CLARENCE TIU - Special Proceedings Notes (Midterms)

RULE 72: GENERAL PROVISIONS FOR SPECIAL PROCEEDINGS 4
NATURE OF SPECIAL PROCEEDINGS 4

SUBJECT-MATTER OF SPECIAL PROCEEDINGS 4
SUPPLETORY APPLICATION OF RULES OF ORDINARY CIVIL ACTIONS 5
RULE 73: SETTLEMENT OF ESTATE OF DECEASED PERSONS 8
SETTLEMENT OF ESTATE IN GENERAL 8
VENUE AND PROCESS OF SETTLEMENT OF ESTATE 8
SETTLEMENT OF CONJUGAL PROPERTY 14
PRESUMPTION OF DEATH FOR PURPOSES OF SUCCESSION 14
RULE 74: SUMMARY SETTLEMENT OF ESTATE 16
EXTRAJUDICIAL SETTLEMENT BETWEEN HEIRS BY AGREEMENT 16
SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE 17
REMEDIES OF AGGRIEVED PARTIES AFTER THE EXTRAJUDICIAL OR SUMMARY SETTLEMENT OF ESTATE 19
RULE 75: PRODUCTION OF WILL; ALLOWANCE OF WILL NECESSARY 23
PROBATE AND ALLOWANCE OF WILLS 23
DUTIES OF THE CUSTODIAN AND EXECUTOR 24
RULE 76: ALLOWANCE OR DISALLOWANCE OF WILL 27
FILING A PETITION FOR ALLOWANCE OF A WILL 27
CONTENTS OF THE PETITION FOR ALLOWANCE OF A WILL 27
HOW JURISDICTION IS ACQUIRED; PROCEDURE AFTER JURISDICTION IS ACQUIRED 28
REQUIREMENTS OF HEARING FOR ALLOWANCE OF THE WILL COMMENCES; PROOF OF NOTICE AND PUBLICATION 29
PROBATE OF LOST OR DESTROYED WILLS 31
CONTESTING A WILL 32
DISALLOWANCE OF WILLS; GROUNDS 32
PROCEDURE AFTER WILL IS ADMITTED INTO PROBATE 34
RULE 77: ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE
THEREUNDER 35
REPROBATE OF FOREIGN WILLS 35
EFFECT OF PROBATE OF FOREIGN WILLS 36
RULE 78: LETTERS TESTAMENTARY AND OF ADMINISTRATION, EXECUTORS AND ADMINISTRATORS37
EXECUTORS AND ADMINISTRATORS 37
GENERAL QUALIFICATIONS OF EXECUTORS AND ADMINISTRATORS 38
WHEN THE EXECUTOR DIES 38
AUTHORITIES ISSUED BY THE COURT; APPOINTMENT OF EXECUTORS AND ADMINISTRATORS 39
RULE 79: OPPOSING ISSUANCE OF LETTERS TESTAMENTARY; PETITION AND CONTEST FOR LETTERS OF
ADMINISTRATION 42
OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY 42
FILING A PETITION FOR ISSUANCE OF LETTERS OF ADMINISTRATION; PROCEDURE 42
RULE 80: SPECIAL ADMINISTRATOR 45
APPOINTMENT OF SPECIAL ADMINISTRATOR 45
POWERS AND DUTIES OF A SPECIAL ADMINISTRATOR 47
CEASE OF POWERS; EFFECT ON PENDING SUITS 47
RULE 81: BOND OF EXECUTORS AND ADMINISTRATORS 48
REQUIREMENT OF BOND FOR EXECUTORS AND ADMINISTRATORS 48
EXCEPTION TO THE BOND REQUIREMENT (FOR EXECUTORS ONLY) 48
BOND OF JOINT EXECUTORS OR ADMINISTRATORS 49
BOND OF A SPECIAL ADMINISTRATORS 49
RULE 82: REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION AND REMOVAL OF EXECUTORS OR
ADMINISTRATORS 50
REVOCATION OF LETTERS OF ADMINISTRATION 50
REMOVAL OF EXECUTOR OR ADMINISTRATOR 50
VALIDITY OF ACTS BEFORE REVOCATION, RESIGNATION OR REMOVAL OF AN EXECUTOR OR ADMINISTRATOR 51
POWERS OF NEW EXECUTOR OR ADMINISTRATOR 51
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ATENEO LAW 3B, BATCH 2017 1 OF 109 RULES ON SPECIAL PROCEEDINGS
