Spec Pro - Rule 72-90

TABLE
OF CONTENTS
Pages
RULE 72. SUBJECT MATTER AND APPLICABILITY OF
GENERAL RULES
Special proceeding defined
Ordinary action distinguished from special proceeding
Special proceeding a distinct and independent
proceeding
Nature of special
Petition for liquidation of an insolvent corporation a special
proceeding
Petition for corporate rehabilitation a special proceeding
SECTION 1, RULE 72. SUBJECT MATTER OF SPECIAL
PROCEEDINGS
Cases covered by
Other cases involving
Petition for corporate rehabilitation
Proceedings for recognition and enforcement of arbitration
agreement, etc
Special proceedings: how commenced 10
Applicable rules in special proceedings 10
Jurisdiction over special proceedings cases 11
Distinction between final and interlocutory orders not strictly
applicable 12
SECTION 2, RULE 72. APPLICABILITY OF RULES OF
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CIVIL ACTIONS 12
Applicability of the rules in ordinary civil actions in special
proceedings 12
Specific rules in civil actions that apply to special
proceedings 1
2
Certain rules in ordinary actions may be applied in
special proceedings 13
Intervention not available to creditor with a contingent,
not actual, claim 14
14
Legal interest required of an intervenor
SETTLEMENT OF ESTATE OF DECEASED PERSONS 15
Settlement of estate of deceased persons; what it intends to
achieve and what it seeks to establish 16 Rights to
succession; when transmitted 16
Right to the property transmitted from the moment of death; case
law 17
Intestacy inferior to testacy
17
Modes of settlement of the estate of a deceased person
18
Prompt filing of money claims against the decedent arising from
contract 18
Purpose of presentation of claims against decedents of estate in
the probate court 19
Complaint against person/s suspected of keeping properties
belonging to the estate; probate court has no authority to
decide the issue of ownership
19
Jurisdiction acquired through publication
20
Service of notice to the heirs not a jurisdictional requirement
20

TABLE OF CONTENTS page
RULE 73. VENUE AND PROCESS21
SECTION 1, RULE 73. WHERE ESTATE OF DECEASED

PERSONS SETTLED21
Venue for ordinary civil actions and for special proceedings have
the same meaning; residence defined
21
Distinction between "residence" under election laws and for
purposes of fixing the venue of actions under the Rules of
Court21 What determines
venue?22
Venue distinguished from jurisdiction 22

Rule refers to venue and not to jurisdiction23
Rules on venue and jurisdiction in probate proceedings

23 Court which has
jurisdiction over probate cases25
Court first taking cognizance excludes all others

25
When the administrator cannot enter into any transaction
without prior court approval 25

Page
Instances where two cases are filed, one testate and
the other intestate: which courts should exercise
viii
jurisdiction; case laws 26
Domicile of the testator affects only the venue but not the
jurisdiction 27 Wrong
venue in probate a waivable procedural defect 27
Jurisdiction over probate proceedings 28
Limited jurisdiction of probate courts 28
Powers and duties of the probate court 29
Probate court powerless to act on property rights from
contracts 30
Probate court as a trustee30
Probate courts cannot determine the issue of ownership

except provisionally 31
Rationale for the rule 31
Probate court may pass upon the issue of ownership with the
consent of the parties32
Probate court to distribute the estate and determine the heirs

32
Probate court generally cannot issue a writ of execution;
exceptions 33
Probate courts vested with jurisdiction to try controversies
between heirs regarding ownership of property allegedly
belonging to deceased34 Probate court vested with jurisdiction
to determine if
properties belong to conjugal partnership 34
Probate court has no jurisdiction over an encumbrance
34
Attorney's fees; against whom chargeable 35
Exclusionary rule 35
Publication of the filing of the application and of the date of
hearing 36
Recourse in case the venue is improperly laid
36 SECTION 2, RULE 73. WHERE ESTATE
SETTLED UPON

DISSOLUTION OF MARRIAGE 37
Conjugal partnership ends upon the death of either
37 spouse
Methods of liquidating the property of a conjugal partnership if
one spouse dies 37
Death of one spouse terminates the power of management of
the surviving spouse; power passed on to the appointed
administrator 38
Conjugal property and not just decedent's estate is under
administration38
Claims against the conjugal property should be brought in the

probate proceedings 38
Conveyance made by the surviving spouse of the conjugal
property may be void 39
Conjugal partnership of deceased spouses may be settled or
liquidated in the probate proceedings of either
39
SECTION 3, RULE 73. PROCESS
39
Probate court may issue necessary warrants and processes
39
SECTION 4, RULE 73. PRESUMPTION OF DEATH 40
Presumptive death 40
Other persons considered absent for the purpose of opening
succession40
Presumption of death cannot be the subject of an independent

court proceeding 41
Judicial declaration that a person is presumptively dead does not

attain finality; no court declaration needed for
presumption to arise 41
Presumption of death should yield to preponderance of
evidence 41
RULE 74. SUMMARY SETTLEMENT OF ESTATE 43
General rule on judicial administration of decedent's estate;
exceptions 46

Page
SECTION 1, RULE 74. EXTRAJUDICIAL SETTLEMENT
BY AGREEMENT BETWEEN HEIRS 46
Extrajudicial settlement of the estate; appointment of
administrator not necessary46
Special proceedings can be compelled when estate debts cannot

be collected extrajudicially
Rationale for the rule on extrajudicial settlement of the estate47
Provision not mandatory even though the decedent left no

debts 48 What
constitutes good and compelling reasons 48
Some circumstances not considered as good reasons 49
Substantive requisites
49
Rebuttable presumption that decedent left no debts 50
When bond is required; real property subject to a 2year
lien
50
Adjudication requisites50
Requisites common to the above modes
51
Affidavit of self-adjudication by sole heir
52
Procedural requisites of extrajudicial settlement
between heirs
52
When the subject of division is a realty; extent of
lien 53 Is the required public instrument under
Section 1 of Rule 74 constitutive and not merely evidential of
partition?53
Second sentence of Section 1 of Rule 74 an exception to the

general rule54
Ex-parte proceeding54

Publication requirement only intended to protect creditors and not
to deprive heirs of their lawful participation
54
Partition not included in statute of frauds55
Application of the statute 55

Oral partition enforced in equity when performed 55
Section 1 of Rule 74 not constitutive but merely evidential of
partition; purpose of the registration requirement
56
Effect of an unregistered extrajudicial settlement 56
Remedies of unpaid creditor and defrauded party after the
extrajudicial settlement 57 Finality of
partition 57
Remedies of aggrieved parties against the extrajudicial
settlement or summary settlement 58 Remedies for
an aggrieved co-heir 59
Recourse in case of disagreement among co-heirs 60
Remedy of a non-participating heir 60 60
Prescriptive period for non-participating heirs
60
Trust
explained61 trusts
Express and implied 61
Constructive trusts and resulting trusts 6
2
Exception to prescription of action for reconveyance
SECTION 2, RULE 74. SUMMARY SETTLEMENT OF 6
2
ESTATE OF SMALL VALUE
62 Estate of small
value62
Summary procedure defined

TABLE OF
CONTENTS
Requisites for summary settlement
Distinctions between extrajudicial settlement and
summary settlement
Distributees to receive and enter into possession
page
65
Claims of
heirs adverse to
decedent's;
exception 65
SECTION 3, RULE
74. BOND TO BE
FILED BY
DISTRIBUT
EES66
Bond to be
filed;
amount66
SECTION 4,
RULE 74.
LIABILITY OF
DISTRIBUTEES
AND
ESTATE66

Right to
compel
judicial
settlement6
6
Claim
against the
bond or real
estate or
both66
When
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6
7
Two-year
prescriptive
period67
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Buyers
bound by
annotation per
Section 4 of Rule
7471 SECTION 5,
RULE 74. PERIOD
FOR CLAIM OF
MINOR
OR
INCAP
ACITA
TED
PERSO
N71
Period
to
presen
t a
claim
for a
minor,
incapa
citate
d
perso
n,

prison
er or a
perso
n out
of the
countr
y71
Effect
o
f
S
e
c
ti
o
n
5,
R
ul
e
7
4
n
o
t
b
ei
n
g
a
n
n
o
ta
t
e
d
o
n
t
h
e
c
e
r
ti
fi
c
at
e
o
f
ti
tl
e
7
2
RULE 75.
PRODUCTION
OF WILL.
ALLOWANCE OF
WILL
NECESS
ARY73
Yii
SECTION 1,
RULE 75.
ALLOWANCE
NECESSARY,
CONCLUSI
VE AS To
EXECUTIO
N
Will
defined74
Probate or
allowance
of will
defined74
Probat
e
d
oe
s
n
ot
de
al
wi
th
th
e
in
tri
ns
ic
va
lid
ity
of
th
e
wi
ll7
5
Probate of
will
mandatory7
5

Due
executi
on of
the will
or its
extrinsi
c
validity
defined
75
Nature
and
charact
eristics
of a
probat
e
procee
ding76
Nature of
action or
proceeding;
how
determined
76
Notice
by
publica
tion
essenti
al to
validity
of the
procee
ding
77 Who
may
file a
petition
for
probat
e
78
Venue and
jurisdiction;
proper court
78
Probat
e
co
ur
t
be
re
ft
of
p
o
w
er
to
ad
ju
di
ca
te
tit
le
to
pr
o
pe
rti
es
79

Probate
court's
limited
authority
79
Probat
e
co
nc
er
ne
d
on
ly
wi
th
th
e
de
te
r
mi
na
ti
on
of
th
e
ex
tri
ns
ic
va
lid
ity
of
a
wi
ll

80
Probate
pr
oc
ee
di
ng
s
no
t
ad
ve
rs
ari
al;
be
st
ev
id
en
ce
to
be
pr
es
en
te
d
80
Probate
of
a
wi
ll
co
nc
lus
iv
e
as
to
its
du
e
ex
ec
uti
on
an
d
va
lid
ity
80
Proced
ure
after
deliver
y will to
court
or
upon
filing of
petition
for
probat
e
81
Impres
criptibil
ity of
probat
e
82
Intesta
cy is
subordi
nate to
testacy
82
Doubts to
be resolved
in favor of
testacy
82
Testate
pr
oc
ee
din
gs
for
th
e
se
ttl
em
en
t
of
th
e
est
ate
of
a
de
ce
as
ed
pe
rso
n
tak
e
pr
ec
ed
en
ce
ov
er
int
est
ate
pr
oc
ee
din
gs
83
SECTION 2,
RULE 75.
CUSTODIAN OF
WILL TO
DELIVER
83
Duty of
the custodian
of the will to
deliver it to
the court or
to the
executor
83 SECTION
3, RULE 75.
EXECUTOR
TO PRESENT
WILL

AND
ACC
EPT
OR
REF
USE
TRU
ST
Duty
of
the
exec
utor
nam
ed in
the
will
SECTION 4,
RULE 75.
CUSTODIAN
AND
EXECUTOR
84
SUBJ
ECT
TO
FINE
FOR
NEG
LECT

Failure by
the custodian or
executor to
fulfill his duties
page SECTION 5,
RULE 75.
PERSON
RETAINING WILL
MAY
Person
failing to
deliver a
will may
be
ordered
RULE 76.
ALLOWANCE OR
DISALLOWANCE OF
WILL 84 SECTION 1,
RULE 76. WHO MAY
PETITION FOR THE
86
ALLOWANCE OF WILL
Who may petition for the probate of a will
Person interested in the estate or interested p
Indirectly
interested person cannot interfere in
probate

When is jurisdiction acquired by the probat
court
Mere copy of
the will
attache
d to
the
petitio
n
deeme
d
sufficie
nt92
Delivery of
the will to
the court
sufficient
even if no
petition
filed yet
92 Effect of
probate of
a will
93
SECTION 2, RULE
76.
CONTENTS
OF
PETITION
93
Contents
of the
petition
for
probate
93
Jurisdictio
nal facts
94 When
the
probate
court may
rule on
issues
other than
the
intrinsic
validity of
a will; case
laws
94
Due
exec
ution
of
the
will
or its
extri
nsic
validi
ty
defin
ed96
97
SECTION 3, RULE 76. COURT TO APPOINT TIME FOR
PROVING WILL. NOTICE THEREOF TO BE
PUBLISHED
Notice of time and place for proving the will
Requisites execution
of due
When
may the
court act
on a will
delivere
d to it
Notice
requi
red
to be
pers
onall
y
give
n
only
to
kno
wn
heirs
,

legat
ees,
and
devis
ees;
case
law
Public
a
ti
o
n
n
o
t
r
e
q
u
ir
e
d
f
o
r
t
e
s
t
a
t
o
r
fi
li
n
g
t
h
e
p
e
ti
ti
o
n
h
i
m
s
e
lf
Service
of
n
o
ti
c
e
u
p
o
n
t
h
e
h
ei
rs
a
m
a
tt
e
r
of
p
r
o
c
e
d
u
ra
l
c
o
n
v
e
ni
e
n
c
e
a
n
d
n
o
t
a
ju
ri
s
di
c
ti
o
n
al
r
e
q
ui
si
te
Publication
and notice
requirement
for ante
mortem
probate
99
Three weeks
successively
construed
100
SECTION 4,
RULE 76.
HEIRS,
DEVISEES,
LEGATEES,
AND
EXECUTORS
TO BE
NOTIFIED BY
MAIL OR

PERSONA
LLY
100
Notice of the
time and place
of hearing
100
Persons to be
given notice
100
Modes and
periods of
notification
101
Probate
of a
will
a
proc
eedi
ng
in
rem
;
noti
ce
by
publ
icati
on a
con
stru
ctiv
e
noti
ce
to
the
who
le
worl
d
101
Where notice
not necessary
101
SECTION 5, RULE
76. PROOF AT
HEARING. WHAT
SUFFICIENT
IN ABSENCE
OF CONTEST
101
Publication
and notice
must be
shown first
102
Uncontested
will; how
proved
102
Uncontested
notarial wills
102
Uncontested
holographic
wills
102
Conteste
d
not
aria
l
will;
an
inst
anc
e
wh
ere
a
part
y
ma
y
imp
eac
h
ow
n
wit
nes
s
103
Contested
holographic
will

103
Lost or
dest
roy
ed
hol
ogr
aph
ic
will
s
can
not
be
pro
bat
ed;
exc
epti
on
104
Proof of will
104
SECTION 6,
RULE 76.
PROOF OF
LOST OR
DESTROY
ED WILL.
CERTIFIC
ATE
THEREUP
ON
1
04
Facts
that
sho
uld
be
pro
ved
to
allo
w a
lost
or
dest
roye
d
will
104
Lost or
dest
roy
ed
will
not
pro
ved
by
bar
e
testi
mo
ny;
exc
epti
on
105
SECTION 7, RULE
76. PROOF
WHEN
WITNESSES DO
NOT RESIDE
IN
PROVINCE
106
Proof when
the witnesses
are not
residents of
the
106
pro
vinc
e
SECTION 8, RULE
76. PROOF WHEN
WITNESSES
DEAD OR
INSANE OR
DO NOT
RESIDE IN
THE

PHILIPPINES
106
Proof
whe
n
the
wit
nes
ses
are
dea
d,
insa
ne
or
do
not
resi
de
in
the
Phili
ppi
nes
106
SECTION 9, RULE
76. GROUNDS
FOR
DISALLOWING

TABLE OF CONTENTS
WILL page
Grounds for disallowing a will under the Rules of 107
Grounds for disallowing a will under the Civil Code 107 Lists
exclusive; no other grounds that would disallow 107
Substantial compliance rule 108

Joint probate of separate wills executed by spouses 108
who died simultaneously
Laws governing the validity of a will as to its execution 1
09
and form 1
0
9
SECTION 10, RULE 76. CONTESTANT TO FILE
GROUNDS OF CONTEST110
Contestant to file opposition stating his grounds therefor110
SECTION 11, RULE 76. SUBSCRIBING WITNESSES

PRODUCED OR ACCOUNTED FOR WHERE WILL
CONTESTED 110
Contested notarial wills 110
Contested holographic wills 111
SECTION 12, RULE 76. PROOF WHERE TESTATOR

OF CONTENTS
PETITIONS FOR ALLOWANCE OF HOLOGRAPHIC

WILL111
Proof necessary if the testator himself files the petition for

probate 111
SECTION 13, RULE 76. CERTIFICATE OF ALLOWANCE
ATTACHED TO PROVE WILL. TO BE RECORDED
IN THE OFFICE OF REGISTER OF DEEDS 1
11
Certificate of allowance of the will to be issued by the
112 court
Probate order is final and appealable 112

RULE 77. ALLOWANCE OF WILL PROVED OUTSIDE
OF PHILIPPINES AND ADMINISTRATION OF
113
ESTATE THEREUNDER
Reprobate distinguished from probate in the first 114
instance
SECTION 1, RULE 77. WILL PROVED
OUTSIDE 114 PHILIPPINES MAY BE ALLOWED HERE114
Reprobate of will proved outside of the Philippines 115
Reprobate defined
xvi
Reprobate; requisites before a will proved in a foreign country
may be allowed in the Philippines; effects of probate115
Principal and ancillary administration 117

Evidence necessary for reprobate
Duty to introduce in evidence the pertinent foreign

law: case law 1

Power of an administrator over property in another 1
8
country 1
1
8
Venue for reprobate 1
SECTION 2, RULE 77. NOTICE OF HEARING FOR 1
8
ALLOWANCE 1
1
8
Types of estate proceedings 1
1
9
117
Documents to be filed with the petition119
Requisites of ancillary administration119

Notices to be given as if the will probated abroad was an
"original will"120
Evidence needed for reprobate120

SECTION 3, RULE 77. WHEN WILL ALLOWED, AND
EFFECT THEREOF121
Effect of reprobate121

OF CONTENTS
Doctrine of processual presumption or presumedidentity

approach122
Foreign laws must be alleged and proven in the
Philippines122
Law
that governs the intrinsic validity of a
Probate of wills executed by foreigners
abroad124
Rules do not require proof

that the foreign will
has already been allowed and probated in
Proof that wills

executed abroad
conform with the formalities prescribed by
Evidence necessary for the reprobate or allowance of
wills which have been probated outside the
125
Philippines
P
hilippin
e

courts cannot take judicial notice of foreign 126

laws
126
SECTION 4, RULE 77. ESTATE, HOW ADMINISTERED
xvii
BLE
page
Court to grant letters testamentary or letters of
administration with the will annexed126
RULE 78. LETTERS TESTAMENTARY AND OF

ADMINISTRATION, WHEN AND TO WHOM
ISSUED128
Letters testamentary and letters of administration
distinguished 130
SECTION 1, RULE 78. WHO ARE INCOMPETENT TO
SERVE AS EXECUTORS OR ADMINISTRATORS
130
Persons who can administer the estate
130
Distinctions between an executor and an administrator
131
Persons who can serve as executors or administrators
132
Persons who are incompetent to serve as executors or
administrators 132
Drunkenness defined
132 Improvidence

OF CONTENTS
defined 133
Integrity defined
133
Moral turpitude defined

133
List of crimes or offenses involving moral turpitude
133
Crimes or offenses not categorized as involving moral
turpitude
135
SECTION 2, RULE 78. EXECUTOR OF EXECUTOR NOT
TO ADMINISTER ESTATE
135
SECTION 3, RULE 78. MARRIED WOMEN MAY SERVE
135

Married woman may serve as executrix or administratrix

135
SECTION 4, RULE 78. LETTERS TESTAMENTARY
ISSUED WHEN WILL ALLOWED
135
Letters testamentary to be issued by the probate court
136
Letters testamentary defined
136
SECTION 5, RULE 78. WHERE SOME COEXECUTORS
DISQUALIFIED OTHERS MAY ACT
136
Letters testamentary may be issued to other
coexecutors 136
SECTION 6, RULE 78. WHEN AND TO WHOM LETTERS
OF ADMINISTRATION GRANTED
136
When letters of administration granted
137
To whom letters of administration granted
137
Order of preference
138
Key factor in the appointment of an administrator;
rationale for the rule138
Administration of estate; factors considered in the

appointment of administrator
139
Preference to the surviving spouse due to her greater
interest in the estate139
Surviving spouse preferred over the next-of-kin of the

OF CONTENTS
decedent in the appointment of administrator

140 "Next-of-kin" defined140
"Interested person" defined; extent of interest in the

estate141
Practice of court employees being appointed as

administrators of estates enjoined
141
Preference applies only to the appointment of a regular
administrator not of a special administrator
142
Court order appointing a regular administrator final and
appealable 14
2
Appointment of a special administrator discretionary and
not appealable 143
Order of preference does not rule out the appointment of
co-administrators
143
Appointment of co-administrators allowed under certain
circumstances 143
Functions of co-administrator; appointing coadministrators
not prohibited 144
Extent of administration
145 Unsuitability for appointment as administrator
145
Mere indebtedness not a ground for administrator's
145 removal
RULE 79. OPPOSING ISSUANCE OF LETTERS

TESTAMENTARY. PETITION AND CONTEST FOR
LETTERS OF ADMINISTRATION
147
SECTION 1, RULE 79. OPPOSITION TO ISSUANCE OF 149
LETTERS TESTAMENTARY

Interested persons testamentarymay oppose the issuance of

149 letters
"Interested person" defined
149149
Principal issue to be resolved
S
ECTION 2, RULE 79. CONTENTS OF PETITION FOR
150
LETTERS OF ADMINISTRATION
What a petition for letters of administration should 150
contain
xix

Page
150
Jurisdictional facts
Factual basis of
the
proceedings; when no jurisdiction conferred151
is
Motion to dismiss based on lack of legal capacity to institute
the action 151
Objection to petition may be barred by waiver or estoppel
151
SECTION 3, RULE 79. COURT TO SET TIME FOR
HEARING. NOTICE THEREOF 151
Notice of time and place of hearing of the petition
152
Publication and service of notice to all interested parties
152
Purpose of notice through publication
152
Effect of lack of notice 152
Notice by publication a jurisdictional requirement
153 SECTION 4, RULE 79. OPPOSITION TO PETITION FOR
ADMINISTRATION 153
Petition may be opposed only by an interested person 153
Grounds for opposing petition
153
Contingent interest does not make an interested party 154
SECTION 5, RULE 79. HEARING AND ORDER FOR
LETTERS TO ISSUE154
Proof of notice given as required154

Page
When court may order the issuance of letters of administration154
SECTION 6, RULE 79. WHEN LETTERS OF

ADMINISTRATION GRANTED TO ANY APPLICANT
154
Failure to register letters of administration and will;
effect
Transfer of certificate of title to administrator's name 15
a clear repudiation of 5
trust
155
RULE 80. SPECIAL ADMINISTRATOR 156
SECTION 1, RULE 80. APPOINTMENT OF SPECIAL
ADMINISTRATOR 157
157
Special administrator defined
Special administrator as administrator of the estate and officer of 157
the court
Instances when a probate court may appoint a special 158
administrator 158
Appointment of a special administrator; when justified
Appointment of a special administrator discretionary on the probate

court 159 Court's discretion
defined 159
Purpose of appointing a temporary administrator 159
Order appointing a special administrator interlocutory and not
appealable 160
Distinctions between a regular administrator and a special
administrator 160
Preference in Sec 6, Rule 78 of the Rules of Court
pertains only to the appointment of a regular
administrator not to that of a special

administrator 161
Selection or removal of special administrators not governed by
the rules on selection or removal of regular administrators
162
SECTION 2, RULE 80. POWERS AND DUTIES OF
SPECIAL ADMINISTRATOR 162
Powers and duties of a special administrator
162
Additional duty of a special administrator to render account
163
Right of special administrator to appeal from disallowance of will
163
SECTION 3, RULE 80. WHEN POWERS OF SPECIAL
ADMINISTRATOR CEASE. TRANSFER OF
EFFECTS. PENDING SUITS 163
Point of cessation of powers of the special administrator
163
Appointment of a special administrator not appealable; remedy
available 164
Special administrator cannot be sued for the debts of decedent
165
RULE 81. BOND OF EXECUTORS AND
ADMINISTRATORS 166
SECTION 1, RULE 81. BOND TO BE GIVEN ISSUANCE
OF LETTERS. AMOUNT. CONDITIONS 167
Conditions of the bond 167
Purpose of the bond 168
What the bond secures 168
Administrator's bond deemed a statutory bond 169
Scope of liability of surety under the administrator's bond 169

Page
SPECIAL PROCEEDINGS:
AN EXHAUSTIVE EXPOSITION
RULES 72 TO 109 OF THE RULES OF COURT

SPECIAL PROCEEDINGS
GENERAL PROVISION
RULE 72
SUBJECT MATTER AND APPLICABILITY

OF GENERAL RULES
Sec. 1. Subject matter of special proceedings.— Rules of special
proceedings are provided for in the following cases:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
Adoption;
Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
Chan e of name;

(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of mi.
nor natural children;
Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation or correction of entries in the civil
registry.
Sec. 2. Applicability of rules of civil actions.—ln

the absence of special provisions, the rules provided
for in ordinary actions shall be, as far as practicable,
applicable in s ecial roceedin s.
@Special proceeding defined
Section 3, Rule 1 of the Rules of Court defines special
proceeding as a remedy by which a party seeks to
establish a status, a right or a particular fact.
Ordinary action distinguished from
=rproceeding
An ordinary civil action is one by which a party sues
another for the enforcement or protection of a right or the
prevention or redress of a wrong. A special proceeding, on
the other hand, is a remedy by which a party seeks to
establish a status, a right or a particular fact (Sec. l[al and
Rule 1, ROC).
Action is the act by which one sues another in a cou rt
of justice for the enforcement or protection of a right, or
the prevention or redress of a wrong while special

proceeding is the act by which one seeks to establish the
status or right of a party, or a particular fact.
Hence, action is distinguished from special proceeding
in that the former is a formal demand of a right by one
against another while the latter is but a petition for a
declaration of a status, right or fact.
Where a party litigant seeks to recover property from
another, his remedy is to file an action. Where his purpose
is to seek-the-appointmen&of a guardian for an insane, his
remedy is aspecial proceeding to establish the fact or
status of insanity calling for an appointment of
guardianship (Pacific Banking Corp. Employees Org. v. CA,
GR 109373, Mar. 20, 1995; 242 SCRA 492).
Special proceeding a distinct and

independent proceeding
Actions include those proceedings which are
instituted and prosecuted according to the ordinary
rules and provisions relating to actions at law or suits in
equity. Special proceedings, on the other hand, include
those proceedings which are not ordinary in that sense,
but is instituted and prosecuted according to some
special modes as in the case of proceedings commenced
without summons and prosecuted without regular
pleadings which are characteristics of ordinary actions.
A special proceeding must, therefore, be in the nature
of a distinct and independent proceeding for particular
r
elief, such as may be instituted independently of a
pending action, by petition or motion upon notice.

Applying these principles, an action for reconveyance
and annulment of title with damages is a civil action,
whereas matters relating to settlement of the estate of a
deceased person such as advancement of property made
by the decedent, partake of the nature of a special pro Ceed
ing, which concomitantly requires the application of
SPECIAL PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
specific rules as provided for in the Rules of Court (Natcher v.

CA, GR 133000, Oct. 2, 2001, 366 SCRA
385). Statute of limitations Court havin

applies lurisdiction
ORDINARY Nature/Character
Fifteen (15) da s
CIVIL ACTION Prescri fron of
Governed by ordinary
To protect or rules and Action
enforce a right, or supplemented by
to prevent or special rules
redress a wron
DISTINCTION AS
B Com laint TO: Applicable Rules
Definite Parties
Purpose
SPECIAL
PROCEEDINGS
By filing an
To establish a
Answer
How initiated status, right, or a
Court of general particular fact
•urisdiction
Adversarial B Petition
How res onded to

Definite petitioner Court of limited Thirty (30) days
but no definite urisdiction
adverse art Governed by special
Not adversarial
By filing an rules and
Statute of limitations supplemented by
Opposition finds no application
ordinary rules
'Nature of special proceedings
Special proceedings are inceptively non-adversarial
in nature but in the course of the proceedings, some
oppositors may emerge.
Petition for liquidation of an insolvent

corporation a special proceeding
A petition for the liquidation of an insolvent
corporation should be classified a special proceeding and
not an ordinary action as such petition does not seek the
enforcement or protection of a right nor the prevention
or redress of a wrong against a party. Neither does it pray
for affirmative relief for an injury arising from a party's
wrong ful act or omission nor state a cause of action that
can be enforced against any person.
What it seeks is merely a declaration by the trial
court of the corporation's insolvency so that its
creditors may be able to file their claims in the
settlement of the corpora-
tion's debts and obligations.
Put in another way, the petition only seeks a
declaration of the corporation's debts and obligations. Put in

(still) another way, the petition only seeks a declaration of
the corporation's state of insolvency and the concomitant
right Of creditors and the order of payment of their claims in
the disposition of the corporation's assets (Pacific Banking
Corp. Employees Org. v. CA, supra).
Petition for corporate

rehabilitation a special
proceeding
A petition for corporate rehabilitation is also
considered a special proceeding as it is one that
seeks to establish the status of a party or a
particular fact. The status or
ortUAL
fact sought to be established is the inability corporate

debtor to pay its debts when they fall due so that a
rehabilitation plan, containing the formula for the
successful recovery of the corporation, may be approved
in the end. It does not seek a relief from an injury caused
by another party (Sec. 1, Rule 4, Interim Rules on
Corporate Recovery);
SECTION 1 RULE 72. SUBJECT MATTER

OF SPECIAL PROCEEDINGS
*Cases covered by special
proceedings

Pursuant to Section 1, !Rule-7.2-of the Rules of Court
(ROC), the Rules of Special Proceedings (RSP) are
provided for in the following cases:
Settlement of estate of deceased persons (Rules
73-75, 76-81, 82-86 and 87-90, ROC);
(b) Escheats (Rule 91, Id.);

(c) Guardianship and custody of children
(Suårdianship of minors per AM 03-02-05-SC
and Guardianship of incompetents under Rules
92-97, [d);
(d) Trustees (Rule 98, Id.);

Adoption (Rule 99, ROC, as superseded by the
Rule on Adoption per AM 02-06-02-SC);
(f) Rescission and revocation of adoption (Rule
100,
Id.);
(g) Hospitalization of insane persons (Rule 101,
Id) ,
Habeas corpus (Rule 102, Ids);
Change of name (Rule 103, Id.);
(j) 'Voluntary dissolution of corporations (Rule
104 which was deemed repealed by Secs
117-122, Title XIV, BP 68 or corp. code);
(k) Judicial approval of voluntary recognition of
minor natural children (Rule 105, ROC);

(I) Constitution of family home (Rule 106 which
was deemed repealed by Arts. 252-253, EO
209 or Family Code);
(m) Declaration of absence and death (Absentees
under Rule 107, ROC);
(n) Cancellation or correction of entries in the civil
registry (Rule 108, Id.); and
(o) Appeals in Special Proceedings (Rule 109, Id.).
Other cases involving special proceedings

The other cases involving special proceedings under
various laws and rules are:
(a) Summary proceedings under EO 209 or
the Family Code;
(b) Actions mentioned under RA 8369 or the
Family Courts Act of 1997:
(1) Declaration of absolute nullity of void
marriages and annulment of voidable
marriages;
(2) Legal separation;
(3) Provisional orders on support, custody of
minor children and administration of
common property; and
(4) Violence against women and their
children and protection orders;
8

SPECIAL PROCEEDINGS: AN EXHAUSTIVE EXPOSITION
(c) Proceedings under PD 1083 or the Child &

Youth Welfare Code, RA 7610 or the Child
Abuse Act and RA 7658 or the Child
Employment Act:
(1) Declaration of status as abandoned,
dependent or neglected children;
(2) Voluntary or involuntary commitment of
children; and
(3) Suspension, termination or restoration of
parental authority;
(d) Proceedings for domestic and inter-country
adoption pursuant to RA 8552 and RA 8043;
(e) Petition for a Writ of Amparo (AM 07-9-12-SC);
(f) Petition for a Writ of Habeas Data (AM 08-1-
16-
(g) Petition for liquidation of an insolvent

corporation
(Pacific Banking Corp. Employees Org. v. CA,
GR 109373, Man 27, 1998; 242 SCRA 492);
(h) Petition for corporate rehabilitation under the
lnterim Rules of Procedure on Corporate
Rehabilitation (AM 00-8-10-SC);

(i) Arbitration under a contract or submission
shall be deemed a special proceeding (Sec.
22, RA 876); and
(j) Proceedings for the recognition and
enforcement of an arbitration agreement or for
the vacation, setting aside, correction or
modification of an arbitral award and any
application with a court for arbitration
assistance and supervision (Sec. 47, RA 9285).
Petition for corporate rehabilitation
A petition for corporate rehabilitation is one that
seeks to establish the status of a party or a particular
fact. The status or fact sought to be established is the
inability of the corporate debtor to pay its debts
when they fall due so that a rehabilitation plan,
containing the formula for the successful recovery of
the corporation, may be approved in the end. It does
not seek a relief from an injury caused by another
party.
Any debtor who foresees the impossibility of
meeting its debts when they respectively fall due, or
any creditor or creditors holding at least twenty-five
percent (25%) of the debtor's total liabilities, is
permitted to petition the proper Regional Trial Court
(RTC) to have the debtor placed under rehabilitation
(Sec. 1, Rule 4 of the Interim Rules of Procedure on
Corporate Rehabilitation, AM 00-8-10-SC);

Proceedings for recognition and
enforcement of arbitration agreement,
etc.
Proceedings for the recognition and enforcement
of an arbitration agreement or for vacation, setting
aside, correction or modification of an arbitral award,
and any application with a court for arbitration
assistance and supervision is considered as special
proceedings which are filed with the RTC:
(i) where the arbitration proceedings are conducted;
( i i) where the asset to be attached or levied upon
or the act to be enjoined is located;
(iii) where any of the parties to the dispute
resides or has his place of business; or
(iv) in the National Judicial Capital Region, at the
option of the applicant (Sec. 47, RA 9285).
Special proceedings: how commenced
A special proceeding is generally commenced by:
(a) an application; or
(b) a petition; or
(c) a special form of pleading as may be provided for
by the particular rule or law.
Applicable rules in special proceedings

Some of the rules that find application in special
proceedings are:

(1) If there are special provisions provided for
under the Rules or existing laws, these rules
shall take precedence in the matter of
applicability. However, in default of such
provisions, the rules applicable in special
proceedings shall govern (Sec. 2, Rule 72,
ROC);
(2) Rule 33 of the Rules of Court pertaining to
judgment on demurrer to evidence is applicable
to special proceedings (Matute v. CA, GR 26751,
Jan. 31, 1969, 26 SCRA 768);
(3) The distinction between final and interlocutory
orders in civil actions for purposes of
determining the issue of applicability is not
strictly applicable to orders in special
proceedings. Rule 109 specifies the orders from
which appeals may be taken;
(4) The State has an overriding interest in each
special proceeding and the matter is not
purely a controversy between private parties;
and
(5) There are special proceedings which are not
part of the Rules of Court such as the Writs of
Amparo and Habeas data considering that,
gener-
ally, special proceedings involve cases
where one seeks to establish the status or
right of a
party or a particular fact.

*Jurisdiction over special proceedings
cases
The jurisdiction over cases covered by the Rules
on special Proceedings (RSP) is generally vested in
the Regional Trial Court (RTC). However, the
Municipal Trial Court (MTC) exercises jurisdiction
over the following cases:
(1) Original jurisdiction in probate proceedings,

whether testate or intestate, where the
gross value of the estate does not exceed
P300,000.00 or P400,000.00 in Metro
Manila, exclusive of interests, damages of
whatever kind, attorney's fees, litigation
expenses and costs;
(2) Delegated jurisdiction in Cadastral and
Land Registration Cases covering lots where
there is no controversy or opposition or
contested lots where the value of which
does not exceed P 100,000.00. Appeal is
taken to the Court of Appeals
(CA), not to the RTC, since the
MTC is equal to RTC in this instance; and
(3) Special jurisdiction over petitions for writ of
Habeas Corpus in case of absence of RTC
judges.

The Supreme Court (SC) and the CA have
original jurisdictions over habeas corpus cases,
concurrent with the RTc.
Distinction between final and interlocutory
orders not strictly applicable
The distinction between final and orders

interlocutory in civil actions for the purpose of
determining their appealability does not strictly the
apply to orders issued by in special proceedings. Court
Rule 109 of the Rules of provides for specific some
orders that are appealable which are considered
interlocutory in civil actions.
SECTION 2 RULE 72. APPLICABILITY OF RULES OF

cp,/1L ACTIONS
Applicability of the rules in ordinary civil

actions in special proceedings
In the absence of special provisions in the
Rules on Special Proceedings, the rules provided
for in ordinary civil actions shall, as far as
practicable, apply (Sec. 2, Rule 72, ROC).
Specific rules in civil actions that

apply to special proceedings
Some of the specific rules in civil actions
that are applicable to special proceedings are:

(1) Rule 17 of the Rules of Court governing
dismissal of actions by the plaintiff in civil
actions; and
(2) Rules under the Rules of Court relative
to:
(a) preparation, filing and service of applicæ
tions, motions, and other papers;
(b) omnibus motions;
(c) subpoena;
(d) computation of time;
motion for new trial;
(f) discovery;
(g) trial before commissioners; and
(h) procedure of appeal (Fernandez v. Maravi//a,

GR L-18799, Mar. 31, 1964; 10 SCRA 589);
and
(3) Rule 33 of the Rules of Court pertaining to
judgment on demurrer to evidence (Matute
v. CA, GR 26751, Jan. 31, 1969; 26 SCRA
768).
Certain rules in ordinary actions may

be applied in special proceedings
The special provisions under Part Il of the
Rules of Court govern special proceedings but in

the absence of special provisions, the rules
provided for in Part I of the Rules governing
ordinary civil actions shall, as far as practicable, be
applicable to special proceedings.
In the absence of special provisions, the rules in
ordinary actions may be applied in special
proceedings as much as possible and where doing so
would not pose an obstacle to said proceedings.
Nowhere in the Rules of Court does it categorically
say that the rules in ordinary actions are
inapplicable or merely suppletory to special
proceedings.
Provisions of the Rules of Court requiring a
certification of non-forum shopping for complaints
and initiatory Pleadings, a written explanation for
non-personal service and filing, and the payment of
filing fees for money claims against an estate would
not in any way obstruct probate Proceedings, thus,
they are applicable to special proceedings such as
the settlement of the estate of a deceased
person (Sheker v. Sheker, GR 157912, Dec. 13, 2007,
534 SCRA 62).
Intervention not available to creditor

with a contingent, not actual, claim
Notwithstanding the provision of Section 2 of

Rule 72, intervention as set forth under Rule 19 of
the Rules of Court does not extend to creditors of a

decedent whose credit is based on a contingent
claim. The definition of "intervention" under Rule 19
simply does not accommodate contingent claims
(Hilado v. CA, GR 164108, May 8, 2009, 587 464).
Legal interest required of an intervenor

Section 1 of Rule 19 of the 1997 Rules of Civil
Procedure requires that an intervenor has a legal
interest in the matter in litigation, or in the success of
either of the parties, or an interest against both, or is
so situated as to be adversely affected by a
distribution or other disposition of property in the
custody of the court. The legal interest required of an
intervenor must be actual and material, direct and
immediate, and not simply contingent and expectant
(Batama Farmers' Coop. Marketing Assoc., Inc. v.
Rosa/, GR L-30526, Nov. 29, 1971, 149 Phil. 514).

SETTLEMENT OF ESTATE OF DECEASED
PERSONS
RULE 73
VENUE AND PROCESSES
Sec. 1. Where estate of deceased person settled.— If
the decedent is an inhabitant of the Philippines at the time
of his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate
settled, in the Court of First Instance (now Regional Trial
Court) in the province in which he resides at the time of his
death, and if he is an inhabitant of a foreign country, the
Court of First Instance (now Regional Trial Court) of any
province in which he had estate. The court first taking
cognizance of the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, so far as it
depends on the place of residence of the decedent, or of
the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on
the record.
Sec. 2. Where estate settled upon dissolution of
marriage.—When the marriage is dissolved by the
death
of the husband or wife, the community property shall be

inventoried, administered, and liquidated, and the debts
thereof paid, in the testate or intestate proceedings of the
deceased spouse. If both spouses have died, the conjugal
partnership shall be liquidated in the testate or intestate
proceedings of either.
Sec. 3. Process.—ln the exercise of probate
jurisdiction, Court of First Instance (now Regional
Trial Court) m a issue warrants and rocesses necessar
to com el

the attendance of witnesses or to carry into effect their
orders and judgments, and all other powers granted them
by law. If a person does not perform an order of
judgment rendered by a court in the exercise of its
probate jurisdiction, it may issue a warrant for the
apprehension and imprisonment of such person until he
performs such order judgment, or is released.
Sec. 4. Presumption of death.—For purposes
settlement of his estate, a person shall be presumed
dead if absent and unheard from for the periods fixed
in the Civil Code. But if such person proves to be alive,
he shall be entitled to the balance of his estate after
payment of his debts. The balance may be recovered
by motion in the same roceedin
SETTLEMENT OF ESTATE OF DECEASED PERSONS

Settlement of estate of deceased persons; what it
intends to achieve and what it seeks to establish

The special proceedings for the settlement of
estate of deceased persons is basically intended &
settle the entire estate of the deceased and seeks to
establish a status, a right or a particular fact,
specifically, the fact of death of the decedent and of
the heirs of the deceased being recognized as such in
order that they could validly exercise their right to
participate in the settlement and liquidation of the
estate of the decedent consistent with the limited
and special jurisdiction of the probate court.
Rights to succession; when transmitted

The rights to succession are transmitted from the
re
p cise moment of death of the decedent pursuant to
Article 777 of the Civil Code. Such transmission,
however, is viewed only from the substantive aspect
of success ion ' From the procedural perspective,
certain procedures have to be complied with first
prior to the actual transmission of proprietary rights.
Nevertheless, the successional rights of the heirs
would retroact to the very moment of death of the
decedent.
Right to the property transmitted from the

moment of death; case law
The right of respondent's predecessors over the
subject property is more than sufficient to uphold
respondent's right to possession over the same.
Respondent's right to the property was vested in her
along with her siblings from the moment of their

father's death. As heir, respondent had the right to
the possession of the property, which is one of the
attributes of ownership. Such rights are enforced and
protected from encroachments made or attempted
before the judicial declaration since respondent
acquired hereditary rights even before judicial
declaration in testate or intestate proceedings (Bunyi
v. Factor, GR 172547, June 30, 2009, 591 SCRA 350).
Intestaqy inferior to testacy

In our system of civil law, intestate succession is
only subsidiary or subordinate to the testate
succession since intestacy takes place only in the
absence of a valid operative will (Rodriguez v. De
Borja, GR L-21993, June 21, 1966, 17 SCRA 41).
Only after a final decision as to the nullity of a
testate succession could an intestate succession be
instituted in the form of a pre-established action
and only in such action could a declaration of
intestate heirs be made in favor of those persons
to whom said right appertained (Castro v.
Martinez Gallegos, GR L-3880, Man 9, 1908, 10
Phil. 307).
Modes of settlement of the estate of a
deceased person
The modes of settlement of the estate of a
deceased person include:
(a) Partition (Rule 69, ROC);

(b) Extrajudicial settlement of estate (Sec, 1,
Rule
74, Id.);
(c) Summary settlement of estate of small value

(Sec. 3, Rule 74, Id.);
(d) Probate of will (Rules 75 to 79, Id.); and
(e) Petition for letters of administration in cases
of intestacy (Rule 79,
Prompt filing of money claims

against the decedent arising from
contract
Money claims against the decedent arising
from contract do not survive and must be filed
promptly against the estate of the deceased
debtor (Secs. 2 and 5, Rule 87,
The law strictly requires the prompt presentation

and disposition of claims against the decedent's estate
in order to settle the affairs of the estate as soon as
possible, pay off its debts and distribute the residue
"to the persons entitled thereto without their being
afterwards called upon to respond in actions for
claims, which, under the ordinary statute of
limitations have not yet prescribed" (Tan Sen Guan v.
Go sui san, GR L-22451, Dec. 22, 1924, 47 Phil. 96).

