happening death of the mortgagor. (Bicol
of a future uncertain event. Savings and Loan Association vs. CA)
Claims not yet due or contingent may be 3. RELY SOLELY ON HIS MORTGAGE
approved at their present value. and foreclose the name at
anytime within the period of the
HOWEVER, a creditor barred by the statute of limitation but he
Statute of Non-claims may file a claim as cannot be admitted as creditor
a COUNTERCLAIM in any suit that the and shall not receive in the
executor or administrator may bring distribution of the other assets
against such creditor. of the estate;
SOLIDARY OBLIGATION OF DECEDENT  These remedies are alternative, the

(Sec.6) availment of one bars the availment of
Claim should be filed against decedent other remedies.
as if he were the only debtor without
prejudice on the part of the estate to JUDGMENT ALLOWING CLAIM (Sec.13)
recover contribution from the other Judgment against executor and
debtor. (Jaucian vs Quero, 38 Phil 707l) administrator shall not create any lien
upon the property of the estate or does
Joint obligation of decedent not constitute a specific lien which may
The claim must be confined to the be registered on such property.
portion belonging to the decedent.
Judgment of a probate court approving
MORTGAGE DEBT DUE FROM ESTATE or disapproving a claim is appealable.
(Sec.7)
 The mode of appeal is record on
ALTERNATIVE REMEDIES Of The appeal and must be filed within 30 DAYS
Creditor Holding A Claim Secured By A from notice of judgment.
Mortgage Or Other Collateral Security
1. ABANDON security and prosecute
his claim against the estate and RULE 87
share in the same general

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114
ACTIONS BY AND AGAINST EXECUTORS

AND ADMINISTRATORS Embezzlement before letters issued
(Sec.8)
The responsible person shall be liable to
Actions which may or may not be
an action in favor of the executor or
brought against executor and
administrator of the estate for double
administrator (Sec.1)
the value of the property sold,
Independent and separate of the
embezzled, or alienated, to be
probate proceeding:
recovered for the benefit of the estate.
1. recovery of real or personal
property or any interest therein
Property fraudulently conveyed by the
from the estate
deceased may be recovered. When
2. enforcement of a lien thereon
executed or administered must bring
3. action to recover damages for
action (Sec.9)
any injury to person or property,
This provision applies when there is a
real or personal (tortuous acts)
deficiency of assets in the hands of the
These are actions that survive the death
executor or administrator for the
of the decedent.
payment of the debts and expenses for
administration
An action for revival of money judgment
administration for it is under this
may be filed against the administrator to
circumstance that there may be
preempt prescription of judgment.
conveyances made by the deceased with
(Romualdez vs. Tiglao, 105 SCRA 762).
intent to defraud the creditor.
Heir may not sue until share assigned
REQUISITES BEFORE ACTION MAY BE
(Sec.3)
FILED
Before distribution is made or before any
1. deficiency in assets
residue is known, the heirs and devisees
2. the conveyance made is void (when
have no cause of action against the
there are badges of fraud)
executor or administrator for recovery of
3. subject of conveyance is liable for
the property left by the decedent.
attachment in lifetime of
decedent.
Proceedings when property concealed,
embezzled or fraudulently conveyed
When creditor may bring action. Lien
(Sec.6)
for costs (Sec.10)
PURPOSE: To elicit information or to
When a grantee in a fraudulent
secure evidence from those persons
conveyance is OTHER THAN THE
suspected as having possessed or having
EXECUTOR OR ADMINISTRATOR, a
knowledge of properties belonging to
creditor may commence and prosecute
deceased, or of having concealed,
the action if the following requisites are
embezzled or conveyed away any
present:
properties of the deceased.
1. That the executor or
administrator has shown to have
GENERAL RULE: The probate court has
no desire to file the action or
no authority to decide whether or not
failed to institute the same
the properties belong to the estate or to
within the reasonable time;
the person being examined since probate
2. Leave is granted by court to
courts are courts of limited jurisdiction.
creditor to file the action;
EXCEPTIONS:
3. Bond is filed by creditor as
1. Provisional determination of
prescribed in this provision; and
ownership for inclusion in the
4. Action by creditor is in the name
inventory; or
of the executor or administrator.
2. Submission to the court’s
jurisdiction (Bernardo vs. CA, GR
No. 82483, Sept. 26, 1990)

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115
 These requisites need not be How contingent claim becoming

complied with if the grantee of the absolute in two years allowed and paid
fraudulent conveyance is the executor or (Sec.5)
administrator himself, in which event If such contingent claim becomes
the action should be in the name of all absolute and is presented to the court,
creditors. or to the executor or administrator,
within two years from the time limited
for other creditors to present their
RULE 88 claims. The residual funds within the
estate, although already in the
Debts paid in full if estate sufficient possession of the universal heirs, are
(Sec.1) funds of the estate. The Court has
If estate is insolvent, as in liabilities are jurisdiction over them and it could
more than the assets, Sec.7 in relation compel the heirs to deliver to the
to Art. 1059 and 2239 to 2251 of the administrator of the estate the
Civil Code must apply. Use rule on necessary portion of such funds for the
preference of creditors If it is sufficient payment of any claims against the
to satisfy claims of a class. estate. (In re Testate Estate of
Margarita David, Sison vs. Teodoro, 98
Phil 680)
When the will provides for payment of
debts, Section 2 must be followed. If the contingent claim matures after the
Although testator acknowledged a expiration of the two years, the
specific debt on his will, the creditor creditors may sue the distributees, who
must still file his claim in the testate or are liable in proportion to the shares in
intestate proceedings, otherwise his the estate respectively received by
claim will be barred. them. (Jaucian vs. Querol, supra)
Estate to be retained to meet It has been ruled that the only instance
contingent claims (Sec.4) wherein a creditor can file an action
If the court is satisfied that contingent against a distributee of the debtor’s
claim duly filed is valid, it may order the assets is under Sec. 5, Rule 88 of the
executor or administrator to retain in his Rules of Court. The contingent claims
hands sufficient estate to pay a portion must first have been established and
equal to the dividend of the creditors. allowed in the probate court before the
creditors can file an action directly
REQUISITES against the distributees. (De Bautista vs.
1. contingent claim is duly filed; De Guzman, 125 SCRA 682)
2. court is satisfied that the claim
is valid; and Estate of Insolvent nonresident, how
3. The claim has become absolute. disposed (Sec.9)
In the administration taken in the
Is execution a proper remedy to satisfy Philippines of the estate of the
an approved claim? INSOLVENT his estate in the Philippines
NO, because: shall be disposed of that his creditors in
1. Payment approving a and outside in the Philippines in
claim does not create a lien proportion to their respective credits.
upon a property of the estate.
2. Special procedure is for When and how claim proved outside
the court to order the sale to the Philippines against insolvent
satisfy the claim. resident’s estate paid (Sec.10)
Claims proven outside the Philippines
where the executor had knowledge and