RULE 83: INVENTORY AND APPRAISAL. PROVISION FOR SUPPORT OF FAMILY 52
DUTY OF EXECUTOR OR ADMINISTRATOR TO MAKE AN INVENTORY AND APPRAISAL 52
ALLOWANCE FOR SUPPORT OF THE DECEASED’S FAMILY 52
RULE 84: GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS 53
GENERAL POWERS OF EXECUTORS OR ADMINISTRATORS 53
SPECIAL POWERS OF EXECUTORS OR ADMINISTRATORS IN THE ESTATE’S INTEREST IN A PARTNERSHIP 53
RULE 85: ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS 55
ACCOUNTABILITY/LIABILITY OF THE EXECUTOR OR ADMINISTRATOR 55
EXPENSES AND FEES ALLOWED THE EXECUTOR OR ADMINISTRATOR 56
DUTY OF THE EXECUTOR OR ADMINISTRATOR TO RENDER AN ACCOUNT OF ADMINISTRATION 56
RULE 86: CLAIMS AGAINST ESTATE 58
PRESENTATION OF CLAIMS AGAINST THE ESTATE; NOTICE TO CREDITORS; PROCEDURE 58
TIME FOR FILING CLAIMS; STATUTE OF NON-CLAIMS 62
CLAIM TO ENFORCE SOLIDARY OR JOINT OBLIGATIONS 63
CLAIM TO ENFORCE SECURED OBLIGATIONS 64
CLAIM BY EXECUTOR OF ADMINISTRATOR 64
PROCEDURE FOR FILING CLAIMS 65
ANSWER OF THE ESTATE TO CLAIMS AGAINST IT 65
TRIAL OF CONTESTED CLAIM 66
JUDGMENT OF CLAIMS; APPEAL OF JUDGMENT 66
COSTS 66
RULE 87: ACTIONS BY AND AGAINST THE EXECUTORS AND ADMINISTRATORS 69
ACTIONS AGAINST OR BY THE EXECUTOR OR ADMINISTRATOR 69
ACTIONS FOR THE BENEFIT OF CREDITORS IN CASE OF FRAUDULENT CONVEYANCE BY DECEDENT 69
ACTIONS BY THE CREDITORS ON BEHALF OF THE EXECUTOR OR ADMINISTRATOR 70
ACTIONS BY THE HEIRS AGAINST AND ON BEHALF OF THE EXECUTOR OR ADMINISTRATOR 71
COMPROMISE BETWEEN EXECUTOR OR ADMINISTRATOR AND THE DECEDENT’S DEBTOR 71
PROCEEDINGS TO ELICIT INFORMATION; CONCEALMENT, EMBEZZLEMENT OR CONVEYANCE OF ESTATE PROPERTY 72
RULE 88: PAYMENT OF DEBTS OF THE ESTATE 74
REQUIREMENTS FOR PAYMENTS OF DEBTS OF THE ESTATE 74
ORDER OF PREFERENCE OF PAYMENT OF DEBTS 74
PAYMENT OF CONTINGENT CLAIMS/DEBTS 76
DISPOSAL OF ESTATE OF INSOLVENT NON-RESIDENT 77
COURT ORDER FOR PAYMENT OF DEBTS 77
TIME PERIOD FOR PAYMENT OF DEBTS AND DISTRIBUTION 78
RULE 89: SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT 79
SALE, MORTGAGE, ENCUMBRANCE, OR CONVEYANCE OF PERSONAL AND REAL PROPERTY 79
PROCEDURE OF OBTAINING COURT AUTHORITY TO SELL, MORTGAGE, OR ENCUMBER PROPERTY 81
RULE 90: DISTRIBUTION AND PARTITION OF THE ESTATE 83
ORDER OF DISTRIBUTION OF RESIDUE OF THE ESTATE TO THE HEIRS, DEVISES AND LEGATEES 83
QUESTIONS AS TO ADVANCEMENT 85
PAYMENT OF EXPENSES OF PARTITION 85
RECORDING THE ORDER OF PARTITION 85
RULE 91: ESCHEATS 86
NATURE OF ESCHEAT PROCEEDINGS 86
PETITION FOR ESCHEAT 86
PROCEDURE UPON FILING OF PETITION FOR ESCHEAT; JUDGMENT 87
PERIOD FOR FILING CLAIM BY INTERESTED PERSONS WHEN ESTATE IS ESCHEATED 88
ESCHEAT PROCEEDINGS INVOLVING REVERSION OF LANDS 88
ESCHEAT OF UNCLAIMED BALANCES 88
OVERVIEW: GENERAL GUARDIANS AND GUARDIANSHIP 91
RULE 92: VENUE (OF GUARDIANSHIP PROCEEDINGS) 93
