SPECIAL PROCEEDINGS | JUDGE SINGCO

MIDTERM EXAM | EH 403 (2018)

Special Proceedings – usually only the petitioner unless there

SPECIAL PROCEEDINGS is a private respondent or oppositor
or it is the State that is opposing.
INTRODUCTION
Civil Action is initiated by a Complaint and to be answered
by an Answer.
According to Judge, this is the easiest practice because you
Special Proceeding is initiated by a Petition and to be
have no opponent. If there is, it is only the government
answered by an Opposition.
through the fiscal representing the OSG. So it is not
adversarial as the civil and criminal cases.
SUPPLETORY APPLICATION OF ORDINARY CIVIL PROCEDURE
Also, this subject is more on procedure as you have already
What rules do you follow? (e.g. in the presentation of your
discussed the substantial aspect like in Succession. If you are
evidence or on matters relating to jurisdiction)
to file a petition in order to get the letters of administration to
Generally, the Rules of Special Procedures apply but if there
be admin of the estate, how do you prepare the pleading?
is not particular rule there like the principle of res judicata or
presentation of evidence, the ordinary rules of procedure
You must also take note of this subject as some special
applies suppletorily.
proceedings are not included in the rules like the Writ of
Amparo and the Writ of Habeas Data. These are
On Appeals, in special proceedings, there are specific rules
administrative matters.
on how to go on an appeal. There are certain instances
where you are only to submit the records of appeal because
COMPARED TO ORDINARY CIVIL ACTION
multiple appeals maybe allowed for orders that are final
already or interlocutory orders.
What is an ordinary civil action?
You have the right that is violated by another and you want
PETITION FOR THE ADMINISTRATION OF THE ESTATE OF THE
to vindicate the wrong. You will file a complaint.
DECEASED
How is this different from an ordinary civil action?
In a petition for administration of the estate of the
There is no right violated. It is a remedy for you to establish a
deceased, here is petitioner asking for letters of
right, a status, or a fact. There is no opposition but it is
administration to be appointed as the administrator of the
imbued with public interest because this may involve
deceased. Is the govt interested? No, unless the govt is the
changing your status that would affect your official
heir, then there will be the escheat proceedings.
documents registered with the Government.
In the settlement of the estate, there is an establishment of
Example:
fact of death and the status and rights of all the heirs that
Julia Baretto case
are entitled to the share in the estate.
There was a proceedings that was filed by the guardian, the
mother wanting to split (?) the family name of the father to
Judge: I don’t like these cases because it will last forever for
establish the fact that the child was born out of a null and
as long as the properties are not distributed.
void marriage. She wants the child to adapt her family name
because of this.
DECLARATION OF NULLITY OF MARRIAGE
This establishes a fact that the child is illegitimate, changes
Is this adversarial ordinary civil action where you file against
the status of the child to illegitimate and also (on the
the respondent spouse for the declaration of nullity of
change of name) establishes the truth that the child being
marriage or is it a special proceeding to establish a right,
illegitimate ordinarily under the Family Code carries the
fact or status?
family name of the mother. This is in a form of a petition.
It is a special proceeding because in some instances, they
would ask for correction of entries as ―married‖ to
―unmarried or single.‖
In an ordinary civil action, the plaintiff files a complaint and if
defendant is going to file his answer to the complaint, he files
Example:
an Answer. Usually in a complaint, there are two parties
Case handled by Judge
involved or even more (third party complaint).
Some are using other people’s name to marry. Because of
this the original owner of the said name becomes married
However, in a special proceeding, usually it involves a
already when in fact his/her name was just used. The birth
petitioner wanting to establish a status, or a right, or a
certificate was even used. In this case, the Declaration of
particular fact. There is not usually no opposition and if there
Nullity of Marriage is a special proceeding. This is correction
is any, seldom.
of entries to nullify the marriage certificate registered with
the Registry because actually you are not married to the
It is usually the State who opposes like in the change of
person.
name. The State is involve because whose records are you
going to change? It is the records in the National Statistics
Filing a Declaration of Nullity of Marriage is adversarial. You
Office. So it is usually the oppositor is the OSG being the
have to prove that the marriage was invalid as against the
lawyer of the Republic of the PH or the Prosecutor with the
person. Some people say that it is special proceeding
exercise of the power to prosecute.
because it is establishing a fact that the marriage is null and
void. Take note the difference. In some courts, it is docketed
as special proceeding but in other courts, it is an ordinary
civil action.
Civil Action – two parties usually

Caveat: We based this only on the discussions of Judge Singco so please also read the book of Festin | Page 1 of 14

Which is which?
The thing is it is still adversarial, not summary. You still have to
present evidence and it is not ex parte. The State has to be
involved as this would go into the status of the person in the
public records.
SETTLEMENT OF THE ESTATE
One of the things we need to study is the matter relating to
jurisdiction. On settlement of the estate, you have rules on
settling the estate.
 Extra-judicial settlement
 Judicial settlement
As a rule, settled in accordance with the last will of
testament. There is no need of court intervention when you
have extrajudicial partition of your settlement. The
extrajudicial partition means there are more than one heir
and no outstanding debts that have been left. The by
agreement of the heirs, then the estate can be settled extra-
judicially. It is expensive to go to court because you have to
pay filing fees and the publications.
The most important part is that there are no outstanding
debts.
If there is only one person as an heir, simply adjudicate the
properties in his favor by executing a public instrument
called as an affidavit of adjudication as the sole heir of the
deceased.
Two exceptions for non-intervention of the court
 Extra judicial settlement
o Deed of extra-judicial settlement with partition
 Affidavit of adjudication
o Just an affidavit
The problem is when there is a disagreement between the
heirs. The best way to settle the estate is to go to court.
There is settlement of estate for small value. For properties
not more than 10,000, then you go to court or extra-judicially
settle it, this kind of proceedings is summary settlement of
estate of small value. This will not require the appointment of
administrator.
There is a difference between extra-judicial settlement and
judicial settlement of small value.
EXTRA-JUDICIAL SETTLEMENT
In extra-judicial settlement, the rule is there should not be an
obligation left and the value is more than 10,000. There is no
requirement for bond, unless you have to register in the
register of deeds, the register of deeds may ask you to put
up a bond, the bond is equivalent to the value of the
personal properties. Why not the value of real properties?
Because it will not dissipate and it can be subject to future
claims. For personal properties, they depreciate and will get
lost as the years go by so there is no way of recovering it. The
period of the bond is at least 2 years, because that is the
period within which to make a claim against the estate so
far as the creditors are concerned.
In judicial settlement of small value, even if there are debts,
you can have it settled by the court. If there are personal
properties, the bond will be at the discretion of the court.
Caveat: We based this only on the discussions of Judge Singco so please also read the book of Festin | Page 2 of 14
SPECIAL PROCEEDINGS | JUDGE SINGCO
MIDTERM EXAM | EH 403 (2018)
First and foremost, the fact of death must be established.
You cannot settle the properties if the owner is still alive. The
evidence you need is the death certificate. If missing,
presumptive death, and you follow the laws on presumptive
death. Ordinary circumstances, 10 years. For extraordinary, 4
years. If 75 years old when missing, 5 years.
If they cannot agree as to the partition, an extra-judicial
settlement can be converted into judicial proceeding, such
as judicial partition. If they cannot agree how to divide. E.g.
All of the heirs want the property fronting the road.
On the summary settlement, you have
1) Judicial summary of the estate
2) Partition
3) Administration proceeding
o Letters of administration
o Letters testamentary if there is a last will of
testament
4) Escheat proceeding
o When there are no heirs except for the state
For public instruments, after execution, it must be registered.
But before registration, there has to be publication. This is for
constructive notice. Usually publication of the affidavit, or
just simply notice to the creditors, or you have publication of
the extra-judicial settlement or notice to creditors. If after 2
year, no creditors claiming, it shall be presumed that all
debts have been paid.
For extra-judicial settlement, decedent left no wills and no
debts. The heirs now execute a public instrument. Who are
the heirs? All of legal age, or minor represented by judicial or
legal guardian and they all agree to the extra-judicial
settlement.
In the deed of extra-judicial settlement, you must state
1) Personality as heirs
2) Enumerating the decedent's properties
3) Who must be given the specific properties
4) The decedent left no debts
5) The circumstances of the death of the decedent
by attaching the death certificate
Thereafter, it must be published once a week for three
consecutive weeks.
You also attach the
1) Original certificate of titles
2) Certificate of non-tax delinquency
3) Survey and subdivision plan
4) Certificate of non-ancestral land or public domain
o Certification from DA that land not public
domain
o Certification from CENRO that is not
agricultural land
5) Payment of Estate tax
Thereafter, there is registration.
Extrajudicial settlement can be converted into judicial
partition. Rule 69.
SUMMARY SETTLEMENT OF SMALL VALUE
If you go to court, then there is a summary settlement of
small value. You file a petition. Where? Depending where
the property is located, the residence of the deceased, how
 SPECIAL PROCEEDINGS | JUDGE SINGCO
MIDTERM EXAM | EH 403 (2018)