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116
opportunity to contest its allowance 2. If sale of personal estate may

therein may be added to the list of injure the business or interests
claims in the Philippines against the of those interested in the estate;
estate of an INSOLVENT RESIDENT and 3. If testator has NOT made
the estate will be distributed equally sufficient provision for payment
among those creditors. of such debts, expenses and
legacies;
However the benefit of Sections 9 and 10 4. If deceased was in his lifetime
cannot be extended to the creditors of under contract, binding in law to
foreign country where the property of deed real property to
the deceased therein is not equally beneficiary; (Section 8)
apportioned to creditors residing in the 5. If the deceased during his
Philippines and other creditors. lifetime held real property in
trust for another person.
Time for paying Debts and Legacies (Section 9)
(Sec.15)
Need not exceed 1 year in the first REQUISITES
instance. But court extend on a) application of
application of executor or administrator Executor/Administrator;
and after hearing and notice thereof. b) written notice to person
interested; and
c) hearing
Extension must not exceed six months
for single extension. Whole period  Assets in the hands of
allowed to the original executor or executor/administrator will not be
administrator shall not exceed 2 years reduced to prevent a creditor from
(section 15) successor of dead executor receiving his full debt or diminish his
or administrator may be given an dividends.
extension not to exceed 6 months.
 Without notice and hearing, the sale,
mortgage or encumbrance is void. Notice
RULE 89 is mandatory. Noncompliance therewith
SALES, MORTGAGE AND OTHER under the sale is null and void.
ENCUMBRANCES OF THE PROPERTY OF Reason: The reason behind this
THE DECEASED requirement is that the heirs are the
presumptive owner. Since they succeed
to all the rights and obligation of the
Order of sale of personalty (Sec.1)
deceased from the moment of the
The court may order the whole or part of
latter’s death, they are the person
the personal estate to be sold if
directly affected by the sale or mortgage
necessary:
and therefore cannot be deprived of the
1. to pay debts and expense of
property, except in the manner provided
administration;
by law. (Maneclang vs. Baun, 208 SCRA
2. to pay legacies; or
179)
3. to cover expenses for the
preservation of the estate.
May the court authorize sale, mortgage
or other encumbrance of estate to pay
When court may authorize sale,
debts and legacies in other countries?
mortgage or other encumbrances of
(Sec. 5)
realty to pay debts and legacies though
When it appears from records and
personality not exhausted? (Sec. 2)
proceedings of a probate court of
1. If personal estate is NOT
another country that the estate of the
sufficient to pay debts, expenses
deceased in foreign country is not
of administration and legacies;
sufficient to pay debts and expenses.

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117
The probate court lose jurisdiction over

Application for authority to sell, the settlement proceedings only upon
mortgage or encumber property of the payment of all debts and expenses of the
estate may be denied by the court if: obligor and delivery of the entire estate
1. the disposition is not for to all the heirs. (Timbol vs. Cano, 1
any of the reasons specified by SCRA 1271)
the rules; OR
2. under Section 3 Rule 89, CONDITIONS PRECEDENT to be
any person interested in the complied with for the issuance of an
estate gives a bond conditioned order of distribution
to pay the debts, expenses of 1. Showing that the executor,
administration and legacies. administrator or person
interested in the estate applied
for such; and
RULE 90 2. The requirements as to notice
DISTRIBUTION AND PARTITION OF THE and hearing upon such
ESTATE application have been fulfilled.
PROHIBITION AGAINST INTERFERENCE

Liquidation means the determination of BY OTHER COURTS
all assets of the estate and payment of
all debts and expenses. As long as the order of distribution of
the estate has not been complied with,
When order for distribution of residue the probate
made (Sec.1) probate proceedings cannot be deemed
closed and terminated, because a
RULE: ORDER OF DISTRIBUTION shall be judicial partition is not final and
made AFTER payments of all debts, conclusive and does not prevent the
funeral expenses, expenses for heirs from bringing an action to obtain
administration, allowance of widow and his share, provided the prescriptive
inheritance tax is effected. period therefore has not elapsed. The
better practice, however, for the heir
In these proceedings, the court shall: who has not received his share, is to
1. collate; demand his share through proper motion
2. determine heirs; and in the same probate or administrative
3. determine the share of proceedings, or for the reopening of the
each heir. probate or administrative proceedings if
A separate action for the declaration of it had already been closed, and not
heirs is not necessary. through an independent action, which
would be tried by another court or judge
When is title vested? which may thus reverse a decision or
From FINALITY of order of distribution. order of the probate or intestate court
already final and executed and re-
Only after partition is approved and not shuffle properties long ago distributed
before, the court may order the delivery and disposed of. (Timbol vs. Cano,
to the heirs of their respective shares supra).
except when the heir file a bond
conditioned to pay the debts.
RULE 91
An order which determines the ESCHEATS
distributive shares of heirs is appealable.
If not appealed, it becomes final. 3 INSTANCES of ESCHEATS
1. When a person dies intestate
leaving no heir but leaving

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118
property in the Philippines By devisee, legatee, heir, widow/er, or

(Section 1) other person entitled thereto)
2. REVERSION PROCEEDINGS – Sale When to file?
in violation of the Constitutional - Within 5 YEARS FROM DATE OF
provision JUDGEMENT otherwise forever barred.
3. Unclaimed Balance Act under
Banking Laws OTHER ACTIONS FOR ESCHEATS (Sec. 5)
- actions for reversion of
What is the basis of the state’s right to property alienated in violation of
receive property in escheat? Constitution or any statute.
Order of succession under the Civil Code, - These shall be governed
the STATE is the last heir of the by Rule 91. HOWEVER, the
decedent. action must be instituted in the
province where the land lies in
Who files? whole or in part.
Solicitor General or his representative in
behalf of the Philippines. Period: Within 5 years from the date of
judgment; (under ART. 1014 of the Civil
Where to file? Code, the 5-year period is reckoned from
RTC of last residence or of location of the date the property was delivered to
his estate in the Philippines if he is a the State and further provides that if the
non-resident. property had been sold, the municipality
or city shall be accountable only for such
part of the proceeds as may not have
If petition is sufficient in FORM and been lawfully spent.)
SUBSTANCE the court shall: By whom: person of interest
1. Make an ORDER OF
HEARING – hearing shall not be TO WHOM WILL THE PROPERTY
more than 6 MONTHS AFTER ESCHEATED BE ASSIGNED: (Sec. 3)
ENTRY OF ORDER. 1. if personal property, in the
2. Direct publication of the municipality or city where he
copy of order – at least once a last resided.
week for 6 CONSECUTIVE WEEKS. 2. if real property, where the
property is situated.
REQUISITES 3. if deceased never resided in the
1. publication of the order Philippines, where the property
2. person died intestate may be found.
3. he is seized of real/personal
property in the Philippines Can court convert escheat proceedings
4. he left no heir or person entitled into ordinary special proceedings or
to such property vice-versa?
5. there is no sufficient cause to NO. This is not allowed for the two
the contrary actions have different requirements in
acquiring jurisdiction. In special
The court, at the instance of an proceedings, publication is once a week
interested party, or on its own motion, for 3 weeks while in escheat, once a
may order the establishment of a week for 6 weeks.
PERMANENT TRUST, so that only the
income from the property shall be used.
RULE 92
CLAIM BY PERSONS ENTITLED TO THE
GUARDIANSHIP
ESTATE (Sec. 4)
Who?