WHO ARE INCOMPETENT? 93
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VENUE OF GUARDIANSHIP PROCEEDINGS 93
RULE 93: APPOINTMENT OF GUARDIANS 94
WHO MAY FILE A PETITION FOR APPOINTMENT OF GUARDIAN FOR RESIDENT INCOMPETENT 94
CONTENTS OF PETITION FOR APPOINTMENT OF GUARDIAN 94
PROCEDURE AFTER THE FILING OF PETITION FOR APPOINTMENT OF GUARDIAN OF RESIDENT INCOMPETENT 94
PETITION FOR APPOINTMENT OF GUARDIAN FOR NON-RESIDENT INCOMPETENT 95
RULE 94: BONDS OF GUARDIANS 96
RULE 95: SELLING AND ENCUMBERING PROPERTY OF THE WARD 97
RULE 96: GENERAL POWERS AND DUTIES OF GUARDIANS 98
RULE 97: TERMINATION OF GUARDIANSHIP 99
PETITION FOR DECLARATION OF COMPETENCY 99
GROUNDS FOR REMOVAL OR RESIGNATION OF GUARDIANS 99
RULE ON GUARDIANSHIP OF MINORS (A.M. NO. 03-02-05) 101
APPLICABILITY OF THE RULES ON GUARDIANSHIP OF MINORS 101
WHO MAY FILE A PETITION FOR GUARDIANSHIP OF MINORS 101
WHERE TO FILE PETITION 101
GROUNDS OF PETITION 101
CONTENTS OF THE PETITION 101
QUALIFICATIONS OF GUARDIANS 102
ORDER OF PREFERENCE IN THE APPOINTMENT OF GUARDIAN 102
PROCEDURE AFTER THE FILING OF PETITION FOR APPOINTMENT OF GUARDIAN OF RESIDENT MINORS 102
APPOINTMENT OF GUARDIAN FOR NON-RESIDENT MINORS; PROCEDURE 103
BOND OF GUARDIAN 104
GENERAL DUTIES AND POWERS OF THE GUARDIAN 104
POWER AND DUTIES OF THE GUARDIANSHIP COURT 105
SALE, ENCUMBRANCE, INVESTMENT OF THE MINOR’S PROPERTY 105
REMOVAL OR RESIGNATION OF GUARDIAN 106
TERMINATION OF GUARDIANSHIP 106
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RULE 72: GENERAL PROVISIONS FOR SPECIAL PROCEEDINGS
NATURE OF SPECIAL PROCEEDINGS
RULE 1: General Provisions

SECTION 3. Cases governed. - These Rules shall govern the procedure to be observed in actions, civil or criminal,
and special proceedings.
(a) A 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. (1a, R2) A civil action may either be ordinary or special. Both are governed by the rules for
ordinary civil actions, subject to the specific rules prescribed for a special civil action. (n)
(b) A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. (n)
(c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. (2a, R2)
CIVIL ACTIONS VS SPECIAL PROCEEDINGS

‣ Nature of Civil Actions
‣ A civil action is where a party sues another for the enforcement of a right or the prevention or redress of a wrong.
‣ It is a formal demand of one’s legal rights in a court of justice in the manner prescribed by the court of by law. It is a method
of applying legal remedies according to definite established rules
‣ Actions are always adversarial in nature, it must necessarily involve at least two parties, a plaintiff who initiates a case by
filing a complaint, and a defendant who responds through an answer.
‣ It is based on a cause of action, except for certain special civil actions.