much the value of the property. You go into venue and for annulment of decision, due to extrinsic fraud or lack of
jurisdiction. jurisdiction. 0r relief from judgment, due to FAME.

As a rule, if the amount is 10,000, that is less than ESCHEAT

200,000(revised is 300,000 for non-Metro Manila; 400,000 for
Metro Manila), then you go to MTC. MTC where the
deceased has last resided, residence means animus
revertendi and animus manendi.
If the deceased is not a resident of the Philippines, we follow
where the property is located. But if the properties are
located in different places, we follow the exclusionary rule.
The first court who takes first cognizance shall exclude all the
rest.
If there are no heirs, then Escheat proceeding, initiated by
the State through the Solicitor General. The court who has
jurisdiction depends where the property is located if you
cannot ascertain where was the last residence of the
deceased. Order for hearing then publication. Then there is
hearing not more than 6 months from the date of order.
Then judgment is rendered declaring the property in favor of
LGU or the State.

So assuming settlement of small value, you have to state the For adjudication of sole heir, only possible if there is only one
jurisdictional facts. heir.
1) The death You need
2) Place of residence  Death certificate
3) The names of the heirs, their ages and addresses  Birth certificate proving you are an heir
a. If they are minors, they must be  certificate of non-tax delinquency
represented by legal guardians
 Certificate of non-ancestral land or public domain
b. Addresses for notification
o Certification from DA that land not public
4) Value and character of the property
domain
o Certification from CENRO that is not
Is the publication constructive notice to the parties in extra-
agricultural land
judicial settlement? NO.
o You have to state in the affidavit that you are the sole heir
Four years from the discovery of the fraud
o and there are no more debts. Then publication, although
If minor, two years from attaining majority
o not constructive notice. Then you have the bond.
If you're a creditor, two years from settlement,
unless defrauded
RECITATIONS
Going back to summary settlement of small value, assuming
all those allegations have been, sufficient in form and
What are the exceptions to the rule that estate should be
substance, the court will issue an order directing the initial
settled judicially?
hearing of the petition. Not earlier than one month, not more
than three months from the filing of the petition. What is
Student: Extrajudicial settlement and Adjudication of Sole
going to be published? Not the petition, but the order setting
Heir
the petition for initial hearing.
What is the difference of extrajudicial settlement and
In the initial hearing
o summary settlement of small value?
You need to prove that the court where you filed
the petition has jurisdiction.
Student: Former, no need of court intervention, no required
 How do you establish jurisdictional facts?
value, and no debts. Latter, there is a need of court
Present the petition, with the attachments.
o intervention, value is not more than 10,000, and may have
You need to establish that there was an order
debts.
setting the petition for initial hearing
 You present the order
o When does the presumption arise that a decedent left no
You need to submit the notice of order that all the
debts?
heirs have been notified
o Prove publication
Student: When no creditor claims within 2 years from death.
 Constructive notice because this is judicial,
even against the State
Is there any finality of extra-judicial settlement?
 Also present newspaper clippings
 Once a week for three consecutive
S: No finality. Publication does not bind other heirs who did
weeks
not take part.
If there is opposition, they have to manifest their presence
When can you make claim?
and they are opposing the settlement. They will be given a
period of time at the discretion of the court, as to when to
S: 4 years after discovery of fraud.
file their opposition.
About minority?
Thereafter there will be presentation of evidence. If there is
no opposition, no problem. It will be heard in the branch
S: Within 2 years after reaching age of majority.
clerk of court. Judgment will be rendered by the court and
that would include the distribution of the estate.
Can Judicial settlement through letters of administration be
converted into ordinary action of partition proceedings?
For those who have not been notified nor read the
newspaper, he can question as long as it is within the
S: Yes.
reglementary period. If it becomes final, he can always ask

Caveat: We based this only on the discussions of Judge Singco so please also read the book of Festin | Page 3 of 14