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119
2. Limited - over the

 Guardianship of minors is now property only
governed by the Rule on
Guardianship of Minors (A.M. No. B. According to constitution:
03-02-05-SC) which took effect on 1. general guardian
May 1, 2003. While guardianship of 2. legal guardian
incompetents is still governed by guardian ad litem
the provisions of the Rules of
Court on Guardianship (Rule 92 to INCOMPETENT includes: (Sec. 2)
Rule 97). 1. those suffering from penalty of
civil interdiction
2. hospitalized lepers
MINOR INCOMPETENT 3. prodigals
4. deaf and dumb who are unable
1. any relative; or 1. any relative; to read and write
2. other person on 2. friend; or 5. those of unsound mind though
behalf of a minor; 3. other person on they have lucid intervals
or behalf of the 6. persons not of unsound mind but
3. the minor resident incompe-
tent who has no
by reason of age, disease, weak
himself if 14 years mind and other similar causes
of age or over; or parents or lawful
4. the Secretary of guardian; or cannot take care of themselves
Social Welfare and 4. the Director of or manage their property.
Development AND Health in favor of
by the Secretary of an insane person
who should be RULE 93
Health in case of an
insane minor who hospitalized or in APPOINTMENT OF GUARDIANS
needs to be favor of an isolated
hospitalized. (Sec. leper. (Sec. 1) Who may petition for appointment of
2 AM 03-02-05-SC) guardian?
The father and the mother shall jointly
5. any one interested exercise legal guardianship over the
5. any one
in the estate of a person and property of their minor
interested in the
non-resident without the necessity of a court
estate of a non-
incompetent (Sec. appointment. In such case, this Rule
resident
6) shall be suppletory to the provisions of
incompetent
(Sec.12) the Family Code on Guardianship.
Contents of Petition
Jurisdiction:
 Incompetents – RTC of his MINOR INCOMPETENT
residence or where his property is
located in case of non-residents
(Sec. 1) a) the a) the
 Minor – Family Court of his jurisdictional jurisdictional
residence or where his property is facts; facts;
b) the name, age b) the minority or
located in case of non-resident (Sec.
and residence incompetency
3, AM 03-02-08) of the rendering the
prospective appointment
KINDS OF GUARDIANS ward; necessary or
A. According to scope: c) the ground convenient;
1. General - over the rendering the c) the probable
person of the appointment value and
necessary or character of his
ward or over his property
convenient; estate;
d) the death of d) the names,

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120
the parents of ages, and If the person is insane, service of notice

the minor or residences of upon the Director of Hospital where
the the relatives of hospitalized is sufficient.
termination, the minor or
deprivation or incompetent,
suspension of and of the OPPOSITION TO PETITION (Sec. 4)
their parental e) persons having Grounds
authority; him in their
e) the remarriage care; 1. majority of alleged minor
of the minor’s f) the name of the 2. competency of alleged
surviving person for incompetent
parent; whom letters of
guardianship.
3. unsuitability of the persons for
f) the names, whom letters are prayed
ages, and (Sec. 2 Rule 93)
residences of
relative within Procedure
the 4th civil a. filing of petition
degree of b. court shall set the case for
minor, and of hearing
persons having c. cause notices to be served to
him in their the persons mentioned in the
care and
petition, including minor, if 14 years
custody;
g) the probable and above
value, d. court shall receive evidence
character and e. declaration of the propriety of
location of the the petition
property of the f. issue letters of guardianship
minor; and
h) the name, age
and residence
BONDS OF GUARDIANS
of the person Before an appointed guardian enters
for whom upon the execution of his trust, he shall
letters of give a BOND (Sec. 1 Rule 94).
guardianship
are prayed. SELLING AND ENCUMBERING PROPERTY
OF WARD:
A. Grounds
 The petition involving minors is 1. when income of estate is
required to be VERIFIED and insufficient to maintain ward
accompanied by certification against and family or to maintain and
FORUM SHOPPING while that involving educate ward when a minor; or
incompetent must be verified only. 2. when it appears that it is for
HOWEVER, no defect in the petition or the benefit of the ward.
verification shall render void the B. Requirements
issuance of letters of guardianship. 1. petition must be verified;
2. notice must be given to the
There is NO requirement for next of kin; and
PUBLICATION, only notice EXCEPT in 3. hearing so that they may show
case of nonresident minor/incompetent. cause why petition should not
be granted.
HOWEVER, service of NOTICE upon minor
if 14 years of age or over, or upon  Notice to next of kin and interested
incompetent is mandatory and persons is JURISDICTIONAL.
jurisdictional.
Next of kin - pertains to those relatives
who are entitled to share in the estate
of the ward under the Law on Intestate

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121
succession including those who inherit Grounds for termination

per stirpes or by right of representation. MINOR INCOMPETENT
1. The ward has 1. competency
Sale of the ward’s realty by the guardian come of age; or of the ward has
without authority from the court is VOID. 2. has died been judicially
Under the law, a parent acting merely as determined
legal administrator of the property of 2. guardianship
his/her children, does NOT have the is no longer
power to dispose of, or alienate, the necessary
property of said minor without judicial
approval (Lindain vs. CA, GR No. 95305, B. Grounds for removal of a
Aug. 20, 1992). guardian:
1. insanity;
 The Order of Sale must specify the 2. incapability or unsuitability to
grounds. discharge functions;
3. wastage or mismanagement of
C. Duration of the order for sale and the property of the ward; and
encumbrance of property - Within 1 4. failure to render an account or
year from the granting of the order. make a return within 30 days
It is presumed that if the property after it was due.
was not sold within 1 year, the ward
has sufficient income. SALIENT FEATURES and SPECIAL RULES
FOUND IN THE RULE ON GUARDIANSHIP
The authority to sell or encumber shall OF MINORS (A.M. No. 03-02-05-SC,
not extend beyond 1 year unless effective May 1, 2003)
renewed by the court.
Grounds for Petition (Sec. 4)
GENERAL POWERS AND DUTIES OF 1. Continued Absence, or
GUARDIANS Incapacity or Death of his
1. have the care and custody of the parents; (AID)
person of the ward, and the 2. Suspension, Termination
management of his estate, or or Deprivation of parental
the management of the estate authority; (STD)
only, as the case may be; 3. Remarriage of his
2. pay the debts of the ward; surviving parent, if the latter is
3. settle accounts, collect debts found unsuitable to exercise
and appear in actions for ward; parental authority;
4. manage the estate of the ward 4. When the best interest
frugally, and apply the proceeds of the minor so requires.
to maintenance of the ward;
5. render verified inventory A. Qualifications of Guardians (Sec. 5)
verified within 3 MONTHS after 1. Moral character
his appointment and annually 2. Physical, mental and
thereafter upon application of psychological condition
interested persons; and 3. Financial status
6. render to court for its approval 4. Relationship of trust
an accounting of the property with the minor
for 1 YEAR from his appointment 5. Availability to exercise
& every year thereafter. the powers and duties of a
guardian for the full period of
TERMINATION OF GUARDIANSHIP guardianship
6. Lack of conflict of
interest with the minor