Purpose of presentation of claims against
decedents of estate in the probate court
The purpose of the presentation of claims
against the decedents of the estate in the probate
court is to protect the estate of deceased persons.
That way, the executor or administrator will be
able to examine each claim and determine whether
it is a proper one which should be allowed.
Further, the primary object of the provisions
requiring such presentation is to apprise the
administrator and the probate court of the existence
of the claim so that a proper and timely arrangement
may be made for its payment in full or by a pro-rata
portion in the due course of the administration
inasmuch as, upon the death of a person, his entire
estate is burdened with the payment of all of his
debts and no creditor shall enjoy any preference or
priority thereto; all of them shall share pro-rata in
the liquidation of the estate of the deceased (Estate
of O/ave v. Reyes, GR L-29407, July 29, 1983, 123
SCRA 767).
Complaint against person/s suspected
of keeping properties belonging to
the estate; probate court has no
authority to decide the issue of
ownership
If an executor or administrator or any individual
interested in the estate of the deceased complains

to the court having jurisdiction of the estate that a
person or persons are suspected of having
concealed, embezzled or conveyed away any of the
properties, real or personal, of the deceased, the
court may cite such suspected person or persons to
appear before it and may examine him or them on
oath on the matter of such complaint.
In such proceedings, the trial court has no
authority to decide whether or not said properties
belong to the estate
Or to the persons examined. If, after such
examination, there is good reason to believe that said
person or per. sons examined are keeping properties
belonging to the estate, then the administrator should
file an ordinary action in court to recover the same
(Modesto v. Modesto, GR L11801, June 30, 1959, 105
Phil. 1379).
Simply stated, the law does not extend the
jurisdiction of a probate court to the determination
of questions of ownership that arise during the
proceeding (Adapon v. Mara/it, GR 46898, Jan. 20,
1940, 69 Phi/ 383).
Jurisdiction acquired through publication

The court acquires jurisdiction over all persons
interested in the settlement of the estate of deceased
persons through the publication of the petition in the

newspapers (Perez v. Perez, GR L-14781, July 15, 1959,
105 Phil. 1132).
Service of notice to the heirs not a

jurisdictional requirement
Service of notice on individual heirs or legatees or
devisees is a matter of procedural convenience and
not a jurisdictional requisite so much so that even if
the names of some legatees or heirs had been omitted
from the petition for allowance (probate) of the will
and therefore were not advised, the decree allowing
the will does not ipso facto become void for want of
jurisdiction (Modesto v, MOdesto, GR L-11801, June
30, 1959, 105 Phil. 1379).
RULE 73. VENUE AND PROCESS
SECTION 1 RULE 73. WHERE ESTATE OF DECEASED
PERSONS SETTLED
Venue for ordinary civil

actions and for special
proceedings have the same
meaning; residence defined
It does not necessarily follow that the records
of a person's properties are kept in the place where
he permanently resides. Neither can it be presumed
that a person's properties can be found mostly in the
place where he establishes his domicile. It may be

that he has his domicile in a place different from that
where he keeps his records, or where he maintains
extensive personal and business in-
Venue for ordinary civil actions and that for

special proceedings have one and the same meaning.
As thus defined, "residence, " in the context of venue
provisions, means nothing more than a person's
actual residence or place of abode, provided he
resides therein with continuity and consistency (Jao v.
CA, GR 128314, May 29, 2002, 382 SCRA 407).
In the settlement of estate of deceased persons
the term "resides" connotes "actual residence" as
distinguished from "legal residence or domicile"
(Garcia Fule v. CA, GR L-40502, Nov. 29, 1976, 74
SCRA 189).
Distinction between "residence"

under election laws and for purposes
of fixing the venue of actions under
the Rules of Court
There is a distinction between "residence" for
pure poses of election laws and "residence" for
purposes of fixing the venue of actions.
In election cases, "residence" and "domicile"
are treated as synonymous terms, that is, the fixed
permanent residence to which when absent, one
has the intention of returning (Romua/dez v. RTC,

Br. 7, Tac/oban City, GR 104960, sept. 14, 1993,
226 SCRA 408).
However, for purposes of fixing venue under the
Rules of Court, the "residence" of a person is his
personal, actual or physical habitation, or actual
residence or place of abode, which may not
necessarily be his legal residence or domicile
provided he resides therein with continuity and
consistency (See Dangwa Transportation Co., Inc. v.
Sarmiento, GR L-22795, Jan. 31, 1977, 75 SCRA 124).
Hence, it is possible that a person may have his
residence in one place and domicile in another.
What determines venue?
Venue is determined by thoplace of residence of the
deceased or location of his estate.
Venue distinguished from jurisdiction
Section 1 of Rule 73 of the Rules of Court fixes the
jurisdiction for purposes of special proceedings for the
settlement of estate of deceased persons so far as it
depends on the place of residence of the decedent, or
of the location of his estate. The matter really concerns
venue, as the caption of the rule cited indicates, and in
order to preclude different courts which may properly
assume jurisdiction from doing so, the rule specifies that
"the court first taking cognizance of the settlement of
the estate of the decedent, sha// exercise jurisdiction
to the exclusion of al/ other courts" (Malig v. Bush, GR
L-22761, May 31, 1969, 28 SCRA 449).

Rule refers to venue and not to jurisdiction
Section 1, Rule 73 of the Rules of Court
prescribing the court where the decedent's estate
shall be settled, that is:
(a) the place of his residence, or
(b) the place where his estate is located, relates to venue
and not to jurisdiction,
Rules on venue and jurisdiction in probate

proceedings
Following are some of the rules on venue and
jurisdiction in probate proceedings:
(1) The special proceedings for the settlement
of estate may either be testate (where the
deceased left a will) or intestate (if there is
no will);
(2) The probate of a will is mandatory and takes
precedence over intestate proceedings;
(3) If, in the course of intestate proceedings, it is

found out that the decedent left a will, the
same shall forthwith be replaced by the
proceedings for the probate of the said will;
(4) The determination of which court shall

exercise jurisdiction over matters of probate
depends upon the gross value of the estate
of the decedent (Lim v. CA, GR 124715, Jan,
24, 2000, 323 SCRA 102);

(5) The provisions of Section 1, Rule 73 of the
Rules of Court is deemed amended by
Batas Pambansa Blg. 129, as amended by
Republic Act No. 7691 ;
(6) The residence of the decedent at time of
his death is determinative of the venue of
the proceeding. The term "residence"
means the decedent's personal, actual or
physical habitation, his actual residence or
place of abode and not his permanent
legal residence or domicile;
(7) Where the decedent is a resident of the
Philippines, whether he be a citizen
thereof or an alien, the venue lies in the
court of the place where he established
residence at the time of his death. The
term "residence" means the decedent's
personal, actual or physical habitation, his
actual residence or place of abode (Fu/e v.
CA, GR L-40502, Nov. 29, 1976);
(8) Where the decedent is a non-resident of
the Philippines, the venue of the action is
the court of the place where the decedent
had his estate which is:
(a) the RTC if the estate is valued at
P300,000.00 or more and is situated outside
Metro Manila (P400,000.00 or more if
within Metro Manila); or

(b) the MTC if the estate is less than
P300,000.00 and is situated outside
Metro
Manila (or less than P400,000.00 if within
Metro Manila); and
(9) The question of residence is
determinative only of the venue and
does not affect jurisdiction of the court.
Generally, venue may be waived an d the
submission of the affected parties to a
pro-
ceeding may be regarded as a waiver of
objection to the error in venue.
Court which has jurisdiction over probate cases
The determination of which court exercises
jurisdiction over matters of probate depends upon
the gross value of the estate of the decedent.
Section 1, Rule 73 of the Rules of Court is
deemed amended by Batas Pambansa B/g. 129, as
amended by Republic Act No. 7691 (Lim v. CA, GR
124715, Jan. 24, 2000, 323 SCRA 102), hence,
probate proceedings for the settlement of estate are
within the ambit of either the Regional Trial Court
(RTC) or Municipal Trial Court (MTC) depending on
the net worth of the estate (Mendoza v. Teh, GR
122646, Mar. 14, 1997, 269 SCRA 764).
Court first taking cognizance excludes all others

The court where estate proceedings has been
initiated ahead of any other is entitled to assume
jurisdiction to the exclusion of all other courts,
even if it were a case of wrong venue, by express
provisions of Rule 73 of the Rules of Court
(Rodriguez v. De Borja, GR L-21993, June 21, 1966,
17 SCRA 41).
When the administrator cannot enter into any

transaction without prior court approval
expressly provides that "the court first taking
cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion
of all other courts."
Where the estate of the deceased person is
already the subject of a testate or intestate proceeding,
the admin-
istrator cannot enter into any transaction involving it
withOut prior approval of the probate court (Estate of
Olave v. Reyes, GR L-29407, July 29, 1983, 123 SCRA
767).
Instances where two cases are filed,

one testate and the other intestate:
which courts should exercise
jurisdiction; case laws
(1) Intestate in CFI Manila, Branch 20, and testate
(reprobate) in CFI Manila, Branch 38.

Ruling: Priority to be given to the second
branch of the same court (CFI Manila).
(a) Probate of the will is mandatory. It
would be anomaIous that the estate of
a person who died testate should be
settled in intestate proceedings. (b) The
intestate case should be consolidated
with the testate proceeding. The Judge
assigned to the testate proceeding
should continue hearing the two (2)
cases (Robens v. Leonidas, GR L-55509,
Apr. 27,
1984, 129 SCRA 33);
(2) Intestate in a Negros court and testate in a
Manila court.
Ruling: Priority to the first court. Petitioner in
the Manila court should have submitted
the will for probate to the Negros court,
either in a separate special proceeding or
a motion. A
testate proceeding takes precedence over an
intestate proceeding. If in the course of an
intestate proceeding, it is found that th e
decedent left a will, the proceeding for
probate of the will should replace the
intestate proceeding (Uriarte v. CFI of
Negros Occidental, GR L-21938, May 29,
1970, 33 SCRA 252); and
(3) Intestate in a Cebu court and testate in a QC

Ruling: Priority to the second court. The first
court, upon learning that a petition for
probate has been presented in another
court, may decline to take cognizance of
and hold in abeyance the petition before it
and instead defer to the second court
(Cuenco v. CA, GR L-24742, Oct. 26, 1973,
53 SCRA 360).
The difference between the rulings in Uriarte
and Cuenco lies in the fact that, in Uriarte, there was
a showing that the petitioner in the probate
proceeding knew before the filing of the petition in
Manila that there was already an intestate
proceeding in Negros while no such prior knowledge
existed in Cuenco.
Domicile of the testator affects

only the venue but not the
jurisdiction
The power to settle the decedent's estate is
conferred by law upon all Courts of First Instance
(now Regional Trial Courts) and the domicile of the
testator only affects the venue but not the
jurisdiction of the court (Rodriguez v. De Borja, GR L-
21993, June 21, 1966, 17 SCRA 418).

Wrong venue in probate a waivable
procedural defect
Wrong venue in matters involving the settlement
of estate is a waivable procedural defect and such
waiver may occur by laches where a party had been
served notice of the filing of the probate petition for
about a year and allowed the proceedings to continue
for such time before filing a motion to dismiss the
same (Uriarte v. CFI of Negros Occidental, supra).
Jurisdiction over probate proceedings
Under Republic Act No. 7691, the law

expanding the jurisdiction of the inferior courts, the
Municipal Trial Court (MTC), Metropolitan Trial
Court (MeTC) and Municipal Circuit Trial Court
(MCTC) shall exercise exclusive original jurisdiction
over probate proceedings, testate and intestate,
where the value of the estate does not exceed
P200,000.00 (outside Metro Manila) or where such
estate does not exceed P400,000.00 (in Metro
Manila).
The jurisdiction of the Regional Trial Court (RTC) is
limited to the settlement and adjudication of
properties of the deceased and cannot extend to
collateral matters.
Limitedjurisdiction of probate courts

Probate courts are courts of limited jurisdiction
and, as such, they may only determine and rule
upon the following issues relating to the settlement
of the estate, viz:
(1) Administration of the estate;
(2) Liquidation of the estate;
(3) Distribution of the estate;
(4) Other issues that may be adjudicated such as:
(a) Determination of whether the property
included in the inventory is the
conjugal or exclusive property of the
deceased spouse (Aranas v. Mercado,
GR 156407, Jan. 15,
2014);
(b) Determination of who are the heirs of
the decedent (Reyes v. Ysip, GR L-
7516, May 12, 1955);
(c) Recognition of a natural child (Gaas v.
Fortich, GR L-31454, Dec. 28, 1929, 54
Phil. 196);
(d) Status of a woman who claims to be
the decedent's lawful wife
(Torres v. Javier, GR L10560,
Mar. 24, 1916);

(e) Determination of the status of each
heir
(Aranas v. Mercado, supra);
(f) Validity of a waiver of hereditary
rights; (Borromeo-Herrera v.
Borromeo, GR L-41171, July 23, 1987,
152 SCRA 172);
(g) Validity of a disinheritance effected by
the testator (Art. 916, CC); and
(h) All other matters incidental or collateral
to the settlement and distribution of the
estate (Agtarap v. Agtarap, GR 177099,
June 8, 2011, 651 SCRA 455).
However, the question of whether a particular
matter should be resolved by the RTC in the exercise
of its genera! jurisdiction or its limited probate
jurisdiction is not a jurisdictional issue but a mere
question of procedure (Coca v. Borromeo, GR L-
29545, Jan. 31, 1978, 81 SCRA 278).
Powers and duties of the probate court

In probate proceedings, the court has the power to:
(I) issue warrants and processes necessary to
compel the attendance of witnesses or to
carry into effect its orders and judgments,
and all other powers granted it by law (Sec.
3, Rule 73, ROC);

(2) issue a warrant for the apprehension and
imprisonment of a person who defies a
probate order until he performs such order
or judgment, or is re. leased (Ibid.);
(3) order the probate of the will of the decedent
(Sec.
3, Rule 77, Id.);
(4) grant letters of administration to the party
best entitled thereto or to any qualified
applicant (Sec. 5, Rule 79, Id.);
(5) supervise and control all acts of administration;
(6) hear and approve claims against the estate
of the deceased (Sec. 11, Rule 86, Id.);
(7) order the payment of lawful debts (Sec. 11,
Rule
88, Id.);
(8) authorize the sale, mortgage or any
encumbrance of real estate (Sec. 2, Rule 89,
Id.); and
(9) direct the delivery of the estate to those
entitled thereto (Sec. 1, Rule 90, Id.).
Probate court powerless to act on
property rights from contracts
A probate court, being a tribunal of limited
jurisdiction, acts on matters pertaining to the estate

but never on the rights to property arising from the
contract. It approves contracts entered into for and on
behalf of the estate or the heirs to it but this is by fiat
of the Rules of Court (Reyes-Mesugas v. Reyes, GR
174835, Mar. 22, 2010, 616 SCRA 345),
Probate court as a trustee

The court is also empowered to act as a trustee
and, as such, should jealously guard the estate and see to it
that it is wisely and economically administered, not
dissipated (Tambunting De Tengco v. San Jose, GR L-8162,
Aug. 30, 1955, 97 Phil. 491).
*Probate courts cannot determine the

issue of ownership except provisionally
As a general rule, question as to title to property
cannot be passed upon on testate or intestate
proceedings, except where one of the parties prays
merely for the inclusion or exclusion from the
inventory of the property, in which case the probate
court may pass provisionally upon the question
without prejudice to its final determination in a
separate action (Bernardo v. CA, GR L-18148, Feb. 28,
1963, 7 SCRA 367).
Rationale for the rule

The patent rationale for this rule is that%uch
court merely exercises special and limited
jurisdiction. As held in several cases, a probate court
or one in charge of estate proceedings, whether

testate or intestate, cannot adjudicate or determine
title to properties claimed to be a part of the estate
and which are claimed to belong to outside parties,
not by virtue of any right of inheritance from the
deceased but by title adverse to that of the
deceased and his estate.
All that the said court could do as regards said

properties is to determine whether or not they should
be included in the inventory of properties to be
administered by the administrator. If there is no
dispute, there poses no Problem, but if there is, then
the parties, the administrator, and the opposing
parties have to resort to an ordinary action before a
court exercising general jurisdiction for a
final determination of the conflicting claims of title
(Agtarap
v. Agtarap, GR 177099, June 8, 2011, 651 SCRA 455).
Probate court may pass upon the
issue of ownership with the
consent of the parties
When the parties interested are all heirs of the
deceased, it is optional to them to submit to the
probate court a question as to title to property and,
when so submitted, said probate court may
definitely pass judgment thereon (Pascual v. Pascua/,
GR L-48140, May 4, 1942, 73 Phil. 561).
As a general rule, with the consent of the
parties, matters affecting property under judicial

administration may be taken cognizance of by the
(probate) court in the course of the intestate
proceeding provided the interests of third persons
are not prejudiced. The determination of title to
property is within the jurisdiction of the probate
court (Cunanan v. Amparo, GR L-1313, Feb. 16, 1948,
80 Phil. 229, 232).
Probate court to distribute the estate and

determine the heirs
The probate court has exclusive jurisdiction to make
a just and legal distribution of the estate.
The probate court, in the exercise of its
jurisdiction to make distribution, has power to
determine the proportion or parts to which each
distributee is entitled. The power to determine the
legality or illegality of the testamentary provision is
inherent in the jurisdiction of the court making a
just and legal distribution of the inheritance. To
hold that a separate and independent action is
necessary to that effect would be contrary to the
general tendency of the jurisprudence of avoiding
multiplicity of suits and is, further,
RULE 73 33
expensive, dilatory and impractical (Solivio v. CA, GR 83484, Feb.

12, 1990, 182 SCRA 119).
A judicial declaration that a certain person is
the only heir of the decedent is exclusively within the

range of the administratrix proceedings and cannot
properly be made an independent action (Litam v.
Espiritu, GR L-7644, Nov. 27, 1956, 100 Phil. 364).
When a will has been proved, an administrator
appointed and the estate is in process of settlement
in the Court of First Instance (now Regional Trial
Court) in a special proceeding and no final decree has
been entered therein, no ordinary action between
parties can be maintained for the purpose of
determining who are the heirs of the deceased
(Pimentel v. Palanca, GR 2108, Dec. 19, 1905, 5 Phil.
436).
Probate court generally anno sue a writ of
execution; exceptions
A probate court generally cannot issue a writ of
execution. It is not supposed to issue a writ of
execution because its orders usually refer to the
adjudication of claims against the estate which the
executor or administrator may satisfy without the
necessity of resorting to a writ of execution. The
probate court, as such, does not render any
judgment enforceable by execution.
The only instances when a probate court can issue
a writ of execution are:
(a) to satisfy the contributive shares of
devisees, legatees and heirs in
possession of the decedent's assets (Sec.
6, Rule 88, ROC);

(b) to enforce payment of the expenses of
partition
(Sec. 3, Rule 90, ROC); and
(c) to satisfy the costs when a person is
cited for ex. amination in probate
proceedings (Sec. 13, Rule 142, Roc;
Vda. De Valera v. Ofi/ada, GR L.
27526, sept. 12, 1974, 59 SCRA 96)
Probate courts vested with jurisdiction
to try controversies between heirs
regarding ownership of property
allegedly belonging to deceased
The jurisdiction to try controversies between

heirs of the deceased regarding the ownership of
properties alleged to belong to his estate is vested in
probate courts. This is so because the purpose of an
administration proceeding is the liquidation of the
estate and distribution of the residue among the
heirs and legatees and by liquidation is meant the
determination of all the assets of the estate and
payment of all the debts and expenses (Flores v.
Flores, GR L-24173, Nov. 24, 1925, 48 Phil. 982).
Probate court vested with jurisdiction
to determine if properties belong to
g_egjgggl partnership
The question of whether certain properties
involved in a testate proceeding belong to the

conjugal partnership or to the husband exclusively,
is a matter within the jurisdiction of the probate
court, which necessarily has to liquidate the
conjugal partnership in order to determine the
estate of the decedent which is to be distributed
among his heirs (Bernardo v. CA, GR L-18148, Feb.
28, 1963, 117 Phil. 385).
Probate court jurisdiction over an
encumbrance
A probate court has no jurisdiction to make a
pronouncement regarding the existence or non-
existence of an encumbrance on real property (Register
of Deeds of Pampanga v. PNB, GR L-1781, sept. 27,
1949, 47 OG 1157). A right of way is an encumbrance
upon a real estate (Art, 613, CC), hence, the probate
court has no jurisdiction to resolve and pass upon the
existence or non existence of said encumbrance (Diaz v.
Sawamoto, GR L 22085, Apr. 30, 1966, 16 SCRA 937).
Where the existence or nonexistence of an
encumbrance consisting in a permanent right of way
is a matter being controverted, the probate court
has no jurisdiction to resolve and pass upon said
dispute (Ibid.).
Attorney's fees; against whom
chargeable
The rule is that attorney's fees for services
rendered to an administrator to be chargeable

against the estate, such services must have been so
rendered to assist him in the execution of his trust.
Even then, the attorney cannot "hold the estate
liable for his fees; such fees are allowed to the
executor or administrator and not to the attorney.
The liability for the payment rests on the executor
or administrator, but if the fees paid are beneficial
to the estate, and reasonable, he is entitled to
reimbursement from the estate" (Albino v,
Borromeo, GR L-19722, Feb. 28, 1966, 16 SCRA
247),
Exclusionary rule
The court first taking cognizance of the
settlement of the estate of the decedent shall
exercise jurisdiction to the exclusion of all other
courts. This is called the "exclusionary rule. "
The probate court acquires jurisdiction from the
moment the petition for the settlement of estate is
filed with the said court. It cannot thereafter be
divested of such jurisdiction by the subsequent acts
of the parties such as:
(a) entering into an extrajudicial partition settlement
(Sandoval v. Santiago, GR L-1723, May 30,
1949, 83 Phil. 784); or
(b) filing of another petition for settlement in a proper
court of concurrent venue (De Borja v. Tan, GR L-
6476, Nov. 18, 1955, 97 Phil. 872).

The Supreme Court (SC) may, however, order
a change of venue pursuant to its supervisory
authority over the lower courts.
Publication of the filing of the

application and of the date of hearing
The settlement of estate, whether testate or
intestate, is a proceeding in rem and that the
publication in the newspapers of the filing of the
application and of the date set for the hearing of
the same, in the manner prescribed by law, is a
notice to the whole world of the existence of the
proceedings and of the hearing on the date and
time indicated in the publication.
The publication requirement of the notice in
newspapers is precisely for the purpose of
informing all interested parties in the estate of the
deceased of the existence of the settlement
proceedings, most especially those who were not
named as heirs or creditors in the petition,
regardless of whether such omission was
voluntarily or involuntarily made (Pilapil v. Heirs of
Briones, GR 150175, Feb. 5, 2007, 514 SCRA 197).
Recourse in case the venue is improperly laid
The general rule is that ordinary appeal, and not
the special civil action for certiorari or mandamus, lies as a
remedy in case the venue is improperly laid. The only ex
ception is when the want of jurisdiction appears on the

record of the case (Eusebio v. Eusebio, GR L-8409, Dec. 28,
1956, 100 Phil. 593).
SECTION 2, RULE 73, WHERE ESTATE SETTLED UPON DISSOLUTION

OF MARRIAGE
Conjugal partnership ends upon the

death of either spouse
The conjugal partnership terminates upon the
death of either spouse. Where a complaint is
brought against the surviving spouse for the recovery
of an indebtedness chargeable against said conjugal
(partnership), any judgment obtained thereby is
void. The proper action should be in the form of a
claim to be filed in the testate or intestate
proceedings of the deceased spouse (Ventura v.
Militame, GR 63145, Oct. 5, 1999, 316 SCRA 226).
Methods of liquidating the property of a

conjugal partnership if one spouse dies
If the marriage is dissolved by the death of one
of the spouses, there are two (2) methods of
liquidating the property of a conjugal partnership:
(1) by a testate or intestate proceeding
according to whether the deceased died
with or without a will; and
(2) by an ordinary proceeding for liquidation
and partition when there are no debts to
pay (Cruz v. De Jesus, GR L-30491, Mar. 2,
1929, 52 Phi/., 870).

Death of one spouse terminates the
power of management of the
surviving spouse; power passed on to
the appointed administrator
When the marriage is dissolved by the death of
the wife, the legal power of management of the
husband ceases, passing to the administrator
appointed by the court in the testate or intestate
proceedings instituted to that end if there be any
debts to be paid, and when there is no debt pending,
the liquidation and partition may be made in an
ordinary proceeding for that purpose (Cruz v. De
Jesus, GR L-3049, Mar. 2, 1929, 52 Phil. 870).
Conjugal property and not just decedent's
estate is under administration
In the settlement proceedings of the estate of
the deceased spouse, the entire conjugal partnership
property of the marriage and not just the one-half
(1/2) portion belonging to the deceased is under
administration (Picardal v. Lladas, GR L-21309, Dec.
29, 1967, 21 SCRA 1438).
Claims against the conjugal property

should be brought in the probate
proceedings
When one of the spouses dies and the surviving
spouse ceases as legal administrator of the conjugal
property, no complaint can be brought against the

surviving spouse for the recovery of an indebtedness
chargeable against the conjugal property. The action
should instead be instituted in the testamentary
(probate) proceedings of the deceased spouse in the
manner provided by law (Calma v. Tafiedo, GR L-
44602, Nov. 28, 1938, 66 Phil. 594).
Conveyance made by the surviving
spouse of the conjugal property may be
void
The death of one of the spouses does not

have the effect of making the surviving spouse the
de facto administrator of the conjugal estate nor
does it invest the latter with the power to dispose
of the same. A sale (or any other form of
conveyance) made by the surviving spouse,
without the formalities established for the sale of
the property of deceased persons, shall be null
and void (Corpuz
v. Corpuz, GR L-7495, sept. 30, 1955, 97 Phil. 655).
The conjugal partnership shall be liquidated in
the proceedings for the settlement of the estate of
the deceased spouse, or if both spouses have died
and separate proceedings have been instituted for
each estate, both proceedings may be consolidated if
they were filed in the same court.
Conjugal partnership of deceased

spouses may be settled or
liquidated in the probate
proceedings of either

The last sentence of Section 2, Rule 73 of the
Rules of Court allows or permits the conjugal
partnership of spouses who are both deceased to
be settled or liquidated in the testate or intestate
proceedings of either but precisely because said
sentence allows or permits that the liquidation be
made in either proceeding, it is a matter of sound
judicial discretion in which one it should be made
(PC/B v. Esco/in, GR L-27860 and L-27896, Mar. 29,
1974, 56 SCRA 266).
SECTION 3 RULE 73, PROCESS

Probate court may issue necessary
warrants and processes
In the exercise of its limited jurisdiction, the
probate court may issue warrants and processes
necessary:
(a) to compel the attendance of witnesses; or

(b) to carry into effect its orders and judgment and
all other powers granted it by law.
The probate court may issue a warrant for the
apprehension and imprisonment of a person who
does not per. form an order or judgment rendered by
the said court until: (c) he performs such order or
judgment; or (d) he is released (Sec 3, Rule 73 ROC).
SECTION 4 RULE 73. PRESUMPTION OF DEATH
Presumptive death

Generally, a person is to be presumed dead
for the purpose of settling his estate if he has been
missing for ten (10) years. If the absentee
disappeared after the age of seventy-five (75)
years, an absence of five (5) years is sufficient for
the opening of succession (Art. 390, CC).
Other persons considered absent

for the purpose of opening
succession
Article 391 of the Civil Code provides that the
following persons would be considered absent even
for the purpose of opening succession after just four
(4) years:
(1) A person on board a vessel lost during a
sea voyage;
(2) A person on board an aeroplane (airplane)
which is missing;
(3) A person in the armed forces who has
taken part in war; or
(4) A person who has been in danger of death
under other circumstances.
If the absentee proves to be alive, he shall be
entitled to the balance of his estate after payment
of all his debts which balance may be recovered by
motion in the same proceeding (Sec. 4, Rule 73,
ROC).

Presumption of death cannot be the
subject of an independent court
proceeding
The presumption of death may arise and be
invoked and made in a case either in an action or in
a special proceeding which is tried or heard by and
submitted for decision to a competent court.
Independently of such an action or special
proceeding, the presumption of death cannot be
invoked nor can it be made the subject of an action
or special proceeding (In re Szatraw, GR L-1780,
Aug. 31, 1948, 81 Phil. 461).
Judicial declaration that a person is

presumptively dead does not attain
finality; no court declaration needed for
presumption to arise
A judicial declaration that a person is
presumptively dead because he had been unheard
from in seven (7) years, being a presumption juris
tantum only subject to contrary proof, cannot reach
the stage of finality or become final.
Under the Civil Code, the presumption of death
is established by law and no court declaration is
needed for the presumption to arise (Valdez v.
Republic, GR 180863, sept. 8, 2009, 598 SCRA 646).

Presumption of death should yield to
preponderance of evidence
SPECIAL PROCEEDINGS: AN EXHAUSTIVE
EXPOSITION 42
The rule on presumption of death under Article 391

(I) of the Civil Code must yield to the rule of
preponderance of evidence upon the premise that
there is enough evidence to show the facts which
logically are sufficient to lead to a normal certainty that
the absent person or persons had indeed already
perished and may forthwith be presumed dead without
the necessity of waiting for the lapse of the period of
absence provided for by law (Lucero
v. NLRC, GR 74197, Oct 28, 1991, 203 SCRA 218).

46
RULE 74. SUMMARY SETTLEMENT OF ESTATE

General rule on judicial administration of decedent's
estate; exceptions
The general rule is that the property of the decedent
shall be judicially administered and the competent court shall
appoint a qualified administrator in the order established in
Section 6, Rule 78 of of Court in the following instances:
(1) when a person died intestate; or
(2) if he died testate but
(a) failed to name an executor in his will; or
(b) the executor so named in his will is either:
(i) incompetent;
(ii) refuses the trust; or

(iii) fails to give bond as Rules of Court.
The exceptions to this rule are:
(1) Extrajudicial parties; and
(2) Summary settlement of

SECTION 1 RULE 74. EXTRAJUDICIAL SETTLEMENT
BY AGREEMENT BETWEEN HEIRS
Extrajudicial settlement of the estate; appointment
of administrator not necessary
Where the decedent left no debts and the heirs or
legatees are all of age, there is no necessity for the institution
of special proceedings and the appointment of an

47
administrator for the settlement of the estate because the
(a) extrajudicially, through extrajudicial settlement of
(b) judicially, through an ordinary action for partition (Guico v. Bautista, GR L-14921, Dec. 31,
1960, 110 Phil. 584).
Special proceedings can be compelled when

estate debts cannot be collected
extrajudicially
It is only when debts exist and there is no way of
collecting them extrajudicially because the creditors have
not reached an amicable settlement with the heirs that
they can compel the filing of special proceedings before
the court for the liquidation of said debts (Cadag v.
Treananes, 40 OG 4th supp. 324; Torres v. Torres, GR
L19064, Jan. 31, 1964, 10 SCRA 185).
Rationale for the rule on extrajudicial

settlement of the estate
Under Rule 74 of the Rules of Court, if the decedent left no debts and the heirs are all of age
or the minors are represented by their judicial guardians, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit and, should they disagree, they
may do so in an ordinary action of partition.
The underlying principle for this rule is that when a person dies without leaving pending
obligations to be paid, his heirs, whether of age or not, are not bound to submit the property to a
judicial administration, which is always long and costly, or to apply for the appointment of an
administrator by the court. In such case, the judicial admini-
48

stration and the appointment of an administrator are
superfluous and unnecessary proceedings (Vda. De Rodriguez
v. Tan, GR L-6044, Nov. 24, 1952, 92 Phil. 273).
Provision not mandatory even though the decedent left no
debts
Section 1, Rule 74 of the Rules of Court does not preclude
the heirs from instituting administration proceedings even if the
estate has no debts or obligation if they do not desire to resort
for good reasons to an ordinary action of partition.
This Section is not mandatory or compulsory as may be gleaned from the use made therein of the word "may."
If the intention were otherwise, the framers of the rule would have employed the word "shall" as was done in
other provisions that are mandatory in character. Note that the word "may" is not only used once but also in
the whole section which indicates an intention to leave the matter entirely to the discretion of the heirs
(Rodriguez v. Tan, GR L-6044, Nov. 24, 1952, 92 Phil. 273).
What constitutes good and compelling reasons

Recourse to an administration proceeding even if the estate has no debts is sanctioned only if the heirs have
good reasons for not resorting to an action for partition. Where partition is possible, either in or out of court,
the estate should not be burdened with an administration proceeding without good and compelling reasons
(Intestate Estate of Mercado v, Magtibay, GR L-6829, Dec. 29, 1954, 96 Phil 383).
What constitutes "good reason" to warrant a judicial administration of the estate of a deceased when
the heirs are all of legal age and there are no creditors will depend
49
on the circumstances of each case (Pereira v. CA, GR L81147,

June 20, 1989, 174 SCRA 154).
Some circumstances not considered as good

reasons
The following circumstances, among others, do
constitute "good reasons" for resorting to an administration
proceeding:

(1) To resolve a dispute among heirs (Monserrat v.
Ibanez, GR L-3369, May 24, 1950);
(2) To avoid multiplicity of suits (Intestate Estate of Mercado v. Magtibay, GR L-6829, Dec.
29, 1954, 96 Phil. 383); and
(3) To have legal capacity to appear in the intestate proceedings (Utulo v. Pasion Vda. de
Garcia, GR 45904, sept. 30, 1938, 66 Phil. 303).
Substantive requisites
The conditions which must first be satisfied before an
extrajudicial settlement of the estate can be resorted to
are:
The decedent left no will;
(2) The decedent has no debts or his debts have been fully paid or, if the decedent has
incurred any debts, it is sufficient that such debts have been paid at the time of the
extra-judicial settlement (Guico v. Bautista, GR L-14921, Dec. 31, 1960, 110 Phil, 584);
(3) The heirs are all of legal age or the minors are duly
represented by their judicial or legal
representatives; and
50
(4) A public instrument (and a bond equivalent to the value of personal property involved)
is duly executed by the heirs and filed with the Register of Deeds.
Rebuttable presumption that decedent left no debts

A disputable presumption is created under Section 4, Rule 74 of the Rules of Court to the effect that the
decedent has presumably left no debts if no creditor files a petition for letters of administration within two (2)
years after the former's death.
When bond is required; real property subject to a 2-year lien

A bond is required only when personal property is involved in the extrajudicial settlement. Real estate is
subject to a lien in favor of the creditors, heirs or other persons for two (2) years from the distribution of the
estate notwithstanding any transfers of real estate that may have been made (Sec. 4, Rule 74, ROC; Rebong v.
Ibanez, GR L-1578, sept. 30, 1947, 79 SCRA 324).

Adjudication requisites
The requirements for the extrajudicial settlement of the estate are:

(a) An agreement among the heirs by means of a public
instrument; or
(b) If there be only one heir, an extrajudicial adjudication of the entire estate in favor of such heir by
means of an affidavit.
51
Requisites common to the above modes

The requirements applicable to the two (2) modes of
extrajudicial settlement are:
(1) That the decedent left no will;
(2) That he left no debts or all the debts he left are all
paid. In this connection, it shall be presumed that
there are no outstanding debts if no creditors file a
petition or letters of administration two (2) years
after the decedent's death (Sec. 1, Rule 74, ROC;
Fille v. Fule, GR L-21859, sept. 30, 1924, 46 Phil.
317);
(3) That the heirs are all of age or the minors are
represented by their judicial guardians;
(4) That the agreement or adjudication is made by means
of a public instrument or affidavit duly filed with the
Register of Deeds;
(5) That the parties to the extrajudicial partition shall,
simultaneously with and as a condition precedent
to the filing of the public instrument, file a bond in

an amount equivalent to the value of the personal
property involved as certified to under oath by the
parties concerned and conditioned upon the
payment of any just claim that may be filed under
Section 4, Rule 74 of the Rules of Court; and
(6) That the fact of extrajudicial settlement shall be
published in a newspaper of general circulation in
the manner provided in Section 2, Rule 74 of the
Rules of Court.