If there are objections and controversy, would this preclude
the heirs to partition proceeding?
S: No. They can still ask for partition.
Is there any chance that the will cannot be probated
anymore because the heir agreed to just divide the
properties?
S: No. Intention of the testator is the supreme law of
succession. The law provided that it is mandatory.
Now, in so far as the probate (if there is a will) is concern, you
have to consider where was the last residence of the
testator otherwise if he is not a resident of the Philippines,
then it will be the location of his property. Of course you
have to consider also the value of the property.
Q: Why is it that the probate of a will is necessary and it is
mandatory?
A: Probate is the operative fact that will transfer the rights to
the properties from the testator to his heirs. But still you have
to have the will probated. Its public policy that the will of the
decedent has to be respected. Even if it was not contested
among the heirs, you cannot just simply set it aside by
converting a probate into an extrajudicial settlement,
otherwise there cannot be a transfer of rights over the
property to the heirs. You have to prove the due execution
of the last will and testament, maybe notarial or
holographic. And when you say due execution, its limited
only to extrinsic validity – formalities required by law have
been complied with like the form in the case of a notarial
will.
Q: What do you need to prove that it has been duly
executed?
A: There is that requirement of 3 witnesses attesting to the
due execution of the last will and testament who must sign
all pages and must state how many pages does it contain.
Otherwise if not stated in the attestation clause, that is fatal
to the validity (extrinsic) of the last will and testament thus it
can be disallowed.
Q: What else do you need to follow?
A: There is the signature of course of the testator and then
has to be acknowledge before a notary public.
Q: How about for holographic will, what do you need to
establish?
A: It has to be hand-written by the testator, duly signed by
him and also you have to consider the date as stated in his
holographic will.
Q: Back to notarial will, if you can probate the last will and
testament, who can file the petition?
A: It would be the executor if there is any executor.
Q: What would be the duty of the executor after learning that
the testator has died?
A: Present himself to the court with regard to the last will and
testament and manifest his desire whether or not accept the
task given to him to be the executor of the will within the
period of 20 days.
Caveat: We based this only on the discussions of Judge Singco so please also read the book of Festin | Page 4 of 14
SPECIAL PROCEEDINGS | JUDGE SINGCO
MIDTERM EXAM | EH 403 (2018)
Q: What if the last will and testament is not in the hands of the
executor but with someone else, who was the custodian?
How many days does he has to present the will?
A: 20 days from knowledge of the death of the testator.
Q: What if he will refused? Can you file a mandamus case
against him to present it? What would be the penalty?
A: No, Mandamus is not applicable. He can be fine for not
more than PhP2,000.00 only.
Q: How else can you compel him?
A: Mandamus is not the proper remedy. You ask the court to
order him to appear, or otherwise, he can be cited in
contempt and be imprisoned unless he complies with the
orders of the court.
Q: Who else can file for the petition for the probate of will in
the court?
A: Any interested person. You have the devisee, the legatee
named in the will. Legatee – beneficiary of personal
property and devisee – real property; the creditors.
Q: Can the testator then have his will probated during his
lifetime?
A: Yes. The good thing here is it is less hassle in a sense that
you don’t have to require a witness to testify. The testator just
need to acknowledge that the will is his; the handwriting is
his; and there is even no need for publication. Usually
testators wants to file the petition himself because he wants
one of the heirs be disinherited that’s why he wants the
petition before he died.
Q: Other than the testator, who else may be interested?
A: The heirs as well.
Q: What would then be the content of the petition?
A: As per the rules, you have to state first the jurisdictional
facts – that is the death or presumptive death of the testator;
the Residence at the time of death or the place of the
estate if the testator is not a resident in the Philippines;
names, ages and residences of the heirs mentioned; in the
last will and testament, devisees and legatees likewise must
be so stated in the petition; the probable value and
character of the properties to consider jurisdiction as to
amount of the total value of the property; the name of the
executor so that the court if granted the probate will issue
the letters testamentary for and on behalf of the executor; if
there is a custodian of the will other than the executor then
his name has to be mentioned in the petition so the court
can accordingly order him to produce the last will and
testament.
Q: If the last will and testament is delivered or when a
petition to or from the last will is filed in the court, what will
the court do next?
A: The court will set the will first for initial hearing. An order
has to be issued setting the case for initial hearing. The
reason here is so that all those who have claims may appear
before the probate court for the estate of the testator. The
order has to be published (the order) in a newspaper of
general circulation. The court then has to give notice to all

legatees, devisees and heirs mentioned in the will and the
petition.
Notices normally are done personally when the heirs are just
near the court, or if they are far away – by registered mail, at
least 20 days before the scheduled hearing.
Q: Aside from the formalities of the will, what else that you
need to prove?
A: That he was of sound mind at the time of the preparation
of the last will and testament. That he had not been forced
into making the will (consent not vitiated), and that no
undue influence was made to him by any of the
beneficiaries, and finally that his signature had not been
forged.
Q: In the disallowance of the will, what would be the grounds
for disallowance?
A: It would be the opposite - formalities not complied with;
the testator is insane; or is incapable of making a sound
decision at the time of the making of the will; executed
through force, under dures or the influence of fear; signature
of the testator was procured by fraud; the testator acted in
mistake in affixing his signature.
Q: What would then have the executor do, after death of the
testator?
A: Present himself within 20 days after learning of the
testators death before the court and manifest his intent to
accept or refuse the task to be the executor.
Q: What is the proof of the last will and testament?
A: The copy itself of the will – not necessarily the original
copy for notarial will. You can even probate a will that was
lost or destroyed so long as you can prove that there was
that time when the will existed. But for a holographic will, the
original copy has to be presented.
Q: What are the evidence required in support of the will?
A: If uncontested, just the will itself and a witness that is one
of the three witnesses to testify on the due execution of the
will.
Q: If all the subscribing witnesses are no longer residing in
the province, more than 100kms away from the probate
court, how do you prove the will?
A: Still for uncontested will, you need someone who can
attest that the signature is that of the testator.
Q: How about for holographic will, what do you need to
prove the existence or validity of the will?
A: You need only the testimony of the witness that those are
the handwriting or the signature of the testator.
Q: How about if the notarial will is contested? How many
witnesses do you need?
A: All the subscribing witnesses has then to be presented.
Q: For holographic will, how many witnesses if contested?
A: Present also 3 witnesses as to the handwriting.
Caveat: We based this only on the discussions of Judge Singco so please also read the book of Festin | Page 5 of 14
SPECIAL PROCEEDINGS | JUDGE SINGCO
MIDTERM EXAM | EH 403 (2018)
Q: How do you prove or allow a lost or destroyed will?
A: Rule 76, Section 6. Proof of lost or destroyed will.
Certificate thereupon. — No will shall be proved as a lost or
destroyed will unless the execution and validity of the same
be established, and the will is proved to have been in
existence at the time of the death of the testator, or is shown
to have been fraudulently or accidentally destroyed in the
lifetime of the testator without his knowledge, nor unless its
provisions are clearly and distinctly proved by at least two (2)
credible witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the judge,
under the seal of the court, and the certificate must be filed
and recorded as other wills are filed and recorded.
TN: For holographic will, it cannot be adopted once it is
destroyed.
RULE 77 FOREIGN WILL
Q: Let’s go now to foreign will, can that be probated even if it
was not yet first probated in the place where it was
executed?
A: Yes. The Rule provides no prohibition against it. Usually you
have to probate because mandatory and necessary in
order to transfer properties here in the Philippines. There
cannot be a valid transfer of properties to anyone unless you
have it probated, so even if the will was made outside of the
country – still it has to be probated here if you want the
properties mentioned in the will that is located in the
Philippines to be transferrable to anyone. The testator
therefore can either be a foreigner or a citizen. He can be a
resident or non-resident.
Q: How do you probate then the will?
A: The will has to be probated in accordance with our laws
following the same applicable rules as a will prepared and
duly executed here in the Philippines.
Q: What if the will has been probated outside? Can it be
properly taken with Judicial Notice?
A: No, still it has to be reprobated. By reprobate, you have to
prove that the testator is a resident outside of the Philippines,
his death and that he has his will probated after his death
outside Ph, and that the one who probated it is a court with
jurisdiction such as a probate court in that place, and it has
been probated in accordance with the law of that country
where the will was probated.
You have then to prove the law, the existence of the
probate law of the foreign country and that the will had
been validly probated in accordance thereof (e.g., probate
law in the State of Texas, USA).
Q: How about the appointment of executor/administrator,
does he has jurisdiction also over the properties here in the
Philippines? Can he also administer the properties here after
the will was probated abroad?
A: No, orders of foreign judgment does not bind our courts.
Even with the foreign probate proceedings, we do not take
judicial notice on that with our courts. So there may be a
need to appoint an ancillary executor/administration in so
far as the properties here in the Philippines are concern.
Under our rules, the requirement of an administrator is be a