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7. Ability to manage the the child resides in a foreign country, in

property of the minor. the Family court of the place where the
property or any part thereof is situated.
B. Who may be appointed guardian of
the person or property, or both, of The petition shall be docketed as a
a minor (Sec.6) summary special proceeding in which all
In default of parents or a court incidents and issues regarding the
appointed guardian, the court may performance of the obligations of a
the following observing as far as, general guardian shall be heard and
practicable, the ORDER OF resolved.
PREFERENCE:
1. the SURVIVING REMOVAL OR RESIGNATION OF
GRANDPARENT and in case GUARDIAN (Sec. 24)
several grandparents survive, the No motion for removal or resignation
court shall select any of them shall be granted unless the guardian has
taking into account all relevant submitted the proper accounting of the
considerations; property of the ward and the court has
2. the OLDEST BROTHER OR approved the same.
SISTER of the minor over twenty-
one years of age, unless unfit or Grounds for termination of
disqualified; guardianship (Sec. 25).
3. the ACTUAL CUSTODIAN The court motu propio or upon verified
of the minor over twenty-one motion of any person allowed to file a
years of age, unless unfit or petition for guardianship may terminate
disqualified; and the guardianship on the ground that the
4. any OTHER PERSON, who ward has COME OF AGE or has DIED. The
in the sound discretion of the guardian shall notify the court of such
court would serve the best fact within 10 days of its occurrence.
interests of the minor.
C. Case Study Report (Sec. 9) RULE 98

The court shall order a social worker TRUSTEES
to conduct a case study of the minor
and all prospective guardians and Jurisdiction: RTC in which the will was
submit report and recommendation allowed, if it be a will allowed in the
to the court for its guidance before Philippines, otherwise by the RTC of the
the scheduled hearing. province in which the property, or some
portion thereof, affected by the trust is
D. Bond of parents as guardians of situated.
property of minor (Sec. 16)
If the market value of the property A trustee is necessary to carry into
on the annual income of the child effect:
exceeds P50,000, the parent a) A will where the testator
concerned shall furnish a bond in omitted to appoint a trustee in
such amount as the court may the Philippines (Testamentary
determine, but in no case less than Trust); and
10% of the value of such property or b) Other written instruments where
income, to guarantee the the trustee therein declines,
performance of the obligations resigns, dies, or is removed
prescribed for general guardians. before accomplishment of trust
(Contractual Trust).
A verified petition for approval of the
bond shall be filed in the Family Court of No persons succeeding to a trust as
the place where the child resides or, if executor or administrator of a formal

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trustee shall be required to accept such  The provisions of the Rules of Court
trust. on Adoption have been amended by the
Domestic Adoption Act of 1998 and
TRUSTEE APPOINTED ABROAD (Sec. 4) the Intercountry Adoption Act of 1995
When land in the Philippines is held in EXCEPT: Secs 6 & 7 of Rule 99
trust for a resident by a trustee who
derives his authority from abroad, such  Effective August 22, 2002, there is a
trustee must petition the RTC where the new Rule on Adoption.
land is situated, otherwise, the trust will
be vacant and a new trustee will be NATURE AND CONCEPT OF ADOPTION
appointed. Adoption is a juridical act, a proceeding
IN REM, which creates between two
When a trust is created abroad for persons a relationship similar to that
property in the Philippines, judicial which results from legitimate paternity
approval is still needed though trustor is and filiation.
alive. Only an adoption made through the
court, or in pursuance with the
BOND OF TRUSTEES (Sec. 5) procedure laid down under Rule on
Neglect of trustees to file a bond will be Adoption is valid in this jurisdiction.
interpreted by the court as resignation
or decline to accept the trust. PURPOSE OF ADOPTION
The promotion of the welfare of the
However, he may be exempted from child and the enhancement of his
bond when requested by: opportunities for a useful and happy life,
a. testator; and every intendment is sustained to
b. All persons beneficially promote that objective.
interested in the trust.
However, the court may cancel such WHAT DOES THE COURT DETERMINE IN
exemption anytime. ADOPTION CASES
1. capacity of the adopters
REMOVAL OR RESIGNATION OF THE 2. whether the adoption
TRUSTEE (Sec. 8) would be the best interest of the
REQUISITES child
1. Petition filed by parties
beneficially interested; Adoption is strictly personal between the
2. Notice to trustee; and adopter and the adopted. (Teofico vs.
3. Hearing. Del Val)
Who may petition?
Parties beneficially interested. RULES ON ADOPTION (Secs. 1-25)
Grounds DOMESTIC ADOPTION

1. essential in the interest
of petitioners WHO MAY ADOPT
2. insanity 1. Any Filipino Citizen -
3. incapability of a) of legal age;
discharging trustee b) in possession of full civil capacity
4. unsuitability and legal rights;
Rules on Sale and Encumbrance of Trust c) of good moral character;
Estate shall conform as nearly as may be d) has not been convicted of any
to the provisions on Sale and crime involving moral turpitude;
Encumbrance by Guardians. e) emotionally and psychologically
capable of caring for children;
ADOPTION AND CUSTODY OF MINORS f) in a position to support and care
for his/her children in keeping

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with the means of the family; WHO MAY BE ADOPTED