‣ Nature of Special Proceedings
‣ A special proceeding pertains to a remedy by which a party seeks to establish a status, a right, or particular fact.
‣ In is not accurate to characterise a special proceeding as a mere form or subspecies of an action, since an action is an
ordinary suit in the courts of justice, while special proceedings refer to every other remedy furnished by law
‣ Special proceedings, are generally non-adversarial, it usually involves only one party, who initiates the proceedings with
a petition, application, or a special form of pleading.
‣ There is no definite adverse party in such proceedings
‣ It becomes adversarial in the course of the proceedings when there are oppositors may join the proceedings by
responding through their oppositions.
‣ The issues that may only be ruled by the court are dictated by law, because it exercises limited jurisdiction in a special
proceeding.
CIVIL ACTIONS SPECIAL PROCEEDINGS
One by which a party sues another for the enforcement or It is a remedy by which a party seeks to establish a status, a
protection of a right, or the prevention or redress of a wrong. It right, or a particular fact
may either be ordinary or special.
Actions are always adversarial in nature because it is based Special proceedings, are generally non-adversarial, as there is
on a cause of actions. It must necessarily involve at least two no definite adverse party. It becomes adversarial in the course
parties, a plaintiff and a defendant. of the proceedings when there are oppositors may join the
proceedings
Court exercises General Jurisdiction Court exercises Limited Jurisdiction
SUBJECT-MATTER OF SPECIAL PROCEEDINGS
Section 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;
(e) Adoption;
(f) Rescission and revocation of adoption;
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(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural children;
(l) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation of correction of entries in the civil registry.
‣ RULE: AS LONG AS THE REMEDY SEEKS TO ESTABLISH A STATUS, A RIGHT, OR A PARTICULAR FACT, THEN SUCH MAY BE
CALLED A SPECIAL PROCEEDING, REGARDLESS OF WHETHER IT IS INCLUDED IN THE ENUMERATION
‣ Rule 72, Sec. 1 is NOT meant to be an exclusive list of what may be considered as special proceedings.
‣ Other proceedings which have been categorized as special proceedings:
1. Liquidation of insolvent corporation
2. Declaration of nullity of void marriages and annulment of voidable marriages
3. Legal Separation
4. Petition for illegitimate filiation
5. Summary proceedings under the Family Code
6. Provisional orders on support, custody of minors, and administration of common property
7. Violence against women and children protection order
8. Declaration of status as abandoned, dependent or neglected children
9. Voluntary or involuntary commitment of children
10. Suspension, termination or restoration of parental authority
11. Domestic and inter-country adoption
12. Corporate rehabilitation
13. Writ of Amparo, Habeas Data, and Kaliksan
14. Arbitration
15. Recognition and enforcement of arbital award
SUPPLETORY APPLICATION OF RULES OF ORDINARY CIVIL ACTIONS
Section 2. Applicability of rules of civil actions. — In the absence of special provisions, the rules provided for in
ordinary actions shall be, as far as practicable, applicable in special proceedings.
‣ RULE: THE RULES FOR ORDINARY CIVIL ACTIONS SHALL BE APPLICABLE TO SPECIAL PROCEEDINGS, SAVE IN CASES WHERE
SPECIAL PROVISIONS EXIST AND PROVIDE OTHERWISE
‣ Thus, like civil actions, the rules on special proceedings must be liberally construed in order to promote their objective of
securing a just, speedy, and inexpensive disposition of every proceeding.
‣ The Supreme Court has held that the following provisions of the Rules of Civil Procedure also apply to Special
Proceedings:
1. Preparation, filing and service of applications, motions, and other papers
2. Omnibus motion rule
3. Subpoena
4. Computation of time
5. Motion for new trial
6. Modes of discovery
7. Trial before commissioners
8. Demurrer to evidence
9. Appeal
10. Requirement of certificate against forum-shopping
‣ But note that since a special proceeding is NOT a suit or ordinary action whereby a party sues another for the enforcement of a
right or the prevention of a wrong, the requirement that no suit shall be filed or maintained between members of the same
family unless it should appear that earnest efforts toward a compromise have been made, but that the same have failed, does
NOT apply to a special proceeding.