resident in the Philippines. In fact, it would be a
disqualification if he is not a resident to effectively manage
the estate of the deceased so also not the prejudice the
rights of interested parties e.g., creditors.
As to order of priority, the creditors here has priority claim
over the properties located in the Philippines. Similarly, the
creditors outside has priority claim also over the properties
located in the foreign countries where it was located.
Q: What is the proof in the reprobated of the foreign will?
What are the requirements?
A: That the will had been probated in the foreign country;
the fact that the foreign tribunal is a probate court; the law
on probate procedure on the said foreign court and proof of
compliance therewith – legal requirements of the foreign
country of the valid execution of the will.
Q: What are the effects of reprobate?
A: The will shall have the effect as if it was originally allowed
and probated here in the Philippines. Letters testamentary or
administration will then be issued; such estate after the
payment of just debts and obligations will be disposed of
according to the last will of the deceased.
RULE 78
LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND
TO WHOM ISSUE
The following may administer the estate of a deceased
person:
1) Administrator
2) Executor
Instances where there is NO need for an executor or
administrator:
1) Extra-judicial settlement of the estate
2) Summary settlement of a small value of the estate of
the deceased
EXECUTOR V ADMINISTRATOR
Executor is a person named expressly by the deceased
person in his will to administer, settle and liquidate his estate
Administrator is a person appointed by the intestate court to
administer the estate of a deceased person who:
a) Dies without a will
b) Did not name an executor in the will
c) If there be one named, he is incompetent, refuses
the trust, or fails to give a bond, or that the will is
subsequently declared null and void
Executor may not need to put up a bond if expressly stated
in the will by the testator
Administrator must put up a bond
Executor is issued with letters testamentary
Administrator is issued with letters of administration
Persons incompetent to serve as executors or administrators:
1) Minor
2) Not a resident of the Philippines
3) In the opinion of the court unfit to execute the duties of
the trust by reason of drunkenness, improvidence, or want
Caveat: We based this only on the discussions of Judge Singco so please also read the book of Festin | Page 6 of 14
SPECIAL PROCEEDINGS | JUDGE SINGCO
MIDTERM EXAM | EH 403 (2018)
of understanding or integrity, or by reason of conviction of
an offense involving moral turpitude
Can an Executor of an Executor be issued with letters
testamentary?
No.
If the executor appointed by the testator dies and the
executor left a will and appointed an executor to administer
the estate of the first testator:
Not allowed. Under section 2, the executor of an executor
shall not, as such, administer the estate of the first testator.
Remedy: The court may appoint an administrator
When is letters testamentary issued?
The will must first be probated and allowed in court. The
court will then determine whether the executor appointed in
the will is competent. If the executor accepts the trust,
require the executor to put up a bond unless otherwise
stated by the testator in the will
When is letters of administration issued?
1) When the decedent dies without a will
2) When the testator did not name an executor in the
will
3) If there be one named in the will, he is incompetent
Order of preference in granting the letters of administration:
1) Surviving spouse, or next of kin, or both, or to such
person as such surviving husband or wife, or next of
kin, requests to have appointed, if competent and
willing to serve
2) One or more of the principal creditors
3) Such other person as the court may select
Rationale behind the Rule on Order of Preference:
The paramount consideration is the prospective
administrator's interest in the estate. Those who will reap the
benefit of a wise, speedy, and economical administration of
the estate, or in the alternative, suffer the consequences of
waste, improvidence or mismanagement, have the highest
interest and most influential motive to administer the estate
correctly.
Example:
Surviving Spouse
Preference bestowed by law to the surviving spouse
presupposes the surviving spouse's interest in the conjugal
partnership or community property forming part of the
decedent's estate. A surviving spouse is also a compulsory
heir which evinces as much interest in administering the
estate aside from her share in the conjugal partnership or
community property.
ILLUSTRATIONS:
1) The surviving spouse failed to apply for the letters of
administration within 30 days from the death of the
deceased. An illegitimate child of the deceased instituted
an intestate proceeding to settle the estate of the latter and
also prayed to be appointed as administrator of the estate.
The surviving spouse opposed the petition. Who may be
appointed as administrator?

The illegitimate child. Though the spouse may have
preference as to the appointment of administrator, the
spouse in this case has neglected to apply for letters of
administration within 30 days from death as required by the
Rule. The surviving spouse has not shown interest in the
estate, hence the letters of administration may be issued to
the next of kin.
2) A man and a woman were living together as husband
and wife, but they were not married. The woman's live in
partner died. The legitimate children of the man from his
previous marriage filed an application for letters of
administration. The properties were acquired by the
husband during his previous marriage. The petition was
opposed by the woman. Who will prevail?
The legitimate children. As between the legitimate children
and the live in partner, the legitimate children have better
rights to the properties acquired during the first marriage.
RULE 79
OPPOSING ISSUANCE OF LETTERS TESTAMENTARY PETITION
AND CONTEST FOR LETTERS OF ADMINISTRATION
When to file the opposition:
All heirs are notified when there is a petition for letters of
administration. An opposition may be filed upon notice.
Grounds for opposition to the issuance of letters
testamentary or of administration:
i. Incompetency of the petitioner; or
ii. That you have a better right to be appointed as an
administrator
Contents of a Petition for Letters of Administrator:
1) Jurisdictional facts
2) Fact of death of the decendent and that the
decedent is a resident of the Philippines
3) Names, ages, and residences of the heirs and the
names and residences of the creditors of the
decedent
4) Probable value and character of the property of
the estate
5) Name of the person for whom the letters of
administration are prayed
If there is a defect in the petition:
It will NOT render void the issuance of letters of administration
If an administrator is appointed against the opposition, is it
appealable?
Yes
How to file an opposition:
Must be in writing, stating the grounds of your opposition
RULE 80
SPECIAL ADMINISTRATOR
Special Administrator, definition
Caveat: We based this only on the discussions of Judge Singco so please also read the book of Festin | Page 7 of 14
SPECIAL PROCEEDINGS | JUDGE SINGCO
MIDTERM EXAM | EH 403 (2018)
A representative of the decedent appointed by the probate
court to care for and preserve his estate until an executor or
general administrator
SPECIAL ADMINISTRATOR V REGULAR ADMINISTRATOR
1) Administrator - appointed when a decedent died
intestate or did not appoint any executor or the will
is subsequently disallowed
Special Administrator - appointed when there is
delay in granting letters testamentary or
adminstration
1) Administrator - obliged to pay the debts of the
estate
Special Administrator - not obliged
2) Appointment of administrator - may be the subject
of appeal
Appointment of special administrator - regarded as
an interlocutory order and may not be the subject
of appeal
Extent of authority of the administrator:
To administer assets of the decedent found within Philippines
only or the country where it was granted
RULE 81
BONDS OF EXECUTOR AND ADMINISTRATORS
Is the executor or administrator required to post bond?
Yes. Before an executor or administrator enters upon the
execution of his trust, and letters testamentary or of
administration issue, he shall give a bond, in such sum as the
court directs, conditioned as follows:
1) To make and return to the court, within three
months, a true and complete inventory of all
goods, chattels, rights, credits, and estate of the
deceased which shall come to his possession or
knowledge or to the possession of any other person
for him;
2) To administer according to these rules, and, if an
executor, according to the will of the testator, all
goods, chattels, rights, credit, and estate which
shall at any time come to his possession or to the
possession of any other person for him, and from
the proceeds to pay and discharge all debts,
legacies, and charges on the same, or such
dividends thereon as shall be decreed by the
court;
3) To render a true and just account of his
administration to the court within one year, and at
any other time when requires by the court;
4) To perform all orders of the court by him to be
performed.
Is the bond of executor needed?
The bond posted by administrators and executors is
intended as an indemnity to the creditors, the heirs and the
estate. It compels the administrator, regular or special, to
perform the trust reposed in, and discharge the obligations
incumbent upon him.
RULE 82