RULE 74
52
Affidavit of self-adjudication by sole heir

An affidavit of self-adjudication refers to the affidavit required by Section 1, Rule 74 of the Rules
of Court to be executed by the sole heir of a deceased person in adjudicating to himself the
entire estate left by the decedent.
Adjudication by an heir of the decedent's entire estate to himself by means of an affidavit is

allowed only if he is the sole heir to the estate (Vda. de De la Rosa v. Heirs of Vda. de Damian,
GR 155733, Jan. 27, 2006, 480 SCRA 334).
Procedural requisites of extrajudicial settlement

between heirs
The processes that must be followed in the extrajudicial
settlement of the estate are as follows:
(a) The division of the estate must be in a public
instrument or in an affidavit of adjudication in the
case of a sole heir; a private instrument is,
nonetheless, valid. The requirement of a public
instrument in Section 1, Rule 74 of the Rules of
Court is not constitutive of the validity of the
adjudication but is merely evidentiary in nature
(Hernandez v. Andal, GR L-273, Mar. 29, 1947, 78
Phil. 196). However, reformation of the
instrument pursuant to Article 1359 of the Civil
Code may be compelled;
(b) The division of the estate must be filed with the
proper Registry of Deeds (RD);
(c) There must be a publication of the notice of the
fact of extrajudicial settlement for at least once a
week for three (3) consecutive weeks in a
newspaper of general circulation. An extrajudicial
set-
53
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tiement, notwithstanding its publication, shall not be binding on any person who
has not participated therein or who had no notice thereof. [Sec.
(d) A corresponding bond must be filed equivalent to the value of the personal
property subject of the division. Such bond, however, is required only when
personalty is involved. The bond is the value of the personal property certified to by
the parties under oath and conditioned upon the payment of just claims filed under
Section 4, Rule 74 of the Rules of Court.
When the subject of division is a realty; extent

of lien
If the subject of the division is a real property, no
bond is required but it shall be subject to a lien in favor
of the creditors, heirs or other persons for the full period
of two (2) years from such distribution and such lien
cannot be substituted by a bond.
Is the required public instrument under
Section 1 of Rule 74 constitutive and
not merely evidential ofpartition?
Section 1 of Rule 74 of the Rules of Court contains no
express or clear declaration that the required public
instruments is to be constitutive of a contract of partition
or an inherent element of its effectiveness as between the
Parties. The efficacy of an extrajudicial settlement as
between the parties should not be dependent on the
execution Of a public instrument and its registration
(Hernandez
v. Anda/, GR L-273, Mar. 29, 1947, 78 Phil. 196).
54
Second sentence of Section 1 of Rule 74

an exception to the general rule
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RULE 74
Section 1, Rule 74 of the Rules of Court is an

exception to the general rule that when a person dies
leaving a property, it should be judicially administered and
the competent court should appoint a qualified
administrator in the order established in Section 6, Rule
78 in case the deceased left no will or in case he did, he
failed to name an executor therein (Portugal v. Portugal-
Beltran, GR 155555, Aug. 16, 2005, 467 SCRA 184).
Ex-parte proceeding
The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly
states, however, that persons who do not participate or had no notice of an extrajudicial
settlement will not be bound thereby.
It contemplates a notice that has been sent out or issued before any deed of settlement and/or
partition is agreed upon (i.e., a notice calling all interested parties to participate in the said deed
of extrajudicial settlement and partition), and not after such an agreement has already been
executed (Cua v. Vargas, GR No. 156536, Oct 31, 2006, 506 SCRA 374).
Publication requirement only intended

to protect creditors and not to deprive
heirs of their lawful participation
The publication of the settlement does not constitute
constructive notice to the heirs who had no knowledge o r
did not take part in it because the same was noticed after the
fact of execution.
55
The requirement of publication is geared for the protection of creditors and was never intended
to deprive heirs of their lawful participation in the decedent's estate (Cua v. Vargas, GR 156536,
Oct. 31, 2006, 506 SCRA 374).
Partition not included in statute of frauds

There is a conflict of authority as to whether an agreement of partition is such a contract as is
required to be in writing under the statute of frauds under Article 1403(2) of the Civil Code.
One line of authorities holds the affirmative view, other authorities say no.
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The reason for the rule that excludes partition from the operation of the statute of frauds is
that partition is not a conveyance but simply a separation and designation of that part of the
land which belongs to each tenant in common.
Application of the statute

The statute of frauds is applicable to executory and not to completed or executed contracts. In
this jurisdiction, performance of the contract takes it out of the operation of the statute
(Gomez v. Salcedo, GR 7821, Dec. 31, 1913, 26 Phil. 485).
Moreover, the statute of frauds does not declare the contracts therein enumerated void and of
no legal effect but only makes ineffective the action for specific performance (Almirol v.
Montserrat, GR 23717, sept. 28, 1925, 48
Phil. 67)•
Oral partition enforced in equity when

performed
On general principle, independent and inspite of the statute of frauds, courts of equity have
enforced oral parti-
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SPECIAL PROCEEDINGS AN EXHAUSTIVE EXPOSITION
56
tion when it has been completely or partly performed (Hernandez v. Andal, GR L-273, Mar. 29, 1947,
78 Phil. 196).
Section 1 of Rule 74 not constitutive but merely

evidential of partition; purpose of the registration
requirement
Section 1 of Rule 74 of the Rules of Court contains no express or clear declaration that the public
instrument therein required is to be constitutive of a contract of partition or an inherent element of
its effectiveness as between the parties.
The efficacy of a partition as between the parties is not made dependent on the execution of a
public instrument and its registration. The requirement that a partition be put in a public document
and registered has for its purpose the protection of creditors and at the same time the protection
of the heirs themselves against tardy claims.
The last sentence of the section speaks of debts and creditors. The object of registration is to serve
as a constructive notice to others. The intrinsic validity of partition not executed with the
prescribed formalities does not come into play when there are no creditors or no rights of creditors
are affected. There being no rights of creditor s involved, the heirs of an estate can enter into an
agreement for distribution in a manner and upon a plan differen t from those provided for by law
(Hernandez v. Andal, GR L-273, Mar. 29, 1947, 78 Phil. 196).
Effect of an unregistered extrajudicial settlement

The lack of registration of an extrajudicial settlement does not affect its validity when there are no
creditors or 57
when no rights of creditors are involved (Vda. de Reyes

v. CA, GR 92436, July 26, 1991, 199 SCRA 646).
Remedies of unpaid creditor and defrauded party
after the extrajudicial settlement
An unpaid creditor and defrauded party may resort to
the following legal actions after the extrajudicial
settlement:
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(1) The creditor may ask for the administration of
enough property of the estate sufficient to pay the
debt but the heirs cannot prevent such
administration by paying the obligation
(McMicking v. Sy Conbieng, GR 6871, Jan. 15,
1912, 21 Phil. 211);
(2) Where the estate has been summarily settled, the
unpaid creditor may, within the two-year period,
file a motion in the court wherein such summary
settlement was had for the payment of his credit.
After the lapse of the two-year period, an ordinary
action may be instituted against the distributees
within the statute of limitations but not against
the bond; and
(3) The party defrauded may file an action to annul a
deed of extrajudicial settlement on the ground of
fraud within four (4) years from the discovery of
the fraud (Gerona v. De Guzman, GR L-19060, May
29, 1964, 11 SCRA 153).
Finality of partition
The partition should be considered as a final
settlement of the estate of the deceased (Mendiola v.
Mendiola, GR 26977, Nov. 27, 1906, Phil. 71).
58
Remedies of aggrieved parties against the

extrajudicial settlement or summary
settlement
Aggrieved parties may seek the following remedies against the extrajudicial settlement or summary
settlement:
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RULE 74
(a) Claim against the bond or real estate or
both; if there are debts outstanding against
the estate which have not been paid or that
an heir or other person has been unduly
deprived of his lawful participation payable
in money, at any time within two (2) years
after the settlement and distribution of an
estate, the aggrieved party may claim
against the bond or against the real estate
belonging to the deceased or both;
(b) Petition for relief from judgment (Rule 38, ROC) based on the grounds of
fraud, accident, mistake or excusable negligence which must be filed within
sixty (60) days after the petitioner learns of the judgment, final order or
other proceeding sought to be set aside and not more than six (6) months
after such judgment or final order was red ;
(c) Reopening by intervention within the reglementary period by any person

who either:
(1) has a legal interest in the matter in litigation;

(2) has such legal interest in the success of eith er of
the parties or an interest against both; or
(3) is so situated as to be adversely affected by a distribution or disposition of
property in the custody of the court or of an officer thereof (Rule 19, ROC);
59
It may be filed any time before the rendition of judgment by the trial court but
within the reglementary period of two (2) years;
(d) New action to annul the settlement within

the reglementary period of two (2) years
and not the prescription period;
(e) Rescission in case of preterition of a compulsory heir in a partition tainted
with bad faith (Art. 1104,
(f) Action to annul a Deed of Extrajudicial

Settlement on the ground of fraud which
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should be filed within four (4) years from the
discovery of the fraud (Gerona v. De Guzman,
GR L-19060, May 29, 1964, 11 SCRA 153); and
(g) Reconveyance of real property.
Remedies for an aggrieved co-heir
After an extrajudicial settlement is approved by the court, any aggrieved party has the alternative
remedy of filing either:
(1) a petition for relief under Rule 38; or

(2) a new action to annul the settlement within the
period established by the statute of limitations
(Jerez v. Nietes, GR L-26876, Dec. 27, 1969, 30
SCRA 904).
Even then, the better practice is reopening of the case
by proper motion such as intervention under Section 2, Rule 12 of the Rules of Court within the
reglementary period instead of an independent action the effect of which, if SUccessful, would be
for another court or judge to throw
Out a decision or order already final and executed and
60
reshuffle properties long ago distributed and disposed of

(Riosa v. Rocha, GR 23770, Feb. 18, 1926, 48 Phil. 737).
Recourse in case of disagreement among co-heirs

Should the heirs or legatees disagree as to the
division of the estate, an action for partition instead of a
special proceeding may be brought (Bondad v. Bondad, GR
L-8092, Mar. 14, 1916, 34 Phil. 232; Art. 494, CC).
Remedy of a non-participating heir
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RULE 74
The remedy of an heir who did not participate in or
had no knowledge of the extrajudicial partition is to file
an action for reconveyance.
Prescriptive period for non-participating heirs

The prescriptive period to recover property obtained
by fraud or mistake (action for reconveyance) giving rise to
an implied trust under Article 1456 of the Civil Code is ten
(10) years pursuant to Article 1144 of the Civil Code. This
ten-year prescriptive period begins to run from the
issuance of the Torrens title over the property (Sps. Alfredo
v. sps. Buras, GR 144225, June 17, 2003, 404 SCRA 145).
Trust explained
A trust is the legal relationship between one person
having an equitable ownership of property and anothe r
person owning the legal title to such property, the
equitable ownership of the former entitling him to the
performance of certain duties and the exercise of certain
powe rs by the latter (Canezo v. Rojas, GR 148788, Nov. 23,
2007, 538 SCRA 242).
61
Express and implied trusts

Trusts are either express or implied. Express or direct trusts are created by the direct and
positive acts of the parties, by some writing or deed, or will, or by oral declaration in words
evincing an intention to create a trust. Implied trusts — also called "trusts by operation of law,"
"indirect trusts" and "involuntary trusts" — arise by legal implication based on the presumed
intention of the parties or on equitable principles independent of the particular intention of the
parties (Tigno v. CA, GR 110115, Oct 8, 1997, 280 SCRA 262).
Constructive trusts and resulting trusts

Implied trusts are further classified into constructive trusts and resulting trusts. Constructive
trusts, on the one hand, come about in the main by operation of law and not by agreement or
intention. They arise not by any word or phrase, either expressly or impliedly, evincing a direct
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intention to create a trust, but one which arises in order to satisfy the demands of justice
(Canezo v. Rojas, GR 148788, Nov. 23, 2007, 538 SCRA 242).
Resulting trusts arise from the nature or circumstances of the consideration involved in a
transaction whereby one person becomes invested with legal title but is obligated in equity
to hold his title for the benefit of anOther. This is based on the equitable doctrine that
valuable COnsideration and not legal title is determinative of equitable title or interest and is
always presumed to have been COntemplated by the parties (Buan Vda. de Esconde v. CA,
GR 103635, Feb, 1, 1996, 323 Phil. 81).
Such intent is presumed as it is not expressed in

the instrument or deed of conveyance and is to be
found in
62
the nature of their transaction (Sa/ao v. Salao, GR L. 26699, Mar. 16, 1976, 70 SCRA 65).
Exception to prescription of action for reconveyance

There is but one instance when prescription cannot be invoked in an action for reconveyance,
that is, when the plaintiff (or the persons with the better right or the legal owners of the land,
not the defendant or the registered owners thereof) is in possession of the land to be
reconveyed (Millena v. CA, GR 127797, Jan. 31, 2000, 324 SCRA 126).
The filing of an action for reconveyance despite the lapse of ten (10) years is permissible when
such action is based on fraud which action is imprescriptible as long as the land has not passed
to an innocent purchaser for value (Rodriguez v. Director of Lands, GR L-9941, Aug. 7, 1915, 31
Phil. 272).
SECTION 2 RULE 74. SUMMARY SETTLEMENT OF

ESTATE OF SMALL VALUE
Estate of small value
The term "estate of small value" refers to such gross value of the decedent's estate which does
not exceed ten thousand pesos (P 10,000.00).
Summary procedure defined

The summary procedure contemplated under Sectio n 2, Rule 74 of the Rules of Court is one by
which the following are done, in a summary manner and, where practic able, in a single hearing
and in a single order without th e appointment of any executor or administrator:
63
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RULE 74
the estate of a deceased is valued;
(2) his debts, if any, are paid;
(3) his will, if any, is allowed; and
(4) the heirs and legatees are declared and distribution to them is made.
This procedure is allowed when the gross value of the decedent's estate does not
exceed ten thousand pesos (PIO,OOO.OO). The sales ordered by the probate court for payment
of debts are final and are not subject to legal redemption (Abarro v. De Guia, GR L-47317, June
10, 1941, 72 Phil. 245).
Requisites for summary settlement

The requirements for the summary settlement of estate of small value are:
(a) The gross value of the estate must not exceed ten thousand pesos (P 10,000);
(b) The petition must state the fact regarding the gross value of the estate;
(c) The date of the hearing shall be set by court such that the same shall be held not
less than one (1) month nor more than three (3) months from the date of the last
publication of the notice of hearing required to be published once a week for three
(3) consecutive weeks in a newspaper of general circulation in the province;
(d) The notice shall be served upon such interested persons as the court may direct. A
summary settlement is not binding upon the heirs or creditors who were not parties
therein or had no knowl-
64
edge thereof (Sampilo v. CA, GR L-10474, Feb. 28,

1958, 103 Phil. 70); and
A bond in an amount to be fixed by the court
(not the value of the personal property)
conditioned upon the payment of just claims
under Section 4 Rule 74 of the Rules of Court.
Distinctions between extrajudicial settlement
and summary settlement
EXTRAJUDICIAL SUMMARY
SETTLEMENT SETTLEMENT
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It requires
It requires no court Judicial re- summary
intervention. course court
ad'udication.
The gross estate
The value of the Value of the
estate is immaterial. estate must not exceed
PIO,OOO.
It is allowed in
It is allowed only in Scope of both
intestate succes-
application testate and
intestate
sion. successions.
It is available even
It is available only When available if
if there are no out- there are estate
standing debts of debts since it is
the
the estate at the court which will
make
time of the settle- provisions for
their
ment. a ment.
It may be resorted Who ma It may be instituted
to at the instance institute by any interested
and by agreement party even by a
of all the heirs. creditor of the
estate
without the consent of
all the heirs.
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RULE 74
Distributees to receive and enter into

possession
The distributees, in their own right if they are of age, or by their legally appointed and qualified
guardians or trustees if the distributees are minors, shall be entitled to receive and enter into
possession of the portions awarded to them (Moran, Comments on the Rules of Court, Vol. 3).
Claims of heirs adverse to decedent's;

exception
If during the summary proceedings some of the heirs
claim, by title adverse to that of the decedent, some
parcels of land, the probate court has no jurisdiction to
pass upon the issue which must be decided in a separate
suit (Guzman v. Anog, GR L-10618, Oct. 26, 1917, 37 Phil.
61).
The above rule is not applicable where there is no question that the realty belongs to the decedent
considering that, in summary settlements, the judge is expected to Proceed "summarily" and
"without delay" to determine who are the persons legally entitled to participate in the estate and to
apportion and divide it among them (Estate of Francisco v. Carreon, GR L-5033, July 28, 1954, 95 Phil.
237).
66
SECTION 3 RULE 74. BOND TO BE FILED BY Dis. TRIBUTEES
Bond to be filed; amount
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Before allowing a partition in accordance with the provisions of Section 2, Rule 74 of the Rules of
Court, the court may require the distributees, if property other than real is to be distributed, to file a
bond in an amount to be fixed by it, conditioned on the payment of any just claim which may be filed
under Section 4, Rule 74 of the Rules
of Court.
Under a summary settlement, the amount of bond required is to be determined by the court while in
an extrajudicial settlement, the amount of bond shall be equal to the value of the personal property as
established by the instrument of adjudication.
SECTION 4 RULE 74. LIABILITY OF DISTRIBUTEES AND ESTATE
Right to compel judicial settlement

If an heir or other person has been unduly deprived of his lawful participation in the estate at any time
within two (2) years after the settlement and distribution of an estate, he may compel the settlement
of the estate in the courts for the purpose of satisfying such lawful participation (Sec. 4, Rule 74, ROC).
Claim against the bond or real estate or both

If there are debts outstanding against the esta te which have not been paid, or that an heir or other
person has been unduly deprived of his lawful participation p ayable in money, at any time within two
(2) years after the 67
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RULE 74
settlement and distribution of an estate, the aggrieved
party may claim against the bond or against the real
estate belonging to the deceased, or both (Domingo v.
Roces, GR 147468, Apr. 9, 2003, 401 SCRA 197).
When judicial settlement of the estate may

be compelled
Judicial settlement of the estate may be compelled
under any of the following circumstances:
(a) If an heir or other person has been unduly deprived
of his lawful participation in the estate at any time
within two (2) years after the settlement and
distribution of an estate;
(b) If there are debts outstanding against the estate
which have not been paid; or
(c) If an heir or other person has been unduly deprived of his lawful participation payable in
money, at any time within two (2) years after the settlement and distribution of an
estate
Two-year prescriptive period

Section 4, Rule 74 of the Rules of Court provides for a
two-year prescriptive period:
(I) to persons who have participated or taken part or had notice of the extrajudicial partition; and
(2) when the provisions of Section 1, Rule 74 have

been strictly complied with, i.e., that all the
persons or heirs of the decedent have taken part
in the extrajudicial settlement or are represented
by themselves or through guardians (Pedrosa v.
CA, GR 118680, Mar. 5, 2001, 353 SCRA 620).
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PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
68 SPECIAL
Rule covers transfers of real property to any

person; effects of the provision
The rule covers transfers of real property to any
per. son as long as the deprived heir or creditor
vindicates his rights within two (2) years from the date
of the settlement and distribution of estate. The effects
of this provision are not limited to the heirs or original
distributees of the estate properties but shall affect any
transferee of the properties.
Cancellation of annotation of lien on the title of

real property after 2 years
The two-year lien upon the real property distributed
by extrajudicial or summary settlement shall be annotated
on the title issued to the distributees and after two (2)
years will be cancelled by the register of deeds without
need of court order (Land Registration Commission Circ.
143, Jan. 28, 1964).
Purpose of the annotation; creation of a legal

encumbrance or lien
An annotation is placed on new certificates of title
issued pursuant to the distribution and partition of a
decedents real properties to warn third persons on the
possible interests of excluded heirs or unpaid creditors in
these properties. The annotation, therefore, creates a
legal encumbrance or lien on the real property in favor of
the excluded heirs or creditors.

RULE 74
Where a buyer purchases the real property
despite the annotation, he must be ready for the
possibility that th e title could be subject to the rights of
excluded parties. Th e cancellation of the sale would be
the logical consequence where:
69
(a) the annotation clearly appears on the title,

warning all would-be buyers;
(b) the sale unlawfully interferes with the rights of heirs; and
(c) the rightful heirs bring an action to question the transfer within the two-year
period provided by law (Tan v. Beno/irao, GR 153820, Oct. 16, 2009, 604 SCRA 36).
Substitution of a bond for the 2-year lien

has no basis in the Rules
Where the registered or annotated contingent
interest of the creditors or other heirs established by
Section 4, Rule 74 of the Rules of Court has not yet
terminated or ceased or the period of two (2) years has
not yet elapsed, the court has no jurisdiction or power
to order the cancellation of the lien or annotation.
No rule authorizes interest of substitution of a bond for a lien or registered interest of any
description, whether vested, expedient, inchoate or contingent, which have not yet terminated
or ceased (Rebong v. Ibanez, GR L-1578, sept. 30, 1947, 79 Phil. 324).
Remedies of the unpaid creditor of an

estate summarily settled
Where the estate has been summarily settled, the unPaid creditor may, within two (2) years, file
a motion in the court where such summary settlement was had for the Payment of his credit.
After the lapse of that period, an Ordinary action may be instituted against the distributees
within the statute of limitations but not against the bond.
70 SPECIAL

PROCEEDINGS. AN EXHAUSTIVE EXPOSITION
Bar against distributees from objecting to an
extrajudicial partition after the expiration of 2 years
The provisions of Section 4, Rule 74 of the Rules of Court
barring distributees or heirs from objecting to an extrajudicial
partition after the expiration of two (2) years from such
extrajudicial partition is applicable only:
(1) to persons who have participated or taken part or had
notice of the extrajudicial partition; and
(2) when the provisions of Section 1, Rule 74 have been strictly
complied with, i.e., that all the persons or heirs of the
decedent have taken part in the extrajudicial settlement or
are represented bycic themselves or through guardians
(Sampi/o v. CA,rig GR L-10474, Feb. 28, 1958, 103 Phil.
70).lar
Constructive notice vis-å-vis prescription ofthe an action to contest

an extrajudicial partition; two-year prescriptive period ta
While an extrajudicial partition is an ex parte proceeding, yet after its registration under the Torrens system and the
annotation on the new certificate of title of the contingent liability of the estate for a period of two (2) years as prescribed
in Section 4, Rule 74 of the Rules of Court, a constructive notice, by operation of law, is deemed made to all the world so
that upon the expiration of said periodin all third persons should be barred [from going] after th e particular property except
where title thereto still remain s in the names of the alleged heirs who executed the part ition tainted with fraud or their
transferees who may notDro qualify as 'innocent purchasers for value. 'the
If the liability of the registered property should exten d indefinitely beyond that period, then such constructi veabil
71
notice which binds the whole world by virtue of registration would be meaningless and illusory
(PEZA v. Fernandez, GR 138971, June 6, 2001, 358 SCRA 489).
Buyers bound by annotation per Section 4

of Rule 74
The buyer of real property the title of which contains an annotation pursuant to Section 4, Rule
74 of the Rules of Court cannot be considered innocent purchasers for value.
In the same vein, the annotation at the back of the certificate if title referring to Section 4 of
Rule 74 is sufficient notice to the buyer of the limitation on the seller's right to dispose of the
property. The presence of an irregularity which excites or arouses suspicion should prompt the

RULE 74
vendee to look beyond the certificate and investigate the title of the vendor appearing on the
face thereof (David
v. Malay, GR 132644, Nov. 19, 1999).
Purchasers of registered land are bound by the annotations found at the back of the certificate
of title (Vazquez v. CA, GR 83759, July 12, 1991, 199 SCRA 102).
SECTION 5 RULE 74. PERIOD FOR CLAIM OF

MINOR OR INCAPACITA TED PERSON
Period to present a claim for a
minor, incapacitated person,
prisoner or a person out of the
country
If on the date of the expiration of the two-year period Provided for in Section 4, Rule 74 of the
Rules of Court, the person authorized to file a claim is a minor or mentally incapacitated or is in
prison or outside the Philippines, he may present his claim within one (1) year after such
disability is removed (Sec 5, Rule 74, ROC).

PROCEEDINGS: EXHAUSTIVE
72 SPECIAL AN EXPOSITION
Effect of Section 5, Rule 74 not being

annotated on the certificate of title

Where the title on its face shows that it was subject
to the provisions of Section 4, Rule 74 of the Rules of
Court, a third person who accepts it must nonetheless
take notice that he is running the risk of interfering with
the rights of minors as provided under Section 5, Rule
74, it being an imposition of the law and being a mere
sequence to the provisions of Section 4 (Estate of
Francisco v. Carreon, GR L-5033, June 28, 1954, 95 Phil
237).

without reasonable cause to deliver the

ordered so to do, to the court having
jurisdiccommitted to prison and there kept
until he
RULE 75. PRODUCTION OF WILL.

ALLOWANCE OF WILL NECESSARY
SECTION 1 RULE 75. ALLOWANCE NECESSARY
CONCLUSIVE AS TO EXECUTION
Will defined
A will is defined as "an act whereby a person is
permitted, with the formalities prescribed by law, to control
to a certain degree the disposition of his estate, to take
effect after his death" (Art. 783, CC).
The law also provides that "the making of a will is a
strictly personal act; it cannot be left in whole or in part
of the discretion of a third person, or accomplished
through the instrumentality of an agent or attorney" (Art.
784, CC).
Probate or allowance of will defined

Probate or allowance of will is a special proceeding
mandatorily required for the purpose of establishing the
validity of a will in accordance with Article 838 of the Civil
Code which provides that "No will shall pass either real or
personal property unless it is proved and allowed in
accordance with the Rules of Court." Probate is therefore
mandatory.
As a general rule, courts in probate proceedings ar e
limited to pass only upon the extrinsic validity of the w ill
sought to be probated. However, in exceptional
circumstances, courts are not powerless to do what the
situatio n
constrains them to do, and pass upon certain provisions
of the will (Ajero v. CA, GR 106720, Sept. 15, 1994, 236
SCRA 488).
Probate does not deal with the
intrinsic validity of the will
Probate does not deal with the intrinsic validity of the

testamentary provisions, Hence, where only one (1) heir
was instituted, there must still be a judicial order of
adjudication and where a will was already probated but
another will is thereafter discovered, the latter may still be
presented for probate provided that the two (2) wills can
be reconciled.
Probate of will mandatory

The law enjoins the probate of the will and public policy
requires it, because unless the will is probated and notice
thereof given to the whole world, the right of a person to
dispose of his property by will may be rendered nugatory

(Guevara v. Guevara, GR L-48840, Dec. 29, 1943, 74 Phil.
479).
It is anomalous that the estate of a person who died
testate should be settled in an intestate proceedings.
Therefore, the intestate case should be consolidated with
the testate proceedings and the judge assigned to the
testate should continue hearing the two cases (Luzon
surety co., Inc. v. Quebrar, GR L-40517, Jan. 31, 1984, 127
SCRA 296).
Due execution of the will or its extrinsic

validity defined
D
ue execution of the will or its extrinsic validity pertains
to whether the testator, being of sound mind, freely
executed the will in accordance with the formalities
prescribed by law (Pastor, Jr. v. CA, GR L-56340, June
24, 1983, 207 Phil. 758). These formalities are
enshrined in Articles 805 and 806 of the New Civil
Code.
•Nature and characteristics of a probate

proceeding
A probate proceeding is characterized as follows:
(1) Probate of a will is a proceeding in rem;
(2) It cannot be dispensed with and substituted by
another proceeding, judicial or extrajudicial,
without offending public policy;

(3) It is mandatory as no will shall pass either real
or personal property unless proved and
allowed in accordance with the Rules; and
(4) It is imprescriptible, because it is required by
public policy and the state could not have
intended to defeat the same by applying thereto
the statute of limitation of actions (Guevara v.
Guevara, GR L48840, Dec. 29, 1943, 74 Phil. 479).
Nature of action or proceeding;

how determined
It is a fundamental rule that, in the determination of
the nature of an action or proceeding, the averments and
the character of the relief sought in the complaint or
petition shall be controlling. A petition which contains
sufficient jurisdictional facts required in a petition for the
settlement of estate of a deceased person such as the facts
of death of the decedent and of his residence at the time of
his death are foundation facts upon which all the subsequen t
proceedings in the administration of the estate rest.
Where the petition also contains an enumeration of
the names of his legal heirs including a tentative list of the
properties left by the deceased which are sought to be
settled in the probate proceedings and where, in addition,
the reliefs prayed for in the petition leave no room for
doubt as regard the intention of the petitioners therein to
seek judicial settlement of the estate of their decedent,
then the action instituted is undoubtedly a special
proceeding for the settlement of the estate of a deceased
person (See Vda. de Mana/o v, CA, GR 129242, Jan. 16,
2001, 349 SCRA 135).
Notice by publication essential to
validity of the proceeding
The notice by publication as a prerequisite to the
alIowance of a will is a constructive notice to the whole
world and when probate is granted, the judgment of the
court is binding upon everybody even against the State.
The probate court must cause notice through
publication of the petition after it receives the same. The
purpose of this notice is to bring all the interested persons
within the court's jurisdiction so that the judgment therein
becomes binding on all the world (Mana/o v. Paredes, GR
24168, sept. 22, 1925, 47 Phil 938).
Where no notice as required by Section 3, Rule 79 of
the Rules of Court has been given to persons believed to
h
ave an interest in the estate of the deceased person, the
Proceeding for the settlement of the estate is void and sh
ould be annulled. The requirement as to notice is
essential to the validity of the proceeding in that no
person may be deprived of his right to property without
due process of law (Eusebio v. Va/mores, GR L-7019, May
31, 1955, 96 Phil. 163).
Who may file a petition for probate
Under the Rules of Court, any executor, devisee, or
legatee named in a will, or any other person interested in
the estate may, at any time after the death of the testator,
petition the court having jurisdiction to have the will
allowed. Notice of the time and place for proving the will
must be published for three (3) consecutive weeks, in a
newspaper of general circulation in the province, as well as
furnished to the designated or other known heirs, legatees,
and devisees of the testator. Thus, it has been held that a
proceeding for the probate of a will is one in rem, such that
with the corresponding publication of the petition the
court's jurisdiction extends to all persons interested in said
will or in the settlement of the estate of the decedent
(Alaban v. CA, GR 156021, sept. 23, 2005, 470 SCRA 697).
To sum up, any of the following persons may file a
petition for the allowance of a will:
(a) Executor;
(b) Devisee or legatee named in the will;
(c) Person interested in the estate;
(d) Testator himself during his lifetime; or
(e) Any creditor as a preparatory step for the filing of
his claim therein.
Venue and jurisdiction; proper court

Probate proceedings may be had in the following
courts:
(1) RTC if the value of the estate is greater tha n
P300,000 (P400,000 in Metro Manila); and
(2) MTC if the value of the estate does not exceed
P300,OOO (P400,OOO in Metro Manila).
probate court bereft of power to adjudicate

title to properties
A probate court or one in charge of proceedings
whether testate or intestate cannot adjudicate or
determine title to properties claimed to be a part of the
estate and which are equally claimed to belong to outside
parties. All that the said court could do as regards said
properties is to determine whether they should or should
not be included in the inventory or list of properties to be
administered by the administrator.
If there is a dispute, then the parties, the administrator
and the opposing parties have to resort to an ordinary
action for a final determination of conflicting claims of title
because the probate court cannot do so (Cuizon v.
Ramo/ete, GR L-51291, May 29, 1984, 129 SCRA 495).
Probate court's limited authority

The probate court's authority is limited to the determination
of the:
(a) extrinsic validity of the will;
(b) due execution of the will;
(c) testamentary capacity of the testator; and
(d) compliance with the requisites or solemnities of wills
as prescribed by law.
The authority of the probate court is limited to ascer tain
ing whether the testator, being of sound mind, freely
exe
cuted the will in accordance with the formalities pre-
scribed by law (Nittscher v. Nittscher, GR 160530) Nov, 20,
2007, 537 SCRA 681).
Probate concerned only with determination
of extrinsic validity of will
Courts are tasked to determine nothing more than
the extrinsic validity of a will in probate proceedings
(Pastor, Jr. v. CA, GR L-56340, June 24, 1983, 207 Phil.
758)
Probate proceedings not adversarial;
best evidence to be presented
The probate of a will is a special proceeding not
imbued with adversary character, wherein courts should
relax the rules on evidence "to the end that nothing less
than the best evidence of which the matter is susceptible"
should be presented to the court before a purported will
may be probated or denied probate (Vda. de Ramos v.
CA, GR L-40804, Jan. 31, 1978, 81 SCRA 393).
Probate of a will conclusive as to its
due execution and validity
The due execution and validity of a will means:
(1) that the testator was of sound and disposing
mind at the time when he executed the will
and not acting under duress, menace, fraud or
undue influence;
(2) that the will was signed by him in the presence
Of
the required number of witnesses; and
(3) that the will is genuine and not a forgery.
Accordingly, these facts cannot again be questioned in a
subsequent proceeding (Castaneda v. Alemany, GR 1439,
Mar. 19, 1904, 03 Phil. 26), not even in a criminal action for
forgery of the will (Mercado v. Santos, GR 45629, sept. 22,
1938, 66 Phil. 215).
Procedure after delivery will to court

or upon filing of petition for probate

The procedure to be followed after the will is delivered
to or when a petition for allowance of a will is filed in the
court consists of the following.
(a) The court shall fix a time and place for proving
the will in order that all concerned may appear
to contest the allowance thereof, if such be the
case;
(b) The court shall cause a notice of such time and
place to be published in three (3) successive
weeks in a newspaper of general circulation.
This rule on newspaper publication does not
apply if the probate of the will has been filed by
the testator himself; and
(c) The court shall give notice of the designated time
and place to the:
(a) designated/known heirs, legatees and devisees;
and
(b) executor and co-executor (if not the petitioner).
The probate court acquires jurisdiction over the
interested persons and the res only after the notice has
been Published and sent. Likewise, if it is the testator
himself who is asking for the allowance of the will, the notice
shall be sent only to his compulsory heirs.
Imprescriptibility of probate
The statute of limitations is not applicable to probate
Of wills inasmuch as probate proceedings are not
established in the interest of the surviving heirs but
primarily for the protection of the expressed wishes of the
testator.
Intestacy is subordinate to testacy
One principle of law which reinforces the reason
behind the doctrine that testate proceedings for the
settlement of the estate of a deceased person take
precedence over in intestate proceedings for the same
purpose was succinctly expressed by Justice J.B.L. Reyes in
Rodriguez v. Boda (GR No. L-21993, June 21, 1966, 17
SCRA 418) in this wise:
"In our system of civil law, intestate succession
is only subsidiary or subordinate to the testate, since
intestacy only takes place in the absence of a valid
operative will."
Doubts to be resolved in favor of testacy

A will is the testator speaking after death (Santos v.
Manarang, GR L-8235, Mar. 19, 1914, 27 Phil. 209).
The law listens and yields obedience unless, in the
preparation thereof or in the disposition made therein,
there is a failure to follow a legal norm. The will of the
testator clearly and explicitly stated must be respected
and complied with as an inviolable law among the
parties in interest.
So compelling is the principle that intestacy should
be avoided and the wishes of the testator be allowed to
prevail that courts can even vary the language of the will
for
the purpose of giving it effect (Rodriguez v. CA, GR
L28734, Mar. 28, 1969, 27 SCRA 546).
Testate proceedings for the
settlement of the estate of a
deceased person take precedence
over intestate proceedings
If, in the course of intestate proceedings pending
before a court, it is found that the decedent had left a last
will, proceedings for the probate of the latter should
replace the intestate proceedings even if at that stage an
administrator had already been appointed, the latter
being required to render a final account and turn over the
estate in his possession to the executor subsequently
appointed.
This, however, is understood to be without prejudice
that should the alleged last will be rejected or is
disapproved, the proceeding shall continue as an
intestacy (Uriahe v, CFI of Negros, GR L-21938-39, May
29, 1970, 33 SCRA 252).
SECTION 2 RULE 75. CUSTODIAN OF WILL TO

DELIVER
Duty of the custodian of the will to
deliver it to the court or to the executor
Within twenty (20) days after he knows of the death of
the testator, the person who has custody of a will shall
deliver the same to the court having jurisdiction or to the
executor named therein (Sec. 2, Rule 75, ROC).
SECTION 3 RULE 75. EXECUTOR TO PRESENT WILL AND

ACCEPT OR REFUSE TRUST
Duty of the executor named in the will

The duties of the executor named in a will include:
(1) the duty to present the will within twenty (20)
days:
(a) after he knows of the death of the
testator; or
(b) after he knows that he is named the
executor to the court having
jurisdiction, unless the will has reached
the court in any other man. ner; and
(2) the duty to signify to the court in writing his
ceptance of the trust or his refusal to accept
the same (Sec. 3, Rule 75, ROC).
SECTION 4, RULE 75. CUSTODIAN AND
EXECUTOR SUBJECT TO FINE FOR NEGLECT
Failure by the custodian or executor to fulfill

his duties
A person who neglects any of the duties
required Sections 2 and 3 of Rule 75 of the Rules of
Court without a satisfactory excuse shall be
penalized in the following manner:
(a) the custodian or executor shall be fined a
sum not exceeding P2,OOO.OO (Sec. 4,
Rule 75, ROC); or
(b) if the custodian retains the will and does
not deliver it to the court, he may also be
committed to prison and kept there until
he delivers the will (Sec. 5, Rule 75, ROC).
SECTION 5, RULE 75. PERSON RETAINING

WILL MAY BE COMMITTED
Person failing to deliver a will may be
ordered detained
A person having custody of a will following the dea of
the testator who neglects without reasonable cause
(a) after he knows of the death of the testator; or
(b) after he knows that he is named the executor to the
court having jurisdiction, unless the will has reached
the court in any other man. ner; and
(2) the duty to signify to the court in writing his
ceptance of the trust or his refusal to accept the
same (Sec. 3, Rule 75, ROC).
SECTION 4, RULE 75. CUSTODIAN AND EXECUTOR
SUBJECT TO FINE FOR NEGLECT
Failure by the custodian or executor
to fulfill his duties
A person who neglects any of the duties required
in Sections 2 and 3 of Rule 75 of the Rules of Court
without a satisfactory excuse shall be penalized in the
following manner:
(a) the custodian or executor shall be fined a sum
not exceeding P2,OOO.OO (Sec. 4, Rule 75,
ROC); or
(b) if the custodian retains the will and does not
deliver it to the court, he may also be
committed to prison and kept there until he
delivers the will (Sec. 5, Rule 75, ROC).
SECTION 5, RULE 75. PERSON RETAINING WILL MAY BE

COMMITTED
Person failing to deliver a will may be

ordered detained
A person having custody of a will following the dea th of
the testator who neglects without reasonable cause to


RULE 75 85
deliver the same to the court having jurisdiction when

ordered to do so may be committed to prison and there
kept until he delivers the will (Sec. 5, Rule 75, ROC).

Sec. 13. Certificate of allowance attached to proved

will.—To be recorded in the Office of Register of Deeds. If
the court is satisfied, upon proof taken and filed, that the
will was duly executed, and that the testator at the time
of its execution was of sound and disposing mind, and not
acting under duress, menace, and undue influence, or
fraud, a certificate of its allowance, signed by the judge,
and attested by the seal of the court shall be attached to
the will and the will and certificate filed and recorded by
the clerk. Attested copies of the will devising real estate
and of certificate of allowance thereof, shall be recorded
in the re ister of deeds of the rovince in which the lands
lie.
RULE 76. ALLOWANCE OR DISALLOWANCE OF WILL
SECTION 1 RULE 76. WHO MAY PETITION FOR THE

ALLOWANCE OF WILL
Who may petition for the probate of a will
Any of the following persons may, at any time after the
death of the testator, petition the court having jurisdiction
to have the will allowed, whether the same be in his
possession or not, or is lost or destroyed:
(1) Executor;
(2) Devisee or legatee named in a will; or
(3) Any other person interested in the estate
The testator himself may, during his lifetime, petition
t
he court for the allowance of his will (Sec. 1, Rule 76,
ROC).

Person interested In the estate or
interested party defined
A person interested in the estate or, simply, an inter.
ested party is one who would be benefited by the estate
such as an heir or one who has a claim against the estate
like a creditor (Teotico v. Del Val, GR L-18753, Mar. 26,
1965, 13 SCRA 406).
Indirectly interested person cannot

interfere in probate
A person who is only indirectly interested in a will
may not interfere in its probate (Paras v. Narciso, GR
10959, Nov. 2, 1916, 35 Phil. 244).
When is jurisdiction acquired by the

probate court
The probate court acquires jurisdiction over the case
upon the filing of the original petition under Sections 3
and 4, Rule 76 of the Rules of Court.
Mere copy of the will attached to the

petition deemed sufficient
Attaching a mere copy of the will to the petition for
probate shall be sufficient and the annexing of the original
will to the petition is not a jurisdictional requirement. This
simplified requisite is, however, without prejudice to the
production and presentation of the original copy of the
will at the hearing of the case or when required by the
court.

Delivery of the will to the court
sufficient even if no petition filed yet
The jurisdiction of the court becomes vested upon the
delivery thereto of the will of the decedent even if no
petition for its allowance is yet filed because upon the will
being deposited, the court could already, motu proprio, take
RULE 76
93
steps to fix the time and place for proving the will and issue
the corresponding notices (Rodriguez v. De Borja, GR
L-21993, June 21, 1966, 17 SCRA 41).
Effect of probate of a will

When probate is granted, the judgment of the court
is binding upon everybody, even against the State. Hence,
criminal action will not lie against the forger of a will
which had been duly admitted to probate by a court of
competent jurisdiction (Mercado v. Santos, GR 45629,
Sept. 22, 1938, 66 Phil. 215).
SECTION 2 RULE 76. CONTENTS OF PETITION

Contents of the petition for probate
The petition for the allowance of a will shall contain the
following:
(a) Jurisdictional facts:
(1) the death of the testator; and

(2) his residence at the time of death or the place
where the estate was left by the decedent who
is a non-resident;
(b) Names, ages and residences of the heirs, legatees,
and devisees;
(c) Probable value and character of the estate prope rty;
(d) Name of the person for whom the letters are prayed;
and
(e) Name of the person having custody of the will if it
has not been delivered to the court.
Jurisdictional facts refer to:
(1) the fact of death of the decedent; and
(2) his residence at the time of his death in the
province where the probate court is sitting; or if he
is an inhabitant of a foreign country, the estate he
left in such province.
The rules do not require proof that the foreign will has
already been allowed and probated in the country of its
execution (Palaganas v. Palaganas, GR 169144, Jan. 26,
2011, 640 SCRA 538).
When the probate court may rule on

issues other than the intrinsic
validity of a will; case laws
The general rule is that the probate court's authority is
limited only to the extrinsic validity of the will, the due
execution thereof, the testator's testamentary capacity
and the compliance with the requisites or solemnities
prescribed by law.
The rule, however, is not inflexible and absolute.
Under exceptional circumstances, the probate court is not
powerless to do what the situation constrains it to do and
pass upon certain provisions of the will (Nepomuceno v.
CA, GR L-62952, Oct 9, 1985, 139 SCRA 206).
In Nuguid v. Nuguid (GR L-23445, June 23, 1966, 1 7
SCRA 449), the oppositors to the probate moved to di smiss
on the ground of absolute preterition The proba te court
acting on the motion held that the will in questio n was a
complete nullity and dismissed the petition withoUt costs.
On appeal, the Supreme Court upheld the decisi0n
of the probate court, induced by practical considerations.
The Court said:
"We pause to reflect. If the case were to be
remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record,
in the event of probate or if the court rejects the will,
probability exists that the case will come up once
again before us on the same issue of the intrinsic
validity or nullity of the will. Result: waste of time,
effort, expense, plus added anxiety.
"These are the practical considerations that
induce us to a belief that we might as well meet
headon the issue of the validity of the provisions of
the will in question. After all there exists a justiciable
controversy crying for solution."
In Saguinsin v. Lindayag (GR L-17759, Dec. 17, 1962, 6

SCRA 874), the motion to dismiss the petition by the
surviving spouse was grounded on petitioner's lack of legal
capacity to institute the proceedings which was fully
substantiated by the evidence during the hearing held in
connection with said motion. The Court upheld the probate
court's order of dismissal.
In Cayetano v. Leonidas (GR L-54919, May 30, 1984,
129 SCRA 522), one of the issues raised in the motion to
dismiss the petition deals with the validity of the
provisions of the will. Respondent Judge allowed the
probate of the will. The Court held that as on its face the
will appeared to h ave preterited the petitioner the
respondent judge should h ave denied its probate outright.
Where circumstances demand that intrinsic validity of
testamentary provisions be Passed upon even before the
extrinsic validity of the will is resolved, the probate court
should meet the issue.
In Acain v. IAC, (GR 72706, Oct. 27, 1987, 155 SCRA
100), the Supreme Court has made its position clear: "for
respondents to have tolerated the probate of the will and
allowed the case to progress when, on its face, the will
appears to be intrinsically void ... would have been an
exercise in futility. It would have meant a waste of time,
effort, expense, plus added futility. The trial court could
have denied its probate outright or could have passed
upon the intrinsic validity of the testamentary provisions
before the extrinsic validity of the will was resolved."
Due execution of the will or its
extrinsic validity defined
Due execution of the will or its extrinsic validity
pertains to whether the testator, being of sound mind,
freely executed the will in accordance with the formalities
prescribed by law (Pastor, Jr. v. CA, GR L-56340, June 24,
1983, 207 Phil. 758). These formalities are enshrined in
Articles 805 and 806 of the Civil Code, to wit:
"Art. 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself or
by the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
"The testator or the person requested by him to
write his name and the instrumental witnesses of the will,
shall also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall
be numbered correlatively in letters placed on the upper
part of each page.
"The attestation shall state the number of pages
used upon which the will is written, and the fact that
the testator signed the will and every page thereof,
or caused some other person to write his name,
under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed
and signed the will and all the pages thereof in the
presence of the testator and of one another.
"If the attestation clause is in a language not
known to the witnesses, it shall be interpreted to
them.
"Art. 806. Every will must be acknowledged
before a notary public by the testator and the
witnesses. The notary public shall not be required to
retain a copy of the will, or file another with the
Office of the Clerk of Court" (Baltazar v. Laxa, GR
174489, Apn 11, 2012, 669 SCRA 249).

Requisites of due execution
The will shall be deemed to have been duly
executed in accordance with law if it meets the
following requirements:
(1) If it was executed in compliance with the
formalities required by law;
(2) If it was executed by the testator who was of
sound mind and mentally capable of making a will;
(3) If it was executed freely and voluntarily and not
through force or under duress nor the influence of
fear or threats;
(4) If it was not procured by undue and improper
pressure and influence on the part of the beneficiary
or of some other person;
(5) If it was executed by the testator whose signature
was not procured by fraud; and
(6) If it was executed by the testator who did not
act by mistake and intended that the
instrument he signed should be his will at the
time of affixing his signature thereto.
SECTION 3 RULE 76. COURT TO APPOINT TIME FOR

PROVING WILL. NOTICE THEREOF TO BE PUB. LISHED
Notice of time and place for proving the will

The court to which a will is delivered or in which a
petition for the allowance of a will is filed shall fix a time
and place for proving the will and shall cause notice of
such time and place to be published for three (3)
successive weeks prior to the appointed date in a
newspaper of general circulation in the province (Sec. 3,
Rule 76, ROC).
When may the court act on a will delivered to it
The use of the disjunctive in Section 3, Rule 76 of the
Rules of Court in the words "when a will is delivered to or
a petition for the allowance of a will is filed" plainly
indicates that the court may act upon the mere deposit
therein of a decedent's testament even if no petition for
its allowance is as yet filed. Where the petition for probate
is made after the deposit of the will, the petition is deemed
to relate back to the time when the will was delivered
(Rodriguez v, Borja, GR L-21993, June 21, 1966, 17 SCRA
418).
Notice required to be personally given only to
known heirs, legatees, and devisees; case law
According to the Rules, notice is required to be
personally given to known heirs, legatees, and devisees
Of the testator (Sec. 3, Rule 76, ROC).
A perusal of the will shows that respondent was
instituted as the sole heir of the decedent. Petitioners, as
nephews and nieces of the decedent, are neither
compulsory nor testate heirs who are entitled to be
notified of the probate proceedings under the Rules.
Respondent had no legal obligation to mention
petitioners in the petition for probate, or to personally
notify them of the same (A/aban
v. CA, GR 156021, sept. 23, 2005, 470 SCRA 697).