and 1. Any person below
g) at least 16 YEARS older than the eighteen (18) years of age who
adoptee. has been judicially declared
available for adoption OR
2. Any alien possessing the same voluntarily committed to DSWD.
qualifications as above; provided: 2. The legitimate child of
a) That his/her country has one spouse by the other spouse.
diplomatic relations with the 3. An illegitimate child by a
PHILIPPINES; qualified adopter to raise the
b) That he/she has been living in status to that of legitimacy.
the Philippines for at least 3 4. A person of legal age
CONTINUOUS YEARS prior to the regardless of civil status, if,
filing of the application for prior to the adoption, said
adoption; person has been consistently
c) Maintains residence until the considered and treated by the
adoption decree is entered; adopters as their own child since
d) Certified to have legal capacity minority.
to adopt, by his/her country; 5. A child whose adoption
and has been previously rescinded.
e) That his/her government allows 6. A child whose biological
the adoptee to enter his/her or adoptive parents have died.
country as his/her adopted 7. A child not otherwise
son/daughter. disqualified by law or these
rules.
3. The guardian with respect to the
ward after the termination of the GENERAL RULE: Husband and wife shall
guardianship and clearance of his jointly adopt.
financial accountabilities. EXCEPTIONS:
1. If one spouse seeks to
The requirement of 16 YEARS difference adopt the legitimate
between the adopter and the adoptee is son/daughter of the other.
NOT applicable if the adopter is: 2. If one spouse seeks to
1. the biological parent of the adoptee adopt his/her own illegitimate
2. the spouse of the adoptee’s parent son/daughter.
3. If the spouses are legally
The requirement on residency and separated from each other.
certification of alien’s qualification to VENUE (Sec.6)
adopt may be WAIVED for the following: Family Court where the prospective
1. The adoptee is a former adoptive parents reside.
Filipino citizen who seeks to
adopt a relative within the 4th Petition shall be verified and specifically
degree of consanguinity or state at the heading of the initiatory
affinity. pleading whether the petition contains
2. One who seeks to adopt an application for a change of name,
the legitimate son/daughter of rectification of simulated birth,
his/her Filipino spouse. voluntary or involuntary commitment of
3. One who is married to a children, or declaration of child as
Filipino citizen and seeks to abandoned, dependent or neglected.
adopt jointly with his/her spouse
a relative within the 4th degree A certification of non-forum shopping
of consanguinity or affinity of shall be included pursuant to Section 5,
the Filipino spouse. Rule 7 of the 1997 Rules of Civil
Procedure.

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PROCEDURE GENERAL RULE:

A. ORDER OF HEARING (Sec.12) Alien adopter must complete the 6
- must be published at least once MONTHS STC.
a week for 3 CONSECUTIVE WKS. EXCEPTION:
- at the discretion of the court, Same as Exemptions from requirements
copies of the order of hearing of residency and certification.
shall be furnished to the office
of the Sol.Gen. through the E. DECREE OF ADOPTION
provincial or city prosecutor, the If issued, this will take effect as of
DSWD and the biological parents the date of filing of the original
of the adoptee, IF KNOWN. petition.
- if a change in the name of the
adoptee is prayed for in the In case of change of name, the
petition, notice to the Sol. Gen. decree shall be submitted to the
Shall be MANDATORY. Civil Registrar where the court
issuing the same is situated.
B. CHILD & HOME STUDY REPORTS
(Sec.13) An amended birth certificate shall
- social worker verifies with the be issued. The original birth
Civil Registry the real identity certificate shall be stamped
and the name of adoptee and “cancelled” and shall be sealed in
the fact that he is legally the Civil Registry records.
available for adoption.
- social worker may make  The new birth certificate to be issued
recommendations to the court if to the adoptee shall not bear any
he finds some grounds to deny notation that it is an amended issue.
the petition.
EFFECTS OF ADOPTION
C. HEARING (sec.14) 1. adopter will exercise
- to be held within 6 MONTHS from parental authority.
the date of issuance of the order 2. all legal ties between
EXCEPT: in case of APPLICATION FOR biological parents and the
CHANGE OF NAME which hearing adoptee shall be severed, except
must not be within 4 MONTHS after when biological parent is spouse
LAST PUBLICATION nor within 30 of adopter.
DAYS prior to election. 3. adoptee shall be
- the petitioner and the considered legitimate child of
adoptee must personally appear adopter for all intents and
and the former must testify in purposes.
court. 4. adopters shall have
reciprocal rights of succession
D. SUPERVISED TRIAL CUSTODY (STC) without distinction from
(Sec.15) legitimate filiation.
Before issuance of decree of
adoption the court shall give the  All hearings and records are
adopter trial custody of the adoptee confidential. (Sec.18)
for at least 6 MONTHS.
Reason: So the parties will adjust INTER COUNTRY ADOPTION
psychologically and emotionally to (Secs. 26-32)
each other and establish a bonding
relationship. Where to file Petition?
 Court may reduce or exempt parties - A verified petition to adopt a Filipino
from STC. child may be filed by a foreign

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national or Filipino citizen 3. sexual assault or

permanently residing abroad with violence; or
the Family Court having jurisdiction 4. abandonment or failure
over the place where the child to comply with parental
resides or may be found. obligations.
- It may be filed directly with the
Inter-Country Adoption Board. Venue
FAMILY COURT of the city or province
WHO MAY ADOPT where the adoptee resides. (Sec. 20)
1. any alien or Filipino
citizen permanently residing Period within which to file VERIFIED
abroad who is at least twenty- petition (Sec. 21)
seven (27) years of age; 5 YEARS from reaching age of majority or
2. other requirements same from recovery of incompetency.
as with RA 8552.
Adverse party shall file his ANSWER
WHO MAY BE ADOPTED within 15 days from receipt of order of
Only a legally free child may be the court requiring him to answer. (Sec. 22)
subject of inter-country adoption.
EFFECTS OF JUDGMENT OF RESCISSION
 A child under the Inter-Country 1. parental authority or
Adoption Act is defined as any person legal custody will be restored
below fifteen (15) years of age. 2. reciprocal rights of
adoptee and adopter will be
RESCISSION AND REVOCATION OF extinguished
ADOPTION 3. vested rights required
prior to judicial rescission shall
Under the Domestic Adoption Act of be respected
1998, the ADOPTER CAN NO LONGER 4. adoptee shall use the
REVOKE the adoption, he can merely name stated in his original borth
disinherit the adoptee in accordance or foundling certificate
with the provisions of the Civil Code. 5. civil registrar will
reinstate his original birth or
In revocation, it relates only as to the foundling certificate
date of the judgment. Hence in
revocation, vested rights prior to Unlike in revocation of guardianship,
rescission should be respected. revocation of adoption is a separate
proceeding from the adoption.
Who files?
1. ADOPTEE RULE 99, SECTIONS 6 & 7
a) over 18 years of age or  Sections 6 and 7 of Rule 99 of the
b) if minor with assistance Rules of Court referring to Custody of
of DSWD Minors are still valid provisions.
2. GUARDIAN if over 18 but Rule 99, Section 6. Proceedings as to
incapacitated or COUNSEL child whose parents are separated.
The question as to the care and custody
Grounds and control of a child or children of their
1. repeated physical marriage is brought before a Regional
violence and verbal Trial Court by Petition or as an incident
maltreatment by the adopter to any other proceedings.
despite having undergone
counseling; When parents considered unfit to take
2. attempt on the life of charge of the child
the adopter; 1. by reason of moral depravity

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2. habitual drunkenness the parents are dead or cannot