POWER OF ADMINISTRATION
That power is given either to the executor or the
administrator, who have been issued with either the letters
testamentary or letters of administration. If a will is probated
then it is considered as valid, if an executor is named in the
last will and testament then he will be issued the letters
testamentary if he will accept the trust that is given to him by
the deceased. If he will not accept, then the court will be
compelled to make an appointment of administrator or if
there is no last will and testament then a regular
administrator who may apply for the letters to be granted
the letters of administration.
ADMINISTRATION
The purpose of administration is to liquidate the estate of the
deceased.
In liquidation we have to determine what are the properties
left, the liabilities and obligations left by the estate. Then
make payments of the obligations, and whatever is left, the
next job of an administrator to make a distribution.
So you have partition and distribution of the net residue of
the estate after making payments and settlements of the
obligation of the deceased.
PROJECT PARTITION IS NOT THE END
After the payment of the obligations, what happens next is
the properties left are to be distributed. However, that
cannot be done by the court if there is no some guide for
the court how the net residue of the estate would be
distributed, so what the court will do is to order the
administrator is to submit a project of partition which will be
the basis for the distribution.
The submission of the project of partition will not be
the end of the power of the administration of either the
executor or administrator. It is only until there is complete, full
distribution of the remainder of the estate in accordance
with the provisions of the will if there is or if there is none, then
in accordance with the project of partition with the
approval of the court.
GROUNDS FOR REVOCATION OF THE ADMINISTRATION
Section 2. Court may remove or accept resignation of
executor or administrator. Proceedings upon death,
resignation or removal- if an executor or administrator
neglects to render his account and settle the estate
according to law, or to perform an order or judgemnt of the
court, or a duty expressly provided by these rules, or
absconds, or becomes insane, or otherwise incapable or
unsuitable to discharge the trust, the court may remove him,
or in its discretion, may permit him to resign. When an
executor or administrator dies, resigns, or is removed the
remaining executor or administrator may administer the trust
alone, unless the court grants the letters to someone to act
with him. If there is no remaining executor or administrator,
administration may be granted to any suitable person.
EXECUTOR
The executor can be replaced because simply he refuse to
accept the trust or he cannot comply with the conditions like
for example the posting of a bond or that he is disqualified
for the appointment of the executor.
In which case, even if he may have been appointed or
designated as such in accordance with the Will, he may not
be appointed as an executor.
Caveat: We based this only on the discussions of Judge Singco so please also read the book of Festin | Page 8 of 14
SPECIAL PROCEEDINGS | JUDGE SINGCO
MIDTERM EXAM | EH 403 (2018)
ADMINISTRATOR
If his petition is granted for the letters of administration, it can
be revoked and he may even resign as such. The grounds
are in Sec. 2 of rule 82.
The grounds in Sec. 2 of rule 82 are not absolute and
exclusive; it is discretionary on the court as regards to the
revocation of the letters of administration.
(refer to sec.2 of rule 82 for the grounds)
What is the consequence if a will is later discovered?
Book: The proceedings for the probate of the will should
replace the intestate proceedings even if at that stage, an
administrator had already been appointed, without
prejudice that the proceeding shall continue intestacy.
When a will is later discovered, what will happen to the
letters of administration previously granted?
Book: If after the letters of administration have been
granted, his will is proved and allowed by the court, the
letters of administration shall be revoked and all powers
thereunder cease, and the administrator shall surrender the
letters to the court, and render his account.
Would the discovery of the will ipso facto nullify the letters of
administration already issue?
Book: No. It is only when the newly- discovered will has been
administered to probate that the letters of administration
may be revoked.
RULE 83
INVENTORY AND APPRAISAL
Failure To Make An Inventory
One of the grounds of revocation is the failure to make an
inventory or accounting of the property left within the period
prescribed by law.
In the inventory there is a period of time within which to
make one. The moment he is appointed as executor or
administrator, his first job is not to take possession of the
property but to account what are these properties that
belong to the estate of the deceased.
INVENTORY
In inventory it is simply to enumerate all the properties which
may belong to the estate of the deceased, which may
include even those properties that are being claimed by
third parties, even those properties that are not in his
possession but has come to his knowledge that these
properties may belong to estate of the decease, he should
nonetheless include that in the inventory.
The inventory should be done within 3 months from the
issuance of the letters of administration. But however such
period is not mandatory. If he fail to make an inventory, that
would be a ground for revocation of letters of administration.
EXTENSION
Extension, sometimes it is allowed for compelling reasons, for
example the estate of the deceased is huge and there are
so many other claimants that first should be settled or
clarified before they should be included in the inventory,