Publication not required for testator filing
the petition himself
No newspaper publication shall be made where the
petition for probate has been filed by the testator
himself (Sec. 3, Rule 76, ROC).
Service of notice upon the heirs a

matter of procedural convenience and
not a jurisdictional requisite
A proceeding for the probate of a will is one in rem
such that with the corresponding publication of the
petition the court's jurisdiction extends to all persons
interested in said will or in the settlement of the estate
of the deceased (Abut v. Abut, GR L-26743, May 31,
1972, 45 SCRA 326).
Service of notice on individual heirs or legatees or
devisees is a matter of procedural convenience, not
jurisdictional requisite. So much so that even if the
names of some legatees or heirs had been omitted from
the petition for allowance of the will — and therefore
were not advised — the decree allowing the will does not
ipso facto become void for want of jurisdiction (Perez v.
Perez, GR L-14781,
-July 15, 1959, 105 Phil. 1132),
Publication and notice requirement
for ante mortem probate
If the petition for probate is on the testator's own
initiative during his lifetime (ante mortem), no publication
is necessary (Sec. 3, Rule 76, ROC) and notice shall be
made only to the compulsory heirs (Sec. 4, Rule 76, ROC).

Three weeks successively construed
The phrase "three (3) weeks successively" does not
strictly imply "twenty-one (21) days." It is sufficient that
publication has been made once a week successively three
(3) times, even if less than twenty-one (21) days intervened
between the first and last publication (Basa v. Mercado,
GR 42226, July 26, 1935, 61 Phil. 632).
SECTION 4 RULE 76. HEIRS DEVISEES LEGATEES

AND EXECUTORS TO BE NOTIFIED BY MAIL OR PER.
SONALLY
Notice of the time and place of

hearing
The notice of the time and place of the hearing for
the allowance of a will shall be forwarded to the
designated or other known heirs, legatees and devisees
residing in the Philippines at their places of residence, if
such places of residence are known, and to the persons
named as executor and co-executor who are not
petitioning, if their places of residence are known (Sec.
4, Rule 76, ROC).
Persons to be given notice
The following persons must be served copies, by m ail
or personal service, of the notice of the time and place Of
hearing for the probate of a will:
(a) Designated or other known heirs, legatees and
devisees; and
(b) Persons named as executor and co-executor, if they
be not petitioning.
Modes and periods of notification
The notice shall be served in any of the following modes
and periods:
(1) If by mail — at least twenty (20) days before the
day of hearing; or
(2) If through personal service — at least ten (10) days
before the day of hearing.
Probate of a will a proceeding in

rem; notice by publication a
constructive notice to the whole
world
The probate of a will in this jurisdiction is a
proceeding in rem. The provision of notice by publication
as a prerequisite to the allowance of a will is constructive
notice to the whole world and when probate is granted,
the judgment of the court is binding upon everybody even
against the State (Mercado v. Santos, GR 45629, Sept. 22,
1938, 66 Phil. 215).
Where notice not necessary

Individual notice upon heirs, legatees and devisees is
necessary only when they are known or when their places
O
f residence are known. In other instances, such notice is n
ot necessary and the court may acquire and exercise j u
risdiction simply upon the publication of the notice in a
n
ewspaper of general circulation (Joson v. Nab/e, GR
L3450, sept. 19, 1950, 87 Phil. 337).
SECTION 5 RULE 76. PROOF AT HEARING. WHAT
SUFFICIENT IN ABSENCE OF CONTEST
Publication and notice must be shown first
At the hearing, compliance with the requirements of
publication and notice must first be shown before the
introduction of testimony in support of the will (Sec. 5,
Rule 76, ROC).
Uncontested will; how proved

An uncontested will may be proved by the testimony
of only one of the three (3) attesting witnesses. However,
when a contest is instituted, all of the attesting witnesses
must be examined, if alive and within reach of the process
of the court (Unson v. Abe/la, GR 17857, June 12, 1922, 43
Phil. 494).
Uncontested notarial wills

In the case of uncontested notarial wills, the
testimony of at least one (1) of the subscribing witnesses
may be allowed if such witness testifies that the will was
executed as is required by law (Sec. 5, Rule 76, ROC). If all
subscribing witnesses reside outside the province,
deposition is allowed (Sec. 7, Rule 76, ROC).
However, if the subscribing witnesses are dead,
insane or if none of them resides in the Philippines, the
court may admit the testimony of other witnesses to
prove the sanity of the testator and the due execution of
the wil l ; and as evidence of the execution of the will, it
may adm it proof of the handwriting of the testator and of
the subscri bing witnesses or of any of them (Sec. 8, Rule
76, ROC).
Uncontested holographic wills

In the case of uncontested holographic wills, the
t timony of one (1) witness who knows the handwriting a nd
es
103
signature of the testator may be admitted. In the absence

thereof, the testimony of an expert 'witness may be
admitted (Sec. 5, Rule 76, ROC).
If the testator himself petitioned for the allowance of
his holographic will, his affirmation is sufficient evidence of
the genuineness and due execution of the will.
Contested notarial will; an instance where

a patty may impeach own witness
All the subscribing witnesses and the notary public
before whom the will was acknowledged must be
produced and examined (Sec. 11, Rule 76, ROC). However,
if any or all the witnesses:
(a) testify against the execution of the will;
(b) do not remember attesting thereto; or (c) are of
doubtful credibility,
the will may be allowed if the court is satisfied from the
testimony of other witnesses and from all the evidence
presented that the will was executed and attested in the
manner required by law. This is one instance where a party
may impeach his own witness.
Contested holographic will
If a holographic will is contested, the same shall be
lo
al wed if at least three (3) witnesses who know the
handwriting of the testator explicitly declare that the will
si
and the gnature are in the handwriting of the testator; in
the absence of any competent witnesses, and if the court
deems it necessary, expert testimony may be resorted to
(Sec. 11, Rule 76, ROC).
Lost or destroyed holographic wills
cannot be probated; exception
The execution and the contents of a lost or
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such
will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as
material proof of authenticity.
The will may be proved by a photographic or
photostatic copy, even a mimeographed or carbon copy
or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court. Evidently,
the photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be
determined by the probate court (Gan v. Yap, GR L-12190,
Aug. 30, 1958, 104 Phil. 509).
Proof of will
In the hearing for the probate of a will, proofs of
compliance with the required publication and notice must
first be shown before the introduction of testimony in
support of the will (Sec. 5, Rule 76, ROC).
SECTION 6 RULE 76. PROOF OF LOST OR DESTROYED WILL.

CERTIFICATE THEREUPON
Facts that should be proved to
allow a lost or destroyed will
The following facts should be proved in order th at a lost
or destroyed will may be allowed:
(1) That the will has been duly executed by the
testator;
(2) That the will was in existence when the testator
died or if it was not, that it has been fraudulently or
accidentally destroyed during the lifetime of the testator
without his knowledge; and
(3) That the provisions of the will are clearly established
by at least two (2) credible witnesses.
When a lost will is proved, the provisions thereof
must be distinctly stated and certified to by the judge
under the seal of the court and the certificate must be
filed and recorded in the same manner as other wills are
filed and recorded.
Lost or destroyed will not proved by bare

testimony; exception
The general rule is that "the execution and the
contents of a lost or destroyed holographic will may not
be proved by the bare testimony of witnesses who have
seen and/or read such will. The will itself must be
presented; otherwise, it shall produce no effect. The law
regards the document itself as material proof of
authenticity" (Gan v. Yap, supra.).

If the holographic will has been lost or destroyed
and no other copye is available, the will cannot be
probated because the best and only evidence is the
handwriting of the testator in said will. It is necessary
that there be a comparison between sample
handwritten statements of the testator and the
handwritten will.
But a photostatic copy or xerox copy of the
holographic will may be allowed because comparison
can be made with the standard writings of the testator
(Rodelas v. Aranza, GR L-58509, Dec 7, 1982, 119
SCRA 16).
SECTION 7. RULE 76. PROOF WHEN WITNESSES Do
NOT RESIDE IN PROVINCE
Proof when the witnesses are not residents

of the province
If it appears at the time fixed for the hearing that
none of the subscribing witnesses resides in the province
but that the deposition of one or more of them can be
taken elsewhere, the court may, upon proper motion,
direct the deposition to be taken and authorize a
photocopy of the will to be made and to be presented to
the witness on his examination.
The witness may be asked the same questions as
would be pertinent and competent if the original will
were present with respect to
(a) the will;

(b) the handwriting of the testator; and (c)
other matters.
SECTION 8 RULE 76. PROOF WHEN WITNESSES
DEAD OR INSANE OR DO NOT RESIDE IN THE
PHILIPPINES
Proof when the witnesses are dead, insane
or do not reside in the Philippines
The court may admit the testimony of other witnesse s
to prove the sanity of the testator and the due execution
of the will if the appears at the time fixed for the hearing
that the subscribing witnesses are:
(1) dead; or
(2) insane; or
(3) none of them resides in the Philippines.

As evidence of the execution of the will, the court may
admit proof of the handwriting of:
(a) the testator and the subscribing witnesses; or
(b) of any of them (Sec, 8, Rule 76, ROC).
SECTION 9 RULE 76, GROUNDS FOR DISALLOWING
WILL
Grounds for disallowing a will under the

Rules of Court

A will shall be disallowed in any of the following cases:
If not executed and attested as required by law;

(2) If the testator was insane or otherwise mentally
incapable to make a will at the time of its
execution;
(3) If it was executed under duress or the influence
of fear or threats;
(4) If it was procured by undue and improper
pressure and influence on the part of the
beneficiary or of some other person for his
benefit; and
(5) If the signature of the testator was procured by
fraud or trick and he did not intend that the
fnstrument should be his will at the time of affixing
his signature thereto (Sec, 9, Rule 76, ROC).
Grounds for disallowing a will under

the Civil Code
The will shall be disallowed in any of the following cases:
(a) If the formalities required by law have not been

complied with;
(b) If the testator was insane or otherwise mentally
incapable of making a will at the time of its exe.
cution;
(c) If it was executed through force or under duress or
the influence of fear or threats;

(d) If it was procured by undue and improper pressure
and influence on the part of the beneficiary or of
some other person;
(e) If the signature of the testator was procured by
fraud; and
(f) If the testator acted by mistake or did not intend
that the instrument he signed should be his will at
the time of affixing his signature thereto (Art. 839,
CC).
Lists exclusive; no other grounds that

would disallow a will
The above lists are exclusive and no other grounds
can serve to disallow a will (Pecson v. Coronel, GR
L20374, Oct. 11, 1923, 45 Phil. 216).
Substantial compliance rule

If a will has been executed in substantial complian ce
with the formalities of the law and the possibility of bad
faith and fraud in the exercise thereof is obviated, said will
should be admitted to probate (Rey v. Cartagena, GR 34288,
Nov. 10, 1931, 56 Phil. 282).
109

Joint probate of separate wills executed
by spouses who died simultaneously
The separate wills of the testator-spouses who died
simultaneously should be probated jointly. While the
Rules on allowance of wills is couched in singular terms
and therefore should generally be interpreted to mean
that
there should be separate probate proceedings for the
wills of the (testator) spouses, such interpretation is
too literal and simplistic an approach (Vda. De Perez v.
Tolete, GR 76714, June 2, 1994, 232 SCRA 722).
A literal application of the Rules should be avoided
if they would only result in the delay in the
administration of justice (Acain v. IAC, GR 72706, Oct.
27, 1987, 155 SCRA 100).
What the law expressly prohibits is the making of joint
wills either for the testator's reciprocal benefit or for the
benefit of a third person (Art. 818, CC).
In the case where the spouses executed separate
wills which contain essentially the same provisions and
pertain to property which in all probability are conjugal
in nature, practical considerations dictate their joint
probate (Vda. De Perez v. Tolete, GR 76714, June 2,
1994, 232 SCRA 722).
Laws governing the validity of a will as to

its execution and form
The validity of the execution of a will is governed
by the statutes in the force at the time of its execution

(In the matter of probation of the will of Riosa, GR L-
14074, Nov. 7, 1918. 39 Phil. 23).
Article 795 of the Civil Code provides:
"The validity of a will as to its form depends upon
the observance of the law in force at the time it is
made."
SECTION 10 RULE 76. CONTESTANT TO FILE
GROUNDS OF CONTEST
Contestant to file opposition stating his

grounds therefor
Any person who appears to contest the will must:
(1) state in writing his grounds for opposing its
alIowance; and
(2) serve a copy thereof on the petitioner and other
parties interested in the estate (Sec. 10, Rule 76,
ROC).
SECTION 11 RULE 76. SUBSCRIBING WITNESSES

PRODUCED OR ACCOUNTED FOR WHERE
WILL CONTESTED
Contested notarial wills
In contested notarial wills, all subscribing witnesses
and the notary public before whom the will was
acknowledged must be produced and examined.
However, the will may be allowed if the court is
satisfied from the testimony of other witnesses and from
all the evidence presented that the will was executed and

a tested in the manner required by law if any or all of the m
t
either:
(a) testify against the due execution of the will; (b) do not
remember having attested to it; or
(c) are otherwise of doubtful credibility.
111
Contested holographic wills
In contested holographic wills, the three (3)

subscribing witnesses who know the handwriting of
the testator must be produced. In the absence
thereof, the testimony of an expert witness may be
resorted to (Sec. 11, Rule 76,
SECTION 12 RULE 76. PROOF WHERE TESTATOR

PETITIONS FOR ALLOWANCE OF
HOLOGRAPHIC MLL
Proof necessary if the testator himself files the

petition for probate
In case it is the testator himself who petitions for the

allowance of his own holographic will and no contest is
subsequently filed, the fact that he affirms that the
holographic will and that the signature in it are in his own
handwriting shall serve as sufficient evidence of its
genuineness and due execution.
If the holographic shall be contested, the burden of
controverting its genuineness and due execution shall
be o n the contestant himself. The testator may, in his
turn, present such additional proofs as may be deemed
necessa ry to rebut the evidence of the contestant (Sec.
12, Rule 76, ROC).
SECTION 13 RULE 76. CERTIFICATE OF

ALLOWANCE ATTACHED TO PROVE
WILL. TO BE RECORDED IN THE OFFICE OF
REGISTER OF DEEDS
Certificate of allowance of the will to
be issued by the court
If the court is satisfied upon proof taken and filed
that the will was duly executed and that the testator at
the time of its execution was of sound and disposing
mind and not acting under duress, menace and undue
influence or fraud, a certificate of its allowance signed
by the judge and attested to by the seal of the court
shall be attached to the will and the certificate to be
filed and recorded by the clerk.
Attested copies of the will devising real estate and of
the certificate of allowance thereof shall be recorded in the
register of deeds of the province in which the lands are
located (Sec. 13, Rule 76, ROC).
Probate order is final and appealable
A probate decree finally and definitively settles all
questions concerning the capacity of the testator and the
proper execution and witnessing of his last will and
testament irrespective of whether its provisions are valid
and enforceable or otherwise (Montanano v. Suesa, GR
L4724, Dec. 24, 1909. 14 Phil. 676).
As such, the probate order is final and appealable
and it is so recognized by express provisions of Section
1, Rule 109 of the Rules of Court which specifically
prescribes that "any interested person may appeal in
special proceedings from an order or judgment . where
such order or judgment: (a) allows or disallows a will"
(Fernandez v. Dimagiba, GR L-23638, Oct. 12, 1967, 21
after the payment of just debts and expenses of

administration, shall be disposed of according to such
will, so as such will may operate upon it; and the residue,
if any, shall be disposed of as is provided by law in cases
of tates in the Philippines belonging to persons who are
habitants of another state or count
SCRA 428).
far
in.
RULE 77. ALLOWANCE OF WILL PROVED OUTSIDE

OF PHILIPPINES AND
ADMINISTRATION OF
ESTATE THEREUNDER
Reprobate distinguished from probate in the first
instance
Reprobate or re-authentication of a will already
probated and allowed in a foreign country is different from
that probate where the will is presented for the first time
before a competent court.
Reprobate is specifically governed by Rule 77 of the
Rules of Court. In reprobate, the local court acknowledges
as binding the findings of the foreign probate court
provided that its jurisdiction over the matter can be
established (Pa/aganas v. Pa/aganas, GR 169144, Jan. 26,
2011, 640 SCRA 538).
SECTION 1 RULE 77. WILL PROVED OUTSIDE

PHILIPPINES MA Y BE ALLOWED HERE
Reprobate of will proved outside of the
Philippines
A will allowed or probated in a foreign country
be reprobated in the Philippines (Sec. 1, Rule 77,
Reprobate defined
Reprobate means the re-authentication of a
will already probated and allowed in a foreign country. It is
specifically governed by Rule 77 of the Rules of Court.
In reprobate, the local court acknowledges as binding
the findings of the foreign probate court provided its
jurisdiction over the matter can be established (Palaganas
v. Palaganas, supra.).
* before a will proved in a
foreign country may be allowed in the
Philippines; effects of probate
The requirements before a will proved in a foreign
country may be allowed in the Philippines are as follows:
(a) A will proved outside Philippines may be
allowed here. Wills proved and allowed in a
foreign country according to its laws may be
allowed, filed and recorded by the proper
Regional Trial Court in the Philippines (Sec. 1,
Rule 77, ROC);
(b) If it appears at the hearing that the will should be
allowed in the Philippines, the court shall so allow
it and a certificate of its allowance signed by the
judge and attested by the seal of the court to
which shall be attached a copy of the will shall be
filed and recorded by the clerk and the will shall
have the same effect as if originally proved and
allowed in such court (Sec. 3, Rule 77, ROC);
(c) When a will is thus allowed, the court shall grant
letters testamentary or letters of administration
with the will annexed and such letters
testamentary or of administration shall extend to
all the estate of the testator in the Philippines.
Such es-
tate, after the payment of just debts and ex.
penses of administration, shall be disposed of
according to such will so far as such will may op.
erate upon it;

The residue, if any, shall be disposed of as is
provided by law in cases of estates in the
Philippines belonging to persons who are
inhabitants of another state or country (Sec. 4,
Rule 77, ROC).
(d) If the court is satisfied, upon proof taken and
filed, that the will was duly executed and that
the testator at the time of its execution was
of sound and disposing mind, and not acting
under duress, menace and undue influence
or fraud, a certificate of its allowance signed
by the judge and attested to by the seal of
the court shall be attached to the will and the
will and certificate filed and recorded by the
clerk.
Attested copies of the will devising real estate
and of certificate of allowance thereof shall be
recorded in the register of deeds of the province
in which the lands lie (Sec. 13, Rule 76, ROC);
and
(e) The general rule universally recognized is that
administration extends only to the assets of
the decedent found within the state or
country where it was granted so that an
administrator appointed in one state or
country has no power over the property in
another state or country (Leon v,
Manufacturer's Life Insurance Co., GR L-
3677' Nou 29, 1951, 90 Phil 459).
Pdncipal and ancillary administration
When a person dies intestate owning property in the
country of his domicile as well as in foreign country,
administration shall be had in both countries. That which
is granted in the jurisdiction of the decedent's domicile is
termed the principal administration while any other
administration is termed ancillary administration.
The ancillary administration is proper whenever a
person dies leaving in a country other than that of his
domicile property to be administered in the nature of
assets of the decedent which are liable for his individual
debts or are to be distributed among his heirs (Johannes
v. Harvey, GR 18600, Mar. 9, 1922, 43 Phil. 175).
Evidence necessary for reprobate
The evidence necessary for the reprobate or
allowance of wills which have been probated outside of
the Philippines are as follows:
(1) The due execution of the will in accordance with
the foreign laws;
(2) The testator has his domicile in the foreign country
and not in the Philippines;
(3) The will has been admitted to probate in such
country;
(4) The fact that the foreign tribunal is a probate court;
and
(5) The laws of a foreign country on procedure and
allowance of wills (Suntay v. Suntay, GR L-3087 and
L-3088, July 31, 1954, 95 Phil. 500).
Duty to introduce in evidence the
pertinent foreign law: case law
While foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to take
judicial notice of them; however, petitioner, as ancillary
administrator of Audrey's estate, was duty-bound to
introduce in evidence the pertinent law of the State of
Maryland.
Petitioner admitted that he failed to introduce in
evidence the law of the State of Maryland on Estates and
Trusts and merely relied on the presumption that such
law is the same as the Philippine law on wills and
succession. Thus, the trial court peremptorily applied
Philippine laws and totally disregarded the terms of
Audrey's will. The obvious result was that there was no
fair submission of the case before the trial court or a
judicious appreciation of the evidence presented
(Ancheta v. Guersey-Dalaygon, GR 139868, June 8, 2006,
490 SCRA 140).
Power of an administrator over
property in another country
Administration of an estate extends only to the assets
of the decedent found within the state or country where it
was granted. The administrator appointed in one state has
no power over property in another state or country (Leon
v. Manufacturer's Life Insurance Co., GR L-3677, Nov. 29,
1951, 90 Phil. 459).
Venue for reprobate

The venue for the petition for reprobate is the same as
that provided for under Rule 73 of the Rules of Cou rt.
SECTION 2 RULE 77. NOTICE OF HEARING FOR AL'
Types of estate proceedings

There are two (2) types of probate proceedings. These
are:
(a) Domiciliary or principal administration — that which

is granted in the jurisdiction of the decedent's last
domicile is termed as the principal administration;
and
(b) Ancillary administration - any administration other
than domiciliary or principal administration which is
proper whenever a person dies leaving in a country
other than that of his last domicile property to be
administered in the nature of assets of the decedent
which are liable for his individual debts or are to be
distributed among his heirs (Johannes v. Harvey, GR
18600, Mar. 9, 1922, 43 Phil. 175).
Documents to be filed with the petition

The petition for allowance should be accompanied by:
(1) an authenticated copy of the will; and
(2) an authenticated copy of the order or decree of the
allowance thereof.

The court will then fix a time and place for hearing a nd
cause the notice thereof to be given (Sec. 2, Rule 77,
ROC).
Requisites of ancillary administration

The requirements of ancillary administration
include: (a) Copy of the will (b) Filing of:
AN
EXPOSITION
(1) the copy of the will executed in a foreign

country;
(2) the copy of the order or decree of the foreign
court allowing such will; and
(3) the authentication of requisites (a) and (b)
above;
(c) Notice of time and place of hearing;
(d) Conduct of hearing; and
(e) Certificate of allowance.
Notices to be given as if the will probated
abroad was an "original will"
The rule that the court having jurisdiction over the
reprobate of a will shall "cause notice thereof to be given
as in case of an original will presented for allowance" (Sec.
2, Rule 77, ROC) means that, with regard to notices, the
will probated abroad should be treated as if it were an
"original will" or a will that is presented for probate for the
first time.
Accordingly, compliance with Sections 3 and 4 of
Rule 76 of the Rules of Court which require publication
and notice by mail or personally to the "known heirs,
legatees, and devisees of the testator resident in the
Philippines" and to the executor, if he is not the
petitioner, are required (Vda. De Perez v. Tolete, GR
76714, June 2, 1994, 232 SCRA 722).
Evidence needed for reprobate

The evidence necessary for the reprobate or all
ow
ance of wills which have been probated outside of the
Philippines are as follows:
(1) the due execution of the will in accordance with the
foreign laws;
(2) the testator has his domicile in the foreign country and
not in the Philippines;
(3) the will has been admitted to probate in such
(4) the fact that the foreign tribunal is a probate
(5) the laws of a foreign country on procedure and

allowance of wills (Vda. De Perez v. Tolete, GR 76714,
June 2, 1994, 232 SCRA 722).
SECTION 3 RULE 77, WHEN WILL ALLOWED AND

EFFECT THEREOF
Effect of reprobate
When the will is allowed, it shall have the same
effect as if originally proved and allowed in such court

Specifically, the results of the allowance of a will under
Rule 77 are as follows:
(a) The will shall be treated as if originally proved and
allowed in Philippine courts;
(b) Letters testamentary or of administration with a
will annexed shall extend to all estates in the
Philippines; and
(c) After payment of just debts and expenses of

administration, the residue of the estate shall be
disposed of as provided by law in cases of
estates in the Philippines belonging to persons
who are inhabitants of another state or country
Doctrine of processual presumption or
presumed-identity approach
The International Law doctrine of presumed-identity
approach or processual presumption holds that where a
foreign law is not pleaded or, even if pleaded, is not
proved, the presumption is that the foreign law is the
same as that in the Philippines (Philippine Export and
Loan Guarantee Corp. v. V. P. Eusebio Construction Inc.,
GR 140047, July 14, 2004, 434 SCRA 202).
Foreign laws must be alleged and

proven in the Philippines
The Philippines does not take judicial notice of
foreign laws, hence, they must not only be alleged; they
must be proven. To prove a foreign law, the party
invoking it must present a copy thereof and comply with
Section 24 of Rule 132 of the Rules of Court which reads:
"SEC. 24. Proof of official record.—The record of public
documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines,
with a certificate that such officer has the custody. If the
office in which the record is kept is in a foreign country, th e
certificate may be made by a secretary of the embassy or
legation, consul general, consul, vice cons ul , or consular
agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his
office.'
Law that governs the intrinsic validity of a
foreigner's will
The intrinsic validity of a foreign national's will
especially with regard as to who are his heirs is governed
by her national law, as provided in Article 16 of the Civil
Code, to wit:
"Art. 16. Real property as well as personal
property is subject to the law of the country where it
is situated.
"However, intestate and testamentary
succession, both with respect to the order of
succession and to the amount of successional rights
and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of
the person whose succession is under consideration,
whatever may be the nature of the property and
regardless of the country wherein said property may
be found."
Article 1039 of the Civil Code further provides that

"capacity to succeed is governed by the law of the nation
of the decedent." As a corollary rule, Section 4, Rule 77
of the Rules of Court on "Allowance of Will Proved
Outside the Philippines and Administration of Estate
Thereunder," states:
SEC, 4. Estate, how administered.—When a will is

thus allowed, the court shall grant letters
testamentary, or letters of administration with the will
annexed, and such letters testamentary or of
administration, shall extend to all the estate of the
testator in the Philippines. Such estate, after the
payment of just debts and expenses of administration,
shall be disposed of according to such will, so far as
such will may operate upon it; and the residue, if any,
shall be disposed of as is provided by law in cases of
estates in the Philippines belonging to persons who
are inhabitants of another state or country."
While foreign laws do not prove themselves in Philip.

pine jurisdiction and Philippine courts are not authorized
to take judicial notice of them, the petitioning ancillary
admin. istrator of the foreign national's estate is duty-
bound to introduce in evidence the pertinent law of the
foreign Country where the will was proved and allowed
(Ancheta v. Guersey-Dalagon, GR 139868, June 8, 2006,
490 SCRA 140).
Probate of wills executed by foreigners abroad

Philippine laws do not prohibit the probate of wills
executed by foreigners abroad although the same have
not as yet been probated and allowed in the countries of
their execution. A foreign will can be given legal effects in
our jurisdiction. Article 816 of the Civil Code states that
the will of an alien who is abroad produces effect in the
Philippines if made in accordance with the formalities
prescribed by the law of the place where he resides, or
according to the formalities observed in his country
(Palaganas v. Palaganas, GR 169144, Jan. 26, 2011, 640
SCRA 538).
Rules do not require proof that the foreign

will has already been allowed and probated
in the county of its execution
The rules require merely that the petition for the
al
Iowance of a will must show, so far as known to the
petitioner: (a) the jurisdictional facts; (b) the names, ages,
and residences of the heirs, legatees, and devisees of the
tes
tator or decedent; (c) the probable value and character
Of the property of the estate; (d) the name of the person
for whom letters are prayed; and (e) if the will has not
been
delivered to the court, the name of the person having cus-
Jurisdictional facts refer to the fact of death of the

decedent, his residence at the time of his death in the
province where the probate court is sitting, or if he is an
inhabitant of a foreign country, the estate he left in such
province. The rules do not require proof that the foreign will
has already been allowed and probated in the country of its
execution (Ibid.).
Proof that wills executed abroad
conform with the formalities prescribed
by foreign or Philippine laws is
imperative
The wills of foreign citizens will only be effective in
this country upon compliance with the following
provision of the Civil Code of the Philippines:
"Art. 816. The will of an alien who is abroad
produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which
he resides, or according to the formalities observed in
his country, or in conformity with those which this Code
prescribes."
Thus, proof that both wills conform with the

formalities prescribed by foreign laws or by Philippine
laws is imperative (Vda. de Perez v. To/ete, GR 76714,
June 2, 1994, 232 SCRA 722).
Evidence necessary for the reprobate

or allowance of wills which have
been probated outside the
Philippines
The evidence necessary for the reprobate or
allowance of wills which have been probated outside
of the Philippines are as follows:
(1) the due execution of the will in accordance with
the foreign laws;
(2) the testator has his domicile in the foreign country
and not in the Philippines;
(3) the will has been admitted to probate in such
country;
(4) the fact that the foreign tribunal is a probate court,
and
(5) the laws of a foreign country on procedure and
allowance of wills (Il/ Moran Commentaries on
the Rules of Court, 1970 ed., pp. 419-429; Suntay
v. Suntay, GR L-3087 and L-3088, July 31, 1954.
95 Phil. 500; Fluemer v. Hix, GR 32636, Mar. 17,
1930, 54 Phil. 610).
Philippine courts cannot take judicial notice of
foreign laws
The necessity of presenting evidence on the foreign
laws upon which the probate in the foreign country is based
is impelled by the fact that our courts cannot take judicial
notice of them (PCIB v. Esco/in, GR L-27860 and L-27896,
Mar. 29, 1974, 56 SCRA 266).
SECTION 4 RULE 77. ESTATE HOWADMINISTERED
Court to grant letters testamentary or letters of
administration with the will annexed
When a will is allowed, the probate court shall grant

letters testamentary, or letters of administration with the
will annexed which shall extend to all the estate of the
testator in the Philippines.

RULE 78. LETTERS TESTAMENTARY AND OF
ADMINISTRATION, WHEN AND TO WHOM
ISSUED
Letters testamentary and letters of
administration distinguished
Letters testamentary refer to the authority issued to an
executor named in the will to administer the estate while
letters of administration pertain to the authority issued by
the court to a competent person to administer the estate of
the deceased who died intestate.
SECTION 1 RULE 78. WHO ARE INCOMPETENT To SERVE
AS EXECUTORS OR ADMINISTRA TORS
Persons who can administer the estate
The following persons are considered competent to
administer the estate:
(1) Executor — is the one named by the testator in his
will for the administration of his property after his
death;
(2) Administrator (Regular or Special) — is the one
appointed by the Court in accordance with the
Rules or governing statutes to administer and
settle the intestate estate or such
testate estate where the testator did not name
any executor or that the executor so named
refuses to accept the trust or fails to file a bond
or is otherwise incompetent (Rule 80, ROC); and
(3) Administrator with a will annexed — is one

U h
appointed by the court in cases when, altho g
there is a will, the will does not appoint any
ex
ecutor or, if appointed, said person is either in
ca
pacitated or unwilling to serve as such (Sec, l'
Rule 79, ROC).
Distinctions between an executor and
an administrator provides; otherwise, the
compensation under Section 7,
Rule 85 of the Rules of
THE EXECUTOR Court shall apply,
Is nominated by the testator and
appointed by the probate court. THE ADMINISTRATOR
Is appointed by the probate court in
case the testator:
a. dies without leaving a will;
b. fails to name any executor in
his will; or
c. names one but the one so
named is either incompetent or
refuses the trust or fails to give
Must present the will to the a bond, or the will is
court within twenty (20) days subsequently declared null and
after knowledge of the death of void.
the decedent or of such
appointment, unless the will has Is not required to perform such
reached the court in any other duty.
manner.
May serve without a bond as

provided by the testator; the
court may still require a bond but
conditioned only on the payment
of debts, Must always post a bond.
May be compensated for his

services should the testator so
Shall be compensated pursuant
to Section 7, Rule 85 of the Rules
of Court.

Persons who can serve as executors or
administrators
Any competent person may serve as executor or ad.

ministrator.
Persons who are incompetent to serve as executors

or administrators
No person is allowed to serve as an executor or
administrator who is:
(a) a minor;
(b) a non-resident of the Philippines;
(c) in the opinion of the court, unfit to exercise the duties
of the trust by reason of:
(1) drunkenness;
(2) improvidence;
(3) want of understanding and integrity; or
(4) conviction for an offense involving moral
turpitude (Sec. 1, Rule 78, ROC).
Drunkenness defined
Drunkenness is a consequence of drinking intoxicating
liquors to such an extent as to alter the normal cond ition
of an individual and significantly reduce his capaci ty for
rational action and conduct.
It can be asserted as a defense in civil and
crimi actions in which the state of mind of the
defendant is essential element to be established in

order to obtain legal relief (West's Encyclopedia of
American Law, Ed. 2).
Improvidence defined
Improvidence means such want of care and foresight in
the management of property which would be likely to render
the estate and effects of the intestate unsafe and liable to be
lost or diminished in value, in case the administation should
be committed to the improvident person.
Integrity defined
Integrity means soundness of moral principle and
character as shown by one person dealing with others in the
making and performance of contracts, and fidelity and
honesty in the discharge of trusts. Synonymous with
"probity," "honesty, " and "uprightness" (In re Bauquier's
Estate, 88 Cal. 302, 26 Pac. 178).
Moral turpitude defined

Moral turpitude is an act of baseness, vileness, or
depravity in the private duties which a man owes his fellow
men, or to society in general, contrary to the accepted and
customary rule of right and duty between man and woman,
or conduct contrary to justice, honesty, modesty, or good
morals (De/a Torre v. Commission on Elections, GR 121592,
July 5, 1996, 258 SCRA 483).
List of crimes or offenses involving moral turpitude

Jurisprudence has its own list of crimes involving moral
turpitude, namely:

(1) Adultery;
(2) Concubinage;
(3) Rape;
(4) Arson;
(5) Evasion of income tax;
(6) Barratry;
(7) Bigamy;
(8) Blackmail;
(9) Bribery;
(10) Criminal conspiracy to smuggle opium;
(1 1) Dueling;
(12) Embezzlement;
(13) Extortion;
(14) Forgery;
(15) Libel;
(16) Making fraudulent proof of loss on insurance
contract;
(17) Murder;
(18) Mutilation of public records;
(19) Fabrication of evidence;
(20) Offenses against pension laws;
(21) Perjury;
(22) Seduction under the promise of marriage;

(23) Estafa;
(24) Falsification of public document; and
(25) Estafa thru falsification of public document
(zari v. Flores, Adm. No. [2170-MCI P-1356,
21, 1979, 94 SCRA 317).
Crimes or offenses not categorized as
involving moral turpitude
There are certain crimes that do not involve moral
turpitude, namely:
(a) Minor transgressions of the law (i.e., conviction for
speeding);
(b) Illegal recruitment;
(c) Slight physical injuries and carrying of deadly
weapon (illegal possession of firearms); and
(d) Indirect contempt (Teves v. Commission on
Elections, GR 180363, Apr. 28, 2009, 587 SCRA 1).
SECTION 2 RULE 78. EXECUTOR OF EXECUTOR NOT TO
ADMINISTER ESTATE
The executor of an executor shall not, as such,

administer the estate of the first testator (Sec. 2, Rule 78,
ROC).
SECTION 3 RULE 78. MARRIED WOMEN MAY SERVE

Married woman may serve as executrix or administratrix
A married woman may serve as executrix or
administratrix and the marriage of a single woman shall not

affect her authority so to serve under a previous appointment
S
ECTION 4 RULE 78. LETTERS TESTAMENTARY 1SSUED
WHEN WILL ALLOWED
Letters testamentary to be issued by the
probate court
When a will has been proved and allowed, the court
shall issue letters testamentary thereon to the person named
as executor therein if he is competent, accepts the trust and
gives bond as required by these rules (Sec. 4, Rule 78, ROC).
Letters testamentary defined

Letters testamentary is the appointment issued by a
probate court after the will has been admitted to probate to
the executor named in the will to administer the estate of the
deceased testator, provided that the executor named in the
will is competent, accepts the trust and gives a bond (Sec. 4,
Rule 78, ROC).
SECTION 5 RULE 78. WHERE SOME COEXECUTORS

DISQUALIFIED OTHERS MA Y ACT
Letters testamentary may be issued to other coexecutors
When all the executors named in a will cannot act
because of incompetence, refusal to accept the trust or
failure to give bond on the part of one or more of them,
letters testamentary may issue to such of them as are
competent, accepting the trust and giving bond and they may
perform the duties and discharge the trust required by the will
SECTION 6 RULE 78. WHEN AND TO WHOM LETTERS OF
ADMINISTRA TION GRANTED
W%en letters of administration granted

Letters of administration shall be issued by the probate
court to a competent person to administer the estate of the
decedent:
(1) if no executor is named in the latter's will;
(2) if the executor or executors named in the will are:
(a) incompetent;
(b) refuse the trust; or
(c) fail to give bond; or
(3) if the latter dies intestate.
To whom letters of administration granted
If no executor is named in the will or the executor or
executors are incompetent, refuse the trust or fail to give bond
or a person dies intestate, administration shall be granted:
(a) to the surviving husband or wife, as the case may be;
or
(b) to the next of kin or both, in the discretion of the court; or
(c) to such person as such surviving husband or wife or
next of kin requests to be appointed, if competent
and willing to serve (surviving spouse or nominee);
(d) to one or more of the principal creditors, if competent
and willing to serve, in case such surviving husband or
wife, as the case may be, or the next of kin or the
person selected by them shall be incompetent or

unwilling or if the husband or widow or next of kin
neglects for thirty (30) days after
the death of the decedent to apply for
administration or to request that administration be
granted to some other person; or
(e) to such other person as the court may select (a
stranger), in case there is no such creditor com.
petent and willing to serve (Sec. 6, Rule 78, ROC).
Order of preference
The rule lists a sequence to be observed, an order of
preference, in the appointment of an administrator. This
order of preference in the appointment of an administrator
categorically seeks out:
(1) the surviving spouse;
(2) the next of kin; and
(3) the creditors (Uy v. CA, GR 167979, Mar. 15,
2006, 484 SCRA 699).
Key factor in the appointment of an

administrator; rationale for the rule
The paramount consideration in the appointment of
an administrator over the estate of a decedent is the
prospective administrator's interest in the estate (Vda. d e
Dayrit v. Ramo/ete, GR L-59935, 30 sept. 1982, 11 7 SCRA
608).
This is the same consideration which Section 6, R ule 78
of the Rules of Court takes into account in establishing the

order of preference in the appointment of administratff for
the estate. The rationale behind the rule is that 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 misman-
agement, shall have the highest interest and most influential
motive to administer the estate correctly (Gonzales v.
Aguina/do, GR 74769, sept. 28, 1990, 190 SCRA 112).
In all, given that the rule speaks of an order of preference,
the person to be appointed administrator of a decedent's
estate must demonstrate not only an interest in the estate but
also an interest therein greater than any other candidate
(Suntay Ill v. Cojuangco-Suntay, GR 183053, Oct. 10, 2012, 683
SCRA 439).
Administration of estate; factors considered in the

An administrator is not supposed to represent the interests
of any particular party and his acts are deemed to be objectively
for the protection of the rights of everybody concerned with the
estate of the decedent.
It is, however, implicit in Section 6, Rule 78 of the Rules of
Court which fixes the priority among those to whom letters of
administration should be granted that the criterion in the
selection of the administrator is not his impartiality alone but,
more importantly, the extent of his interest in the estate so
much so that the one assumed to have greater interest is
preferred to another who has less (PC/B v. Esco/in, GR L-
27860 and L-27896, Mar. 29, 1974, 56 SCRA 266).
Preference to the surviving spouse due to

her greater interest in the estate
To illustrate, the preference bestowed by law to the
S
urviving spouse in the administration of a decedent's estate
presupposes the surviving spouse's interest in the Conjugal
partnership or community property forming part of the
decedent's estate (See Articles 91 and 106, FC).
Likewise, a surviving spouse is a compulsory heir of a

decedent (See Art. 887, par. 3, CC) which evinces as much, if not
more, interest in administering the entire tate of a decedent
aside from her share in the conjugal partnership or absolute
community property (Suntay 111 v. Cojuangco-Suntay, GR
183053, Oct 10, 2012, 683 SCRA 439).
Surviving spouse preferred over the

next-of-kin of the decedent in the
On the matter of appointment of administrator of the
estate of the deceased, the surviving spouse is preferred over
the next of kin of the decedent.
Under Section 6(b), Rule 78 of the Rules of Court, the
administration of the estate of a person who dies intestate shall
be granted to the surviving husband or wife, as the case may be,
or to the next of kin or both, in the discretion of the court, or to
such person as such surviving husband or wife or next of kin,
requests to be appointed, if competent and willing to serve.
"Next-of-kin" defined
In estate proceedings, the phrase "next of kin" refers to
those whose relationship with the decedent is such th at they

are entitled to share in the estate as distribute es (Locsin, Sr. v.
Locsin, Jr., GR 146737, Dec. 10, 2001, 423 Phil. 192).
When the law speaks of "next of kin, " the reference is to
those who are entitled under the statute of distributi0n to the
decedent's property; one whose relationship is such that he is
entitled to share in the estate as distributed or, in short, an heir.
In resolving, therefore, the issue of whether an applicant
for letters of administration is a next of kin or an heir of the
decedent, the probate court perforce has to determine and
pass upon the issue of filiation. A separate action will only result
in a multiplicity of suits (Angeles v. Mag/aya, GR 153798, sept.
2, 2005, 469 SCRA 363).
"Interested person" defined; extent of
interest in the estate
An "interested person" has been defined as one who would
be benefited by the estate, such as an heir, or one who has a
claim against the estate, such as a creditor.
The interest must be material and direct and not merely
indirect or contingent (San Luis v. San Luis, GR 133743, Feb. 6,
2007, 54 SCRA 294).
Practice of court employees being appointed as

administrators of estates enjoined
The Court does not look with favor on such practice of
clerks of court or other court employees being appointed as
administrators of estates of decedents pending settlement
before the probate court. The objectivity and impartiality of
such clerks of court or other employees so apPointed as
administrators in discharging their regular func tions may be
easily compromised by extraneous considerations.