3. incapacity be found, requiring the fiscal of
4. poverty the province to show cause, why
the child should not be taken
ORDER OF PREFERENCE in case the from its parents, if living
parents are unfit 3. Hearing and Order
1. Parental/Maternal 4. Service of Judgment –
grandparents upon the Civil Registrar of the
2. Child’s oldest brother or city or municipality where the
sister court issuing the same is
3. Some reputable or situated.
discreet person
4. Any suitable asylum,
children’s home or benevolent RULE 101
society. PROCEEDINGS FOR HOSPITALIZATION
OF INSANE PERSONS
No child under seven (7) years of age
shall be separated from its mother, Venue
unless the court fins there are RTC of province where the person
compelling reasons therefor. alleged to be insane is found.
Rule 99, Section 7. Custody of Vagrant Who files?

or Abused Child Director of Health with assistance of city
Jurisdiction and Venue or provincial fiscal.
Family Courts of the territory where the
petitioner resides.
Requisites
Grounds 1. Director of Health is of
1. Parents of the minor the opinion that the
are dead; commitment of the person
2. Parents have alleged to be insane is for
abandoned the child by reason of PUBLIC WELFARE or for THE
long absence or legal or physical WELFARE of said person
impossibility; 2. Such person or one
3. Parents cannot having charge of him is opposed
support the child; or his being taken to hospital or
4. Parents treat the asylum
child with excessive harshness;
5. Parents give the DISCHARGE OF INSANE (Sec. 4)
child corrupting orders, counsels Director of Health may file this petition
or examples; when he is of the opinion that the person
6. Parents cause or is permanently or temporarily cured or
allow the child to engage in may be released without danger
begging;
7. Parents cause or
allow child to commit offenses RULE 102
against the law. HABEAS CORPUS
PROCEDURE Habeas corpus extends to: (Sec.1)

1. Filing of Petition – by a 1. cases of illegal confinement or
reputable resident of the detention by which a person is
province deprived of his liberty; and
2. Show Cause Order –
directed to parents or in case

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2. cases by which the rightful custody of offense after a court of competent

the person is withheld from the jurisdiction has absolved him of the
person entitled thereto offense.
We hold that such a reservation is
 The restraint must be actual, repugnant to the government of laws
effective and material. The person need and not of men principle. Under this
not actually be confined as long as principle, the moment a person is
freedom of action is limited. (Moncupa acquitted on a criminal charge he can no
vs. Enrile, GR No. 61107, Apr. 26, 1983) longer be detained or re-arrested for the
same offense. (Moncupa vs. Enrile)
Writ of Habeas Corpus - a command
directed to the person detaining GROUNDS FOR RELIEF
another, requiring him to produce the 1. deprivation of any fundamental
body of the person detained at a or constitutional right
designated time and place, and to 2. lack of jurisdiction of the court
produce and to show cause and to to impose the sentence
explain the reason for detention. 3. excessive penalty
PURPOSE Requisites for the issuance of the Writ

The essential object and purpose of the in cases by which the rightful custody
writ of habeas corpus is to inquire into of the person of a minor is withheld
all manner of involuntary restraint as from the person entitled thereto
distinguished from voluntary, and to 1. that the petitioner has
relieve a person therefrom if such the right to the custody over the
restraint is illegal. (Moncupa vs. Enrile, minor
supra) 2. that the rightful custody
of the minor is being withheld
And any further rights of the parties are from the petitioner by the
left untouched by decision on the writ, respondent
whose principal purpose is to set the 3. that it is to the best
individual at liberty. (Villavicencio vs. interest of the minor concerned
Lukban) to be in the custody of the
petitioner and not that of
The privilege of writ is so sacred that, respondent. (Sombong vs. CA,
according to our CONSTITUTION, it shall January 31, 1996)
not be suspended except in cases of
invasion or rebellion when public  Habeas Corpus can never be a
security requires it (Art. III, Sec. 15). substitute for appeal.
IN CASES OF ILLEGAL CONFINEMENT OR Whether the petition for the writ of

DETENTION habeas corpus may be properly filed
GENERAL RULE: The release, whether together with the petition for
permanent or temporary, of a detained certiorari and mandamus
person renders the petition for habeas The Court ruled that the writs of habeas
corpus moot and academic. corpus and certiorari may be ancilliary
EXCEPTION: When there are restraints to each other where necessary to give
attached to his release which precludes effect to the supervisory powers of the
freedom of action, in which case the higher courts. A writ of habeas corpus
court can still inquire into the nature of reaches the body and the jurisdictional
his involuntary restraint. (Villavicencio matters, but not the record. A writ of
vs. Lukban) certiorari reaches the record but not the
body. Hence, a writ of habeas corpus
Whether the State can reserve the may be used with the writ of certiorari
power to re-arrest a person for an for the purpose of review. However,

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habeas corpus does not lie where the d. service of writ by sheriff or other
petitioner has the remedy of appeal or officer;
certiorari because it will not be e. return; and
permitted to perform the functions of a f. hearing on return.
writ of error or appeal for the purpose of
reviewing mere errors or irregularities in To whom writ directed and what to
the proceedings of a court having require. (Sec.6)
jurisdiction over the person and the Directed to officer and commands him
subject matter. (Galvez, et al. vs. CA, to:
et al., 237 SCRA 685). 1. have the body of person
before the court; and
 The person on bail is not entitled to 2. show cause of the
habeas corpus because his detention is imprisonment or restraint.
legal and technical.
How writ is executed and returned
Does voluntary restraint constitute (Sec.8)
habeas corpus? Officer shall:
As a GENERAL RULE, NO. EXCEPT when a 1. Convey the person so imprisoned
person restrained is a minor and the before the judge, unless from
petitioner is the father or mother or sickness or infirmity, such person
guardian or a person having custody of cannot, without danger be
the minor. brought before the court.
2. Make the return of the writ
 Voluntariness is viewed from the together with the day and the
point of view of the person entitled to cause of caption or restraint.
custody.
Defect of form (Sec.9)
Supervening Events May Bar Release NO writ can be disobeyed for defect in
Even if the arrest of a person is illegal, form IF it sufficiently states:
supervening events may bar release of 1. person in whose custody or
discharge from custody. What is to be under whose restraint the party
inquired into is the legality of detention imprisoned or restraint is held,
as of, at the earliest, the filing of the and
application for the writ of habeas 2. court or judge before whom he is
corpus. (Velasco vs. CA, July 7,1995). to be brought.
Preliminary Citation - issued by the When the return evidence, and when
court to show cause whether or not the only a plea (Sec.3)
writ should be issued If a prisoner is in custody under a
warrant of commitment in pursuance of
Who may grant the petition (Sec.2) law or under a judicial order, the return
1. SC or any member thereon shall be considered PRIMA FACIE
2. CA or any member thereof EVIDENCE OF THE CAUSE OF RESTRAINT,
3. RTC or any judge thereof however it shall only be plea of the
4. MTC - in the absence of RTC facts set forth if restraint is by private
judges authority.
Procedure for grant of writ When prisoner discharged if no appeal.

a. verified petition signed by the (Sec.15)
party for whose relief it is If one is unlawfully imprisoned, court
intended; some other person in shall order his discharge but such
his behalf; discharge shall not be effective until a
b. allowance of writ; copy of the order has been served on the
c. command officer to produce; office or person detaining the prisoner.