thus, which might take time, then they may ask for extension
from the court.
TAKE NOTE:
The inventory is not final neither conclusive, it is only a prima
facie evidence of ownership. In other words if there are
contest over the ownership of the properties, the probate
court cannot assume jurisdiction as to determine who owns
the property. The jurisdiction of the probate court is limited.
Thus, when there is third party who is in possession of the
property, the administrator should still include it in the
inventory without prejudice to the filling of a separate action
in an ordinary civil action for the recovery of the property. So
it will be a separate action and not in the probate court.
However there is an exception, when the heirs themselves
agreed among themselves to submit the issue to the
probate court to resolve, then the probate court can resolve
the issue of ownership which is binding upon the heirs on
grounds of estoppel. They cannot say the court has no
authority because they submitted the matter, they have
waived it. However only when it is all heirs, there are no third
persons included.
ALLOWANCES TO THE SURVIVING SPOUSE AND TO THE MINOR
CHILDREN
Allowances is a provision that is required to be given to the
spouse and children which should be taken from the estate
of the deceased.
General rule: the one entitled to the allowances are the
minor children.
Exception:
1) a child even of age is physically and mentally
incapable to support himself
2) or even those who are capable however have not
finished studying yet, are still entitled to allowance.
What is the probative value of an inventory is so far as the
ownership of the properties is concerned? Is it conclusive?
Can it be contested by third parties? May the probate court
determine ownership of the properties? If no, is that
absolute?
Book: Property claimed by third persons may be included in
the inventory as part of the estate but such order is only a
prima facie determination and does not preclude the
claiming from maintaining an ordinary civil action.
The general rule is that the jurisdiction of the trial court relates
only to matters having to do with the probate but does not
extend to the determination of questions of ownership that
arise during the proceedings.
Exceptions:
1. The probate may provisionally pass upon in an
intestate or a testate proceeding without prejudice
to final determination of ownership in a separate
action.
2. If interested parties are all heirs to the estate
3. The question is one of collation or advancement
4. Parties consent
What do you exclude from the inventory?
1) Wearing apparel
2) Marriage bed and bedding
Caveat: We based this only on the discussions of Judge Singco so please also read the book of Festin | Page 9 of 14
SPECIAL PROCEEDINGS | JUDGE SINGCO
MIDTERM EXAM | EH 403 (2018)
3) Articles necessarily consumed in the subsistence of
the family
Allowance
The widow and minor or incapacitated children of a
deceased shall receive allowance. Grandchildren are not
included.
RULE 84
GENERAL POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS
GR: The administrator or executor does not need a leave of
court or permission of court before he can discharge the all
the functions as enumerated in the rules.
Exceptions:
1) When the power the power involves dominion or
ownership, like you are acting as owner then
authority of the court is necessary before you can
transact business involving those properties like
selling, mortgage etc it involves act of ownership.
But if its only manangement or administration,
leave of court is not necessary.
Taking Possession Of The Realty (Personal Or Real)
As regards taking possession of the personal or real
properties, taking possession is necessary is when it
is necessary for the payment of the debts,
possession is needed so that the administrator
could sell it to be able to pay.
The first thing to do, if there are no cash anymore,
then dispose of the personal properties, thus
possession is necessary to be able to sell it, and
then if it is not enough then real properties. It is not
only for the payment of obligations but also for
expenses.
2) Legal redemption - when property is co-owned,
permission from the court is necessary that you be
allowed to redeem the property that is being co-
owned.
What are the general powers and duties of executors and
administrators?
1) Shall at all times have access to, and may
`examine and take copies of, books and papers
relating to the partnership business;
2) May examine and make invoices of the property
belonging to such partnership;
3) Shall maintain in tenantable repair the house and
other structures and fences belonging to estate,
and deliver the same in such repair to the heirs or
devisees when directed so to do by the court;
4) Shall have the right to the possession and
management of the real as well as personal estate
of the deceased so long as it is necessary for the
 SPECIAL PROCEEDINGS | JUDGE SINGCO
MIDTERM EXAM | EH 403 (2018)

payment of the debts and expenses of the compute the assets and liabilities. So you have assets minus
administration. liabilities to determine the remainder or the residue of the
estate of the deceased that can be the subject of the
distribution. And this is mandatory; failure to make is a
In the exercise of the functions of the administrator or
ground for revocation. And the 1 year period can be
executor do you need to ask for leave of court? Under what
extended if there is compelling reasons.
circumstance is leave of court necessary?
Generally leave of court is not necessary. Except when (1)
What are administration expenses?
the administrator will exercise the right of legal redemption
Book: Those which are necessary for the management of the
over a portion of the property owned in common sold by
estate for the purpose of liquidation, payment of debts, and
one of the other co-owners and, (2) the estate is already the
distribution of the residue among the persons entitled.
subject of a testate or intestate proceeding, then leave of
Example: Attorney’s fees
court is required.
Can the lawyer file directly against the estate as a money
RULE 85 claim? Is this an obligation of the estate or the administrator?
Book: It depends.
ACCOUNTABILITY AND COMPENSATION OF EXECUtORS AND
Where an attorney renders services to the administrator or
ADMINISTRATORS
executor personally to aid in the execution of his trust, the
latter is liable for the fess, but he can move for
Accountability
reimbursement and charge such fees as expenses of
Part of the accountability is when you manage and
administration.
administer the properties; you incur expenses in the
liquidation as well as in the distribution of the properties.
Where the attorney’s services were rendered in a litigation
involving such administrator or executor in his capacity as
WHAT ARE THE EXPENSES:
trustee, the fee is chargeable to the estate.
1) Administration expenses- consist of expenses that
What are necessary expenses?
include in the liquidation and distribution of the estate. Those entailed for the preservation and productivity of the
estate and for its management.
Example:
Pertaining to when you liquidate, you have to recover Example: Repairs for the renovation of a house
some properties, thus you have to sue some person and
therefore have to hire some lawyers to assist, then that’s What happens after the administrator has accounted for the
part of liquidation, so in which case these are expenses expenses? At what stage of the proceedings should this be
for administration and this can be reimbursable, accounted for?
administrator may make claims for payment and Book: The accounting should be rendered within one year
charge against the estate of the deceased from the time of receiving letters testamentary or of
administration, unless the court otherwise directs.
2) Necessary expenses- these are expenses that may be
incurred for the preservation or for more productivity of RULE 86
a property that belongs to the estate of the deceased.
CLAIMS AGAINST THE ESTATE
Example:
The house of the deceased that needs repair, is a There will be notice to creditors then publication. Upon
necessary expense because if it is not repair the value knowing of the death of the deceased, you’re supposed to
of the house would depreciate. make a claim not less than 6 months not more than 12
months from the publication.
3) Attorney’s fees (favourite bar questions)
How to file a claim
Section 9.
If the attorney is hired directly by the administrator who
assisted him in the discharge of his function like the
When filed?
recovery of the property that belong to the estate of
It should not be less than six months nor more than twelve
the deceased, the lawyer should file a direction against
months from the day of the first publication of the notice
the administrator for the administrator to pay. Unless if
thereof
the lawyer services is secured to represent the estate
itself, then in which case the lawyer can file a money
1) File it with the Clerk of Court. The latter will furnish
claims directly against the estate of the deceased.
the copy to the administrator or executor.
2) The administrator will file an answer within the
Generally, it is an administration expense, so it would be
period of fifteen days. He may admit or deny the
the responsibility of the administrator to pay to the
claim against estate or neither admit or deny it
lawyer directly, thereafter during the liquidation the
because there are instances where the
administrator now can make a claim against the estate
administrator is not sure of the existence of the
for the payment of the expense as part of the
claim.
administration of the estate.
o If admitted, the court may just
simply approve the claim ex
ACCOUNTING
parte unless the heir would
Accounting is made within 1 year after the letters of
object to it or any person who
administration has been issued. In accounting you have to