F
urthermore, because of the administrator's fees and
compensation payable to them, it is not inconceivable that Self-
interest intrudes and consciously or unconsciously, obstacles
are placed against the prompt settlement and termination of
the proceedings in derogation of the primor dial Purpose of the
law to strive to have the estate settled and promptly so
that the benefits that may
flow therefrom may be immediately enjoyed by the
decedent's heirs and beneficiaries (Del Castillo v. Enriquez,
GR 1-11440, sept. 30, 1960, 109 Phil, 491).
Preference applies only to the appointment of
a regular administrator not of a special
administrator
The order of preference in the appointment of a regular
administrator as provided in the aforequoted provision does
not apply to the selection of a special administrator (Ozaete
v. Pecson, GR L-5436, June 30, 1953, 93 Phil. 416).
The preference under Section 6, Rule 78 of the Rules of
Court for the next of kin refers to the appointment of a
regular administrator and not of a special administrator as
the appointment of the latter lies entirely in the discretion of
the court and is not appealable (Pijuan v. De Gurrea, GR L-
21917, Nov. 29, 1966, 124 Phil. 1527).
Court order appointing a regular administrator final

and appealable
An order of the trial court appointing a regular
administrator of a deceased person's estate is a final
determination of the rights of the parties thereunder, and is
thus, appealable.
This is in contrast with an order appointing a spec ial
administrator who is appointed only for a limited time and
for a specific purpose. Because of the temporary character
and special character of this appointment, the Rules deem it
not advisable for any party to appeal from said temp0rary
appointment (De Borja v. Tan, GR L-6476, Nov. 18, 1955, 97
Phi/ 872).
Appointment of a special administrator
discretionary and not appealable
The appointment of a special administrator latter lies
entirely in the discretion of the court and is not appealable
(Pijuan v. De Gurrea, GR L-21917, Nov. 29, 1966, 124 Phil.
1527).
While the surviving spouse is entitled to preference in
the appointment (Sec. 6, Rule 79, ROC), circumstances might
warrant his rejection and the appointment of someone else.
Mandamus lies where the duty is specific and
ministerial. It does not lie where judgment or discretion is
exercised in the performance of the act (Reynoso v.
Santiago, GR L-3039, Dec. 29, 1949, 85 Phil, 268).
Order of preference does not rule out
the appointment of co-administrators
The order of preference does not rule out the
appointment of co-administrators especially in cases where
justice and equity demand that opposing parties or factions
be represented in the management of the estates (Vda de De
la Rosa v. Heirs of Vda. de Damian, GR 155733, Jan, 27, 2006,
480 SCRA 334).

Appointment of co-administrators
allowed under certain circumstances
T
he appointment of co-administrators has been allowed
but as an exception to the requirement of observation of the
order of preference in the appointment of administrator of a
decedent's estate.
Section 6(a), Rule 78 of the Rules of Court specifically
states that letters of administration may be issued to both
the surviving spouse and the next of kin. In addition and
impliedly, Section 2 of Rule 82 of the Rules of Court says that
"x x x when an executor or administrator dies, resigns, or is
removed, the remaining executor or administrator may
administer the trust alone, x x x" (Suntay Ill v. Cojuangco-
Suntay, GR 183053, Oct. 10, 2012, 683 SCRA 439).
The appointment of co-administrators has been upheld for
the following reasons:
(1) to have the benefit of their judgment and perhaps
at all times to have different interests represented;
(2) where justice and equity demand that opposing
parties or factions be represented in the
management of the estate of the deceased;
(3) where the estate is large or, from any cause, an
intricate and perplexing one to settle;
(4) to have all interested persons satisfied and the
representatives to work in harmony for the best
interests of the estate; and
n
(5) when a person entitled to the administration of a
n
estate desires to have another competent perso

associated with him in the office (Gabriel v. C A, GR
101512, Aug. 7, 1992, 212 SCRA 413).
Functions of co-administrator; appointing co-
administrators not prohibited
A co-administrator performs all the functions and duties
and exercises all the powers of a regular administra-
tor, only that he is not alone in the administration (De Boda v. Tan,
GR L-6476, Nov. 18, 1955, 97 Phil. 872).
The practice of appointing co-administrators in estate
proceedings is not prohibited (Cly v. CA, GR 167979, Mar. 15,
2006, 484 SCRA 699).
Extent of administration
The general rule universally recognized is that administration
extends only to the assets of a decedent found within the state or
country where it was granted so that an administrator appointed
in one state or country has no power over the property in another
state or country (Leon v. Manufacturer's Life Insurance Co., GR L-
3677, Nov. 29, 1951, 90 Phil. 459).
Unsuitability for appointment as administrator

A person who is shown to have some liabilities to the estate
cannot compatibly perform the duties of an administrator.
In this jurisdiction, one is considered to be unsuitable for
appointment as administrator when:
(1) he has adverse interest of some kind (such as
indebtedness to the decedent's estate); or
(2) he has hostility to those immediately interested in the
estate (Lim v. Diaz-Millarez, GR L-17633, Oct. 19, 1966,
18 SCRA 371).

Mere indebtedness not a ground for administrator's
removal
mo
The mere fact that an administrator happens to owe ney
to the decedent is not in itself a ground for his re-
moval unless the administrator's claim of payment was
made in bad faith or in an obvious attempt to defraud the
estate (Dalisay v. Conso/acion, GR L-44702, July 30, 1979,
92 SCRA 303).
RULE 79
149
RULE 79. OPPOSING ISSUANCE OF LETTERS

TESTAMENTARY. PETITION AND CONTEST FOR LETTERS OF
ADMINISTRATION
SECTION 1 RULE 79. OPPOSITION TO ISSUANCE OF LETTERS
TESTAMENTARY
Interested persons may oppose the issuance of letters

testamentary
(Any-person-in erested-ma-wtll (interested person) may state-in

writing the grounds why letters testamentary should not issue to the
persons named therein executors or any of them and the court, after
hearing upon notice, shall pass upon the sufficiency of such grounds.
A petition may, at the same time, be filed for letters of administration
with the will annexed (Sec. 1, Rule 79, ROC).
"Interested person" defined
Under the provision of Section 1, Rule 79 of the Rules of Court, the term
"interested person" is held to mean as:
(1) one who would be benefited by the estate such as an her, or
(2) one who has a claimagainst the estatesuch as a credito whose
interest is material and direct and not merely incidental or
contingent (Teotico v. Del Val, GR L-18753, Mar. 26, 1965, 121
Phil. 392).
clpal Issue to be resolved
igue up for determination in a petition for b b tie person

rightfully enth

SPECIAL PROCEEDINGS AN EXHAUSTIVE
150
SECTION 2 RULE 79. CONTENTS OF PETITION FOR LETTERS OF ADMINISTRA

TION
What a petition for letters of administration should contain
A petition for letters of administration must be filed by an interested

person and must show, so far as known to the petitioner:
(1) the jUrisdictionalftc!'D

(2) the names ages, and residences of the heirs, and the names and
residences of the creditors, of the decedent;
(3) the probable value,and charac e of the property of the estate; and
(4) the name of the person for whom letters of administration are
praye
But ncdefect in the petition shall render void the issuance of letters of
administration (Sec. 2, Rule 79, ROC).
Jurisdictional facts refer to the facts of:

(a) the death?of the decedent;
(b) his residence at the time of his déåth in the nce where the
probate court is sitting; or
(c) if he is an inhabitant of a foreign country, the tate he:left in such
province (Cuenco v. CA, GR 1-24742, Oct. 26, 1973, 153 Phil.
115).
79
151
Factual basis of the proceedings; when noD

Jurisdictio is conferred
The fact of:death of the intestate and of his esldence within the country are
oundation facts upon which all the subsequent proceedings in the administration
of the estate rest
If the intestate was(notDan inhabitant)of the state at the time of his death,
and left ncasse s in the state and none came into it afterwards, no Jurts IC lorus
conferre pn the court to grant letters of administration in any coyp!YD (Diez
WSerra7GR 27650,' DeÖ2431927, 51 Phil 283).

Motion to dismiss based on lack of legal capacity to institute the action
Since the opening sentence of Section 2, Rule 79 requires that the petition
must be filed by an interested per son, then a motion to dismiss may lie otomthe
basisnf
(IacW00unsdiction on the part of the court but rather on the ground of lack of
egalupacl y,to institute the proceedings (Pilipinas Shell Petroleum Corp. v.
Dumlao, GR L-44888, Feb. 7, 1992, 206 SCRA 40).
O lection to petition may be barred by

(waiver or estoppe
An objection to a petition for letters of administration On the ground
that the petitioner "is nOt:an heir of the deceased and therefore, has no-ma
erial anddirect interey!) in-herestate" may be barred by «er or est•el (Ibid.).
TION 3 RULE 79. COURT TO SET TIME FOR
HEARING. NOTICE THEREOF
152
Notice of time and place of hearing of the

petition
The court in which the petition for letters of administration is filed

shall fix a time and place for hearing the petition and shall cause—notice
t ereof to be given to the known heirsand—creditors of the decedent and
to any) other persons believed to Pavean interest in the estate in the
manner provided in Sections-sand 4, Rule 76 of the Rules of court (Sec.
1. Rule 79, ROC).
Publication and service of notice to all

interested parties
Publication of the notice of hearing for three 3 weeks a

newspaper) Ä of general circulation in the province and ofSÜch notice
to the heirs, creditors and other persons having an interest in the
estate fore the earing of thepetitioo_in accordance with Sections and
4, Rule 76, of the Rules of Court.
mose of notice through publication

The probate court must cause notice through publication of the
petition after it receives the same. The purpose of this notice is Gto
ring alLthe interested persons Wit
(the court's jurisdiction so that the judgment therein bee comes'
binding on all the World (De Guzman v. Angeles, GR 78590, June
20, 1988, 162 SCRA 347).
Effectotlack of notice
Where no notice as required by Section 3, Rule 79 Of the

Rules of Court has been given to persons believed to have an
interest in the estate of the deceased person, the proceeding for the
settlement of the estate is yoid and
(Ohould be annulled. The requirement as to notice is

(tial to the validity of the proceeding in that no person be deprive&of his
righVto property without due process of)
v. Valmores, GR 1-7019, May 31, 1955, 96
Phil. 163).
Notice by publication a Jurlsdlctlona/ requlremen
Notice through publication of the petition for the settlement of the

estate of a deceased person is jurisdictional the absence of which makes
court orders affecting other persons subsequent to the petition void and
subject to annulment (De Guzman v. Angeles, supra.).
SECTION 4 RULE 79.COPPOSiTION TO PETITION FOR ADMINISTRATION
Petition may be opposed only by an Interested person
Onlyanonterested person may oppose the petition for issuance of

letters of administration. An interested person is one who would be
benefited by the estate such as an heir or one who has a claim against
the estate such as a creditor whose Interest)is materialand direct)and
notope that is only indirect or contingent (PiliÅinas Shell Petroleum v.
Dumlao, GR L-44888, Feb. 7, 1992, 206 SCRA 40).
rounds for opposing petit
The two (2) grounds for opposing t e petition for the issuance of letters of
administration are:
(1) the Incompetence of the person for whom letters
(2) the preferentiavright of the heirs under Rule 78" the Rules of
Court.

154
(Contingent interes does not make an interested party

Where the right of the person filing a petition for the issuance of
letters of administration is dependent on act whicmhas not been esta
lished_pr, worse, can noZlonger be established, such contingent
interest does not make him an interested party (Tayag v. Tayag-
Gallor, GR 174680, Mar. 24, 2008, 549 SCRA 68).
SECTION 5 RULE 79. HEARING AND ORDER FOR

LETTERS TO ISSUE
Proof of notice given as required

At the hearing of the petition, the petitioner must first show to
the court proofs that the required notice was complied with in
accordance with Section (3, Rule 79 of the Rules of Court (Sec. 5,
Rule 79, ROC).
When court may order the issuance of letters of

administration)
The court proofs of the parties in support of their respective

allegations and it shall order the issuance of letters of administration to
the party bestænti-n (tlödåhereto if it is satisfied that:
(a) the decedent leftD0Mlll; or
(b) there is no competent and Willing executor (Sec 5, Rule 79, ROC).
SECTION 6 RULE 79. WHEN LETTERS OF ADMINITRATION GRANTED

To ANY APPLICANT
The court may grant letters of administration to any qualifie

applicant even though there are other competent
RULE 79
155
persons if such persons.fail&appeauwhen notified and claim the issuance of letters

to themselves (Sec. 6, Rule 79, ROC).
failure to register letters of administration and will;(effect
The failure to file with the:Regs erofrDeeds a certified true copy of the letters
of administration and the will as provided in Section 90 of Act 496 does-notnegatæthe
<'validity of the Judgment or decree underthe:will; Section 90 refers to the dealings

PROCEEDINGS AN EXHAUSTIVE
with registered lands by an executor or administrator (Lopez v. Gonzaga, GR L-18788,
Jan. 31, 1964, 10 SCRA 167).
ransfer of certificate of title to administra-
tor's name a clear repudiation of trus

The transfer of the certificate of title to the administrator's name would
constitute an open and clear repudiation Of any trust and the lapse of more than
twenty (20) years!) Open and adverse possession as owner would certainly suffice
to vest titles by prescription in the administrator (Ibid.).
RI-A
SPECIAL
RULE 80
PECIAL ADMINISTRATOR
1. Appointment of special administrator.— there is delay in granting letters

testamentary or of by any cause including an appeal from the tor or disallowance
of a will, the court may appoint trai administrator to take-possession and charge
of 19, of the deceased until the questions_causing the re decided and-executors—
oradmims rators.-
ser 2. Powers
and duties of special administra- is special administrator shall take possessionand sc
of goods; chattels, right>ecreditseand estate of the and preserve the same for
the executor or adaftemtards appointed, and for that purpose es commence and
maintain suits as administrator. He only such perishable and other property as the
orders sold. A specia dmnistrator shall ot be li pay any debts of the—
deceasedunless so ordered not
coGlD ing the
3. When powers of special administratr Gl-1
Transfer of effects; Pending suits.—When-IetterS, s @of administratiom are granted on
the esthe deceased, the powers of the special administracease, and he shall forthwith
delivertöthe is tororadmtnistratorthe goods, chattels, money, and estate cou deceased
in his hands. The executor or administra- enti prosecute to final judgment suits
commenæd bY ear cial administrator. 26,
157
RULE 80. SPECIAL ADMINISTRATOR

1 RULE 80. APPOINTMENT OF SPECIAL

administrator defined
Rspeciaradministtator is but a temporary administraappointed to act
infieu of the general adminisDe Roxas v. Pecson, GR L-2211,
special administrator is acr_epresentativeof a deceed) by the care) for and
(pre. estate until an executor or general administrator dJ(Fu/e v. CA,
GR L-40502, Nov. 29, 1976, 74
administrator as administrator of the officer of the court
appointed, a special administrator is regarded representative of the

agent of the parties suggestthe-appointment but as the administrator in
charge of and, in fact, as an fficer-ofthe-court (De Guadiz, Jr., GR L-
48585, Mar. 3131980, 96
uch officer of the court, the special administrator to the

supervision and control)0f the probaße is expected to work for
the best interests of the especially its smooth administration
and settlement (Valarao v. Pascual, GR 150164, Nov. 392 SCRA
695).
SPECIAL
158
Instances when a probate coun may appoint a special administrator
The probate court may appoint a special administra. tor:

(a) when there is delay in granting letters testamen. tary•or of
administration by any cause, including an appeal from the allowance
or disallowance of a will (Sec, 1, Rule 80, ROC);
and
(b) when the executor or administrator is a clamant of the estate
(he_represents) (Sec 8, Rule 86, ROC).
In the second instance, the administrator shall have the same

powers as that of a general administrator (Sec 8, Rule 86, ROC).
Appointment of a special administrator; when justified)
The appointment of a special administrator is justified only when

there is delayZimgranttng letters, testamentary (in case the decedent leaves
behind a will) or Cadministræ €_tive (in the event that the decedent leaves
behind no will) occasioned by any cause.
The principal object of the appointment of a temporary

administrator is to preserve the estate until it can pass into the hands of a

PROCEEDINGS AN EXHAUSTIVE
person fully authorized to administer it for the benefit of creditors and heirs (De
Guzman v, GuadiZ' Jr., GR L-48585, Mar. 31, 1980, 96 SCRA 938).
159
Appointment of a special administrator discretionary on the probate

court
The appointment of a special administrator lies in the sound)

diSeretton of the probate court (De Gala v. Gonzaiez, GR L-30289, Mar.
26, 1929, 53 Phil. 104).
Court's discretion defined
While the choice of the person lies within the court's discretion,
such discretion should not be a whimsical one but one that is reasona e
and logical andan accord wit fundamental legal princip es and justice
The fact that a judge is granted discretion does not authorize him
to become partial or to make his personal likes and dislikes prevail over
Such
or his passions to rule his discretion must be based on reason and it
must beprinciple
and
exercised within the limits
There is no reason why the same fundamental and governing the

choice of a regular adminisshould not be taken into account in the
principles
appp)ntmeny of the special administrator (Ozaete v. Pecson, GR-LJune
30, 1953, 93 Phil. 416).
Purpose of appointing a temporary
The principal object of appointment of a temporary administrator

is to preserve the estate until it can pass into hands of a person fully
administrator
authorized to administer it for the of the creditors and eirs.
In many instances, the appointment of administrators for the
estates Of decedents frequently become involved in litigations thereby
exposing such estates to

PROCEEDINGS
SPECIAL
160
great waste and losses unless an authorized agent to lect the debts and
preserve the assets in the interim is appointed
The occasion for such an appointment likewise arises where, for
some cause, such as a pendency of a suit con. cerning the proof of the
will, regular administration is de. layed (De Guzman v. Guadiz, Jr., GR
L-48585, Mar. 31 1980, 96 SCRA 938).
Order appointing a special administrator

interlocutoryand not appealable
An order appointing a special administrator or a re. celver is of

interlocutory nature, (merely Incidental to:jüdV)
(cial proceedings; that the court making the appointment råains control
over it and that it may modify, rescind or revoke the same on sufficient grounds at
any time before final judgment; and that an order appointing a special ad
ministrator or a receiver is not appealable for the reason that, far from being
final, it is merely interlocutory in nature (Sanson v. Barrios, GR L-45086, July
20, 1936, 63 Phil.
198).
Distinctions between a regular a mmstrator and a special

administrator
REGULAR ADMINISTRA TOR

ADMINISTRA TOR When a ointed
When there is
When the
ßelpy in granting
decedent dies
of- letters
(intoe tate or, if
Estate, —or"0f
-117._ (failSD to name an testamentary or
administration,
, 3. ( when the
executor in his executor or
administrator is
will or the
claimant of the
executor so es-
named fails to
SPECIAL
RULE 80
161
qualify;) tate he represents (Sec 8, Rule 86,
Roc
Duty to pav the

(deP!S) of the es- debts of the debts He annot—pay of
the estatethe tate, it being one estate unless scordered
by
ons the court.
His appointment Nature of His appointment is

may be subjectn appointment not subject of
apappeal, peal, it being an interlocu o order.
Preference in Sec 6ÄRülö780f the Rules of
i- Court pertains only to the appointment of a nt
(regular administrator not to that of a special or
administrator
Id- of the Rules of Court refers to the on appointment of regular

administrators of estates.
Ire
Section(l, Rule 8030n the other hand, applies to
the appointment of a special administrator. The
appointment Of special administrators IS mot_goyernedi
by the rules regarding the appointment of regular
administrators (Heirs of Castillo v. Lacuata-Gabriel, GR
162934, Nov. 11, 2005, 474 SCRA 747).
Rule 81 (now Rule 80) of the Rules of Court

grants discretion to the probate court to appoint or not
to appoint a special administrator. It is silent as to the
person that may be appointed as special administrator
unlike Section 6 Of Rule 79 (now Rule 78) which
expressly gives the order Of preference of the persons
that may be appointed regular administrator (Ozaete v.
Pecson, GR L-5436, June 30, 1953, 93 Phil. 416).
EXPOSITION s
162
Selection or removal of special administrators

not governed by the rules on selection or
removal of regular administrators
The selection or removal of special administrators
is not.verne _)by the rules regarding the selection or re.
moval of reau The probate court may appoint or remove
special—administrators based on grounds other than
those enumerated in the Rules at its discretion such
that the need to first pass upon and re. solve the issues
of fitness or unfitness and the application of the order
of preference under Sectiom6nf RuJe:78, as would be

proper in the case of a regular administrator, do not
obtain.
As long as the Iscre Ionos exercised withou grave
abuse;-andjs based on reason—equityv.justice andAegal
(Ocampo v. Ocampo, GR 187879, July 5, 2010, 623 SCRA

559).
FECTION 2, RULE 80. POWERS AND DUTIES OF

SPECIAL ADMINISTRA TOR
Powers and duties of a special administrator
The powers and duties of a special administrator are

limited to the following:
(1) To possess and take charge o he goods, chat'

tels, rights, credits, and estate of the decedent;
(2) To preserve the properties of the estate for the
executor or administrator aftemards appointed'
(3) To commence and maintain„suits as
administß'

is
re-

o
n
it
s
rei
on
as
do
RULE 80
163
gal
Ited (4) To sell-perishäblé'b/öééity and other property orderedsold
523 by the court; and
(5) To byAhe court (Sec. 2, Rule 80, ROC).
CAdditiönaldüty of a special administrator to render

account
In addition to his duties under Section 2, Rule 80 of
the Rules of Court, the special administrator is likewise duty-bound
to submi nonventory and to render an ac-
counting of his administration as required in the terms of his bond

(Sec 4, Rule 81, ROC).
Right of special administrator to appeal from

disallowance of will
The special administrator of_an_estate, as a person interested in

disallowance of a will by the probate court, may be perm te osppeal
from the disal(Iowance of a Will (See Fluemerv. Hix, GR 32636, Mar.
17, 1930, 54 Phil 610).
SECTION 3 RULE 80. WHEN POWERS OF SPECIAL

ADMINISTRATOR CEASE. TRANSFER OF EFFECTS. PENDING
SUITS
Point of cessation of powers of the special administrator
The powers_orthe special administrator shall cease aner the

(questions causingAhe&lay in granting letters Estamentary or of
administration are decided'and•execut) or administrators appointed
by the probat9.ppyg(Sec. Rule 80, ROC).

The powers of the special administrator shall cease when letters
testamentary or of administration are granted by the probate court and
he shall thereafter deliver to the appointed executor or regular
administrator the Properties of estate in his hands.
Suits commenced by such special administrator
may be prosecuted to final judgment by the executor or
admin. istrator (Sec. 3, Rule 80, ROC).
Appointment of a special administrator not appealable;

remedy availabl
An appointment of a special administrator is

considered an interlocutory or preliminary order to the main case
for the grant of letters of administration in a testate or in

testate proceeding (Manungas v. Loreto, GR 193161, Aug. 22,
2011, 655 SCRA 734).
The appointment or removal of special
administrators, being discretionary, is thus
interlocutory and may be assailed through a petition
for certiorari under Rule 65 of the Rules of Court
(Ocampo v. Ocampo, GR 187879, July 5, 2010, 623
SCRA 559).
As expressly provided for in Section I(e), Rule
109, the appointment of a special administrator is not
appealable.
On the other hand, an order appointing a regular
administrator (it being a final order) is appealable (See SY Hong
Eng v. Sy Lioc Suy, GR 4138, Sept. 24, 1907' 8 Phil., 594).
There are important duties devolving on a

regular administrator which a special administrator
cannot form, and there are many actions to be taken
by the which could not be accomplished before a
regular admin'

RULE
80
165
istrator is appointed (Reynoso v. Santiago, GR L-3039. Dec. 29, 1949, 85 Phil. 268).
A special administrator is appointed only:fora limited time andforæspeclfic
purpose. Because of the temporary and specialÆharacter of his appointme was
deemed by the law not advisable for any party to appeal from said appointment
(De Borja v. Tan, GR L-6476, Nov. 18, 1955, 97 Phil 872).
Special administratorcannot be sued for the debts ofdecedent
The appointment of a special administrator lies entirely in the sound

discretion of the court; the function of such an administrator is only to collect and
preserve the property of the deceased and to re urn—an—inventory) thereof.
While a special administrator may commence and maintain suits under

Section 2, Rule 80 of the Rules of Court, he cannot be sued by a creditor and
cannot pay any debts of the deceased (De Gala v. Gonzales, GR L30289, Mar. 26,
1929). Such suit must await the appointment of a regular administrator.
166
RULE 81
BONDS OF EXECUTORS AND ADMINISTRATORs

Sec. 1 . Bond to be given before issuance of letters Amount;
Conditions.—Before an executor or administrator enters upon the
execution of his trust, and letters testa. mentary or of
administration issue, he shall give a bond In such sum as the
court directs, conditioned as follows
(a) To make and return to the court, within threeÅ3)
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 per. son for him;
(b) To administer according to these rules, and, if an
executor, according to the will of the testator, all goods,
chattels, rights, credits, 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;
(c) To render a true and just account of his administration
to the court within one (1) year, and at any other time
when required by the court;

(d) To perform all orders of the court by him to be
performed.
Sec. 2. Bond of executor where directed in will' men further
bond required.-—lf the testator in his will die rects that the
executor serve without bond, or with only his individual bond, he
ma be allowed b the court to ive bond in such sum and with such
surety as the court approves conditioned only to pay the debts of
the testator, but the court may require of the executor a further
bond in case a change in his circumstances, or for other sufficient
cause, with the conditions named in the last preceding section.
Sec. 3. Bonds of joint executors and administrators.—When two

or more persons are appointed executors or administrators the court
may take a separate bond from each, or a joint bond from all.
Sec. 4. Bond of special administrator.—A special administrator
before entering upon the duties of his trust shall give a bond, in such
sum as the court directs, conditioned that he will make and return a
true inventory of the goods, chattels, rights, credits, and estate of the
deceased which come to his possession or knowledge, and that he will
truly account for such as are received by him when required by the
court, and will deliver the same to the person appointed executor or
administrator, or to such other person as may be authorized to receive
them.
RULE 81. BOND OF EXECUTORS AND

ADMINISTRATORS
SECTION 1 RULE 81. BOND TO BE GIVEN ISSUANCE OF LETTERS.

AMOUNT. CONDITIONS
Conditions of the bond
The bond to be given by the executor or administrator before he

enters upon the execution of his trust and before testamentary or
administration are issued by the shall be contain the following
conditions:

RULE 81
167
EX
168
(a) To months make a and true return and to complete the

court inventory within three of (3)all goods,
chattels, rights, credits and estate of the deceased
which shall come to his possession;
if
(b) To administer according to these rules and,
executor, according to the will of the testator, an
goods, chattels, rights, credits and estate shall at a
any time come to his possession possession of any ll which
other person for him the proceeds to pay and or to the
and from
discharge all legacies and charges on the same or
debts,
such dends thereon as shall be decreed by the
divicourt;
(c) To render a true and just account of his stration to
the court within one (1) years any other time when admini
required by the court; and at
(d) To perform all orders of the court to be by him performed
Purpose of the bond

requires administrator or executor to put up t
a bond for the of indemnifying the creditors,
he
heirs, legatees and tate which bond is purpose
conditioned upon the faithful ance of the the
administrator's trust (De Mendoza v. GR esperfor
43351, Feb. 26, 1937, 64 Phil. 134). mPachec
o
What the bond secures
Pursuant to Section 1, Rule 81 of the Rules Of the bond

secures the performance of the duties gations of an
administrator, namely:
court'
(1) to administer the estate and pay the debts; and
(2) to perform all judicial orders;
(3) to account within one (1) year and at any other time
when required by the probate court; and
(4) to make an inventory within three (3) months

(Ocampo v. Ocampo, GR 187879, July 5, 2010,
SCRA 559).
Administrators bond deemed a statutory
623

SPECIAL PROCEEDINGS AN
The administrator's bond is considered a statutory bond in that
the conditions prescribed by the statute forms bond agreement.
While an administrator's bond is nonetheless a contract because it

is required by statute, said statutory bonds construed in the light of
the statute creating the obligation secured and the purposes for
which the bond is required, as expressed in the statute.
The statute which requires the giving of a bond beof the bond
and imparts into the bond any prescribed by the statute (Luzon
Surety Co., Inc. v. Quebrar, GR L-40517, Jan. 31, 1984, 127 SCRA
Scope of liability of surety under the administrator's bond

part
The surety is liable under the administrator's bond for as long as
the administrator has duties to do as such administrator or executor.
Since the liability of the sureties is
with that of the administrator and embraces the
Performance of every duty he is called upon to perform In the course
of administration, it follows that the administrator is Still duty-bound
to respect the indemnity agreement8 entered into by him in
consideration of the surety-
EXHAUSTIVE Exposition
170
ship (Luzon surety co., Inc. v. Quebrar, GR L-40517, Jan 31, 1984,
127 SCRA 296).
Forfeiture of bond as a necessary incident of the administration

proceedings
A probate court is possessed with an all-embracing power not
only in requiring but also in fixing the account and executing or
forfeiting an administrator's bond. The execution or forfeiture of an
administrator's bond is deemed to be a necessary part and incident
of the administration proceedings as such as its filing and the
fixing of its amount (Philippine Trust Co. v. Luzon Surety Co., Inc.,
GR L-13031, May 30, 1961, 2 SCRA 122).
Surety bound by judgment against principal even though not a

patty to the proceedings
From the very nature of the obligation entered into by the surety
on an administrator's bond, he (surety) is bound and concluded, in the
absence of fraud and collusion, by a judgment against his principal,
even though said surety was not a party to the proceedings against the
administrator, nor was it notified in connection therewith prior to the
issuance of the court order for the confiscation of the bond (Ibid.).
Term and effectivity of the bond and its continuing liability

RULE 81
169
The term of a bond does not usually expire until the administration has
been closed and terminated in the manner directed by law. Thus, as
long as the probate court retains jurisdiction of the estate, the bond
contemplates a continuing liability notwithstanding the renewal of
the bond (Luzon Surety Co., Inc. v. Quebraf' GR L-40517, Jan. 31,
1984, 127 SCRA 296).
E TION 2 RULE 81. BOND OF EXECUTOR WHERE
DIRECTED IN WILL. WHEN FURTHER BOND REVIREO
Executors bond as directed in the will; further bond as

needed
should the testator direct in his will that the executors shall serve
without bond or with only his individual bond, said executors may be
allowed by the court to give bond in such sum and with such surety
as the court approves conditioned only on paying the debts of the
testator.
The court may, however, require of the executor a further bond in
case of a change in his circumstance or for other sufficient cause with
the conditions set forth in Sec. 1, Rule 81 of the Rules of Court (Sec.
2, Rule 81, ROC).
SECTION 3 RULE 81. BONDS OF JOINT EXECUTORS

AND ADMINISTRA TORS
Separate orjoint bonds for appointed executors or

administrators
In case two (2) or more persons are appointed executors or
administrators, the probate court may take a separate bond from
each of them or a joint bond from all of them (Sec. 3, Rule 81, ROC).
SECTION 4 RULE 81. BOND OF SPECIAL ADMINISTRATOR
Conditions upon which the bond is given by the

special administrator
Per Section 4, Rule 81 of the Rules of court, the bond

COnditioned on the faithful execution of the administraOf the
decedent's estate requiring the special administo:

SPECIAL PROCEEDINGS:
AN EXHAUSTIVE EXPOSITION
172
(1) make and return a true inventory of the goods chattels, rights,
credits and estate of the de. ceased which come to his possession
or knowle edge;
(2) truly account for such as received by him when required by the
court; and deliver the same to the person appointed as ex. ecutor
or regular administrator or to such other person as may be
authorized to receive them (Commissioner of Internal Revenue v.
CA, GR 125355, Mar. 30, 2000, 385 Phil. 975).
82
173
RULE 82
REVOCATION OF ADMINISTRATION,

RULE
RESIGNATION, AND REMOVAL OF
AND ADMINISTRATORS
Sec. 1. Administration revoked if will proceedings
thereupon.-—lf after letters of have been granted on the
estate of a had died intestate, his will is proved and court,
the letters of administration shall be powers thereunder
cease, and the forthwith surrender the letters to the court,
account within such time as the court directs. ings for the
issuance of letters testamentary stration under the will
shall be as hereinbefore
Sec. 2. Court may remove or accept executor or

administrator; Proceedings upon ignation, or removal.—lf
an executor or neglects to render his account and settle
cording to law, or to perform an order or court, or a duty
expressly provided by these sconds, or becomes insane,
or otherwise unsuitable to discharge the trust, the court
him, or, in its discretion, may permit him to an executor
or administrator dies, resigns, the remaining executor or
administrator may the trust alone, unless the court
grants letters to act with him. If there is no remaining
ministrator, administration may be granted to person.
Sec. 3. Acts before revocation, resignation, moval to be valid.—The

lawful acts an executor or admin-
istrator before the revocation of his letters or of administration, or

before his resignation or removal shall have the like validity as if there
had been no such revocation, resignation, or removal.
Sec. 4. Powers of new executor or administrator.— Renewal of

license to sell real estate. The person whom letters testamentary or of
administration are granted after the revocation of former letters, or
the death, resignation, or removal of a former executor or
administrator, shall have the like powers to collect and settle the
to
estate not administered that the former execu. tor or administrator
had, and may prosecute or defend actions commenced by or against
the former executor or administrator, and have execution on
judgments recovered in the name of such former execution or c
administrator. An authority granted by the court to the former
executor or administrator for the sale or mortgage of real estate may
be renewed in favor of such person without further notice or hearin
oi
to nc

un RULE 82. REVOCATION OF ADMINISTRATION, the
DEATH, RESIGNATION, AND REMOVAL OF the
EXECUTORS OR ADMINISTRATORS (c
38
SECTION 1 RULE 82. ADMINISTRATION REVOKED IF WILL
DISCOVERED. PROCEEDINGS THEREUPON
Last will found and due execution thereof

proved; conversion of an
Intestate Into a testate proceeding the
under the provision of Section 1, Rule 82 of the

Rules of Court, if a last will is found and its due
executi0n proved, the letters of administration previously
granted should be revoked and the intestate pr0ceeding
may
82
175
converted into a testamentary proceeding as such conversion is

entirely a matter of form and lies within the sound discretion of
the court (Eugenio v. Tiangco, GR L-2804, sept. 20, 1949, 84
Phil. 565).
Consolidation andjoint hearing of intestate and

testate proceedings
Generally, consolidation and joint hearing of the two cases

(special proceedings for the settlement of the same estate)
would have been proper if they do not involve settlement of the
estate of a decedent which is covered by a special provision of
the Rules of Court, namely, Section 1
of Rule 73, the specific command of which should be obeyed.
At any rate, motions for consolidation are addressed to the

sound discretion of the court. X x x. The trial court is not
precluded from dismissing one case after ordering the
consolidation and joint hearing of the two cases; because nder
Section 1 of Rule 31, after ordering consolidation, the court
"may make such orders concerning proceedings therein as
may tend to avoid unnecessary costs or delay" (cruz v. Macias,
GR L-28054, June 15, 1972, 45 SCRA 381).
Duty of the administrator after the revocation the

letters
Upon the revocation of the letters of administration, the administrator

shall forthwith:

RULE
(a) surrender the letters to the court; and
(b) render his account with such time as the court directs (Sec. 1, Rule 82, ROC).

SPECIAL PROCEEDINGS AN EXPOSITION
Probate of a will enjoys priority over intestate proceedings
Testate proceedings for the settlement of the estate of the decedent take
precedence over intestate proceedings for the same purpose (Cuenco v. CA,
GR L-24742, Oct. 26, 1973, 53 SCRA 360).
If, in the course of intestate proceedings pending be. fore an RTC, it is
found it hat the decedent had left a last will, proceedings for the probate of
the latter should re. place the intestate proceedings even if at that stage an
administrator had already been appointed, the latter being required to
render final account and turn over the estate in his possession to the
executor subsequently appointed.
This, however, is understood to be without prejudice that
should the alleged last will be rejected or is disapproved, the
proceeding shall continue as an intestacy.
This a will is a enjoy clear priority indication over that intestate proceedings
proceedings for the (Uriarte probatev.tit
of
CFI of Negros, GR L-21938-39, May 29, 1970, 33 SCRA 252).
Mere discovery of last will and testament does not ipso facto nullify the
letters of administration already issued
Mere discovery of a last will and testament of the deceased, after the
appointment of an administrator Of theth latter's estate, upon the assumption
that he had died intestate, does not ipso facto nullify the letters of
administrati0n already issued or even authorize the revocation thereof' until the will
has been proved and allowed by the probate court (Advincula v. Teodoro, Sr.,
GR L-9282, May
1956, 99 Phil. 415). 31,
loi
177
How to proceed lies within the sound discretion of the court
Whether the intestate proceeding already commenced should be
discontinued and a new proceeding under a separate number and title
should be constituted is entirely a matter of form and lies within the sound
discretion of the court. In no manner does it prejudice the substantial rights
of any heirs or creditors (Reynoso v. Santiago, GR L-3039. Dec. 29, 1949, 85
Phil. 268).
SECTION 2 RULE 82. COURT MAY REMOVE OR ACCEPT RESIGNATION OF

EXECUTOR OR ADMINISTRATOR

RULE
Removal of the administrator
Concerning complaints against the general competence of the

administrator, the proper remedy is to seek the removal of the administrator in
accordance with Section 2, Rule 82 of the Rules of Court. While the provision is
silent as to who may seek with the court the removal of the administrator, it is
beyond doubt that a creditor, even a contingent one, would have the personality
to seek such relief.
After all, the interest of the creditor in the estate relates to the
preservation of sufficient assets to answer for the debt, and the general
competence or good faith of the administrator is necessary to fulfill such
purpose (Hilado.
v. CA, GR 164108, May 8, 2009, 587 SCRA 464).
Grounds for the removal of an executor or administrator
The court may remove an executor or administrator 4Wetion,

permit him to resign based on the folgrwrds:
(1) Neglect to render accounts within one (1) year and when
required by the court,
(2) Neglect to settle the estate according to law

(3) Neglect to perform an order or judgment of the t
court or a duty expressly provided by the rules.
(4) Absconding; or
(5) Becoming insane or otherwise incapable or suitable to
discharge the trust (Sec. 2, Rule 82 ROC).
Other grounds for the removal of ans administrator
The other valid grounds for the removal of an execu.

tor or administrator are:s (a) Acquisition of interest adverse to that of the
tate that makes the administrator unsuitable to P discharge the trust
(Garcia v. Vasquez, GR L- a 26615, Apr. 30, 1970, 32 SCRA 489);
(b) Physical inability and consequent unsuitability to manage
the big estate under administration (De Boda v. Tan, GR L-
6108, May 25, 1953, 93 Phil, 167);
(c)Being burdened with criminal charges for falsification in

other fora which may bring about cone flicts and possible
abuse (Co v. Rosario, 160671, Apr. 30, 2008, 553 SCRA
225); and
(d) False representation by an administrator in s? curing his
appointment (Cobarrubias v. Djzon, GRL-225, Feb. 26,
1946, 76 Phil. 209),
RULE 82
179
Degree of prudence, care andjudgment required of an
administrator

An administrator occupies a position of the highest trust and
confidence, He is required to exercise reasonable diligence and act in entire
good faith in the performance of that trust,
Although he is not a guarantor or insurer of the safety of the estate nor

is he expected to be infallible, yet the same degree of prudence, care and
judgment which a person of a fair average capacity and ability exercises in
similar transactions of his own, serves as the standard by which his conduct
is to be judged.
In the discharge of his functions, the administrator should act with
utmost circumspection in order to preserve the estate and guard against its
dissipation so as not to prejudice its editors and the heirs of the decedents
who are entitled to the net residue thereof (Lao v. Genato, GR L-56451, June
19, 1985, 137 SCRA 77).
SECTION 3 RULE 82. ACTS BEFORE REVOCATION RESIGNATION OR REMOVAL TO BE

VALID
Effect of revocation, resignation or removal of executor or administrator on his

previous acts
Under Section 3, Rule 82 of the Rules of Court, the lawful acts of the
executor or administrator before the revocation of his letters testamentary or
of administration or before his removal shall have the same validity as if
there was no such revocation or removal.
It is elementary that the effect of revocation of letters or Of administration

is to terminate the au-
c
'v
SPECIAL
thority of the executor or administrator, but the acts of the executor or

administrator, done in good faith prior to the revocation of the letters, will be
protected, and a similar protection will be extended to rights acquired under a
pre. vious grant of administration (Moreno Vda. De Bacaling v Laguna, GR L-
26694, Dec. 18, 1973, 54 SCRA 243).
SECTION 4 RULE 82. POWERS OF NEW EXECUT0R

OR ADMINISTRATOR. RENEWAL OF LICENSE SELL REAL ESTATE

RULE
Powers of the new executor or administrator
The person to whom letters testamentary or of ad. ministration are

granted, after the revocation of former letters, or the death, resignation, or
removal of a former executor or administrator:
ex.
be renewed in favor of such person without further notice or hearing (Sec. 4,
Rule 82, ROC).
in.
Retum of inventory and appraisal of the estate
Within three (3) months after his appointment, theestate
ecutor or administrator shall return to the court a true
ventory and appraisal of all the property of the which has order
come into his possession or knowledge. his or
In the appraisal of such estate, the court may one or
more of the inheritance tax appraisers to give their
assistance (Sec. 1, Rule 83, ROC).
(1) shall have the like powers to collect and settle the 83 of n
estate not administered that the former execu- real p
tor/administrator had; s
(2) may prosecute or defend actions commenced by or against the t
former executor or administrator,
and c
"which l
(3) may have execution on judgments recovered in the name of
such former execution or administratore signi-
the
f
r
The authority granted by the court to the former c
ecutor or administrator to sell or mortgage real estate may a
r
Inventory should include "all" the properties of

the decedent
The usage of the word "al/" in Section 1, Rule
the Rules of Court demands the inclusion of all the
and personal properties of the decedent in the inventory.
However, the word "al/" is qualified by the phrase has come
into his possession or knowledge, " which fies that the
properties must be known to the administrator to belong to
the decedent or are in her possession as administrator.
Section 1 of Rule 83 allows no exception, for phrase
"true inventory" implies that no properties ing to belong to
the decedent can be excluded from inventory regardless of
their being in the possession another person or entity
(Aranas v. Mercado, GR 1564 Jan, 15, 2014, 713 SCRA 194).
Inventory to exclude properties ini possession of and

registered in the name of corporations
Where real properties included in the inventory estate
of a decedent are in the possession of and are istered
in the name of corporations, in the absence of any
cogency to shred the veil of corporate fiction, the
presumption of conclusiveness of said titles in favor of
said corporations should stand undisturbed (Lim v. CA,
GR 124715, Jan. 24, 2000, 323 SCRA 102).
purpose of requiring inventory and appraisal of the estate

The objective of the Rules of Court in requiring the
inventory and appraisal of the estate of the decedent is "to
aid the court in revising the accounts and determining the
liabilities of the executor or the administrator, and in making
a final and equitable distribution (partition) of the estate and
otherwise to facilitate the administration of the estate." (Siy
Chong Keng v. Collector of Internal Revenue, GR L40921, Aug.
31, 1934, 60 Phil. 493, 500).
Hence, the RTC that presides over the
administration of an estate is vested with wide
discretion on the question of what properties should
RULE
be included in the inventory (Aranas v. Mercado,
supra).
64
3-month period not mandatory the
reg-
The three-month period prescribed in Section 1, Rule 83
of the Rules of Court is not mandatory. After the filing Of a
petition for the issuance of letters of administration and the
publication of the notice of hearing, the proper Regional
Trial Court acquires jurisdiction over a decedent's estate and
retains that jurisdiction until the proceeding is closed.
The fact that an inventory was filed after the
threemonth period would not deprive the probate court of
jurisdiction to approve it. However, an administrator's
unexPlained delay in filing the inventory may be a ground
for
his removal pursuant to Section 2, Rule 82 of the
Rubs court (Sebial v. Sebial, GR L-23419, June 27,
1975, SCRA 385).
Administrator not chargeable with administration
of the estate not in his possession
The administrator is not chargeable with the
administration of the estate which has not come to his
posses. sion. He is however, accountable for the true and
com. plete inventory of all the property belonging to the
state which has come to his knowledge.
Probate court's supervision and control over the estate

The court which acquires jurisdiction over the
properties of a deceased person through the filing of
the corresponding proceedings, has supervision and
control over the said properties and, under the said
power, it is its herent duty to see that the inventory
submitted by the ministrator appointed by it contains all
the properties, rights and credits which the law requires
the administrator to set out in his inventory
In compliance with this duty, the court has also
inherent power to determine what properties, rights and
credits of the deceased should be included in or excluded
from the inventory.
Should an heir or person interested in the propertie of
a deceased persons duly call the court's attention to th fact
that certain properties, rights or credits have been l out in
the inventory, it is likewise the court's duty to h ear the
observations with power to determine if such observations
should be attended to or not and if the properties referred
to therein belong prima facie to the intestate
no such determination is final and ultimate in nature as to the
ownership of the said properties (Vazquez v. Garcia, GR L-45430, Apr.
15, 1939, 67 SCRA 353).
probate court has the power to
determine whether the properties belong
prima facie to the decedent
A court which takes cognizance of testate or intestate
proceedings has power and jurisdiction to determine
whether or not the properties included therein or excluded
therefrom belong prima facie to the deceased, although
such a determination is not final or ultimate in nature and
without prejudice to the right of interested parties, in a
proper action, to raise the question on the ownership or
existence of the right or credit (Ibid).
Probate court's approval of the inventory

provisional in character
The court's order approving the inventory is not a
conclusive determination of what assets constituted the
RULE
decedent's estate and of the
valuations thereof. Such a
determination is only provisional in
character and is without prejudice
to a judgment in a separate action
on the issue of title or ownership
(Sebial v. Sebial, GR L-23419, June
27, 1975, 64 SCRA 385).
SECTION 2 RULE 83. CERTAIN ARTICLE the family of the de. NOT TO
BE INVENTORIED court, shall not
be con. as such and
Provisions for subsistence of shall not Rule 83, ROC).
decedent's family not to be
part of inventory may
The wearing apparel of
the surviving husband or wife and person may be included in
minor children, the marriage bed of the estate and the
and bedding and such provisions inclusion, but such order is
does not preclude the
and other articles as will necessarily
be ordinary civil action for the
SPECIAL
consumed in the subsistence of

ceased, under the direction of the
sidered as assets nor administered
inventory
be included in the inventory (Sec. may
2, removal
Property claimed by a third filed after the
person be included in the threeprobate court
inventory
of
jurisadministrator'
s unexmay be a
ground for
Property claimed by a third the inventory as part of the
assets probate court may order such only prima facie
determination and claimants from maintaining an
determination of title.
Unexplained delay in filing the be a ground for

administrator's
The fact that an inventory was month period would not
deprive the diction to approve it. However, an plained delay in
filing the inventory his removal (Sec. 2, Rule 82, ROC).
SECTION 3 RULE 83. ALLOWANCE

FAMILY
Allowance defined
Allowance refers to the monetary port to the widow
and children which tion and are likewise deductible shares
in the estate of the decedent.
187
Allowance for the widow and minor or

incapacitated children of decedent
During the probate proceedings, the widow and
minor or incapacitated children of the decedent shall
receive from such estate, under the direction of the court,
such allowances as are provided by law (Sec. 3, Rule 83,
ROC).
Allowances for support extends to all children
regardless of age
Allowances for support under Section 3 of Rule 83
should not be limited to the "minor or incapacitated"
children of the deceased.