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JURISPRUDENCE
HAGANS V. WISLIZEMUS, 42 PHIL 880, G.R. NO. 16680, SEPTEMBER 13, 1920
‣ Actions vs Special Proceedings
‣ In view of the interpretation given to the words "action" and "special proceeding" by the Legislature itself, we are driven to
the conclusion that there is a distinction between an "action" and a "special proceeding," and that when the Legislature
used the word "action" it did not mean "special proceeding.”
‣ There is a marked distinction between an "action" and a "special proceeding. "An action is a formal demand of one's legal
rights in a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies
according to definite established rules.
‣ The term "special proceeding" may be defined as an application or proceeding to establish the status or right of a party, or
a particular fact.
‣ Usually, in special proceedings, no formal pleadings are required, unless the statute expressly so provides. The remedy in
special proceedings is generally granted upon an application or motion. Illustrations of special proceedings, in
contradistinction to actions, may be given: Proceedings for the appointment of an administrator, guardians, tutors; contest
of wills; to perpetuate testimony; to change the name of persons; application for admission to the bar, etc., etc.
NATCHER V. CA, 366 SCRA 385, G.R. NO. 133000, OCTOBER 2, 2001

‣ There lies a marked distinction between an action and a special proceeding. An action is a formal demand of one's right in
a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies according
to definite established rules.
‣ Nature of Special Proceedings
‣ The term "special proceeding" may be defined as an application or proceeding to establish the status or right of a party, or
a particular fact. Usually, in special proceedings, no formal pleadings are required unless the statute expressly so provides.
In special proceedings, the remedy is granted generally upon an application or motion
‣ "It may accordingly be stated generally that 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, and that special proceedings
include those proceedings which are not ordinary in this sense, but is instituted and prosecuted according to some special
mode 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 relief, such as
may be instituted independently of a pending action, by petition or motion upon notice
‣ Matters of advancement of property made by the decedent, partake of the nature of a special proceeding, it is NOT to
be adjudicated in ordinary actions
‣ 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 proceeding, which concomitantly requires the application of specific rules as provided for in the Rules of Court.
Clearly, matters which involve settlement and distribution of the estate of the decedent fall within the exclusive province of
the probate court in the exercise of its limited jurisdiction.
‣ “Before a court can make a partition and distribution of the estate of a deceased, it must first settle the estate in a special
proceeding instituted for the purpose. In the case at hand, the court a quo determined the respective legitimes of the
plaintiffs-appellants and assigned the subject property owned by the estate of the deceased to defendant-appellee without
observing the proper proceedings provided for by the Rules of Court.
‣ From the aforecited discussions, it is clear that trial courts trying an ordinary action cannot resolve to perform acts
pertaining to a special proceeding because it is subject to specific prescribed rules. Thus, the court a quo erred in
regarding the subject property as an advance inheritance
‣ Exception: Waiver
‣ Whether a particular matter should be resolved by the Regional Trial Court (then Court of First Instance) in the exercise
of its general jurisdiction or its limited probate jurisdiction is not a jurisdictional issue but a mere question of procedure.
In essence, it is procedural question involving a mode of practice "which may be waived
‣ Analogously, in a train of decisions, this Court has consistently enunciated the long standing principle that although
generally, a probate court may not decide a question of title or ownership, yet if the interested parties are all heirs,
or the question is one of collation or advancement, or the parties consent to the assumption of jurisdiction by
the probate court and the rights of third parties are not impaired, then the probate court is competent to decide the
question of ownership
PACIFIC BANKING CORPORATION EMPLOYEES ORGANIZATION V. CA, G.R. NO. 109373 MARCH 20, 1995
‣ Action is the act by which one sues another in a court 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.
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‣ 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 appointment of a guardian for an insane, his remedy is a special proceeding to establish the fact or status of insanity
calling for an appointment of guardianship.
‣ Liquidation of Insolvent Corporations as a Special Proceeding
‣ A petition for liquidation of an insolvent corporation should be classified a special proceeding and not an ordinary action.
Such petition does not seek the enforcement or protection of a right nor the prevention or redress of a wrong against a
party. It does not pray for affirmative relief for injury arising from a party's wrongful 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 corporation's debts and obligations. Put in another way, the petition only seeks a
declaration of the corporation's debts and obligations. Put in 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.