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If person detaining him does not appeal, As far as practicable, the following order
the prisoner shall be released. of preference shall be observed in the
award of custody:
When prisoner may be removed from a. Both parents jointly;
one custody to another (Sec.18) b. Either parent, taking into
1. By legal process account all relevant
2. Prisoner is delivered to an considerations, especially the
inferior officer to carry to jail choice of the minor over seven
3. By order of proper court or judge years of age and of sufficient
be removed from one place to discernment unless the parent
another within the Phil. for trial. chosen unfit;
4. In case of fire, epidemic, c. The grandparent or if there are
insurrection or other necessity or several grandparents,
public calamity. grandparent chosen by the minor
over seven years of age and of
When does court acquire jurisdiction sufficient discernment, unless
over person of respondent? the grandparent chosen is unfit
The writ itself plays the role as summon or disqualified;
in ordinary actions; court acquires d. The eldest brother or sister over
jurisdiction over the person of the twenty years of age unless he or
respondent BY MERE SERVICE OF WRIT. she is unfit or disqualified;
e. The actual custodian of the
APPEAL IN HABEAS CORPUS CASES minor over twenty years of age,
The appeal in habeas corpus cases may unless the former is unfit or
be taken in the name of the person disqualified; or
detained or of the officer or person f. Any other person or institution
detaining him. the court may deem suitable to
provide proper care and
An appeal in habeas corpus cases shall guidance for the minor.
be perfected by filing with the clerk of
court or the judge, within 48 hours from Temporary Visitation Rights (Sec.15)
notice of judgment, a notice of appeal. The court shall provide in its order
awarding provisional custody appropriate
visitation rights to the non- custodial
RULE ON CUSTODY OF MINORS AND parent or parents, unless the court finds
WRIT OF HABEAS CORPUS said parent or parents unfit or
disqualified.
IN RELATION TO THE CUSTODY OF
MINORS (A.M. No. 03-04-04-SC) Petition for Writ of Habeas Corpus
(Sec. 20)
Who may file Petition? (Sec.3)  shall be filed with the
- A verified petition for the rightful Family court.
custody of a minor may be filed by any  shall be enforceable
person claiming such right. within its judicial region to
which the Family Court belongs.
Where to file petition? (Sec.3)
 the petition may
- Family Court of the province or city
however be filed with the
where the petitioner resides or where
regular court in the absence of
the minor may be found.
the presiding judge of three
Family Court, provided however
Provisional Order Awarding Custody
that the regular court shall refer
(Sec.13)
the case to the family Court as
soon as its presiding judge
returns duty.

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 petition may also be b) cause for which the change

filed with the SC, CA, or with of name is sought;
any of its members and, if so c) new name asked for. (Secan
granted the writ shall be Kok vs. Republic, 52 SCRA
enforceable anywhere in the 322).
Philippines. The writ may be
made returnable to Hearing - shall not be within 30 days
prior to an election nor within 4 MONTHS
a Family court or to any regular after the LAST PUBLICATION of notice of
court within the region where hearing.
the petitioner resides or where
the minor may be found for Effects of Discrepancy in the Petition
hearing and decision on the and Published Order
merits. The defect in the petition and the order,
as to the spelling of the name of the
petitioner, is substantial, because it did
RULE 103 not correctly identify the party to said
CHANGE OF NAME proceedings.
Venue (Sec. 1) Grounds for change of name

RTC of the province in which he resides. 1. name is
ridiculous, tainted with dishonor
Contents of Petition (Sec.2) and extremely difficult to write
It shall set forth: or pronounce;
1. that petitioner is 2. consequence of a
a bonafide resident of the change of status; e.g.
province where petition is filed legitimated child;
for at least three years prior to 3. necessity to
the date of filing; avoid confusion;
2. all names by 4. having
which petitioner is known; continuously used and been
3. cause for change known since childhood by a
of name; Filipino name, unaware of her
4. name asked for. alien parentage;
Petition shall be signed and verified by 5. a sincere desire
person desiring his name changed or to adopt a Filipino name to erase
some other person in his behalf. signs of former alienage, all in
good faith and without
Requirement of verification is formal, prejudicing anybody.
NOT jurisdictional requisite. It is not a
ground for dismissing petition. TITLE OF PETITION MUST CONTAINED
THE FOLLOWNG
Jurisdictional Requirements 1. Official
1. the verified petition name (birth certificate) – be very
should be published for three particular with the spelling
successive weeks in some because it may avoid or annul
newspaper of general circulation the proceedings; it is
in the province; jurisdictional;
2. that both the title 2. all aliases;
and caption of the petition and and
its body shall recite: 3. name asked
a) name /names or aliases of for.
the applicant;

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All the names or aliases must appear in

the title or caption of the petition, PURPOSE OF PETITION - to appoint an
because the reader usually merely administrator over the
glances at the title of the petition and properties of the absentee.
may only proceed to read the entire Hence, if absentee left no
petition if the title is of interest to him. properties, such petition is
(Secan Kok vs. Republic,supra). unnecessary.
A decree of adoption grants the adoptee GROUNDS FOR TERMINATION OF THE

the right to use the adopter’s surname ADMINISTRATION
but not to change the former’s first 1. absentee personally
name which relief must be sought in a appears through an agent
discrete petition under Rule 103. 2. absentee death is proven
(Republic vs. Hernandez, GR NO. and heirs appear
117209, February 9, 1996). 3. third person appears
showing that he acquired title
 For administrative procedure for over the property of the
Change of Name, refer to Administrative absentee
Order 1, Series of 2004. It only applies 4. Actual or presumptive
to: death cannot be the subject if it
1. clerical errors; and is the onlt question or matter
2. innocuous errors. involved in a case or upon which
a competent court has to pass.
(Lukban vs. Republic, GR No.
RULE 107 8492, February 29, 1956)
ABSENTEES
ABSENTEE CONSEQUENCE No independent action for Declaration

of Presumption of Death
Exception: the need for declaration of
0-2 years -------- presumptive death for purposes of
marriage (Article 41 of the Family Code).
2 years to 7 years Petition for
declaration of
absence may be filed RULE 108
Beyond 7 years Considered dead for CANCELLATION OR CORRECTION OF
(absence of 4 years all intents and ENTRIES IN THE CIVIL REGISTRY
under extraordinary purposes except for
circumstance) purposes of Republic Act No. 9048 which was passed
succession by Congress on February 8, 2001
For purposes of substantially amended Article 412 of the
marriage: 4 years New Civil Code, to wit:
continuous absence
shall be sufficient for SECTION 1. Authority to Correct Clerical
present spouse to or Typographical Error and Change of
remarry, 2 years only First Name or Nickname.—No entry in a
under extraordinary civil register shall be changed or
circumstance corrected without a judicial order,
except for clerical or typographical
errors and change of first name or
nickname which can be corrected or
changed by the concerned city or
municipal civil registrar or consul
general in accordance with the