RULE
Article 188 of the Civil Code of the Philippines (now
Article 133 of EO 209 or the Family Code) provides that
during the liquidation of the conjugal partnership, the
deceased's legitimate spouse and children, regardless of
their age, civil status or gainful employment, are entitled
to provisional support from the funds of the estate
(Santero v. CFI of Cavite, GR L-61700, sept. 14, 1987, 153
SCRA 728).
The law is rooted on the fact that the right and duty to
support, especially the right to education, subsist even
beyond the age of majority (Id., at pp. 733-734; Art. 290,
CC).
When sale of the estate by

administrator is unnecessary for that
purpose
When the cash in the possession of the administrator
is sufficient for the monthly allowance being paid to the
heirs, the court may not order said sale especially when
the heirs are opposed to it (Bachrach v. Seifert, GR L1592,
sept. 20, 1949, 84 Phil. 558).
188
Grandchildren not included in the provision

for support
Grandchildren are not entitled to provisional
support from the funds of the decedent's estate. The
law clearly limits the allowance to "widow and
children" and does not extend it to the deceased's
grandchildren, regardless of their minority or incapacity
(Babao v, Villavicencio, GR 18140, sept. 1, 1922, 44 Phil.
921).
Support not available when estate's liabilities
exceed its assets
When the liabilities exceed the assets of the estate, the
widow and children of the decedent are not entitled to
support pending the liquidation on the ground that such
support has the character of an advance payment to be
deducted from the respective share of each heir (Moore &
Sons Mercantile Co. v. Wagner, GR L-25842, Mar. 18, 1927).
RULE 84. GENERAL POWERS AND DUTIES OF EXECUTORS

AND ADMINISTRATORS
Powers and duties of executors and administrators;
restrictions
An executor or administrator shall have the following
powers and duties:

RULE
(1) To have access to, and examine and take
copies of books and papers relating to the
partnership business (Sec. 1, Rule 84, ROC);
(2) To examine and make invoices of the property
belonging to the partnership (Sec. 1, Rule 84,
ROC);
(3) To maintain in tenantable repair the houses
and other structures and fences belonging to
the estate, and deliver the same in such repair
to the heirs or devisees when directed to do so
by the court (Sec. 2, Rule 84, ROC);
(4) To make improvements on the properties
under administration with the necessary court
approval except for necessary repairs; and
(5) To possess and manage the real as well as the e
personal estate of the deceased so long as it is
necessary for the payment of the debts and th
expenses of administration (Sec. 3, Rule 84,
ROC).
Restrictions on the power of the executor or

administrator
An executor or administrator cannot:
(a) acquire by purchase even at public or judicial auction,
either in person or mediation of another, the property
under administration (Art. 1491, CC); (b) borrow money
without authority of the court;
(c) speculate with funds under administration (Sec.
2, Rule 85. ROC);
(d) lease the property for more than one (1) year
(Art. 1878, CC);
(e) continue the business of the deceased unless

authorized by the court (Sec, 1, Rule 84, ROC);
(f) profit by the increase or decrease in the value of the
property under administration (Sec. 2, Rule 85,
ROC); and
(g) exercise the right of legal redemption over the
portion of the property owned in common sold by
one of the other co-owners.
Article 1878 of the Civil Code should not

apply to executor or administrator;
rationale
A view is held that the provisions on agency (Art. 1 878,
CC) should not apply to a judicial administrator who, being
appointed by the Court, is not only the representative of said
Court but also of the heirs and creditors of the estate (Chua
Tan v. Del Rosario, GR 35903, Oct. 27, 1932, 57 Phil. 411).
The rationale for that holding is that a judicial
administrator, before entering into his duties, is
required to file a bond which circumstance is not true
in case of agency Wherein the agent is only answerable
to his principal.
The protection which the law gives the principal, in
limiting the powers and rights of an agent, stems from the
fact that control by the principal can only be through
agreements whereas the acts of a judicial administrator are
subject to specific provisions of law and orders of the
appointing court (San Diego, Sr. v. Nombre, GR L-19265
May29, 1964, 11 SCRA 165).

RULE
Court approval needed for any transaction entered
into by the administrator
Where the estate of a deceased person is already the
subject of a testate or intestate proceeding, the
administrator cannot enter into any transaction involving it
without any prior approval of the Court (Estate of O/ave v.
Reyes, GR L-29407, July 29, 1983, 123 SCRA 767).
Executor or Administrator's right to possess

and manage the properties of the estate not
absolute
The right of an executor or administrator to the
possession and management of the real and personal
properties of the deceased is not absolute and can only
be exercised so long as it is necessary for the payment of
the debts and expenses of administration (Mananquil v.
Villegas, AM 2430, Aug. 30, 1990, 189 SCRA 335).
Right of legal redemption of non-participating co-heirs
The heirs who actually participated in the execution of
the extrajudicial settlement, which includes the sale to a
third person of their pro indiviso shares in the property,
are bound by the same while the co-heirs who did not
participate are given the right to redeem their shares
pursuant to Article 1088 of the Civil Code (Cua v. Vargas,
GR No. 156536, Oct. 31, 2006, 506 SCRA 374)
sECTION 1 RULE 84. EXECUTOR OR
ADMINISTRATOR TO HAVE ACCESS To
PARTNERSHIP BOOKS
AND PROPERTY

"Executor" and "Administrator" defined
An executor is the person nominated by a testator
to carry out the directions and requests in his will and to
dispose of his property according to his testamentary
provisions after his death.
An administrator is the person appointed by the
court, in accordance with the governing statute, to
administer and settle intestate estate and such testate
estate as no competent executor was designated by the
testator.
Executor or administrator's right to access

partnership books and property
The executor or administrator of the estate of a
deceased partner shall at all times have access to, and
may examine and take copies of, books and papers
relating to the partnership business and may examine
and make invoices of the property belonging to such
partnership.
The surviving partner or partners, on request, shall
exhibit to him all such books, papers and property in their
hands or control. On the written application of such
executor or administrator, the court having jurisdiction of
the estate may order any such surviving partner or
Partners to freely permit the exercise of the rights and to
exhibit the books, papers and property and may punish
any Partner failing to do so for contempt (Sec. 1, Rule 84,
ROC).
SECTION 2 RIJLE 84. EXECUTOR OR ADMINISTRA. TOR To
KEEP BUILDINGS IN REPAIR

RULE
Executor or Administrator to maintain the
properties of the estate
An executor or administrator shall maintain in tenant.
able repair the houses and other structures and fences
belonging to the estate, and deliver the same in such
repair to the heirs or devisees when directed so to do by
the court (Sec. 2, Rule 84, ROC).
Executor or Administrator to deliver
properties to the heirs only upon order of the
court and after payment of debts
Section 2, Rule 84 of the Rules of Court provides that
the executor or administrator may only deliver properties
of the estate to the heirs upon order of the Court.
Similarly, under Section 1, Rule 90 of the Rules of
Court, the properties of the estate shall only be
distributed after the payment of the debts, funeral
charges and other expenses against the estate, except
when authorized by the Court (Silverio, Jr. v. CA, GR
178933, sept. 16, 2009, 600 SCRA ).
SECTION 3 RULE 84. EXECUTOR OR ADMINISTRATOR
TO RETAIN WHOLE ESTATE TO PAY
DEBTS AND TO ADMINISTER ESTATE NOT WILLED
Executor or Administrator's right to possess

and manage the properties of the estate
An executor or administrator shall have the right to
the possession and management of the real as well as the
personal estate of the deceased so long as it is necessary
for the payment of the debts and the expenses of
administration (Sec. 3, Rule 84, ROC)

of the estate of the deceased which has come into his
possession at the appraised value in the inventory with
all the interest, profit and income of such estate and
with the proceeds of so much of the estate as is sold by
him at the price at which it was sold (Sec. 1, Rule 85,
ROC).
Accountability of the executor or administrator;
exception
The executor or administrator is generally accountable
for the whole estate of the deceased. He is, however, not
to be held accountable for those properties which never
came to his possession except when, through his
untruthfulness to the trust or his own fault or for lack of
necessary action on his part, the executor or administrator
failed to recover part of the state which came his
knowledge.
SECTION 2 RULE 85. NOT TO PROFIT BY INCREASE OR

LOSE BY DECREASE IN VALUE
Executor or administrator not to profit
by increase nor lose by decrease in
value of the estate through no fault of
his own
An executor or administrator shall not profit by the
increase nor suffer loss by the decrease or destruction,
without his fault, of any part of the estate.
He must account for the excess when he sells any Part
of the estate for more than its appraisement and, if any is
sold for less than the appraisement, he is not reSPonsible
for the loss if the sale has been justly made.
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If h
e settles any claim against the estate for less than its
nominal value, he is entitled to charge in his account Only
the amount he actually paid on the settlement (Sec. 2, Rule
95, ROC).
SECTION 3 RULE 85. WHEN NOT ACCOUNTABLE
FOR DEBTS DUE ESTA TE
Executor or administrator not accountable
for debts due and uncollected
An executor or administrator shall not be held ace
countable for debts due the deceased which remain
uncollected without his fault (Sec. 3, Rule 85, ROC).
SECTION 4 RULE 85. ACCOUNTABLE FOR INCOME FROM

REALTY USED BY HIM
Duty to account when the

executor or administrator uses or
occupies any part of the property
If the executor or administrator uses or occupies
any part of the real estate himself, he shall account for
it as may be agreed upon between him and the parties
interested or adjusted by the court with their assent
and if the parties do not agree upon the sum to be
allowed, the same may be ascertained by the court the
determination of which in this respect shall be final (Sec.
4, Rule 85, ROC).
SECTION 5 RULE 85. ACCOUNTABLE IF HE NEGLECTS OR

DELA YS TO RAISE OR PA Y MONEY
In case an executor or administrator neglects or u
n
reasonably delays to raise money by collecting the deb ts
or selling the real or personal estate of the deceased or
neglects to pay over the money he has in his hands a nd
the value of the estate is thereby lessened or unnecess ary
cost or interest accrues or the persons interested su ffer
loss, the same shall be considered a waste and the da
m
age sustained may be charged and allowed against him
in
his account for which he shall be liable on his bond (Sec.
sECTION 6 RULE 85. WHEN ALLOWED MONEY PAID
The amount paid by an executor or administrator

for costs awarded against him shall be allowed in his
administation account unless it appears that the
action or proceeding in which the costs are taxed was
prosecuted or resisted without just cause and not in
good faith (Sec. 6,
SECTION 7 RULE 85. WHAT EXPENSES AND FEES ALLOWED

EXECUTOR OR ADMINISTRATOR. NOT TO CHARGE FOR
SERVICES AS ATTORNEY. COMPENSATION PROVIDED BY
WILL CONTROLS UNLESS RENOUNCED
Expenses and fees the executor or administrator allowed

to incur
An executor or administrator shall be allowed:
(1) the necessary expenses in the care, management,
and settlement of the estate, and

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(2) for his services, P4.00 per day for the time actually
and necessarily employed, or a commission upon
the value of so much of the estate as comes into
his possession and is finally disposed of by him in
the payment of debts, expenses, legacies, or
distributive shares, or by delivery to heirs or
devisees, of:
(a) two percent (2%) of the first P5,OOO.OO
of such value;
(b) one percent (1%) of so much of such value
as exceeds P5,000.00 and does not exceed
P30,OOO.OO;
(c) one-half percent (1/20/0) of so much of

such value as exceeds P30,000.00 and
does not exceed P 100,000.00; and
(d) one-fourth percent (1/4%) of so much of
such value as exceeds P 100,000.00 (Sec.
7, Par. 1, Rule 85, ROC).
Necessary expenses of administration defined

Necessary expenses of administration are such expenses as
are entailed for the preservation and productiv ity of the estate
and for its management for purposes of liquidation, payment of
debts and distribution of the residue among the persons
entitled thereto (Sociedad De Lizarraga Hermanos v. Abada, GR
13910, Sept. 17, 1919, 40 Phil. 124).
Greater amount allowed for large and

difficult estate

A greater sum may be allowed in any special cas e
where:
(1) the estate is large;
(2) the settlement has been attended with great d ifficulty;

(3) the settlement has required a high degree or ca-
pacity on the part of the executor or administrator

Objection to the allowed fees may be re-
examined on appeal
If objection to the fees allowed be taken, the
allowance may be re-examined on appeal (Sec. 7, Rule
85, ROC).
Fees to be apportioned among executors or

administrators
If there are two or more executors or administrators,
the compensation shall be apportioned among them by
the court according to the services actually rendered by
them respectively (Sec. 7, Par. 2, Rule 85, ROC).
When the executor or administrator is a lawyer

When the executor or administrator is an attorney,
he shall not charge against the estate any professional

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fees for legal services rendered by him (Sec 7, Par. 3, Rule
85, ROC).
Compensation as executor's or administrator's

commissions not as attorney's fees
An administrator or executor may be allowed fees
for the necessary expenses he has incurred as such but
he may not recover attorney's fees from the estate.
His compensation is fixed by the rule but such a
compensation is in the nature of executor's or
administrator's commissions and never as attorney's
fees (Lacson v. Reyes, GR 86250, Feb. 26, 1990, 182
SCRA 729).
Who should shoulder the attorney's fees?

A lawyer of an administrator or executor may not charge
the estate for his fees but, rather, his client (Gonzaies-
orense v. CA, GR L-80526, July 18, 1988, 163 SCRA 477).
Mutatis mutandis, where the administrator is
himself the counsel for the heirs, it is the latter (heirs)
who must pay therefor (Lacson v. Reyes, GR 86250,
Feb. 26, 1990, 182 SCRA 729).
Attorney's fees may be allowed as expenses of
administration
When a lawyer has rendered legal services to the
executor or administrator to assist him in the
execution of his trust, his attorney's fees may be
allowed as expenses administration. The estate is,
however, not directly liable for his fees, the liability for of
payment resting primarily on the executor or
administrator. If the administrator had paid the fees,
he would be entitled to reimbursement from the estate
(Escueta v. Sy-Juil/iong, GR 2370, Dec. 12, 1905, Phil.
405).
Procedure for lawyer to collect his fees
The procedure to be followed by counsel in order to
collect his fees is to request the administrator to make
payment, and should the latter fail to pay, either to:
(a) file an action against him in his personal capacity,
and not as administrator, or
(b) file a petition in the testate or intestate procee d
ings asking the court, after notice to all the heirs
and interested parties, to direct the payment of
his fees as expenses of administration.
Whichever course is adopted, the heirs and other
persons interested in the estate will have the right to
jnquire into the value of the services of the lawyer and
on
GR 2370, Déc. 12, 1905, 5 Phil. 405).

Executor or administrator who is primarily
liable for attorney's fees
As a general rule, it is the executor or administrator
who is primarily liable for attorney's fees due to the lawyer
who rendered legal services for the executor or
administrator in relation to the settlement of the estate
The executor or administrator may seek reimbursement
from the estate for the sums paid in attorney's fees if it
can be shown that the services of the lawyer redounded to

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the benefit of the estate (Gonzales-Orense v. CA, GR
L80526, July 18, 1988, 163 SCRA 477).
Lawyer's recourse if the executor

or administrator refuses to pay the
attorney's fees
If the executor or administrator refuses to pay the
attorney's fees, the lawyer has two (2) modes of recourse.
First, the lawyer may file an action against the executor or
administrator but in his/her personal capacity and not as
administrator or executor and second, the lawyer may file
a petition in the testate or intestate proceedings asking
the court to direct the payment of attorney's fees as an
expense of administration.
If the second mode is resorted to, it is essential that
notice to all the heirs and interested parties be made so as
to enable these persons to inquire into the value of the
services of the lawyer and on the necessity of his
employment (Salonga, Hernandez & Allado vr Pascual, GR
127165, May 2, 2006, 488 SCRA 449).
Character of claim for attorney's fees
is administration expense
The character of such claim for attorney's fees bears
reiteration partakes the nature of an administration ex.
pense (Escueta v. Sy-Juilliong, GR 2370, Dec. 12, 1905, 5
Phil. 405),
Administration expenses include attorney's

fees; definition

Administration expenses include attorney's fees
incurred in connection with the administration of the estate.
It is an expense attending the accomplishment of the
purpose of administration growing out of the contract or
obligation entered into by the personal representative of
the estate and, thus, the claim for reimbursement must be
superior to the rights of the beneficiaries (Salonga,
Hernandez & A//ado v. Pascua/, supra.).
Instances when the estate should not

be charged with attorney's fees
There may be instances wherein the estate should not
be charged with attorney's fees. If the costs of counsel's fees
arise out of litigation among the beneficiaries thereof
themselves or in the protection of the interests of particular
persons, the estate generally cannot be hel d liable for such
costs, although when the administrator employs competent
counsel on questions which affect his/h er duties as the
administrator and on which he/she is in r easonable doubt,
reasonable expenses for such services may be charged against
the estate subject to the approval of the court.
It has also been held that an administrator who brings
on litigation for the deliberate purpose of defrauding the
legitimate heirs and for his own benefit is not entitled to
reimbursement for counsel's fees incurred in such litiga-
When compensation of executor made in a will

When the deceased by will makes some other
provision for the compensation of his executor, that
provision shall be a full satisfaction for his services unless
by a written instrument filed in the court he renounces all
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claim to the compensation provided by the will (Sec. 7,
Par. 4, Rule 85, ROC).
SECTION 8 RULE 85. WHEN EXECUTOR OR ADMINISTRATOR TO

RENDER ACCOUNT
Executor or administrator to render an

account of his administration
Every executor or administrator shall render an
account of his administration within one (1) year from the
time of receiving letters testamentary or of
administration unless the court otherwise directs because
of extensions of time for presenting claims against or
paying the debts of the estate or for disposing of the
estate and he shall render such further accounts as the
court may require until the estate is wholly settled (Sec. 8,
Rule 85, ROC).
Rendering of an accounting is mandatory; exception
The rendering of an accounting by an administrator
of his administration within one (1) year from his
appointment is mandatory, as shown by the use of the
word "shall" in said rule. The only exception is when the
Court otherwise directs because of extensions of time for
presenting claims against the estate or for paying the
debts or disposing the
assets of the estate (Kalaw v. IAU, (3K 746189 Sept.

1992).
Duty of administrator to render an account not a mere
incident of administration proceeding
2
The duty of an administrator to render an account not
a mere incident of an administration proceeding which can
be waived or disregarded when the same is terminated. It
is a duty that has to be performed and duly acted upon by
the court before the administration is finally ordered
closed and terminated to the end that no part of the is
decedent's estate shall be left unaccounted for (Tumang
Laguio, GR L-50277, Feb. 14, 1980, 96 SCRA 124).
The fact that the final accounts had been approved
does not divest the court of jurisdiction to require
supplemental accounting for, aside from the initial v.
accounting, the Rules provide that "he shall render such
further accounts as the court may require until the estate
is wholly settled" (Tumang v. Laguio, supra., citing Sec. 8,
Rule 85, ROC).
Administrator may be discharged after

submission of initial report
The duty of an administrator to prepare periodical
reports of the assets and properties under his
supervision i one which he owes particularly to a
designated group individuals by law interested in the
settlement and distribu tion of the estate. They may be
heirs, legatees or credito of the deceased.
After the submission by the administrator of his in
itial
report, the parties beneficially interested, provided the
are of age and are not suffering from any legal disab ility'
may, with the approval of the court, release him from his
obligation to render further accounts either by express
agreement or "by implication from long continued
acquiescence after the right to demand has fully
accrued" and this discharge, not being violative of any s

of
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rule of law or contrary to public policy, may not be revoked
or set aside (Peralta v. Peralta, GR 47048, Dec. 13, 1940, 71
Phil. 66).
In the administration of estates of deceased persons,
the judges enjoy ample discretionary powers and the
appellate courts should not interfere with or attempt to
replace the action taken by them unless it be shown that
there has been a positive abuse of discretion (Vda. de
Padilla v. Jugo, GR L-45617, Oct 29, 1937, 38 OG 1).
Probate court has power to require supplemental
accounting until estate is settled
The fact that the final accounts had been approved does
not divest the court of jurisdiction to require supplemental
accounting for, aside from the initial accounting, the Rules
(Sec. 8, Rule 85, ROC) provide that "he shall render such
further accounts as the court may require until the estate is
wholly settled" (Tumang v. Laguio, supra.).
SECTION 9 RULE 85 EXAMINATIONS ON OATH WITH RESPECT
TO ACCOUNT
Court may examine the executor or

administrator upon oath
The court may examine the executor or administrator
upon oath with respect to every matter relating to any
account rendered by him and shall so examine him as to the
Correctness of his account before the same is allowed,
except when no objection is made to the allowance of the
account and its correctness is satisfactorily established by
competent proof (Sec. 9, Rule 85, ROC).
Court may also examine the heirs, legatees,
distributees, and creditors
The heirs, legatees, distributees and creditors of the
estate shall have the same privilege as the executor or
administrator of being examined on oath of any matter
relating to an administration (Sec. 9, Rule 85, ROC).
When examination may be dispensed with

The court need not examine the executor or
administrator in case:
(1) no objection is made to the allowance of the
account; and
(2) its correctness is satisfactorily established by
competent proof (Sec. 9, Rule 85, ROC).
SECTION 10, RULE 85 ACCOUNT TO BE

SETTLED ON NOTICE
Notice to be given to persons interested
Before the account of an executor or administrator is
allowed, notice shall be given to persons interested of th e
time and place of examining and allowing the same a nd such
notice may be given personally to such persons interested or
by advertisement in a newspaper or newspapers or both as
the court directs (Sec. 10, Rule 85, ROC).
SECTION 11 RULE 85. SURETY ON BE
BOND MAY
PARTY TO ACCOUNTING

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person liable as surety may be admitted as

a party to the proceeding
Upon the settlement of the account of an executor or
administrator, a person liable as surety in respect to such
account may, upon application, be admitted as party to
such accounting (Sec. 11, Rule 85, ROC).

and the claimant refuses to accept the amount offered&i'n'
satisfaction of his claim, if he fails to obtain a more
able judgment, he cannot favorrecover
the costs, but must pay
executor or administrator to costs from the time of the
offer. Where an action commenced
for against the
money has been discontinued deceased and the claim
therein presented as in embraced
this rule provided, the
party shall be allowed the prevailing costs of his action up
to the time
RULE 86. CLAIMS
AGAINST ESTATE
SECTION 1 RULE 86. NOTICE To CREDITORS To BE
Notice to parties with money claims

After granting letters testamentary or of
administration, the probate court shall immediately issue a
notice requiring all persons having money claims against
the
decedent to file them in the office of the clerk of court (Sec.
1, Rule 86, ROC).
Claims defined
The word "claims" as used in statutes requiring the

Presentation of claims against a decedent's estate is
generally construed to mean debts or demands of a
pecuniary nature which could have been enforced
against the deceased in his lifetime and could have
been reduced to simple money judgments and among
these are those founded upon contract (Gutierrez v.
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Barretto-Datu, GR L17175, July 31, 1962, 5 SCRA
757),
purpose of the requirement to file money claim
against the estate in the probate court
This requirement of filing the money claim against
the decedent's estate in the probate court is for the
purpose of protecting the estate of the deceased by
informing the executor or administrator of the claims
against it, thus enabling him to examine each claim and
to determine whether it is a proper one which should be
allowed.
The plain and obvious design of the rule is the speedy
settlement of the affairs of the deceased and the early
delivery of the property to the distributees, legatees, or
heirs. The law strictly requires the prompt presentation
and disposition of the claims against the decedent's
estate in order to settle the affairs of the estate as soon
as possible, pay off its debts and distribute the residue
(Py Eng Chong v. Herrera, GR L-31229, Mar. 25, 1976, 70
SCRA 130).
Claims arising after the death of the decedent; exceptions

Claims arising after the death of the decedent cannot thus
be presented, except the following:
(1) funeral expenses; and
(2) expenses of the last sickness of the decedent.

Claims for taxes may be collected even after
the distribution of the estate
Claims for taxes may be collected even after the distribution
of the decedent's estate among his heirs who
shall be liable therefor in proportion of their share in the
inheritance (Government of the Philippine Islands v.
Pamintuan, GR 33139, Oct. 11, 1930, 55 Phil. 13).
Court may direct the payment of assessed taxes
Taxes assessed against the estate of a deceased
person, after the administration is opened, need not be
submitted to the committee on claims in the ordinary
course of administration. In the exercise of its control over
the administrator, the court may direct the payment of
such taxes upon motion showing that the taxes have been
assessed against the estate (Pineda v. CFI of Tayabas, GR
L-30921, Feb. 16, 1929, 52 Phil. 803).
SECTION 2 RULE 86. TIME WITHIN WHICH CLAIMS SHALL BE

FILED
Time for the filing of claims against the estate;
belated claims
In the notice provided in Section 1, Rule 86 of the
Rules of Court, the probate court shall state the time for
the filing of claims against the estate which shall not be
more than twelve (12) nor less than six (6) months after
the date of the first publication of the notice.
However, at any time before an order of distribution
to is
entered, on application of a creditor who has failed his
claim within the time previously limited, the court may, for

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is
cause shown and on such terms as are equitable, low such
claim to be filed within a time not exceeding
(1) month (Sec. 1, Rule 86, ROC).
Prescribed period for the allowance of money
claims not exclusive
The period prescribed in the notice to creditors
exclusive; that money claims against the estate may
allowed any time before an order of distribution is entered'
at the discretion of the court, for cause and upon
Money claim against estate analogous to
motion for creditor's claim, it being only
incidental to the main action for probate
A money claim against an estate is more akin to a
motion for creditors' claims to be recognized and taken
into consideration in the proper disposition of the proper.
ties of the estate.
A money claim is only an incidental matter in the
main action for the settlement of the decedent's estate;
more so if the claim is contingent since the claimant
cannot even institute a separate action for a mere
contingent claim (Sheker v. Sheker, GR 157912, Dec. 13,
2007, 534 SCRA 62).
Lien over decedent's estate in favor of
creditors
The death of the decedent creates an equitable lien
over his estate in favor of the creditors. Such lien
continues until it is extinguished through payment,
prescription or other modes recognized by law.
Lawful lien against estate; obligation of
representatives or successors
A creditor's claim against the estate of a deceased
person, admitted by the committee on appraisal and
claims, whose report has been approved by the court,
without any appeal having been taken from said app roval'
is a lawful lien on the estate of said decedent, and his
representatives or successors are bound to pay said
claim with the property they have inherited from him
(Montin0/a
v. Villanueva, GR L-26008, Nov. 4, 1926, 49 Phil. 528).
terms as are equitable (Quisumbing v. Guison, GR 49022,

May31, 1946, 76 Phil. 730).
This extension of the period shall not exceed one (1)
month from the issuance of the order authorizing such
extension (Paulin v. Aquino, GR L-11267, Mar. 20, 1958,
103 Phil. 1107).
Statute of non-claims rule defined

The statute of non-claims is a rule requiring certain
creditors of a deceased person to present their claims for
examination and allowance within a specified period;
otherwise, they are barred forever (Secs. 2 and 5, Rule 86,
ROC).
Purpose of the rule in fixing the period
The law strictly requires the prompt presentation and

disposition of claims against the decedent's estate in
order to settle the affairs of the estate as soon as possible,
pay off its debts and distribute the residue.
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The purpose of the rule is to settle the affairs of the
estate with dispatch so that the residue may be delivered to
the persons entitled thereto without their being
afterwards called upon to respond in actions for claims
which, under the ordinary statute of limitations, have not
yet prescribed.
The purpose of the law in fixing a definite period
within which claims against an estate of the deceased
person must be presented is to insure a speedy
settlement Of the estate and the early distribution of the
estate of deCeased persons should not be unnecessarily
delayed by the lethargy and negligence of those who
have a direct
interest in the same (Rio y Compania v. Maslog, GR L. 12302,

Apr, 13, 1959, 105 Phil. 452).
Extension of time to present claims against estate

There must be a cause shown before the probate
court would be authorized to extend the time within
which claims may be presented against the estate. The
object of the law in fixing a definite period within which
claims must be presented is to insure the speedy settling
of the affairs of a deceased person and the early delivery
of the property of the estate into the hands of the
persons entitled to receive it (In re Estate of De Dios, GR
L-7940, Mar. 27, 1913, 24 Phil. 573).
Prescription of creditor's claim through laches

Where a creditor, knowing of a debtor's death and the
fact that no administrator is appointed allows three (3) years
to elapse without asking for the appointment of an
administrator or institute intestate proceedings in the
competent court, he is guilty of laches and his claim pre
scribes.
To hold otherwise would be to permit a creditor
having knowledge of his debtor's death to keep the latter's
estate in suspense indefinitely by not instituting either
testate or intestate proceedings in order to present his
claim to the prejudice of the heirs and legatees (Sikat v.
Vda. de Villanueva, GR 35925, Nov. 10, 1932, 57 Phil. 486)
Range of period for filing claims intended to give

probate court discretion to fix date therefor
The range of the period specified in Section 1, Rule
86 of the Rules of Court is intended to give the probate
court the discretion to fix the period for the filing of
claims• The probate court is permitted by the Rule to set
the period provided it is not less than six (6) months nor
more than twelve (12) months from the date of the first
publication of the notice thereof. Such period once fixed
by the court is mandatory (Heirs of Pizarro v.
Consolacion, GR L51278, May 9, 1988, 161 SCRA 186).
Discretion of the probate court to

allow contingent claims beyond the
time previously fixed (extension)
The probate court is given the discretion to allow
claims presented beyond the period previously fixed upon
such cause or terms as are equitable provided that they
are filed within one (1) month from the expiration of such

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period but in no case beyond the date of entry of the
order of distribution (Sec. 2, Rule 86, ROC).
Contingent claim defined
Contingent claim is a claim in which liability depends
on some future event that may or may not happen and
which makes it uncertain whether there will ever be any
l
iability (E Gaskell & Co., Inc., v. Tan Sit, GR 18405, Sept. 23,
1922, 43 Phil. 810).
Good excuse for late filing of claim

The pendency of a case before a regular court is a
good excuse for tardiness in the filing of a claim against
the estate (In pari materia: De Rama v. Palileo, GR
L18935, Feb. 26, 1965, 13 SCRA 228).
SECTION 3 RULE 86. PUBLICATION OF NOTICE TO

CREDITORS
Publication and posting of notice to creditors
Immediately after the notice to creditors is issued,
the executor or administrator shall cause the same to be
pub. fished for three (3) successive weeks in a newspaper
of general circulation in the province and to be posted for
the same period in four (4) public places in the province
and in two (2) public places in the municipality where the
decedent last resided (Sec. 3, Rule 86, ROC).
SECTION 4 RULE 86. FILING OF COPY OF PRINTED

NOTICE
Within ten (10) days after the notice has been
published and posted in accordance with Section 3, Rule
86 of the Rules of Court, the executor or administrator
shall file or cause to be filed in the court a printed copy of
the accompanied with an affidavit setting forth the dates
of first and last publication thereof and the name
newspaper in which the same is printed (Sec. 4, ROC).
SECTION 5 RULE 86. CLAIMS WHICH MUST BE FILED

UNDER THE NOTICE IF NOT FILED
BARRED• CEPT/ONS
Money claims defined
By money claims is meant any claim for "money, debt,
or interest thereon.
Not all money claims may, however, be presented
but only those which are proper against the decedent,
that is, claims upon a liability contracted by the
decedent before
Accordingly, claims arising after his death cannot thus
presented, except "funeral expenses." (Gabin v. Melliza, GR
L-1849, Oct. 25, 1949, 84 Phil. 794).
Money claims include all claims for money (money,
debt or interest) against the decedent arising from a
contract, express of implied, due or not due or contingent,
entered into by the decedent before his death.
Contingent claim vis-a-vis absolute claim

Contingent claim may be defined as a claim in which
liability depends on some future event that may or may not
happen and which makes it uncertain whether there will
ever be any liability.

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The expression is used in contradistinction to the
absolute claim which is subject to no contingency and
may be proved and allowed as a debt by the committee
or claims. The absolute claim is such a claim as, if
contested between living persons, would be proper
subject of immediate legal action and would supply a
basis of a judgment for a sum certain (E Gaskell & Co.,
Inc. v. Tan Sit, GR 18405, sept. 23, 1922, 43 Phil. 810).
Claims not yet due, or contingent, may be
approved at their present value (Sec. 5, Rule 87,
ROC).
Deficiency judgment a contingent claim to
be filed with the probate court
D
eficiency judgment is a contingent claim and
must be filed with the probate court where the
settlement of the estate of the deceased mortgagor
is pending within the Period of time fixed for the
filing of claims (Bank of the Philippine Islands v,
Concepcion e Hijos, Inc., GR L27701, July 21, 1928,
53 Phil. 806).
Effect of defendant's death during the pendency
of his appeal
In the case of a money claim, where the defendant
dies during the pendency of his appeal from the
jUdgment rendered against him, the appeal should not
be dismissed; it should continue, but the deceased
defendant should be substituted by his legal
representative, namely, the execu. tor or administrator
of the estate.
If the judgment of the lower court is affirmed, the
plaintiff must afterwards go to the probate court for an
order directing the executor or administrator to satisfy the
judgment. The Court of First Instance (now Regional Trial
Court) that originally rendered the judgment has no Power
to order its execution and a levy on the properties of the
deceased because the same are already in custodia legis in
the probate court where administration proceedings for the
settlement of the estate of the deceased defendant are
already pending (Paredes v. Moya, GR L-38051, Dec. 26,
1973, 61 SCRA 526).
Filing or notice of claims against the estate

mandatory; purpose of the requirement
All persons having money claims against the
decedent are mandated to file or notify the court and
the estate administrator of their respective money claims;
otherwise, they would be barred, subject to certain
exceptions (Sheker v. Sheker, GR 157912, Dec. 13, 2007,
534 SCRA
62),
The provision of Section 5, Rule 86 of the Rules Of Court is
mandatory. This requirement is for the purpose Of protecting the estate
of the deceased by informing the i executor or administrator of the
claims against it, thus enabling him to examine each claim and to
determine
whether it is a proper one which should be allowed, The
plain and obvious design of the rule is the speedy
settlement of the affairs of the deceased and the early
delivery of the property to the distributees, legatees or
heirs (Py Eng Chong v. Herrera, GR L-31229, Mar. 25, 1976,
70 SCRA 130).

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The law strictly requires the prompt presentation and
disposition of claims against the decedent's estate in order
to:
(1) settle the affairs of the estate as soon as possible;
(2) pay off its debts; and
(3) distribute the residue (Rio y Compania v. Maslog,
GR L-12302, Apr. 13, 1959, 105 Phil. 452).
Rule on prompt filing of claims an
exception to ordinary rules of prescription
The fact that the obligation arose from a written
contract, with a prescriptive period of ten (10) years is
irrelevant to the policy of speedy liquidation of decedent's
estates. Section 5, Rule 86 of the Rules of Court,
constitutes a special limitation that overrides the ordinary
rules of prescription:
"Under this provision, not only claims due, but also
claims not due or contingent, should be filed otherwise they
are barred forever. So that even where a claim arises upon
a written contract and, therefore its period of limitation is
ten years, if the debtor dies, such claim should be
Presented in the estate or intestate proceeding of the
deceased debtor within the time fixed by the court,
otherwise it is barred" (Moran, Commentaries on the Rules
of Court vol. Il, 1952 ed., p. 436).
Exclusive list of claims that may be filed
with the probate court
Section 5, Rule 86 of the Rules of Court provides an
exclusive enumeration of what claims may be filed
against the estate. These are:

(1) Funeral expenses;
(2) Expenses for the last illness;
(3) Judgments for money against the decedent (Aguas
v. L/emos, GR L-18107, Aug. 30, 1962, 5
SCRA 959); and
(4) Money claim against the decedent arising from
contract, expressed or implied (People v.
Bayotas, GR 102007, sept. 2, 1994, 236 SCRA
239).
Prosecution of money claims arising
from a contract against the estate
Section 5 of Rule 86 of the Rules of Court expressly
allows the prosecution of money claims arising from a
contract against the estate of a deceased debtor.
Evidently, those claims are not actually extinguished.
What is extinguished is only the obligee's action or suit
filed before the court which is not then acting as a
probate court (Stronghold Insurance Company, Inc. v.
RepublicAsahi Glass corp., GR 147561, June 22, 2006,
492 SCRA 179).
Money claim arising from a crime or

quasi-delict committed by the decedent
not included in the concept of claims
When the claim is patently one "to recover damages

for an injury to person or property" (Sec. 1, Rule 87,
ROC)'
the same cannot be enforced by filing a claim against the
estate under Rule 86 because Section 5 of that Rule explicitly
limits the claims to those for funeral expenses, expenses for
last sickness, judgments for money and "claims against the
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decedent, arising from contract, express or implied;" and this
last category (the other three being inapposite) includes only
"all purely personal obligations
other than those which have their source in delict or tort"
(Leung Ben v. O'Brien, GR L-13602, Apr. 6, 1918, 38 Phil,
182).
Claims by the government for unpaid

taxes may be enforced even after
distribution of the estate
Claims by the government for unpaid taxes are not
covered by the statute of non-claims as these are monetary
obligations created by law. Even after the distribution of
the estate, claims for taxes may be enforced against the
distributees in proportion to their shares in the inheritance
(Social Security Commission v. Alba, GR 165482, July 23,
2008, 559 SCRA 477).
Judgment for money against the decedent;

when and how filed
Section 5, Rule 86 of the Rules of Court provides that a
judgment for money against the decedent must be filed
with the court in the proceeding for the settlement of the
estate. In other words, the cut-off date is the date of actual
levy on execution.
If the judgment debtor dies after such levy, the
preoperty levied upon may be sold; if before, the money
judgment must be presented as a claim against the estate
although the same need no longer be proved, the judgment
itself being conclusive. But the judgment creditor will
share the estate with other creditors, subject only to
such preferences as are provided by law (Evangelista v.
La Proveedora, Inc., GR L-32824, Mar. 31, 1971, 38
379).
Contractual money claims; case law

With regard to respondents' monetary claim, the
same shall be governed by Section 20 (then Section 21)
Rule 3 of the Rules of Court which provides:
"SEC. 20. Action on contractual money claims.—
When the action is for recovery of money arising from
contract, express or implied, and the defendant dies
before entry of final judgment in the court in which the
action was pending at the time of such death, it shall not
be dismissed but shall instead be allowed to continue
until entry of final judgment. A favorable judgment
obtained by the plaintiff therein shall be enforced in the
manner provided in these Rules for prosecuting claims
against the estate of a deceased person."
In relation to this, Section 5, Rule 86 of the Rules of

Court states:
"SEC. 5. Claims which must be filed under the notice. If
not filed, barred; exceptions.—All claims for money against
the decedent arising from contract, express or implied,
whether the same be due, not due, or contingent, ... and
judgment for money against the decedent, must be filed
within the time limited in the notice; otherwise they
are barred forever, except that they may be set
forth as counterclaims in any action that the
executor or administrator may b rin g against the
claimants...
Thus, in accordance with the above Rules, the
money claims of respondents must be filed against the
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estate of petitioner (Gabriel v. Bilon, GR 146989, Feb. 7,
2007, 515 SCRA 29).
Death not a defense to wipe out the obligations under

a peHormance bond; case law
In the present case, whatever monetary liabilities or
obligations Santos had under his contracts with respondent
were not intransmissible by their nature, by stipulation or by
provision of law. Hence, his death did not result in the
extinguishment of those obligations or liabilities which merely
passed on to his estate.
Death is not a defense that he or his estate can set
up to wipe out the obligations under the performance
bond. Consequently, petitioner as surety cannot use his
death to escape its monetary obligation under its
performance bond (Stronghold Insurance Company, Inc.
v. RepublicAsahi Glass corp., GR 147561, June 22, 2006,
492 SCRA 179).
Money claims secured with a lien outside the
jurisdiction of the probate court
A probate court, being of limited jurisdiction, has no
authority to enforce a lien unless conferred by a statute.
The statutory jurisdiction of a probate court is
exclusive and since the lien referred to in Section 1, Rule
88 of the Rules of Court is not among those mentioned in
Section 5, Rule 87, it is reasonable to assume that all
money claims secured with a lien are outside the
jurisdiction of the probate court (Olave v, Camas, GR L-
12709, Feb. 28, 1962, 4 SCRA 463).