‣ In liquidation proceedings the Liquidator, as representative of the corporation, takes charge of its assets and liabilities for
the benefit of the creditors. He is thus charged with insuring that the assets of the corporation are paid only to rightful
claimants and in the order of payment provided by law.
‣ A liquidation proceeding resembles the proceeding for the settlement of state of deceased persons under Rules 73 to 91 of
the Rules of Court. The two have a common purpose: the determination of all the assets and the payment of all the debts
and liabilities of the insolvent corporation or the estate. The Liquidator and the administrator or executor are both charged
with the assets for the benefit of the claimants. In both instances, the liability of the corporation and the estate is not
disputed. The court's concern is with the declaration of creditors and their rights and the determination of their order of
payment.
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RULE 73: SETTLEMENT OF ESTATE OF DECEASED PERSONS
SETTLEMENT OF ESTATE IN GENERAL
CIVIL CODE
Article 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a)
WHEN SUCCESSION VESTS

‣ Art. 777 of the Civil Code provides the substantive basis for the rules governing the estate of deceased persons.
‣ The rights to succession are transmitted from the moment of death of the decedent, thus it is on this time that the heirs acquire
the rights of ownership. Nevertheless, before the actual transmission of rights, the procedural guidelines set forth in Rule 73 to
90 must be observed.
‣ Once the procedure outlined in the Rules of Court is complied with, the rights of the heirs retroact to the time of death of the
person whose estate was settled.
MODES OF SETTLEMENT OF ESTATE

‣ The estate of a deceased person may be settled with or without court intervention.
‣ Court intervention is NOT necessary in case of extrajudicial settlement which presupposes that the deceased:
1. Deceased left no will
2. There are no debts
3. Heirs are all of age, or are otherwise represented by their guardians
‣ The decedent’s estate MAY also be settled with the intervention of the court in the following scenarios:
1. Summary settlement of estate of small value (Rule 74, Sec. 2)
2. Partition (Rule 69)
3. Settlement through letters testamentary or letters of administration with or without the will annexed (Rule 73, 75-90)
VDA DE REYES V. COURT OF APPEALS, 169 SCRA 524, G.R. NO. L-47027 JANUARY 27, 1989
‣ Nature of Proceedings for Settlement of Estate
‣ That a special proceeding for the settlement of an estate is filed and intended to settle the entire estate of the deceased is
obvious and elementary. It would be absurd for the heirs to intentionally excluded or leave a parcel of land or a portion
thereof undistributed or undivided because the proceeding is precisely designed to end the community of interests in
properties held by co-partners pro indiviso without designation or segregation of shares.
VENUE AND PROCESS OF SETTLEMENT OF ESTATE
Section 1. Where estate of deceased persons settled. — If the decedents is an inhabitant of the Philippines at the
time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his
estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is
an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first
taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all
other courts. 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.
Section 3. Process. — In the exercise of probate jurisdiction, Courts of First Instance may issue warrants and
process necessary to compel the attendance of witnesses or to carry into effect theirs orders and judgments, and all
other powers granted them by law. If a person does not perform an order or judgment rendered by a court in the
exercise of its probate jurisdiction, it may issue a warrant for the apprehension and imprisonment of such person
until he performs such order or judgment, or is released.
PROCEEDINGS FOR SETTLEMENT OF ESTATE IN GENERAL; COMPUTATION OF THE NET ESTATE

‣ In a special proceeding for settlement of estate, the petitioners seek to establish a status, a right, or a particular fact, the fact
of death and to be recognized as among the heirs of the deceased so that they can 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.
‣ The settlement of estate requires certain steps to be taken before a compulsory heir may get his legal share, this is to compute
for the net hereditary estate and determine whether the legitimes have been impaired
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‣ Manner of Computing the Net Estate:
1. Inventory of all the existing assets
‣ This value is the “gross estate” or “gross assets”
‣ This will involve an appraisal/valuation of these existing assets at the time of the decedent’s death.
‣ Note that these assets include only those properties that survive the decedent, those which are not extinguished by his
death.
‣ In other words, only non-personal assets (in relation to Art. 774 and 777)
2. Deduct unpaid debts and charges
‣ Once you deduct this, you get the “available assets”
‣ The difference between the gross assets and the unpaid obligations will be the available assets.