Caveat: We based this only on the discussions of Judge Singco so please also read the book of Festin | Page 10 of 14

may have interest the claim or
who would oppose the claim
would be given the chance to
also give his side while he is
opposing to claim of that
particular claimant.
o If denied, there will be a trial.
There will be a hearing on
whether or not it should be
granted by the court.
3) Whatever will be the judgment of the court, an
appeal can be filed.
RULE 87
THE ACTIONS BY AND AGAINST THE ADMINISTRATOR.
Demonstrate action that can be brought against the
administrator or executor.
Actions:
1) Recover real or personal property;
2) Enforce a lien thereon;
3) Recover damages for an injury to person or
property, real or personal
The aforementioned instances are deemed actions that
survive the death of the decedent. You may pursue the
case against the estate, but basically the action pertains
only to what is enumerated above.
If the case was started or commenced during the lifetime of
the deceased who was a defendant, what will happen then
if he dies while the case is still pending is that if it is an action
for:
1) Personal property - for collection of sum of money,
the defendant died while the case was filed in the
court. The remedy of the plaintiff is to file a claim
against the estate.
2) Real property - then continue with the case, and
defendant would be the estate to be represented
by the administrator. There will be a substitution
from the deceased defendant to the administrator,
since it is just a substitution of a party; there is no
need of the service of summons to the
administrator.
Whose assets?
Assets of the estate held by the administrator or executor
What is the nature of the property?
Real and Personal
Who is the defendant? Who are you going to sue?
The administrator or executor
Basically these are actions that may survive notwithstanding
the death of the owner. So what will happen?
There will be a substitution of parties. The case will still
continue.
Should the administrator be issued summons for him to
appear in the court?
No. No need of summons.
As a rule, do the heirs have any standing in court to sue for
recovery of the estate being prevented by the executor or
administrator, during the pendency of the administration
proceedings?
Caveat: We based this only on the discussions of Judge Singco so please also read the book of Festin | Page 11 of 14
SPECIAL PROCEEDINGS | JUDGE SINGCO
MIDTERM EXAM | EH 403 (2018)
As a general rule, the heirs have no standing in court.
Is that an absolute rule?
Exceptions
1) If the administrator or executor is unwilling
2) If the administrator or executor has participation in
the act complained of
3) If there is no appointed administrator
Is there a need for a judicial declaration of heirship?
No need. Their right arises upon death of the deceased.
Do the heirs have the legal standing after the
commencement of administration proceeding?
Generally, the heirs have no standing.
An action for damages that was filed against defendant
before he died, because of injuries that he had caused to
the plaintiff, if he dies during the pendency of the case, the
action will continue. This is one of the actions that may
survive despite the death of the defendant, what will
happen here is just simply a substitution.
But if the action for damages is because of a malicious
prosecution, for example gikiha ang defendant who is now
deceased because of malicious prosecution by the
defendant against the plaintiff, who is now suing for
damages. Will that action prosper?
What the law says is to recover damages for any injury to a
person and it does not include malicious prosecution, in
which case the action will not survive. If it is not proven that
indeed the filing of the case by then defendant was
malicious, once he dies then that is the end of the case.
An action for revival of money judgment may be filed
against the administrator for the purpose of pre-empting
prescription of the judgment. As for the heir suing for the
recovery of a property, for a particular property he may not
sue unless that particular property is already delivered to him
as his share.
Before a distribution is made or before any residue is known,
the heirs or devisees have no cause of against the
administrator or executor for the recovery of the property left
by the decedent.
Section 6 - Proceedings when property concealed,
embezzled, or fraudulently conveyed
In order to elicit information or to secure evidence from
those persons who is suspected as having possess or having
knowledge of properties belonging to the deceased, or of
having concealed, embezzled or conveyed away any of
the properties of the deceased, does the court have the
authority to decide whether or not the properties belong to
the estate or to the person being examined since the
probate courts are courts of is limited jurisdiction, do they
have the authority to decide whether these properties
belong to the estate, especially if that property has been in
the possession of third person, precisely it was concealed or
embezzled?
Generally it has no authority, because its jurisdiction is
limited.
Exceptions:
1) Provisional determination of ownership for inclusion
in the inventory, then it has to be ascertained by
the probate court

2) Or the parties, the heirs will submit to the court’s
jurisdiction the determination of ownership.
Section 8. Embezzlement Before Letters Issued
If the embezzlement happens before the letters are issued.
Any responsible person for the embezzlement or alienation
of the deceased property shall be liable to an action in
favor to the executor or administrator of the estate.
The liability if it is found that the property has been
embezzled or that was concealed for a fraudulent purpose
when it should have redound to the estate of the deceased,
the liability would be double the value of the property sold,
embezzled, or alienated to be recovered for the benefit of
such estate.
Section 9. Property fraudulently conveyed by the deceased
may be recovered. When executor or administrator must
bring action
This provision applies when there is a deficiency of assets;
there are not enough assets in the hands of the executor or
administrator for the payment of the debts and expenses for
administration, for it is under the circumstance that there
may be conveyance made by the deceased with intend to
defraud the creditor then in which case the administrator
may file an action for the recovery of that property even it
was already disposed by the deceased during the lifetime.
Requirement:
There is deficiency of the assets and conveyance made
is void because it is attended with fraud. The subject of
the conveyance is liable for attachment by any of the
creditors in the lifetime of the decedent.
Section 10. When creditor may bring action. Lien for costs.
The creditor may also bring an action that is defrauded, here
when grantee in a fraudulent conveyance is other than
executor or administrator, a creditor may commence and
prosecute the action if the following requisites are present:
1. The executor or administrator has shown to have
no desire to file an action or failed to institute the
same within a reasonable period of time
2. Requires permission from the court
3. Creditor has to file a bond; the bond has to be in
the name of the administrator or executor,
because in the event there is no basis for the
recovery of the property and there would be a
counterclaim for damages because of the action
taken by the creditor at least there is the bond to
answer for the damages.
The requisites mentioned need not be complied if the
grantee of the fraudulent conveyance is the executor or
administrator himself, in which effect the action should be in
the name of all the creditors. Instead of the bond in the
name of the executor or administrator, it would be in the
name of all the creditors, who may have interest for the
recovery of the property for the payment of the credit.
RULE 88
PAYMENT OF THE DEBTS OF THE ESTATE
Does the probate court has the power to issue a writ of
execution to pay the claims in the estate?
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SPECIAL PROCEEDINGS | JUDGE SINGCO
MIDTERM EXAM | EH 403 (2018)
No, as a general rule, a probate court cannot issue a writ of
execution. A writ of execution is not the proper procedure
allowed by the Rules for the payment of debts and expenses
of administration.
So what is the proper procedure?
The proper procedure is for the court to order the sale of
personal estate or the sale or mortgage of real property of
the deceased and all debts and expenses of the
administration should be paid out of the proceeds of such
sale or mortgage. The order for the sale or mortgage should
be issued upon motion of the administrator and the with the
written notice to all the heirs, legates and devises residing in
the Philippines.
Are there exceptions, where a writ of execution may be
asked for the payment of the claims?
Yes, the probate court may issue writs of execution under the
following circumstances:
1. To satisfy the distributive shares of devisees,
legatees and heirs in possession of the decedent’s
assets;
2. To enforce payment of the expenses of partition;
and
3. To satisfy the costs when a person is cited for
examination in the probate proceedings
May the court authorize any person to dispose of the
properties of the estate?
No, it is only the executor or administration or the estate
whom the court may authoriz3e to dispose of the properties
of the estate so that the proceeds of the sale or mortgage
may be applied to its obligation.
Is an heir or distributee liable for outstanding claims against
the estate?
No, heirs are not required to respond with their own property
for the debts of their deceased ancestors. But even after the
partition of the estate, the heirs and distributes are liable
individually for the payment of all lawful outstanding claims
against the estate in proportion to the amount or value of
the property they have respectively receive from the estate.
The hereditary property consists only of that part which
remains after the settlement of all lawful claims against the
estate, for the settlement of which the entire estate is first
liable.
Going back to the payment of debts, if the estate would not
be sufficient to answer for all the debts how is this settle by
the courts?
Rule 88, Sec. 7. Order of Payment if Estate is Insolvent- If the
assets which can be appropriated for the payment of debts
are not sufficient for that purpose, the executor or
administrator shall pay the debts against the estate,
observing the provisions of Art.1059 and 2239 to 2251 of the
Civil Code.
This is the order of preference.
What about the payment of contingent claims? What are the
requirements for these contingent claims to be satisfied?
It has to be paid within 2 years
Section 4. Estate to be retained to meet contingent claims.
— If the court is satisfied that a contingent claim duly filed is
valid, it may order the executor or administrator to retain in
his hands sufficient estate to pay such contingent claim