SECTION 6 RULE 86. SOLIDARY OBLIGATION
OF DECEDENT
Death of one of two persons solidarily liable
for the same debt
Where two (2) persons are bound in so/idum for the
same debt and one of them dies, the whole indebtedness
can be proved against the estate of the latter, the
decedent's liability being absolute and primary; and, if the
claim is not presented within the time provided by the
rules, the same will be barred as against the estate.
There is also nothing improper in the creditor's filing of an
action against the surviving solidary debtors alone instead of
instituting a proceeding for the settlement of the estate of the
deceased debtor wherein his claim could be filed (Manila
Surety & Fidelity Co., Inc. v. Vi//arama, GR L12165, Apr. 29,
1960, 107 Phil. 891).
Option of a creditor in a solidary

obligation whether to file a claim against
the estate of the solidary debtor
rt
Nothing in Section 6, Rule 86 of the Rules of Cou
prevents a creditor from proceeding against the survivi ng
solidary debtors. Said provision merely sets up the pro cedure
in enforcing collection in case a creditor chooses to pursue
his claim against the estate of the deceased s oli- dary
debtor.
The rule has been set forth that a creditor (in a solidary
obligation) has the option whether to file or not to file a

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claim against the estate of the solidary debtor (PN B v'
Asuncion, GR L-46095, Nov. 23, 1977, 80 SCRA 321).
Right of a creditor to proceed
against anyone of the solidary
debtors; Article 1216 of the Civil
Code should prevail over Section 6,
Rule 86, ROC
Article 1216 of the Civil Code gives the creditor the
right to "proceed against anyone of the solidary debtors
or some or al/ of them simultaneously." The choice is
undoubtedly left to the solidary creditor to determine
against whom he will enforce collection.
In case of the death of one of the solidary debtors,
he (the creditor) may, if he so chooses, proceed against
the surviving solidary debtors without necessity of filing
a claim in the estate of the deceased debtors. It is not
mandatory for him to have the case dismissed as against
the surviving debtors and file its claim against the estate
of the deceased solidary debtor.
For to require the creditor to proceed against the
estate, making it a condition precedent for any collection
action against the surviving debtors to prosper, would
deprive him of his substantive rights provided by Article
1216 of the Civil Code (Manila Surety & Fidelity Co., Inc. v.
Villarama, GR L-12165, Apr. 29, 1960, 107 Phil. 891).
Section 6, Rule 86 of the Rules of Court cannot be
made to prevail over Article 1216 of the New Civil Code,
the former being merely procedural while the latter
being substantive (PNB v. Asuncion, supra.).

SECTION 7 RULE 86, MORTGAGE DEBT DUE
FROM ESTATE
All secured claims by a creditor covered
by the Rule
Section 7, Rule 86 of the Rules of Court covers all see

cured claims, whether by mortgage or any other form of
collateral, which a creditor may enforce against the estate
Of the deceased debtor. This provision remains applicable in
dealing with a creditor's claim against the mortgaged
property of the deceased debtor as well as mortgages made
by the administrator (Mag/asang v. Manila Banking corp.,
GR 171206, sept. 23, 2013, 706 SCRA 235).
Remedies of mortgagee against estate;
election of a remedy bars the rest
Section 7, Rule 86 of the Rules of Court provides
that a creditor holding a claim against the deceased
Secured by a mortgage may pursue any of these
remedies:
(a) Abandon his security and prosecute his claim in the
estate or intestate proceeding and share in the
distribution of the estate;
(b) Foreclose his mortgage, making the executor or
administrator a party defendant and if there is a
deficiency after the sale of the mortgaged
property, he may prove the same in the testate or
intestate proceedings; or

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(c) Rely exclusively upon his mortgage in which case

he shall not share in the distribution of the
assets
of the estate (Liwanag v. Reyes, GR L-19159, sept.
20, 1964, 12 SCRA 43).
These remedies are distinct, independent and
mutually exclusive from each other; thus, the election of
one effectively bars the exercise of the others (Mag/asang
Manila Banking Corp., supra.).

Instances when a remedy Is consldered as
chosen
The remedies available to the mortgage creditor
are deemed alternative and not cumulative. An election of
one remedy operates as a waiver of the other.
For this purpose, a remedy is deemed chosen:
(1) upon the filing of the suit for collection, or
(2) upon the filing of the complaint in an action for
foreclosure of mortgage, pursuant to the provision of
Rule 68 of the 1997 Rules of Civil Procedure.
As to extrajudicial foreclosure, such remedy IS
deemed elected by the mortgage creditor upon filing of
the petition not with any court of justice but with the
Office of the Sheriff of the province where the sale is to
be made, in accordance with the provisions of Act No.
3135, as amended by Act No.4118 (Bank of America, NT
and SA v. American Realty corp., GR 133876, Dec. 29,
1999, 321 SCRA 659).
Third remedy of extrajudicial foreclosure waives
creditor's right to recover deficiency
The third remedy (of extrajudicial foreclosure)

includes the option of extra-judicially foreclosing the
mortgage under Act No. 3135 (Ibid.).
The plain result of adopting the last mode of
foreclosure, that is, to rely on the mortgage exclusively,
foreclosing the same (extrajudicially) at any time before
it is barred by prescription, is that the creditor waives his
right to recover any deficiency from the estate (Perez v.
PNB, GR L21813, July 30, 1966, 124 Phil. 260).
Power to foreclose mortgage an authority
conferred for the mortgagee's protection
The power to foreclose a mortgage is not an ordinary
agency that contemplated exclusively the representation
of the principal by the agent but is primarily an authority
conferred upon the mortgagee for the latter's own protec_
tion. That power survives the death of the mortgagor
(Bicol Savings and Loan Assoc. v, CA, GR 85302, Mar. 31
1989, 171 SCRA 630).
Mortgagee retains right to foreclose

mortgage after mortgagor's death
The mortgagee does not lose his right to
extrajudicially foreclose the mortgage even after the death
of the mortgagor as a third alternative under Section 7,

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Rule 86 of the Rules of Court (Vda. De Jacob v. CA, GR
88602, Apr. 6, 1990, 184 SCRA 294).
Suit against the special administrator

of the estate
A mortgagee may bring action for foreclosure of the
mortgage against the special administrator of the estate a
deceased person.
The Rules of Court do not expressly prohibit making the
administrator a defendant in a suit against the estate,
otherwise, creditors would find the adverse effects of the
statute of limitations running against them in cases where the
appointment of a regular administrator is delayed (Liwanag v.
CA, GR L-20735, Aug. 14, 1965, 14 SCRA 922)'
Right to redeem a mortgaged
property of the decedent
discretionary upon the executor or
administrator
The rule merely reserves a right to the executor or
administrator of an estate to redeem a mortgaged or
pledged property of a decedent which the mortgagee or
pledgee has opted to foreclose instead of filing a money
claim with the probate court under Section 7 of Rule 86.
While the redemption is subject to the approval of the
probate court, the exercise of the right is discretionary
upon the said executor or administrator and may not be
ordered by the probate court upon its own motion (Spouses
Manalansan v. Castaneda, Jr. GR L-43607, June 27, 1978, 83
SCRA 777).
Premium paid in bond not expense

of administration
Expenses or premiums paid or incurred by an executor
or administrator serving without compensation to procure
a bond is not a proper charge against the estate. Section 7,
Rule 86 of the Rules of Court does not authorize the
executor or administrator to charge against the estate the
money paid for premium (Doctrine laid down in Sulit v.
Santos, 56 Phil, 626, reiterated in Sison v. Teodoro, GR L-
9271, Mar. 29, 1957, 100 Phil. 1055).
SECTION 8 RULE 86. CLAIM OF EXECUTOR OR

ADMINISTRA TOR AGAINST AN ESTATE
Another instance when probate court may
appoint a special administrator
If the executor or administrator has a claim against the
estate he represents, he shall give notice thereof, in writing,
to the court and the court shall appoint a special
administrator who shall, in the adjustment of such claim,
have the same power and be subject to the same liability as
the general administrator or executor in the settlement Of
other claims. The court may order the executor or ad.
ministrator to pay to the special administrator necessary
funds to defend such claim (Sec. 8, Rule 86, ROC).
This is one (1) of only two (2) instances when a pro.
bate court may appoint a special administrator, the other
instance being when there is delay in the granting of let.
ters testamentary or of administration by any cause
include ing an appeal from the allowance or disallowance
of a will pursuant to Section 1, Rule 80 of the Rules of
Court. The special administrator so appointed shall have
authority to act only with respect to the claim of the
general (regular) administrator or the executor.

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SECTION 9, RULE 86. HOW TO FILE A CLAIM, CON. TENTS
THEREOF. NOTICE TO EXECUTOR OR ADMINISTRA
TOR
How to file a claim against the estate

A claim may be filed against the estate of the
decedent in the following manner:
(1) by delivering the claim with the necessary
vouchers to the clerk or court;
(2) by serving a copy thereof on the executor or
administrator;
(3) by supporting the claim, if it be due, with an
affidavit stating the amount due and the fact that
there has been no offsets; and

(4) by accompanying the claim, if it be not due or
contingent, with an affidavit stating the
particulars thereof (Sec. 9, Rule 86, ROC).
Notice requirement as an implication of
due process
In estate settlement proceedings, it is imperative
that the administrator be notified of any claim that is in fact
asserted against the estate so as to afford him every
opportunity to dispute the claim. This notice requirement is
basically an implication of due process (Ramos v. Bidin, GR
L-53650, May 28, 1988, 161 SCRA 561).
Effect of failure to file claim

Failure of a creditor to file money claim against the
decedent in the intestate proceedings within the period
fixed in the notice of the creditors bars forever said
creditor from prosecuting any claim against the estate of
the decedent (Empire Insurance Company v. Rufino, GR
L38268, May 31, 1979, 90 SCRA 437, citing Secs. 5 and 9,
Rule 86, ROC).
SECTION 10 RULE 86. ANSWER OF EXECUTOR OR

ADMINISTRATOR. OFFSETS
Executor or administrator to file answer
to claim with offset
Within fifteen (15) days after service of a copy of the
claim on him, the executor or administrator shall file his
answer specifically admitting or denying the claim and
setting forth the admission or denial. If he has no
knowledge sufficient to enable him to admit or deny
specifically, he shall state such want of knowledge.
In his answer, the executor or administrator shall
allege in offset any claim which the decedent before
death had against the claimant, and his failure to do so
shall bar the claim forever. A copy of the answer shall be
served by the executor or administrator on the
claimant. The court in
its discretion may extend the time for the filing of such answer -
Probate court has no jurisdiction over a claim against a
third party; counterclaim to offset a claim against the
estate deemed compulsory
When the demand (or claim) is in favor of the
admin. istrator and the party against whom it is
enforced is a third party not under the (probate)
court's jurisdiction, the de. mand cannot be by mere
motion by the administrator but by an independent
action against the third person. The demand cannot be
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made because third persons not under the jurisdiction of
the court are involved (De Paula v, Escay, GR L-8559,
sept. 28, 1955, 97 Phil. 617).
However, Section 10, Rule 86 of the Rules of Court
authorizes the executor or administrator to interpose any
counterclaim to offset a claim against the estate which
counterclaim shall be considered as a compulsory
counterclaim inasmuch as the failure to allege the claim in
his answer shall forever bar the claim.
SECTION 11 RULE 86. DISPOSITION OF

ADMITTED
CLAIM
Claim admitted by the executor or

administrator may be approved by the probate
court without hearing; oppositors may be heard
The clerk of court shall immediately submit any c laim
admitted entirely by the executor or administrator to the
probate court which may approve the same without hear ing;
but the court, in its discretion, before approving the claim,
may order that the known heirs, legatees or devisees be
notified and heard.
If, upon hearing, an heir, legatee or devisee opposes
the claim, the court may, in its discretion, allow him
fifteen (15) days to file an answer to the claim in the
manner prescribed in Section 10, Rule 86 of the Rules of
Court (Sec. 11, Rule 86, ROC).

SECTION 12, RULE 86. TRIAL OF CONTESTED CLAIM
Conduct of trial and referral of claim to a

commissioner
Upon the filing of an answer to a claim or upon the
expiration of the time for such filing, the clerk of court shall
set the claim for trial with notice to both parties. The court
may refer the claim to a commissioner (Sec. 11, Rule 86,
ROC).
SECTION 13 RULE 86. JUDGMENT APPEALABLE

Judgment of the probate on a claim may be
subject of an appeal; no lien created on the
estate nor priority of payment given to
judgment creditor
The judgment of the probate court approving or
disapproving a claim shall be filed with the record of the
administration proceedings with notice to both parties
and shall be appealable as in ordinary cases.
A judgment against the executor or administrator shall be that
he pay, in due course of administration, the amount ascertained to be due
and it shall not create any lien upon the property of the estate or give to the
judgment creditor any priority of payment (Sec, 13, Rule 86,
ROC).
EXPOSIT10N 242
Mode of appeal
The mode of appeal is
record of appeal which

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must be filed within thirty (30) days from notice of jUdgment
(Sec. 39, BP. 129).
SECTION 14 RULE 86. COSTS

of and
Effects of claimant's refusal to accept the offer
discontinuance of action for money and presentation
thereof under the provisions of Rule 86
Should the executor or administrator, in his answer,
admit and offer to pay a part of a claim and the claimant
refuses to accept the amount offered in satisfaction
claim, the latter cannot recover costs if he fails to obtain
a more favorable judgment but must pay to the executor
administrator costs from the time of the offer.
In case an action for money commenced against the
decedent has been discontinued and the claim embraced
therein presented as provided in Section 13, Rule 98 Of
the Rules of Court, the prevailing party shall be allow ed
the costs of his action up to the time of its discontinuan ce

tierein is stateu
t
o dtioen the executor provided or administrator for, any
hascreditor of the estate may
th with the permission of the court, commence and

e prosecute final judgment, in the name of the executor or
th adminis. trator, a like action for the recovery of the subject
e of the conveyance or attempted conveyance for the
benefit of creditors. But the action shall not be
commenced until creditors has filed in a court a bond
to executed to the executor or administrator, in an amount
r approved by the judge, conditioned to indemnify the
such
executor or administraagainst the costs and expenses
incurred by reason of action. Such creditor shall have a lien
an upon any judgment recovered by him in the action for such
d costs other expenses incurred therein as the court deems
equitable. Where the conveyance or attempted conveyhas
ancbeen made by the deceased in his lifetime in of the
e executor or administrator, the action which a creditor may
favobring shall be in the name of all the creditors, permission
r of the court and filing of bond as above rescribed, are not
andnecessar
RULE 87. ACTIONS BY AND AGAINST

EXECUTORS AND ADMINISTRATORS
SECTION 1 RULE 87. ACTIONS WHICH MAY
AND WHICH MAY NOT BE BROUGHT AGAINST
EXECUTOR OR ADMINISTRA TOR.

RULE
Claim for recovery of money or debts or interest
against executors and administrators
Scanned
No action upon a claim for the recovery of money or

debts or interest thereon shall be commenced against
the executor or administrator (Sec. 1, Rule 87, ROC). Such
action must be brought in the proceeding for the
settlement of the decedent's estate.
General rule
The general rule, therefore, is that no action upon a
claim for recovery of money or debt or interest shall be
commenced against the executor or administrator, as
the creditor's rgmedy is to file a claim in the proceedings for
settlement of the deceased debtor's estate.
Exception to rule
As a general rule, "no action upon a claim for the
recovery of money or debt or interest thereon shall be
commenced against the executor or administrator" because
the creditor's remedy is to file the proper claim in the
proceeding for the settlement of the deceased debtor's
estate within the period fixed in the Statute of non-claims
(Secs. 2 and 5, Rule 86 and sec. 1, Rule 87, ROC).
a case where the original judgment has
become stale because of its non-execution after the
lapse of five years (Sec. 6, Rule 39, ROC), the same cannot

circum.
be presented against the estate of the decedent
unless it is first revived by action. The object of the
institution of the second suit is not to make the said
estate pay the sums of money adjudged in the first
judgment but merely to keep alive said judgment so
that the sums therein awarded can be presented as
claims against the estate in the special Proceedings
(Romualdez v. Tiglao, GR L-51151, July 24, 1981, 105
SCRA 762).
Said case, because of its foregoing singular

stances, is an exception to the above general rule.
Actions that may be brought against executors
and administrators after the decedent's death
The following actions which survive the death of
decedent may be commenced directly against the tor or
the
administrator: execu-
(Y) Action to recover real or personal property, interest
therein, from the estate; or
or an
(P) Action to enforce a lien thereon; and
(c) Action to recover damages for an injury act)
to person or property, real or personal (tortious
1,
Rule 87, ROC). (Sec.
Other actions that may be brought against

executors and administrators
In addition to the actions that may be
commenced against the executor or administrator
1,
under Section Rule 87, of the Rules of Court, the
following actions also be brought against them: may

RULE
(1) To recover as costs the court charges in ing the
appointment of an executor or administrator as
ordered by the court to the opposing in a pending
case:
(a) if no legal representative is named by
counsel for the other party who dies its
pendency; or
(b) if the one so named shall fail to within
the specified period (Sec. 16, Rule ROC);
and
(2) To enforce a favorable judgment obtained by
during
the plaintiff in an action for the recovery of
money arising from contract, express or
implied, in the manner especially providedappearin
the Rules of Court for prosecuting claims
against the estate of a deceased person, in case
the defendant dies before entry of final
judgment in the court in which the action is
pending at the time of such death and said
action is allowed to continue until entry of final
judgment (Sec. 20, Rule 3, ROC).
Suit to revive money judgment not barred

The institution of a second suit for the revival of
judgment is not for the purpose of making the estate pay
the sums of money adjudged in the first judgment
(recovery of a sum of money that it is barred by Section 1,
Rule 87 of the Rules of Court) but for merely keeping alive
said judgment so that the sums therein awarded can be
presented as claims against the estate in the probate

proceedings (Romua/dez v. Tig/ao, GR L-51151, July 24,
1981, 105 SCRA 762).
How may a claim be enforced against a third patty

When the demand (or claim) is in favor of the
administrator and the party against whom it is enforced is
a third Party not under the court's jurisdiction, the
demand cannot be by mere motion by the administrator
but by an indePendent action against the third person (De
Paula v. Escay, GR L-8559. sept 28, 1955, 97 Phil. 617).
An action to enforce a mortgage lien not being a
pure money claim survives the death of the
mortgagor If the mortgagor dies during

the pendency o his ape peal, the action for foreclosure is
not thereby extinguished because the claim against him is
not a pure money claim but an action to enforce a
mortgage lien. It is an action which survives the
mortgagor's death and which can pro. ceed independently
of the intestate proceeding for the settlement of his estate
(Spouses Manalansan v. Castaneda, Jr., GR L-43607, June
27, 1978, 83 SCRA 777).
SECTION 2, RULE 87. EXECUTOR OR

ADMINISTRA. TOR MAY BRING OR DEFEND
ACTIONS WHICH SUR.
VIVE

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Right of executor or administrator to

commence and prosecute an action or
to prosecute one already commenced
by the decedent in his lifetime
Section 2, Rule 87 of the Rules of Court recognizes
the right of an executor or administrator not only to
continue the prosecution of an action already begun but
also to institute an action upon a cause which accrued in
the lifetime of the deceased but which (cause of action
survives and) has not been made the subject of action by
h im (Bayot v. Zurbito, GR L-13124, Feb. 28, 1919, 39 Ph il.
650).
Right of the heirs to bring suit pending
the appointment of an administrator
Section 3, Rule 3 and Section 2, Rule 87 of the
Rules of Court, while permitting an executor or
administrator to represent or to bring suits on behalf
of the deceased, do not prohibit the heirs from
representing the deceased' These rules are easily
applicable to cases in which an administrator has
already been appointed.
But no rule categorically addresses the situation in
which special proceedings for the settlement of an estate
have already been instituted, yet no administrator has
been appointed. In such instances, the heirs cannot be
expected to wait for the appointment of an administrator,
then wait further to see if the administrator appointed
would care enough to file a suit to protect the rights and
the interests of the deceased and, in the meantime, do

nothing while the rights and the properties of the
decedent are violated or dissipated (Gochan v. Young, GR
131889, Man 12, 2001, 354 SCRA 207).
Exceptions to the rule allowing only

the executor or administrator to bring
or defend actions on behalf of the
decedent
Even if there is an appointed administrator, there are
two (2) recognized exceptions to the rule permitting only
an executor or administrator to represent or to bring suits
on behalf of the deceased, viz:
(1) if the executor or administrator is unwilling or
refuses to bring suit (Pascual v. Pascual, GR
L48140, May 4, 1942, 73 Phil. 561); and
(2) when the administrator is alleged to have
participated in the act complained of
(Velasquez v. George, GR L-62376, Oct. 27,
1983, 125 SCRA 456) and he is made a party
defendant (Borromeo v. Borromeo, GR L-7548,
Feb. 27, 1956, 98 Phi/ 432).
Separate suit for the recovery of money
debt to the estate
The recovery of money (rentals) that is considered debt to

the estate not against the estate - should be by a separate
suit (and not by mere motion) commenced by the
administrator (Sec. 2, Rule 87, ROC; Dela Cruz v. Camon,
GR L-21034, Apr. 30, 1966, 16 SCRA 886).

RULE
SECTION 3 RULE 87. HEIR MAY NOT SUE UNTIL

SHARE ASSIGNED
When an heir or devisee can sue an
executor or administrator
When an executor or administrator is appointed
and assumes the trust, no action to recover the title or
possession of lands or for damages done to such lands
shall be maintained against him by an heir or devisee
until:
(1) there is an order of the court assigning such
lands to such heir or devisee; or
(2) the time allowed for paying debts has expired
Heirs have legal personality to sue before

institution of probate proceedings
Pending the filing of administration proceedings,
the heirs have the legal personality to bring suit in
behalf Of the estate of the decedent in accordance with
the provision of Article 777 of the Civil Code "that (t)he
rights to succession are transmitted from the moment of
the death of the decedent. "
The provision, in turn, is the foundation of the
principle that the property, rights and obligations to the
extent and value of the inheritance of a person are
transmitted through his death to another or others by
his will or by operation of law (Coronel v. CA, GR 103577,
Oct. 7, 1996' 263 SCRA 15).
Heirs have no legal standing in probate court
Actions for the recovery or protection of the
property or rights of the deceased for causes which
survive may be prosecuted or defended by his executor
or administrator. Upon the commencement of the
testate or intestate proceedings, the heirs have no
standing in court in actions of the above character,
except when the executor or administrator is unwilling or
fails or refuses to act, in which event the heirs may act in
his place (Pascual v. Pascual, GR L48140, May 4, 1942, 73
Phil. 561).
Exceptions to the rule that the heirs

have no legal standing to sue
The rule that the heirs have no legal standing to sue for
the recovery of property of the estate during the pendency
of administration proceedings has three (3) exceptions, to
wit:
(1) Where there is an appointed administrator but he
is disinclined to bring suit;
(2) Where the appointed administrator is one of the
guilty parties himself; or
(3) Where there is no appointed administrator
(Rioferio v. CA, GR 129008, Jan. 13, 2004, 419
SCRA 54).

RULE
SECTION 4 RULE 87. EXECUTOR OR

ADMINISTRATOR MAY COMPOUND WITH
DEBTOR
Executor or administrator may compound or
discharge debt
With the probate court's approval, the executor or
administrator may compound with the debtor of the
decedent for a debt due and may give a discharge of
such debt
upon receiving a just dividend of the estate ot the
debtor (Sec. 4, Rule 87, ROC).
SECTION 5 RULE 87. MORTGAGE DUE ESTATE

MAY BE FORECLOSED
Executor or administrator may foreclose
mortgage belonging to estate
The executor or administrator may foreclose a
mort. gage belonging to the estate of a deceased
person as mortgagee or assignee of the right of a
mortgagee (Sec. 5, Rule 87, ROC).
Executor or administrator may bring action to

foreclose mongage or enforce payment of debt
without special authority of the probate court
An (executor or) administrator of the estate of a
deceased person may, without special authority of the
probate court, bring an action on behalf of the estate:
(a) to foreclose a mortgage; or

(b) to enforce payment of a debt (Calimbas Paguio, GR
22197, Dec. 2, 1924, 46 Phil. 566).
Charging lien established in ordinary

civil action
Under the provision of Section 7, Rule 87 and Section
1, Rule 88 (now Section 7, Rule 86 and Section 1, Rule 87)
of the Rules of Court, a creditor holding a claim against the
deceased secured by mortgage or other collateral security
may foreclose his mortgage or realize upon his security by
ordinary action in court making the execUtor or
administrator a party defendant, and need not file his
claim before the probate court to share in the general
distribution of the assets of the estate.
Under the same theory, an action to recover real or
personal property from the estate or to enforce a lien
thereon maybe prosecuted by the interested person
against the executor or administrator independently of
the testate or intestate proceedings. A charging lien
established on the property in litigation to secure the
payment of the attorney's fees of the counsel partakes of
the nature of a collateral security or of a lien on real or
personal property within the meaning of the provisions of
our rules (Olave v. Camas, GR L-12709, Feb. 28, 1962, 4
SCRA 463).

RULE
Reason behind the rule; money

claims secured with a lien not
within the jurisdiction of the
probate court
A probate court, being of limited jurisdiction, has no
authority to enforce a lien unless conferred by a statute.
The statutory jurisdiction of a probate Court is exclusive
and since the lien referred to in Section 1, Rule 88 (now
Sec. 1, Rule 87) of the Rules of Court is not among those
mentioned in Section 5, Rule 87 (now Sec. 5, Rule 86, ROC),
it is reasonable to assume that all money claims secured
with a lien are outside the jurisdiction of the probate court
(Olave v. Camas, GR L-12709, Feb. 28, 1962, 4 SCRA 463).
SECTION 6 RULE 87. PROCEEDINGS WHEN

PROPERTY CONCEALED EMBEZZLED OR FRAUDU
LENTLY CONVEYED
Rule to secure evidence of possession,

knowledge, etc. of properties of the
decedent
Section, 6 Rule 87 of the Rules of Court seeks to cure
evidence from persons suspected of:
(1) having possession or knowledge of the
properties left by a deceased person; or
(2) having concealed, embezzled or conveyed any of
the properties of the deceased (Modesto v.
desto, GR L-11801, June 30, 1959, 105
Phil. 1379).

Probate coun has the duty to ensure that
the administrator lists all the properties,
rights and credits of the decedent in the
inventory
The court which acquires jurisdiction over the
properties of a deceased person through the filing of the
corresponding proceedings has supervision and control
over these properties. The trial court has the inherent
duty to see to it that the inventory of the administrator
lists all the properties, rights and credits which the law
requires the administrator to include in his inventory. In
compliance with this duty, the court also has the inherent
the
power to determine what properties, rights and creditsin of
ceased the administrator should include or exclude
inventory.
An heir or person interested in the properties of a
ceased may call the court's attention that certain prop
ties, rights or credits are left out from the inventory.
such a case, it is likewise the court's duty to hear th e
such
servations of such party. The court has the power to
termine if such observations deserve attention and if
properties belong prima facie to the estate (Garcia v.
Cia, GR 45430, Apr. 15, 1939, 67 Phil. 353).
probate court has no authority to
decide ownership of propettles
subject of the examination;
administrator should flle ordinary
action to recover properties found to
belong to the estate

RULE
The trial (probate) court has no authority to decide
whether the properties, real or personal, belong to the
estate or to the persons examined. If after such
examination there is good reason to believe that the
person examined is keeping properties belonging to the
estate, then the administrator should file an ordinary
action in court to recover the same (Modesto v.
Modesto, GR L-11801, June 30, 1959, 105 Phil. 1067).
Right of assignees of shares of

stocks to be heard on ownership
thereof
The inclusion of certain shares of stock by the
administrator in the inventory does not automatically
deprive the assignees of their shares. They have a right to
be heard on the question of ownership when that
property is properly presented to the court (Alafriz v.
Mina, GR L-8231, Oct. 3, 1914, 28 Phil. 137).
Third persons may be examined for

decedent's assets conveyed to them
Third persons to whom the decedent's assets had
been conveyed may be cited to appear in court and
examined under oath as to how they came into
possession of the decedent's assets. In case of fraudulent
conveyances, a separate action is necessary to recover
these assets (Sebial v. Sebial, No, L-23419, 27 June 1975,
64 SCRA 385).

The trial court may allow the examination of the
leged transferees of the shares of stocks for the sole
pure pose of eliciting information or securing
evidence from persons suspected of concealing or
conveying Some of the decedent's properties to the
prejudice of creditors (Va. lera v. Inserto, No. L
56504, 7 May 1987, 149 SCRA 533).
Money debt to the estate may be recovered
by a separate suit
Where the money (rentals) due is not properly in
the hands of the administrator, thus not within the
effective control of the probate court, nor does it come
within the concept of money of the deceased
"concealed, embezz/ed, or conveyed away" which
would confer upon the court incidental prerogative to
reach out its arms to get it back and, if necessary, to cite
the possessor thereof contempt (Sec. 6, Rule 87, ROC),
that money is, at best, debt to the estate and not one
against the estate the covery of which should be by
separate suit commenced (and not by mere motion) by
the administrator (Sec. 2, Rule 87, ROC; De/a Cruz v.
Camon, GR L-21034, Apr. 30, 1966, 16 SCRA 886).
Right of the administrator of the estate to the

production and examination of certain documents
may be allowed
that the right of the administrator of the estate to the
production and examination of the specified
documents believed to be in another person's
possession can be allowed based on the
RULE
administrator's belief that the person named in the
request for subpoena has documents in his possessi0n
that tend to show the decedent's right to real or personal
259
property (Rivera v. Ramirez, GR 189697, June 27, 2012, 675

SCRA 352).
Probate court has no authority to

decide who the heirs are or which
properties belong to whom
The intestate court has no authority to decide who
the decedent's heirs are in connection with such incident
which is confined to the examination of documents which
may aid the administrator in determining properties
believed to belong to the decedent's estate. Moreover,
that court has no authority to decide the question of
whether certain properties belong to the estate or to the
person sought to be examined (Ibid.).
Fact-finding proceeding
A proceeding under Section 6, Rule 87 of the Rules of
Court is merely in the nature of fact-finding inquiries
(Punongbayan v. Punongbayan, GR 156842, Dec. 10, 2004,
446 SCRA 100).
Rule intended to elicit information or

evidence relative to estate properties
The purpose of this section (now Section 5, Rule 87
Of the Rules of Court) is merely to elicit information or
to secure evidence from those persons suspected of
having POssessed or having knowledge of the properties

left by a deceased person, or of having concealed,
embezzled or conveyed any of the said properties of
the deceased.
In such proceedings the trial court has no authority to
decide whether or not said properties, real or personal, to
belong to the estate or to the persons examined. If, after
such examination there is good reason to believe that said
person or persons examined are keeping properties
longing to the estate, then the next step to be taken
shouw be for the administrator to file an ordinary
cannot
action in court recover the same (Modesto v. Modesto,
GR L-11801 June 30, 1959. 105 Phil. 1067).
Questions of ownership not to be passed upon i
in probate; exceptions nthe
may
As a general rule, questions of title to property
witho
be passed upon in testate or intestate proceedings,ut
cept:
15,
(a) where one of the parties prays merely for the
clusion or exclusion from the inventory of
property, in which case the probate court a
pass provisionally upon the question so
prejudice to its final determination in a pass
separate action (Garcia v. Garcia, GR 45430, LWI
Apr. 1939, 67 Phil. 353); and TH
(b) when the parties are all heirs of the deceased

and they opted to submit to the probate
court question as to title to property, and
when submitted, said probate court may
definitely judgment thereon (Pascual v.
Pascua/, GR 48140, May 4, 1942, 73 Phil.
561).
RULE
SECTION 7 RULE 87. PERSON ENTRUSTED ESTATE
COMPELLED TO RENDER ACCOUNT
Probate court may require a person complained of by

the executor or administrator to appear and submit a
full sworn account of the property of the estate or may
cite him in contempt should he fail to obey such order
On complaint of an executor or administrator, the
probate court may cite a person entrusted by the former
with any part of the estate of the deceased to appear
before it and may require such person to render a full
sworn account of the property or other papers belonging
to such estate as are in his possession in trust for such
executor or administrator and of his proceedings thereon.
If the person so cited refuses to appear to render
such account, the court may punish him for contempt as
having disobeyed a lawful order of the court (Sec, 7, Rule
87, ROC).
Duty to account of persons in possession

of the property of the decedent
All persons who come into possession of property
belonging to any decedent are liable therefor and
accountable to the lawful administrator when the estate
is finally drawn into judicial administration and this
responsibility extends to the restoration of the fruits,
increase and accessions of such property as well as to the
surrender of its proceeds, where it has been sold or
exchanged, and to compensation for its value where it
has been appropriated, converted or consumed.
When it occurs that the person qualifying as
administrator is the same as the one who acted as
custodian and manager prior to the inception of the
administration proceedings, his duty to account is no less
insistent and inevitable (Lopez v. Lopez, GR 13823, Sept
22, 1919, 40 Phil. 184).
SECTION 8 RULE 87. EMBEZZLEMENT BEFORE LET

TERS ISSUED
Rule covers only embezzlement or
alienation causing the loss of property
converted; when "double the value rule"
does not apply
Section 8, Rule 87 of the Rules of Court contemplates
an embezzlement or alienation which causes the estate to
lose the property converted by the wrongdoer and (the
"double the value rule") is not applicable to the acts of a
manager of a going concern who applies the proceeds of
the manufactured product to the expenses incurred in
run. ning the business (Marscha// v. Antho/tz, GR 31672,
Feb, 14, 1930, 54 Phil. 448).
Embezzler's liability to be determined

in a separate proceeding
Section 8, Rule 87 of the Rules of Court explicitly
provides that the embezzler's liability shall be determined
in "an action," and not in the intestate proceeding
(Modesto
v. Modesto, GR L-11801, June 30, 1959, 105 Phil 1067).
Embezzler or alienator liable for double
the value of the property
A person who, before the granting of letters
testamentary or of administration on the estate of the
RULE
decedent, embezzles or alienates any of the property or
effects thereof shall be liable to an action in favor of the
executor or administrator of the estate for double the value
of the property sold, embezzled or alienated to be
recovered for the benefit of the estate (Sec. 8, Rule 87,
ROC).
SECTION 9 RULE 87. PROPERTY FRAUDULENTLY

CONVEYED BY DECEASED MAY BE RECOVERED,
WHEN EXECUTOR OR ADMINISTRA TOR
MUST BRING
ACTION
Action to recover property fraudulently

conveyed by the decedent
In case there is a deficiency of assets in the hands of an
executor or administrator for the payment of debts and
expenses of administration and the deceased in his life time
had conveyed real or personal property or a right or
interest therein or a debt or credit with intent to defraud
his creditors or to avoid any right, debt or duty; or that by
law the conveyance would be void as against his creditors
and the subject of the attempted conveyance would be
liable to attachment by any of them in his lifetime, the
executor or administrator may commence and prosecute
to final judgment an action for the recovery of such
property, right, interest, debt or credit for the benefit of
the creditors.
But the executor or administrator shall not be bound
to commence the action unless on application of the
creditors of the deceased nor unless the creditors making
the application pay such part of the costs and expenses or

re
q.
give security therefor to the executor or
administrator, as the court deems equitable (Sec. 9, an
Rule 87, ROC)
o
f
SECTION 10 RULE 87. WHEN CREDITOR MAY
BRING ACTION. LIEN FOR COSTS 9
Application of the provision a

t
Section 10, Rule 87 of the Rules of Court shall .
apply when there is a deficiency of assets in the h
hands of the executor or administrator for the i
payment of the debts and expenses for s
administration.
Requisites before a creditor may o
bring an action for the recovery of r
property fraudulently conveyed by o
the decedent r
For the creditor to file an action to recover property v
fraudulently conveyed by the deceased, the following uisites o
must be present: i
(a) There is a deficiency of assets in the hands of executor d
or administrator for the payment debts and expenses
of administration (Sec. Rule 87, ROC); woul
(b) The deceased in his lifetime had made or dlif
tempted to make a fraudulent conveyance of e-
real or personal property, or a right or interest
therein, or a debt or credit, with intent to
defraud his creditors or to avoid any right,ha
debt or duty; had so conveyed such property, v
right, debt, credit that by law the conveyance e
t
h
RULE
would be as against his creditors (Sec. 9, Rule 87,
ROC);
(c) The subject of the attempted conveyance be
liable to attachment by any of them in his time
(Sec. 9, Rule 87, ROC);
(d) The executor or administrator has shown to no
desire to file the action or failed to institute
same within a reasonable time;
(e) Leave is granted by the court to the creditor to the
action;
(f) A bond is filed by the creditor as prescribed in
Rules; and
(g) The action by the creditor is in the name of
executor or administrator (Sec. 10, Rule ROC).
The last three requisites are unnecessary where
grantee is the executor or administrator himself, in which
case the action should be jn the name of all the creditors
tor or administrator, not exceeding six (6) months at a time
and not exceeding six (6) months beyond the time which
the court might have allowed to such original executor or
administrator; and notice shall be given of the time and
place for hearing such application, as required in the last
preceding section.
RULE 88. PAYMENT OF THE DEBTS OF THE ESTATE

SECTION 1 RULE 88. DEBTS PAID IN FULL IF Es. TATE
SUFFICIENT
Payment of debts if there are sufficient assets
If the estate is sufficient to pay the debts, the same
shall be paid in the following manner:
(a) All debts shall be paid in full within the time
limited for the purpose (Sec. 1, Rule 88, ROC);
(b) If the testator makes provision by his will or
designates the estate to be appropriated for the
payment of debts, they shall be paid according to
the provisions of the will which must be respected
(c) If the estate designated in the will is not
sufficient, such part of the estate as is not
disposed of by will shall be appropriated for the
purpose (Sec. 2, Rule 88, ROC);
(d) The personal estate not disposed of by will shall
first be charged with the payment of debts and
expenses (Sec. 3, Rule 88, ROC);
(e) If the personal estate is not sufficient or its sale
would be detrimental to the participants of the
estate, the real estate not disposed of by will
shall
RULE 88 271
be sold or encumbered for that purpose (Sec. 3,

Rule 88, ROC);
(0 Any deficiency shall be met by contributions from

RULE
devisees, legatees and heirs who have
entered into possession of portions of the
estate before debts and expenses have been
paid (Sec. 6, Rule 88); and
(g) The executor or administrator shall retain sufficient
estate to pay contingent claims when the same
becomes absolute (Sec. 4, Rule 88, ROC).

256
Writ of execution not proper;

sale or mortgage of property
of the estate appropriate to
pay the debts and expenses of
administration
A writ of execution is not the proper procedure
allowed by the Rules of Court for the payment of
debts and expenses of administration.
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 or
expenses of administration should be paid out of the
proceeds of the sale or mortgage. The order for the
sale or mortgage should be issued upon motion of
the administrator and with the written notice to all
the heirs, legatees and devisees residing in the
Philippines according to Section 3, Rule 89 and
Section 2, Rule 90 of the Rules of Court.
And when sale or mortgage of real estate is to be
made, the regulations contained in Section 7, Rule 90
should be complied with (Aldamiz v. Judge of the CFI
of Mindoro, GR L-2360, Dec. 29, 1949, 85 SCRA
228).

Legal basis for the procedure
The legal basis for such a procedure is the that
the testate or intestate proceedings to settle the estate
of a deceased person, the properties belonging to the
estate are under the jurisdiction of the probate court
and jurisdiction continues until said properties have
been distributed among the heirs entitled thereto.
During the pendency of the proceedings, all the
estate is in custodia legis and the proper procedure is
not to allow the sheriff, in case of a court judgment, to
seize the properties but to ask the court for an order
to require the administrator to pay the amount due
from the estate and required to be paid (Domingo v,
Gar/itos, GR L-18994, June 29, 1963, 8 SCRA 443).
SECTION 2 RULE 88. PART OF ESTATE FROM
WHICH DEBT PAID WHEN PROVISION MADE BY mu
Debts and expenses to be paid based
on the provisions of the will or from
the free portion of the estate
Where the testator makes a provision in his will o r
designates the estate to be appropriated for the payme nt
of his debts, expenses of administration or family
expenses, they shall be paid according to the provision s Of
the will; but if such provisions or if the estate appropria ted
is insufficient for that purpose, such part of the estat e Of
the testator not disposed of by will, if any, shall be app ro-
priated (Sec. 2, Rule 88, ROC).