‣ All unpaid obligations of the decedent should be deducted from the gross assets.
‣ Note that it involves the same rule with assets, only those obligations with monetary value which are not extinguished
by death are considered here.
‣ Thus, those obligations which are purely personal (intuitu personae) are not taken into account
3. Add the value of all donations inter vivos made by decedent
‣ This determines the “net estate”
‣ The sum of the available assets and all the donations inter vivos is the net hereditary estate.
‣ To the available assets should be added ALL the inter vivos donations made by the decedent.
‣ The donations inter vivos shall be valued as of the time they were respectively made.
JURISDICTION OVER SETTLEMENT OF ESTATE

‣ RULE: MTC HAS JURISDICTION TO SETTLE AN ESTATE IF ITS GROSS VALUE DOES NOT EXCEED P300,000 OR P400,000, IF
WITHIN METRO MANILA. IF IT EXCEEDS SAID AMOUNT, THEN THE RTC HAS JURISDICTION
‣ Municipal Trial Courts and Regional Trial Courts are both empowered to take cognisance of estate proceedings. (See RA
7691 amending BP 129)
‣ What determines which court has jurisdiction will depend on the gross value of the estate concerned.
‣ Thus, for purposes of determining which court has jurisdiction, neither residence nor citizenship is taken into
account.
‣ Note that it is only probate proceedings that fall under the jurisdiction of the MTC, all other special proceedings fall under
the exclusive original jurisdiction of the RTC and Family Courts
VENUE OF SETTLEMENT OF ESTATE

‣ RULE: IF THE DECEDENTS IS AN INHABITANT OF THE PHILIPPINES AT THE TIME OF HIS DEATH, WHETHER A CITIZEN OR AN
ALIEN, HIS WILL SHALL BE PROVED, OR LETTERS OF ADMINISTRATION GRANTED, AND HIS ESTATE SETTLED, IN THE COURT OF
THE PROVINCE IN WHICH HE RESIDES AT THE TIME OF HIS DEATH. IF HE IS AN INHABITANT OF A FOREIGN COUNTRY, THE
COURT OF ANY PROVINCE IN WHICH HE HAD ESTATE
‣ Rule 73, Sec. 1 provides for the venue of actions for the settlement of estate of deceased persons. It is NOT a matter of
jurisdiction, but merely of venue.
‣ Remember that venue is NOT jurisdictional in civil cases, and thus may be waived by the parties, unlike in criminal cases.
‣ GARCIA FULE V. CA, 74 SCRA 189, G.R. NO. L-40502, NOVEMBER 29, 1976
‣ In Rule 73, Section 1, specifically the clause "so far as it depends on the place of residence of the decedent, or of the
location of the estate," is in reality a matter of venue, as the caption of the Rule indicates: "Settlement of Estate of
Deceased Persons. Venue and Processes.
‣ It could not have been intended to define the jurisdiction over the subject matter, because such legal provision is
contained in a law of procedure dealing merely with procedural matters.
‣ Procedure is one thing; jurisdiction over the subject matter is another. The power or authority of the court over the
subject matter "existed and was fixed before procedure in a given cause began." That power or authority is not altered
or changed by procedure, which simply directs the manner in which the power or authority shall be fully and justly
exercised.
‣ There are cases though that if the power is not exercised conformably with the provisions of the procedural law, purely,
the court attempting to exercise it loses the power to exercise it legally. However, this does not amount to a loss of
jurisdiction over the subject matter. Rather, it means that the court may thereby lose jurisdiction over the person or that
the judgment may thereby be rendered defective for lack of something essential to sustain it.
‣ The appearance of this provision in the procedural law at once raises a strong presumption that it has nothing to do
with the jurisdiction of the court over the subject matter. In plain words, it is just a matter of method, of convenience to
the parties
‣ The Judiciary Act of 1948, as amended, confers upon Courts of First Instance jurisdiction over all probate cases
independently of the place of residence of the deceased. Because of the existence of numerous Courts of First
Instance in the country, the Rules of Court, however, purposedly fixes the venue or the place where each case shall be
brought. A fortiori, the place of residence of the deceased in settlement of estates, probate of will, and issuance
of letters of administration does not constitute an element of jurisdiction over the subject matter. It is merely
CLARENCE TIU
constitutive of venue. And it is upon this reason that the Revised Rules of Court properly considers the province
where the estate of a deceased person shall be settled as “venue."