when the same becomes absolute, or if the estate is
insolvent, sufficient to pay a portion equal to the dividend of
the other creditors.
Section 5. How contingent claim becoming absolute in two
years allowed and paid. Action against distributees later. —
If such contingent claim becomes absolute and is presented
to the court, or to the executor or administrator, within two
(2) years from the time limited for other creditors to present
their claims, it may be allowed by the court if not disputed
by the executor or administrator and, if disputed, it may be
proved and allowed or disallowed by the court as the facts
may warrant. If the contingent claim is allowed, the creditor
shall receive payment to the same extent as the other
creditors if the estate retained by the executor or
administrator is sufficient. But if the claim is not so presented,
after having become absolute, within said two (2) years, and
allowed, the assets retained in the hands of the executor or
administrator, not exhausted in the payment of claims, shall
be disturbed by the order of the court to the persons entitled
to the same; but the assets so distributed may still be applied
to the payment of the claim when established, and the
creditor may maintain an action against the distributees to
recover the debt, and such distributees and their estates
shall be liable for the debt in proportion to the estate they
have respectively received from the property of the
deceased.
Contingent Claims
Requisites for payment a contingent claim:
1) It must be duly filed within the 2-year period allowed for
the creditors to present claims
2) That the claim is valid and approved by the court
3) The contingent has become absolute
- If the heirs want the estate to be distributed before
satisfying the contingent claims, there must be a
reservation of a certain portion of the estate for the
payment of contingent claims. There is also a
requirement of a bond to make sure that it will be paid.
If a contingent claim becomes absolute WITHIN the 2-year
period (Sec 5, Rule 88)
o Payment of contingent claim must be taken from the
reserved portion of the estate for payment of the
contingent claim.
o If the reserved portion is not sufficient and the estate is
already distributed, the heirs may be compelled to
share in the payment of the contingent claims
proportionate to the share they have received.
o This is done through a Writ of Execution, should the heirs
refuse.
If a contingent claim matures AFTER the 2-year period (Sec 5,
Rule 88)
o The creditors may file an action against the distributees
for the payment of the contingent claims
o The distributees shall be liable in proportion to the share
of the estate they have respectively received from the
deceased.
Take note: The only instance wherein a creditor is allowed to
file an action against the distributee of the debtor’s assets is
under Sec. 5 Rule 88 of the Rules of Court. This is a separate
action.
Caveat: We based this only on the discussions of Judge Singco so please also read the book of Festin | Page 13 of 14
SPECIAL PROCEEDINGS | JUDGE SINGCO
MIDTERM EXAM | EH 403 (2018)
If Estate is Insolvent
The executor or administrator shall pay the debts against the
estate observing the provisions of Articles 1059 and 2239-
2251 of the Civil Code.
Estate of an Insolvent Non-Resident (Sec 9, Rule 88)
If the administration is taken in the Philippines, the estate of
the deceased found in the Philippines shall be disposed of
that his creditors in and outside the Philippines in proportion
to their respective credits.
Estate of an Insolvent Resident (Sec 10, Rule 88)
Claims proven outside the Philippines against an insolvent
resident where the executor or administrator in the
Philippines had knowledge and opportunity to contest, such
claims may be added to the list of claims against the estate
in the Philippines. The estate will be distributed equally
among the creditors.
Important: Benefit of Sections 9 and 10 cannot be extended
to the creditors of a foreign country where the properties of
the deceased therein is not equally apportioned to creditors
residing in the Philippines and other creditors, according to
their respective claims. It has to be reciprocal.
When to pay debt and legacies
- Must be within 1 year from granting of letters testamentary
or administration. The court may allow extension for a period
not exceeding 6 months for a single extension, upon
application of the executor or administrator and after
hearing.
- The whole period allowed to the original executor or
administrator shall not exceed 2 years
RULE 89
SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF
PROPERTY OF DECEDENT
Is notice a mandatory requirement to effect the authority of
the sale or encumbrance of real property?
Yes, failure to give notice to the heirs, devisees or legatees
would invalidate the authority granted by the court. It is not
only the contract itself which is null and void but also the
order of the court authorizing the same.
Order of Sale
1. The court may order the sale of Personal properties for
the purpose of paying debts, expenses of
administration, legacies, or for the preservation of the
property
2. When the Personal properties of the estate are
insufficient, the court may authorize the executor or
administrator to sell or mortgage Real properties.
Important: Any sale or mortgage of Personal or Real
properties, there must be NOTICE to all heirs, creditors, and
persons interested in the property.
RULE 90
DISTRIBUTION AND PARTITION OF THE ESTATE
How is the estate distributed by to the payment and/or
charges of the estate? When must the order for distribution
of residue be made?
No distribution shall be allowed until the payment of the
obligations abovementioned has been made or provided
 SPECIAL PROCEEDINGS | JUDGE SINGCO
MIDTERM EXAM | EH 403 (2018)

for, unless the distributees, or any of them gives a bond, in a

sum to be fixed by the court, conditioned for the payment of
said obligations within such time as the court directs.

How will the court do in the order of distribution of the estate?

The court will order a liquidation of the estate. You have to
collate all the properties that had already been distributed
by way of advance distribution, if any. You have to
determine the heirs of the estate. After determining the heirs,
you have to determine the shares of the heir.

When the debts, funeral charges, and expenses of

administration, the allowance to the widow, and
inheritance/estate tax, chargeable to the estate in
accordance with law, if any have been paid, the court shall
assign the residue of the estate to the persons entitled to the
same, naming them and the proportions, or parts, to which
each is entitled.

When is the title then vested to each heir to whom the

properties have been distributed? When is the title
transferred?
A final decree of distribution of the estate of a deceased
person vests the title to the destributees. IF the decree is
erroneous, it should be corrected by opportune appeal, for
once it becomes final, its binding effect is like any other
judgment in rem, unless properly set aside for lack of
jurisdiction or fraud.

Order of Distribution
1. Collate all properties left by the deceased including
those advanced by the deceased to the heirs
2. Determination of the heirs
3. Determination of the share
4. Submission of Project of Partition

There cannot be any closure of the settlement of the estate

unless a Project of Partition is submitted and approved by
the court.

Once approved by the court, there will be an order of

distribution.

Once the order of distribution is issued and becomes final,

that is the end of the proceedings. The moment it is already
final; you cannot reopen the proceedings.

Caveat: We based this only on the discussions of Judge Singco so please also read the book of Festin | Page 14 of 14