258
Claim not filed forever barred even
if specific debt acknowledged in the
will
Even though he testator may have acknowledged a
specific debt in his will, the creditor shall not be reli—
from the duty of filing his claim in the probate proceedings;
otherwise, his claim will be barred.
sECTION 3 RULE 88. PERSONAL TY FIRST
CHARGEABLE FOR DEBTS THEN REALTY
Debts and expenses to be charged
first against personal estate if sufficient
The personal estate of the decedent not disposed of
by will shall be first chargeable with the payment of
debts and expenses and if the same is not sufficient for
that purpose or its sale would not be beneficial to the
estate participants, the whole or part of the real estate
not disposed of by will may be sold, mortgaged or
otherwise encumbered for that purpose by the executor
or administrator after being authorized by the probate
court. Any deficiency shall be met by contributions in
accordance with Section 6, Rule 88 of the Rules of Court

Instances when the real estate of the
decedent is chargeable for debts and
expenses
The specific instances when the real estate
of the decedent not disposed of by will may be
chargeable for debts and expenses are as
follows:
(1) When the personal estate of the decedent
not disposed of by will is not sufficient for
that purpose; and
(2) When the sale of such personal estate
would redound to the detriment of the
participants of the estate (Sec. 3, Rule 88,
ROC).
Order of payment of debts and expenses
The debts and expenses of the decedent shall be
paid in the following order:
(a) From the portion of the property designated by the
testator in his will;
(b) From the personal property of the decedent not
disposed of by will; and
(c) From the real property of the decedent not
disposed of by will (Sec. 3, Rule 88, ROC).
SECTION 4 RULE 88. ESTATE TO BE RETAINED TO MEET
CONTINGENT CLAIMS
Retention of sufficient estate to pay contingent claim

260
If satisfied that a contingent claim duly filed is valid, the
probate court may order the executor or administrator to
retain sufficient estate to pay such contingent claim when
the same becomes absolute or, if the estate is insolvent,
sufficient estate to pay a portion equal to the dividend of
the other creditors (Sec. 4, Rule 88, ROC).
Contingent claim defined
A contingent claim is one in which liability depends on
some future event that may or may not happen, and which
makes it uncertain whether there will ever be any liability, It
is a claim which, by its nature, is necessarily dependent
upon an uncertain event for its existence or validity. It may
or may not develop into a valid and enforceable claim and
its validity and enforceability depending upon an uncertain
event (E. Gaskell & Co., Inc. v. Tan Sit, GR 18405, Sept' 23,
1922, 43 Phil. 810).
it
Contingent claim may be approved
at its present value
Contingent claims are those claims not yet due
which, under the rules, may be approved at their
present value (Sec. 5, Rule 86, ROC).
Absolute claim defined

An absolute claim is such a claim as, if contested
between living persons, would be proper subject of
immediate legal action and would supply a basis of a
judgment for a sum certain (E. Gaskell & Co., Inc. v. Tan
Sit, supra.).

SECTION 5, RULE 88. HOW CONTINGENT CLAIM
BECOMING ABSOLUTE IN Two YEARS ALLOWED AND
PAID. ACTION AGAINST DISTRIBUTEES LA TER
Contingent claims to be established first prior

to the filing of a direct action by the creditors
The only instance wherein a creditor can file an
action against a distributee of the debtor's asset is
under Section 5, Rule 88 of the Rules of Court. Under
the above rule, the contingent claims must first have
been established and allowed in the probate court
before the creditors can file an action directly against
the distributees (De Bautista v. De Guzman, GR L-
28298, Nov. 25, 1983, 125 SCRA 676).
Contingent claim becoming absolute within

2 years may be paid
If the contingent claim becomes absolute and is
presented to the court as an absolute claim within two
(2) Years from the time allowed for the presentation of
claims, it will be paid in the same manner as the other
absolute claims.
Creditor may sue the distributees should
the contingent claim mature after 2 years
If the contingent claim does not become absolute
within the two (2) years, the retained assets are
delivered to the distributees and the estate is closed. If
"such claim" matures after two (2) years, the creditor
may sue the distributees who are liable in proportion to
the share of the estate respectively received by them
(Jaucian v. Quero/, GR L-11307, Oct. 5, 1918, 38 Phil.
707)

262
SECTION 6 RULE 88. COURT TO FIX CONTRIBUTIVE
SHARES WHERE DEVISEES LEGATEES OR HEIRS
HA VE BEEN POSSESSION
Execution to enforce payment of
estate debts allowed even as against
legatees
Section 6, Rule 88 of the Rules of Court authonzes
execution to enforce payment of debts of the estate. A
legacy is not a debt of the estate; indeed, legatees are
among those against whom execution is authorized to be
issued (Pastor, Jr. v. CA, GR L-56340, June 24, 1983, 207
Phil. 758).
Heirs not responsible for debts of the

decedent with their own property
Testate or the intestate succession is always
accepted with benefit of inventory and the heirs, even
after taking possession of the estate of the deceased,
do not make themselves responsible for the debts of
the de ceased with their own property but solely with
that prop erty coming from the testate or intestate
succession Of the deceased (Pavia v. De la Rosa, GR
3083, Mar. 18, 1907' 8 Phil. 70).
The heir is not as such personally responsible for
the debts and obligations of the deceased, in the whole
or in part; and, on the other hand, the property of the
deceased comes to him charged with the debts of the
deceased, so that he cannot alienate or charge it free of
such debts, until and unless they are extinguished either

by payment, prescription, in satisfaction of one or the
other of the modes recognized by law (Suiliong & Co. v.
Chio-Taysan, GR L-4777, Nov. 11, 1908, 12 Phil. 13).
Heirs and distributees liable for the

payment of all claims against the estate
only with the property from such estate
Heirs are not required to respond with their own
property for the debts of their deceased ancestors. But
even after the partition of an estate, heirs and
distributees 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 received from the estate.
The hereditary property consists only of the part
which remains after the settlement of which the entire
estate is first liable. The heirs cannot, by any fact of
their own or by agreement among themselves, reduce
the creditors' security for the payment of their claims
(Lopez v. Enriquez, GR L-4968, Aug. 3, 1910, 16 Phil.
336).
A probate court generally cannot

Issue a writ of execution; exceptions
As discussed earlier, the probate court generally
cannot issue a writ of execution. It is not supposed to
issue a writ of execution because its orders usually
refer to the adjudication of claims against the estate
which the executor or administrator may satisfy
without the necessity of

264
resorting to a writ of execution. The probate court,
as such, does not render any judgment enforceable
by exe. cution.
It is reiterated that the only circumstances that the
Rules of Court expressly specifies that the probate
court may issue execution (Vda. de Valera v. Ofilada,
GR L. 27526, sept. 12, 1974, 59 SCRA 96) are when
execution lies:
(1) to satisfy (the debts of the estate out of) the
contributive shares of devisees, legatees
and heirs who are in possession of the
decedent's assets (Sec. 6, Rule 88, ROC);
(2) to enforce payment of the expenses of
partition
(Sec. 3, Rule 90, ROC); and
(3) to satisfy the costs when a person is cited for
examination in probate proceedings (Sec. 13,
Rule 142, ROC).
SECTION 7 RULE 88. ORDER OF PAYMENT IF ESTATE

INSOLVENT
Payment of debts if the estate is insolvent
If the estate is insolvent, the debts shall be paid in the
following manner:
(a) The executor or administrator shall pay the
debts in accordance with the concurrence
and preference of credits established by

Articles 1059 and 2239 to 2251 of
the Civil code (Sec. 7, Rule 88,
ROC);
(b) No creditor of any one class shall
receive any payment until those of
the preceding class are paid (Sec. 8,
Rule 88, ROC);
RILE88
2
79 (c) If there are no assets sufficient to pay the
credits of any one class of creditors, each creditor
within such class shall be paid a dividend in proportion
to his claim (Sec. 8, Rule 88, ROC);
(d) Where the deceased was a nonresident, his
estate in the Philippines shall be disposed of in
such a way that creditors in the Philippines and
elsewhere may receive an equal share in
proportion to their respective credits (Sec. 9,
Rule 88, ROC);
(e) In case of claims duly proved against the estate
of an insolvent resident of the Philippines, the
executor or administrator who has had the
opportunity to contest such claims shall be
included in the certified list of claims proved
against the deceased. The owner of such claims
shall be entitled to a just distribution of the
estate in accordance with Section 6, Rule 88 of
the Rules of Court if the property of such
deceased person in another country is likewise
equally apportioned to the creditors residing in
the Philippines and other creditors according to
their respective claims (Sec. 10, Rule 88, ROC);
and

266
(f) The payments of debts of the decedent shall be made
pursuant to the order of the probate court (Sec. 11, Rule
88, ROC).
SECTION 8 RULE 88, DIVIDENDS TO BE PAID IN PROPORTION TO
CLAIMS
Creditor within a class to be paid dividend Proportionate to

his claim.
Should there be no assets sufficient to pay the
credits
Of any once class of creditors after paying the credits enti-
tled to preference over it, each creditor within such
shall be paid a dividend in proportion to his claim. No
creditor of any one class shall receive any payment
until those of the preceding class are paid (Sec. 8,
Rule 88 ROC).
SECTION 9 RULE 88. ESTATE OF INSOLVENT NON.
RESIDENT HOW DISPOSED OF

Estate in the Philippines to be
disposed of to pay creditors in equal
shares
In the event that administration is taken in the
Philip. pine of the estate of a person who at the time
of his death was an inhabitant of another country and
who died insolvent, his estate found in the Philippines
shall, as far as practicable, be disposed of in such a
way that his creditors here and elsewhere may receive
each an equal share in proportion to their respective
credits (Sec. 9, Rule 88, ROC).
SECTION 10 RULE 88, WHEN AND HOW CLAIM

PROVED OUTSIDE THE PHILIPPINES AGAINST
SOLVENT RESIDENT'S ESTA TE PAID
When claims proved outside the

Philippines may be received by the
probate court
In case it appears to the probate court that
claims have been duly proven in another country
against tate of an insolvent who at the time of his
death was an inhabitant of the Philippines and that
the executor or administrator in the Philippines had
knowledge of the presentation of such claims in
such country and also an opportunity to contest
their allowance, the court shall receive a certified
list of such claims, when perfected in such couß'
20
try and add the same to the list of claims proved against
the deceased person in the Philippines so that a just
distribution of the whole estate may be made equally
among all its creditors according to their respective claims
Creditors in another country not

to be benefited by the rule if
estate in that country not
apportioned to creditors of the
decedent in the Philippines
The benefit of Sections 9 and 10, Rule 88 of the
Rules of Court shall not be extended to the creditors in
another country if the property of such deceased person

268
found therein is not equally apportioned to the creditors
residing in the Philippines and the other creditors
according to their respective claims (Sec. 10, Rule 88,
ROC).
SECTION 11 RULE 88. ORDER FOR PAYMENT OF

DEBTS
Probate court to order payment of debts

prior to lapse of period allowed for
payment
The probate court shall order the payment of debts
prior to the expiration of the time limited for their
payment as well as the distribution of the assets
received by the executor or administrator for that
purpose among the Creditors, as the circumstances of
the estate may require and pursuant to the provisions of
Rule 88 of the Rules of court (sec. 11, Rule 88, Roc).
SECTION 12 RULE 88, ORDERS RELATING TO PAYMENT
OF DEBTS WHERE APPEAL IS

TAKEN
When the pmbatø coun may
suspend the order for payment of
debts or order distribution among
the creditors
In case an appeal has been taken from a decision on
a claim, the probate court may suspend the order for the
payment of the debts or it may order the distribution
among the creditors whose claims are definitely allowed
leaving in the possession of the executor or administrator
sufficient assets to pay the disputed and appealed claim
Upon the final settlement of a disputed claim,
the pro. bate court shall order such claim to be paid
out of the re. tained assets to the same extent and in
the same proportion as the claims of other creditors
SECTION 13, RULE 88. WHEN SUBSEQUENT

DISTRIBUTION OF ASSETS ORDERED
Probate court may make supplemental

orders for the distribution of assets
If on the first distribution, the entire debts are not
paid, and if the whole assets are not distributed or other
assets shall thereafter come to the possession of the
executor or administrator, the probate court may, from
time to time, make further orders for the distribution of
assets (Sec. 13, Rule 88, ROC).
SECTION 14, RULE 88. CREDITORS TO BE PAID IN
ACCORDANCE WITH TERMS OF ORDER
Executor or administrator to pay the

creditors their claims or dividends
thereon based on the order of the
probate court
If the probate court issues an order for the
distribution of assets among the creditors, the executor or
administrator shall, as soon as the time of payment arrives,
pay the said creditors the amounts of their respective
claims or the dividends thereon in accordance with the
terms of such order (Sec. 14, Rule 88, ROC).

270
sECTION 15 RULE 88. TIME FOR PAYING
DEBTS
AND LEGACIES FIXED OR EXTENDED AFTER NOTICE
WITHIN WHAT PERIODS
Probate court to allow period to

dispose of the estate plus extension
Upon granting letters testamentary or
administration, the probate court shall allow to the
executor or administrator a time for disposing of the
estate and paying the debts and legacies of the
decedent which shall not, in the first instance, exceed
one (1) year.
However, the court may, on application of the
executor or administrator and after hearing, extend the
said period as the circumstances of the estate may
require but the same not to exceed six (6) months for a
single extension such that the whole period allowed to
the original executor or administrator shall not exceed
two (2) years (sec. 15, Rule 88, ROC).
SECTION 16 RULE 88. SUCCESSOR OF

DEAD EXECUTOR OR
ADMINISTRATOR MAY HAVE TIME
EXTENDED ON NOTICE WITHIN
CERTAIN PERIOD
Extension of time allowed for the
payment Of debts or legacies in case
of death of the executor or
administrator

such
Rules

272
RULE 89. SALES, MORTGAGES, AND OTHER
ENCUMBRANCES OF PROPERTY OF
DECEDENT
Procedure on how a property in

custodia legis can be disposed of by
sale
provides the procedure on how a property in
custodia legis can disposed of by sale (Manotok
Realty, Inc. v. CA, GR 45038. Apr. 30, 1987, 149
SCRA 372).
Probate court may order the sale of
the estate to pay debts, expenses
or legacies or to preserve the
property
Upon the application of the executor or
administrator and on written notice to the heirs and
other persons ested, the probate court may order the
whole or a part the personal estate to be sold if it
appears necessary the purpose of:
(1) paying debts;
(2) defraying expenses of administration;
(3) satisfying legacies; or
(4) preserving the property (Sec. 1, Rule 89, ROC)'
SECTION 2 RULE 89. WHEN COURT MAY
AUTHOR'
IZE SALE MORTGAGE OR OTHER ENCUMBRANCE
OF REALTY TO PAY DEBTS AND LEGACIES
THROUGH PERSONAL TY NOT EXHA US TED
291
probate coun may authorize the adminlstrator to

mortgage so much of the real estate as needed
for the expenses of administration
Section 2, Rule 89 of the Rules of Court provides that,
upon application of the administrator and on written
notice to the heirs, the court may authorize the
administrator to mortgage so much as may be necessary
of the real estate:
(a) for the expenses of the administrator; or
(b) if it clearly appears that such mortgage would
be beneficial to the persons interested (Orola v.
Rural Bank of Pontevedra [Capizl, GR 158566,
sept. 20, 2005, 470 SCRA 352).
Without previous notice to the heirs,
devisees and legatees, a court order
authorizing the sale or encumbrance of real
property deemed null and void; case laws
When an order authorizing the sale or
encumbrance of real property was issued by the
testate or intestate court without previous notice to
the heirs, devisees and legatees as required by the
Rules, it is not only the contract itself which is null
and void but also the order of the court authorizing

274
the same (Rafols v. Barba, GR L-28446, Dec. 13,
1982, 119 SCRA 146).
In Manec/ang v. Baun (GR L-27876, Apr. 22,
1992, 208 SCRA 179), the previous administrator of
the estate filed a petition with the intestate court
seeking authority to sell portion of the estate, which
the court granted despite lack of notice of hearing to
the heirs of the decedent. The new administrator of
the estate filed with the Regional Trial Court an
action for the annulment of the sales made by the
previous administrator. After trial, the trial court
held that the order of the intestate court granting
authority to sell, as well as the deed of sale, were
void. On appeal directly to this Court, We held
that without compliance with Sections 2, 4 and 7
of Rule 89 of the Rules of Court, "the authority to
sell, the sale itself and the order approving it would
be null and void ab initio. "
In Liu v. Loy, Jr. (GR 145982, July 3, 2003, 405
SCRA 319), while the decedent was still living, his son
and attorney-in-fact sold in behalf of the alleged
decedent Cer. tain parcels of land to Frank Liu. After
the decedent died the son sold the same properties
to two persons. Upon an ex parte motion filed by the
2nd set of buyers of estate properties, the probate
court approved the sale to them of said properties.
Consequently, certificates of title covering the estate
properties were cancelled and new titles issued to
the second set of buyers. Frank Liu filed a complaint
for reconveyance or annulment of title with the
Regional Trial Court. The trial court dismissed the
complaint and the Court of Appeals affirmed the
ion

dismissal. When the case was appealed to us, we set
aside the decision of the appellate court and
declared the probate court's approval of the sale as
completely void due to the failure of the 2nd set of
buyers to notify the heir-administratrix of the mot
and hearing for the sale of estate property
(Pahamotang PNB, GR 156403, Mar. 31, 2005, 454
SCRA 681).
Clearly, the requirements of Rule 89 of the Rules of
Court are mandatory and failure to give notice to the
heirs would invalidate the authority granted by the
intestate/probate court to mortgage or sell estate
assets (Ibid)•
Requisites of notice and hearing are
mandatory and essential; reason for the
requirement
Sections 2, 4 and 7, Rule 89 of the Rules of Court
state explicitly that the notice, which must be in be
writing'
must be given to the heirs, devisees and legatees and that the
court shall fix a time and place for hearing such petition and cause
notice to be given to the interested parties (Manec/ang v. Baun,
GR L-27876, Apn 22, 1992, 208 SCRA 179).
The requisite set forth in the aforesaid sections of
Rule 89 are mandatory and essential. Without them, the
authority to sell, the sale itself and the order approving it
would be null and void ab initio (Bofiaga v. Soler, GR
L15717, June 30, 1961, 2 SCRA 755).
The reason behind this requirement is that the
heirs, as the presumptive owners (Ortaliz v. The

276
Registrar of Deeds of the Province of Occidental
Negros, GR 33106. Oct. 15, 1930, 55 Phil. 33) since
they succeed to all the rights and obligations of the
deceased from the moment of the latter's death,
(Buenaventura v. Ramos, GR 18034. Sept. 2, 1922, 43
Phil. 704) are the persons directly affected by the sale
or mortgage and therefore cannot be deprived of the
property except in the manner provided by law
(Manec/ang v. Baun, GR L-27876, Apr. 22, 1992, 208
SCRA 179).
SECTION 3 RULE 89. PERSONS

INTERESTED MAY
PREVENT SUCH SALE ETC. BY GIVING BOND
A person interested may give bond to prevent

the sale, mortgage of the estate
If a person interested in the estate shall give a
bond in a sum to be fixed by the probate court for the
security of the creditors and of the executor or
administrator, the court shall not grant any authority
to sell, mortgage or otherwise encumber real or
personal estate (Sec 3, Rule 89, ROC).
Third persons may oppose an application
for leave to sell the property of the
decedent; probate court can hold approval
of sale in abeyance
If third persons oppose an application for leave to sell
the property of the decedent, claiming title to the
Property, the title claim cannot be adjudicated by the
probate court but it can hold approval of the sale in

abeyance until the question of ownership shall have been
decided in a proper action (Baquia/ v. Amihan, GR L-4377,
Jan. 23, 1953, 92 Phil. 501).
SECTION 4 RULE 89. WHEN COURT MAY

AUTHOR. IZE SALE OF ESTATE AS BENEFICIAL TO
INTER.
ESTED PERSONS. DISPOSAL OF PROCEEDS
Judicial approval required for disposal of
estate property
The disposal of estate property required judicial
approval before it could be executed (Acebedo v Abesamis,
GR 102380, Jan. 18, 1993, 217 SCRA 186).
Probate coun has implied power to rescind or
nullify the disposition
Implicit in the requirement for judicial approval w as that
the probate court could rescind or nullify the disposition of
a property under administration that was effected without
its authority (Dillena v, CA, GR L-77660, July 28' 1988, 163
SCRA 630).
This power included the authority to nullify or
modify its approval of the sale of the property of the
estate to conform to the law or to the standing policies
set and fixed for the purpose, where the invalidation or
modification derived from:
(1) the falsity of the factual basis of the disposition;

278
(2) any other factual mistake; or
(3) the concealment of a material fact by a party (Le bin
v. Miraso/, GR 164255, Sept. 7, 2011, 657 SCRA 35).
sECTION 5 RULE 89. WHEN COURT MAY

AUTHORIZE SALE
MORTGAGE OR
OTHER ENCUMBRANCE OF ESTATE TO PAY
DEBTS AND LEGACIES IN OTHER COUNTRIES
Probate court may authorize sale of personal

estate or sale, mortgage or other encumbrance
of real estate for the payment of debts or
legacies
In the event that the sale of personal estate or
the sale, mortgage or other encumbrance of real
estate is not necessary to pay the debts, expenses of
administration or legacies in the Philippines but it
appears from records and proceedings of a probate
court in another country that the estate of the
decedent in such other country is not sufficient to
pay the debts, expenses of administration and
legacies there, the probate court here may authorize
the executor or administrator to sell the personal
estate or to sell, mortgage, or otherwise encumber
the real estate for the payment of debts or legacies
in the other country in the same manner as for the
payment of debts or legacies in the Philippines (Sec.
5, Rule 89, ROC).

SECTION 6 RULE 89, WHEN COURT
MAY AUTHORIZE SALE MORTGAGE
OR OTHER ENCUMBRANCE OF
REALTY AC UIRED ON EXECUTION
OR FORECLOSURE
Probate court may authorize the sale, mortgage
or other encumbrance of acquired real property
The probate court may authorize an executor or
ad. ministrator to sell mortgage, or otherwise
encumber real estate acquired by him on execution
or foreclosure sale under the same circumstances
and under the same regulations as prescribed in
Section 6, Rule 89 of the Rules of Court for the sale,
mortgage or other encumbrance of other real estate
SECTION 7 RULE 89. REGULATION FOR GRANTING
AUTHORITY TO SELL MORTGAGE OR OTHERWISE
ENCUMBER ESTA TE
Regulations for granting authority to sell,

mortgage or encumber property
for the following regulations for granting authority to
sell, mortgage or otherwise encumber estate
property:
(a) The executor or administrator shall file a
written petition setting forth:
the debts due from the deceased;
(2) the expenses of administration;

280
(3) the legacies;
(4) the value of the personal estate;
(5) the situation of the estate to be sold,
mortgaged or otherwise encumbered; and
(6) such other facts as show that the sale,
mortgage or other encumbrance is
necessary or beneficial;
(b) The court shall thereupon fix a time and
place for hearing such petition and cause
notice stating the nature of the petition, the
reason for the same, and the time and place
of hearing to be given personally or by mail
to the persons interested and may cause
such further notice to be given, by
publication or otherwise, as it shall deem
proper;
(c) If the court requires it, the executor or
administrator shall give an additional bond in
such sum as the court directs, conditioned
that such executor or administrator will
account for the proceeds of the sale,
mortgage or other encumbrance;
(d) If the requirements in the preceding
subdivisions of Section 7, Rule 89 of the Rules
of Court have been complied with, the court,
by order stating such compliance, may
authorize the executor or administrator to
sell, mortgage or otherwise encumber, in
proper cases, such part of the estate as is

deemed necessary and, in case of sale, the
court may authorize it to be public or private
as would be most beneficial to all parties
concerned. The executor or administrator
shall be furnished with a certified copy of
such order;
(e) If the estate is to be sold at auction, the
mode of giving notice of the time and place
of the sale shall be governed by the
provisions concerning notice of execution
sale; and
(f) There shall be recorded in the registry of
deeds of the province in which the real estate
thus sold, mortgaged or otherwise
encumbered is situated a certified copy of
the order of the court, together with the
deed of the executor or administrator for
such real estate, which shall be as valid as if
the
Regulations mandatory
A sale of properties of an estate as beneficial to the
interested parties must comply with the requisites
Provided by law (Sec. 7, Rule 89, ROC) which are
mandatory and without them, the authority to sell, the
sale itself and the order approving it would be null and
void ab initio (Arci//a
v. David, GR L-49190, Dec. 12, 1946, 77 718).

282
Probate court has the power to
authorize, approve or nullify the
disposition of property under
administration
The probate court can declare null and void the dis
position of the property under administration if the same
has been effected without authority from the said court.
It is the probate court that has the power to authorize
and/or approve the sale (Secs. 4 and 7, Rule 89, ROC).
Said court that can declare it null and void for as
long as the proceedings had not been closed or
terminated. Sales of properties under administration
which do not comply with the requisites under
Sections 4 and 7, Rule 89 of the Rules of Court are
null and void (Bofiaga Soler, GR L-15717, June 30,
1961, 2 SCRA 755).
Court approval needed for the validity of the
disposition of decedent's estate not to affect
adversely the rights of the heirs
Court approval is necessary for the validity of any
disposition of the decedent's estate. However, reference
to judicial approval cannot adversely affect the
substantive rights of the heirs to dispose of their ideal
share in the co-
heirship and/or co-ownership among the heirs (Go Ong v.
CA, GR 75884, sept. 24, 1987, 154 SCRA 270).
An heir can sell whatever right, interest or
participation he may have in the property under
administration. This is a matter which comes under the

jurisdiction of the probate court (Vda. de Gil v. Cancio,
GR L-21472, July 30, 1965, 14 SCRA 796).
Purpose of rule requiring approval for sale of

registerd land by an executor or administrator
Section 91 of Act No. 496 (Land Registration Act) and
Section 88 of Presidential Decree No. 1529 (Property
Registration Decree) specifically require court approval for
any sale of registered land by an executor or administra-
tor. The purpose of requiring court approval is to protect
creditors (Liu v, Loy, GR 145982, sept. 13, 2004, 405 SCRA
319).
Recorded deed of real estate mortgage valid

as though executed by the decedent himself
Once the deed of real estate mortgage is recorded
in the proper Registry of Deeds, together with the
corresponding court order authorizing the
administrator to mortgage the property, said deed
shall be valid as if it has been executed by the
deceased himself (Sec. 7(f), Rule 89, ROC).
When application for authority to sell, etc.

may be denied by the court
An application for authority to sell, mortgage or

encumber property of the estate may be denied by the
probate court if:
legatees and other interested persons, although such
authority is not necessary to pay debts, legacies or
expenses
of administration (Sec. 4, Rule 89, ROC).
284
section 8, Rule 89 of the Rules of Court mentions
only an application to authorize the conveyance of
realty under a contract that the deceased entered into
while still alive. While this Rule does not specify who
should file the application, it stands to reason that the
proper party must be one who is to be benefited or
injured by the judgment or one who is to be entitled to
the avails of the suit (Sec. 2, Rule 3, ROC; Heirs of
Sandejas v. Lina, supra.).
Effect of lack of notice to interested parties

Section 8, Rule 89 of the Rules of Court make it
mandatory that notice be served on the heirs and
other interested persons of the application for
approval of any conveyance of property held in trust
by the deceased and where no such notice is given,
the order authorizing the conveyance itself is
completely void (Estate of Carpizo v. Floranza, GR
4069, Dec. 5, 1908, 12 Phil., 191).
SECTION 9 RULE 89. WHEN COURT

MAY AUTHORIZE CONVEYANCE OF
LANDS WHICH DECEASED HELD IN
TRUST
Court may authorize the executor
or administrator to convey the
property; mandatory notice to be
served on the heirs and other
interested persons
Section 9, Rule 89 of the Rules of Court permits the
Probate court, whenever the deceased in his lifetime held

real property in trust for another person, to authorize the
executor or administrator to deed such property to the
person or persons for whose use and benefit it Wag 80
held.
However, such authority can be given by the
probate court to the administrator to convey
property held in trust by the deceased to the
beneficiaries of the trust only "after notice given as
required in the last preceding section;" that "no such
conveyance sha// be authorized until notice of the
application for that purpose has been given Person.
ally or by mail to al/ persons interested, and such
further notice has been given, by publication or
otherwise, as the court deems proper" (Sec. 8, Rule
89, ROC).
This rule makes it mandatory that notice be served
on the heirs and other interested persons of the
application for approval of any conveyance of property
held in trust by the deceased and where no such notice
is given, the order authorizing the conveyance as well
as the conveyance itself is completely void (De Jesus v.
De Jesus, GR L16553, Nov. 29, 1961, 3 SCRA 548).
Effect of conveyance entered into by the heirs
A contract of sale is not invalidated by the fact
that it is subject to probate court approval. The
transaction remains binding on the seller-heir but
not on the other heirs who have not given their
consent to it.
In settling the estate of the deceased, a probate
court has jurisdiction over matters incidental and
286
collateral to the exercise Of its recognized powers. Such
matters include selling, mortgaging or otherwise
encumbering realty belonging to the estate (Heirs of
Sandejas v. Lina, GR 141634, Feb. 5, 2001, 351 SCRA
183).
305 On the other hand, there is no co-ownership

when the different portions owned by different
people are already concretely determined and
separately identifiable, even if not yet technically
described (Rizal v. Naredo, GR 151898, Mar. 14, 2012,
668 SCRA 114).
Action for partition as a remedy of a co-owner
pursuant to Article 494 of the Civil Code, no co-
owner is obliged to remain in the co-ownership and
his proper remedy is an action for partition under
Rule 69 of the Rules of Court which he may bring at
anytime in so far as his share is concerned (Quintos v.
Nicolas, GR 210252, June 16, 2014, 726 SCRA 482).
Partition defined
Article 1079 of the Civil Code defines partition as

the separation, division and assignment of a thing
held in common among those to whom it may
belong.
The fact that the agreement of partition lacks the
technical description of the parties' respective
portions or that the subject property was then still
embraced by the same certificate of title could not
legally prevent a partition where the different
portions allotted to each were determined and

became separately identifiable (Rizal v. Naredo, GR
151898, Mar. 14, 2012, 668 SCRA 114).
SECTION 1 RULE 90. WHEN ORDER FOR

DISTRIBUTION OF RESIDUE MADE
When distribution of estate allowed

NO distribution shall be allowed until the
payment of the obligations mentioned in the first
paragraph of Section l' Rule 90 of the Rules of Court
has been made or pro-
vided for, unless the distributees or any of them give
a bond in a sum to be fixed by the court, conditioned
for the payment of said obligations within such time
as the coun directs.
In settlement of estate proceedings, the distribution
of the estate properties can only be made:
(a) after all the debts, funeral charges,
expenses of administration, allowance to
the widow and es. tate taxes have been
paid; or
(b) before payment of said obligations only if the
distributees or any of them gives a bond in a
sum fixed by the court conditioned upon the
payment of said obligations within such time
those
as the court directs or when provision is made
to meet obligations (Estate of Ruiz v. CA, GR
118671, Jan. 29, 1996, 252 SCRA 541).
When proceedings for settlement of estate
deemed ready for final closure

288
The provisions of Section 1, Rule 90 of the Rules of
Court cannot mean anything less than that in order
that a proceeding for the settlement of the estate of a
deceased person may be deemed ready for final
closure:
(1) there should have been issued already an order
of distribution or assignment of the estate of the
decedent among or to those entitled thereto by
will or by law, but
(2) such order shall not be issued until after it is
shown that the "debts, funeral expenses,
expenses of administration, allowances, taxes,
chargeable to the estate" have been paid,
which is but logical and proper;
Besides, such an order is usually issued upon proper
and specific application for the purpose of the
interested party or parties, and not of the court (PCIB v.
Escolin, GR L-27860 and L-27896, Mar. 29, 1974, 56
SCRA 266).
prerequisite stages prior to the distribution of

the estate
Before there could be a distribution of the estate, the
following two (2) stages must be followed:
(a) Payment of obligations or liquidation of the estate.
Under the Rules, the distribution of a decedent's
assets may only be ordered under any of the
following three (3) circumstances:
(1) when the inheritance tax, among other
taxes, is paid;

(2) when a sufficient bond is given to meet the
payment of the inheritance tax and all
other obligations; and
(3) when the payment of the said tax and all
other obligations has been provided for
(Vera v. Navarro, GR L-27745, Oct. 18,
1977, 79 SCRA 408); and
(b) Declaration of heirs. There must first be a
declaration of heirs to determine to whom the
residue of the estate should be distributed. A
separate action for the declaration of heirs is not
proper (Pimentel v. Palanca, GR 2108, Dec. 19,
1905, 5 Phil. 436) and likewise, after, not before,
the declaration of heirs is made may the residue
be distributed and delivered to the heirs (Castillo
v. Bolafios, GR 42435, Dec. 21, 1935, 62 Phil.
641).
Delgadon of heirs
If the special proceedings are pending, or if there
are no special proceedings filed but there is, under the
cir. cumstances of the case, a need to file one, then
the de. termination of, among other issues, heirship
should be raised and settled in said special
proceedings. Where special proceedings had been
instituted but had been fl. nally closed and terminated,
however, or if a putative heir has lost the right to have
himself declared in the special proceedings as co-heir
and he can no longer ask for its re. opening, then an
ordinary civil action can be filed for his declaration as
heir in order to bring about the annulment of the

290
partition or distribution or adjudication of a property
or properties belonging to the estate of the deceased
(Portugal v. Portugal-Beltran, GR 155555, Aug. 16.
2005, 467 SCRA 184).
Project of partition definedil

A project of partition is a document prepared by the
executor or administrator setting forth the manner in
which the estate of the deceased is to be distributed
among the heirs. If the estate is a testate estate, the
project of partition must conform to the terms of the will;
if intestate, the project of partition must be in accordance
with the provisions of the Civil Code (Cama de Reyes v.
Reyes de llano, GR 1-42092, Oct. 28, 1936, 63 Phil. 629).
n
Court to determine first the issue ownership prior to effecting
partition hi
In actions for partition, the court cannot
properly issue an order to divide the property,
unless it first makes a determination as to the
existence of co-ownership. The must initially settle
the issue of ownership, the first stage In
an action for partition. An action for partition will not
li3e0i9f the claimant has no rightful interest over the
subject prop-
section 1 of Rule 69 of the Rules of Court requires

the party filing the action to state in his complaint the
"nature and extent of his title" to the real estate. Until
and unless the issue of ownership is definitely resolved, it
would be premature to effect a partition of the
properties (Reyes-De Leon v. Del Rosario, GR 152862, July
26, 2004, 479 Phil. 98, 107).

Partition does not terminate probate proceedings
Partition by itself alone does not terminate the
probate proceeding (Timbo/ v. Cano, GR L-15445,
Apr. 29, 1961, 1 SCRA 1271). As long as the order of
the distribution of the estate has not been
complied with, the probate proceedings cannot be
deemed closed and terminated (Siguion v. Tecson,
GR L-3430, May 23, 1951, 89 Phil. 28) because a
judicial partition is not final and conclusive and
does not prevent the heirs from bringing an action
to obtain his share, provided the prescriptive period
therefore has not elapsed (Mari v. Boni/ia, GR L-
852, Mar. 19, 1949, 83 Phil. 137).
Remedies of an heir entitled to but who did

not receive his distributive share
An heir entitled to the residue but not did not

receive his share may avail of the following legal
remedies:
(a) If there is a controversy before the court as to
who are the lawful heirs of the deceased
person or as to the distributive shares to which
each person is entitled under the law, the
controversy
Shall be heard ana ueuuvu

(b) Demand his share through a proper motion
in same probate or administration

292
proceedings, for the reopening of the
probate or administrative proceedings, if it
had already been closed, and not through an
independent action which would be tried by
another court or judge (Ramos v. Or. tuzar,
GR L-3299, Aug. 29, 1951, 89 Phil. 730);
(c) Appeal from an order which determines
the dis. tributive share of the heirs of a
deceased person, Such order, if not
appealed within the reglemen. tary period,
shall become final (Imperial v. Mufioz, GR
L-30787, Aug. 29, 1974, 58 SCRA 678);
and
(d) Petition the Court to allow the continuation of
a separate action to annul the project of
partition by a preterited heir in situations
where the estate proceedings have been
closed and terminated for over three (3) years
(Gui/as v. Judge of the CFI of Pampanga, GR L-
26695. Jan. 31, 1972) and on the ground of
lesion, preterition and fraud (Solivio v. CA, GR
83484, Feb. 12, 1990, 182 SCRA 119).
Order of court determining distributive
share of heirs appealable
An order of the Court of First Instance (now Regional
Trial Court) which determines the distributive shares Of
the heirs of a deceased-person is appealable (Santi//on V'
Miranda, GR 1--19281, June 30, 1965, 14 SCRA 563),

3
11 Esote sowed only upon payment of debts,
upenses, allowances and taxes
Payment of the inheritance tax per se does not settle the
estate of a deceased person. An estate is settled and distributed
among the heirs only after the payment of the debts of the
estate, funeral charges, expenses of administration, allowance
to the widow and inheritance tax (Agtarap v. Agtarap, GR
177099, June 8, 2011, 651 SCRA 455).
Probate court loses jurisdiction only upon payment of debts

and delivery of residue to heirs

294
The probate court loses jurisdiction of an estate
under administration only after the payment of all the
debts and the remaining estate delivered to the heirs
entitled to receive the same. The finality of the
approval of the project of partition by itself alone does
not terminate the probate proceeding (Timbo/ v. Cano,
GR L-15445, Apr. 29, 1961, 1 SCRA 1271).
Proscription against interference by another

court in the probate proceedings
In the interest of orderly procedure and to avoid
confusing and conflicting dispositions of a decedent's
estate, a court should not interfere with estate
proceedings pending in a co-equal court (Guilas v. Judge
of CFI of PamPanga, GR L-26695, Jan. 31, 1972, 43
SCRA 111).
The better practice for the heir who has not
received his share is to demand his share through a
proper motion in the same probate or administration
proceedings or for reopening of the probate or
administrative proceedings if it had already been closed
and not through an independent
action which would be tried by another
court or J Which may thus reverse a decision
or order of the or intestate court already
final and executed and re-shufflQft,
properties long ago distributed and disposed
of (Solivio CA, GR 83484, Feb. 12, 1990, 182
SCRA 119).
Probate court acquires
jurisdiction over all interested

persons through publication of
notice
The probate court acquires jurisdiction of Nueva
over all
the persons interested through the publication of the
notice and any order that may be entered is binding
against allof them (Manalo v, Paredes, GR 24168,
sept. 22, 1925, 47 Phil. 938).
Final order of distribution vests

title in the distributees
A final order of distribution of the estate of a
deceased person vests the title to the land of the
estate in the distributees (Santos v. Roman
Catholic Bishop ceres, GR 21289, Apr. 5, 1924, 45
Phil. 895).
Order of distribution of estate ends
intestate proceedings
It is the order of distribution directing the delivery
Of the residue of the estate to the persons entitled
thereto that:
(1) brings to a close the intestate proceedings;
(2) puts an end to the administration; and
(3) thus far relieves the administrator from his
duti (solivio v. CA, GR 83484, Feb. 12, 1990
SCRA 119).
Instance when an interested party may
have a final liquidation set aside;
remedy of an heir who does not
receive his share

296
The only instance in which a party interested in a
probate proceeding may have a final liquidation set aside
is when he is left out by reason of circumstances beyond
his control or through mistake or inadvertence not
imputable to negligence.
Even then, the better practice to secure relief is
(the) reopening of the same case by proper motion
within the reglementary period instead of an
independent action the effect of which, if successful,
would be for another court or judge to throw out a
decision or order already final and executed and
reshuffle properties long ago distributed and disposed
of (Ramos v. Ortuzar, GR L-3299, Aug. 29, 1951, 89
Phil. 741, 89 Phil. 730).
SECTION 2, RULE 90. QUESTIONS AS TO ADVANCEMENT

TO BE DETERMINED
Questions as to advancement made by
decedent may be heard by the court
Questions as to advancement made or alleged to
have been made by the decedent to any heir may be
heard and determined by the probate court and its
final Order thereon shall be binding on the person
raising the questions and on the heir (Sec. 2, Rule 90,
ROC).
Probate court allowed to order the
inclusion of donated properties, etc.
Section 2, Rule 90 of the Rules of court expanded the
SPecial and limited jurisdiction of the RTC as an intestate
court about the matters relating to the inventory
estate of the decedent by authorizing it to direct
the sion of properties donated or bestowed by
gratuitous to any compulsory heir by the decedent
(Gregorio Madarang, GR 185226, Feb. 11, 2010,
612 SCRA
SECTION 3 RULE 90. BY WHOM EXPENSES OF
TITION PAID
Expenses of partition to be
paid by the executor or
administrator or by the parties
in proportion to their
respective shares or interest.
If, at the time of distribution, the executor
or trator has retained sufficient properties in
his which he may lawfully apply for the
expenses of of the properties distributed, he
may pay such when it appears equitable to the
probate court inconsistent with the intention of
the testator; they shall be paid by the parties in
proportion to spective shares or interest and
the apportionment settled and allowed by the
court.
If any of the interested parties does not pay
portional share, the court may issue an
execution name of the executor or administrator
against the paying the assessed amount (Sec. 3,
Rule 90, ROC).
This is one of the only three (3) instances
probate court may issue a writ of execution

298
(Vda [era v. Ofi/ada, GR L-27526, Sept. 12,
1974, 59 SCRA
SECTION 4 RULE 90. RECORDING
THE ORDE
PARTITION OF
Recoding of certified copies of
final orders andjudgments of the probate court
The certified copies of final orders and
judgments of the probate court pertaining to the
real estate or its partition shall be recorded in the
registry of deeds of the province where the
property is located (Sec. 4, Rule 90, ROC).
Cancellation of the Notice of lis
pendens pursuant to the Property
Registration Decree (PD 1529)
In line with the recording of the order for

the partition Of the estate (Sec. 4, Rule 90, ROC),
paragraph 2, Section 77 of Presidential Decree
(PD) No. 1529 provides:
"Section 77, Cancellation of Lis Pendens.
— X x x. At any time after final judgment in
favor of the defendant, or other disposition of
the action such as to terminate finally all rights
of the plaintiff in and to the land and/or

buildings involved, in any case in which a
memorandum or notice of lis pendens has
been registered as provided in the preceding
section, the notice of lis pendens shall be
deemed cancelled upon the registration of a
certificate of the clerk of court in which the
action or proceeding was pending stating the
manner of disposal thereof.'

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TABLE

SECTION 1, RULE 72. SUBJECT MATTER OF SPECIAL

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SECTION 1, RULE 73. WHERE ESTATE OF DECEASED

Venue distinguished from jurisdiction 22

Rules on venue and jurisdiction in probate proceedings

Court first taking cognizance excludes all others

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Probate courts cannot determine the issue of ownership

Probate court to distribute the estate and determine the heirs

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Claims against the conjugal property should be brought in the

Presumption of death cannot be the subject of an independent

Judicial declaration that a person is presumptively dead does not

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Special proceedings can be compelled when estate debts cannot

Provision not mandatory even though the decedent left no

Second sentence of Section 1 of Rule 74 an exception to the

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Application of the statute 55

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Person interested in the estate or interested p

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Notice of time and place for proving the will

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Substantial compliance rule 108

Contestant to file opposition stating his grounds therefor110

SECTION 11, RULE 76. SUBSCRIBING WITNESSES

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PETITIONS FOR ALLOWANCE OF HOLOGRAPHIC

Proof necessary if the testator himself files the petition for

Probate order is final and appealable 112

Principal and ancillary administration 117

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law: case law 1

Documents to be filed with the petition119

Requisites of ancillary administration119

Evidence needed for reprobate120

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Doctrine of processual presumption or presumedidentity

Rules do not require proof

Proof that wills

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courts cannot take judicial notice of foreign 126

RULE 78. LETTERS TESTAMENTARY AND OF

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Moral turpitude defined