Special
133
provisions of this Act and its NAME CANCELLATION OF

implementing rules and regulations. ENTRIES
The above law speaks clearly. Clerical or Petition to be filed Verified petition filed
typographical errors in entries of the in the RTC where in the RTC where the
civil register are now to be corrected the petitioner corresponding Civil
and changed without need of a judicial resides registry is located
order and by the city or municipal civil Solicitor General Civil registrar
registrar or consul general. The obvious must be notified by concerned is made a
effect is to remove from the ambit of service of a copy of party to the
Rule 108 the correction or changing of the petition. proceeding as a
such errors in entries of the civil respondent. The
register. Hence, what is left for the Solicitor General
scope of operation of Rule 108 are must also be notified
substantial changes and corrections in by service of a copy
entries of the civil register. (Lee vs. CA, of the petition.
G.R. No. 118387, October 11, 2001). Petition is filed by Petition is filed by
person desiring to any person interested
Requisites of Adversarial proceedings change his name in any ACT, EVENT,
1. Prop ORDER or DECREE
er petition is filed where the Civil Order for hearing Order shall also be
Registrar and all parties interested shall be published published once for
are impleaded. once a week for three consecutive
2. The three consecutive weeks and court shall
order of the hearing must be weeks cause reasonable
published once a week for three notice to persons
consecutive weeks. named in petition
3. Notic Service of judgment shall be upon the civil
e thereof must be given to the Civil register concerned
Registrar and all parties affected Petition for change of name (Rule 103)
thereby. and petition for cancellation or
4. The correction of entries are DISTINCT
civil registrar and any person having PROCEEDINGS.
or claiming any interest under the
entry whose cancellation or Hence, a party cannot change name and
correction is sought may, within 15 correct an entry in a single petition
days from notice of the petition or without satisfying the jurisdictional
from the last date of publication of requirements. (Republic v. Balmore)
such notice, file his opposition
thereto.
5. Full RULE 109
blown trial. APPEALS IN SPECIAL PROCEEDINGS
 Proceedings for the correction of Orders or judgments from which

entries should not be considered as appeals may be taken (Sec.1)
establishing one’s status in a manner An interested person may appeal in
conclusively beyond dispute. The status special proceedings from such order or
corrected would not have a superior judgment rendered which:
quality for evidentiary purposes. There is 1. Allows or disallows a
no increase or diminution of substantive will;
right. (Chiao Ben Lim vs. Zosa, L- 40252, 2. Determines who are the
December 29, 1986) lawful heirs of a deceased
person, or the distributive share
PETITIONS FOR PETITIONS FOR of the estate to which such
CHANGE OF THE CORRECTION, person is entitled;

Special
134
3. Allows or disallows, in
whole or in part, any claim REQUIREMENTS Record on Appeal and
against the estate of a deceased Notice of Appeal and Docket Fees
person, or any claim presented Docket Fees
on behalf of the estate in offset
to a claim against it; No extension May be extended on
4. Settles the account of an meritorious grounds
executor, administrator, trustee
or guardian;
5. Constitutes, in the
proceedings relating to the
settlement of the estate of a
deceased person, or the
administration of a trustee or
guardian, a final determination
in the lower court of the rights
of the party appealing
appealing, except that no appeal
shall be allowed from the
appointment of a special
administrator; and
6. Is the final order or
judgment rendered in the case,
and affects the substantial rights
of the person appealing, unless
it be an order granting or
denying a motion for a new trial
or for reconsideration.
ORDERS THAT ARE NOT APPEALABLE

1. Order directing
administrator to take action to
recover amount due to the
estate;
2. Order made in
administration proceedings
relating to inclusion or exclusion
of items of property in the
inventory of executor or
administrator;
3. Order appointing special
administrator;
4. Order granting or
denying a motion for new trial or
for reconsideration.
APPEAL IN APPEAL IN
ORDINARY CIVIL SPECIAL
ACTION PROCEEDINGS
PERIOD: 30 days
15 days

Special
135
VENUE AND JURISDICTION OF SPECIAL PROCEEDINGS
SPECIAL PROCEEDING VENUE JURISDICTION
1. Settlement of the Estate Resident of the Decedent or MTC if the gross value of the
if the decedent is a non- estate does not exceed P200,000,
resident, place where he or P400,000 in Metro Manila
had an estate
RTC if the gross value of the
estate exceeds the above amounts
2. Escheat a. Person dies intestate

leaving no heir – Resident of
the decedent or if non- RTC
resident, in the place where
he had an estate.
b. Reversion – Where the RTC

land lies in whole or in part
c. Unclaimed Balance – RTC

Where the dormant deposits
are located
5. Appointment of Where the minor or Family Court (in case of Minors)

Guardians incompetent resides RTC (Regular courts—in cases
other than minors)
Where the will was allowed

6. Appointment of or where the property or RTC
Trustees portion thereof affected by
the trust is situated
7. Adoption Where the adopter resides Family Court
8. Rescission of Adoption Where the adoptee resides Family Court
9. Habeas Corpus Where the detainee is SC, CA, RTC, MTC in the province
detained (if the petition is or city in case there is no RTC
filed with the RTC) judge

Special
136
10. Change of Name Where petitioner resides RTC
11. Appointment of Where the absentee resided

Representative of before his disappearance RTC
Absentee/Declaration of
Absence
12. Cancellation/Correction Where the corresponding RTC

of Entries in the Civil Civil Registry is located
Registries

Special

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San Beda College of Law

MEMORY AID IN REMEDIAL LAW

SPECIAL PROCEEDINGS - A remedy by

 SC and CA have original jurisdiction Issuance of Letters

governed by governed by special Distribution of Residue, if any

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

2. When all the parties are heirs and

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

inhabitant or have his estate may be 1. Extrajudicial settlement of estate;

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

2. existence of debts against the 1. IN REM -binding on the

The 2-year lien upon the real property RULE 76

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

1. the testator is of sound and

EXTRINSIC VALIDITY - means due EVIDENCE in support of will:

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

- if all subscribing witnesses

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

b) order or decree of LETTERS TESTAMENTARY AND OF

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

What is the MAIN ISSUE in an

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

a) incompetence 4. Pay debts ONLY as may be

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

If after letters of administration have RULE 83

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

2. To examine and make invoices of

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

a) funeral expenses; and

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

Claims referred to under this section distribution of the assets of the

SOLIDARY OBLIGATION OF DECEDENT  These remedies are alternative, the

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

ACTIONS BY AND AGAINST EXECUTORS

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

 These requisites need not be How contingent claim becoming

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

opportunity to contest its allowance 2. If sale of personal estate may

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

The probate court lose jurisdiction over

PROHIBITION AGAINST INTERFERENCE

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

property in the Philippines By devisee, legatee, heir, widow/er, or

REMEDIAL LAW COMMITTEE