‣ The long-settled rule is that objection to improper venue is subject to waiver. Section 4, Rule 4 of the Revised Rules
of Court states: "When improper venue is not objected to in a motion to dismiss, it is deemed waived.
‣ Venue depends on residence, whether decedent is an inhabitant of the Philippines or not.
1. Decedent resides in the Philippines
‣ Venue is the court of such province in which he resides at the time of his death
2. Decedent does NOT reside in the Philippines
‣ Venue is the court of any province in which he had estate
‣ Meaning of “Residence” for purposes of Venue of Proceedings for Settlement of Estate
‣ For purposes of settlement of estate, residence refers to “actual or physical” residence, as distinguished from legal
residence or domicile. it refers to one’s personal, actual or physical habitation or actual residence or place of abode, which
may not necessarily be one’s legal residence or domicile, provided one resides therein with continuity and consistency
‣ Though residence may be considered as synonymous with “domicile”, this is merely for election cases.
‣ What if a person has two actual and physical residences at the time of death?
‣ GARCIA FULE V. CA, 74 SCRA 189, G.R. NO. L-40502, NOVEMBER 29, 1976
‣ What does the term "resides" mean? Does it refer to the actual residence or domicile of the decedent at the time of his
death?
‣ We lay down the doctrinal rule that the term "resides" connotes ex vi termini "actual residence" as distinguished from
"legal residence or domicile."
‣ This term "resides," like, the terms "residing" and "residence," is elastic and should be interpreted in the light of the
object or purpose of the statute or rule in which it is employed. In the application of venue statutes and rules — Section
1, Rule 73 of the Revised Rules of Court is of such nature — residence rather than domicile is the significant factor.
‣ Even where the statute uses the word "domicile" still it is construed as meaning residence and not domicile in the
technical sense.
‣ Some cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing
venue, the terms are synonymous, and convey the same meaning as the term “inhabitant."
‣ In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or
physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual
stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or
domicile.
‣ Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in
that place and also an intention to make it one's domicile. No particular length of time of residence is required though;
however, the residence must be more than temporary
‣ Proof of “Residence at the Time of Death”
‣ A death certificate is admissible to prove the residence of the decedent at the time of his death
‣ Also, the court in this case used the following documents as basis: residence certificate, marketing agreement and
power of attorney, deed of donation, and certificates of title.
DETERMINING WHICH COURT MAY PROPERLY ASSUME JURISDICTION (IN RELATION TO VENUE)
‣ RULE: THE COURT FIRST TAKING COGNIZANCE OF THE SETTLEMENT OF THE ESTATE SHALL EXERCISE JURISDICTION TO THE
EXCLUSION OF ALL OTHER COURTS.
‣ In order to preclude different courts which may properly assume jurisdiction from doing so, the The rule specifies that the
court in which a petition is filed must “take cognizance” of the same.
‣ Consequently, as soon as the probate court acquires jurisdiction over all the properties of the deceased, no other court can
dispose of such properties without the probate court’s approval, for that would be tantamount to divesting the latter with
jurisdiction
‣ Preference, however, is given in favour of the court where the testate proceedings, as compared to intestate proceedings,
are held.
‣ CUENCO V. CA, 53 SCRA 360, G.R. NO. L-24742, OCTOBER 26, 1973
‣ Venue of Proceedings for Settlement of Estate
‣ The Judiciary Act concededly confers original jurisdiction upon all Courts of First Instance over "all matter of probate,
both of testate and intestate estates." On the other hand, Rule 73, section of the Rules of Court lays down the rule of
venue, as the very caption of the Rule indicates, and in order to prevent conflict among the different courts which
otherwise may properly assume jurisdiction from doing so, the Rule specifies 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.”
‣ It should be noted that the Rule on venue does not state that the court with whom the estate or intestate petition is first
filed acquires exclusive jurisdiction.
‣ The Rule precisely and deliberately 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.”
CLARENCE TIU
‣ A fair reading of the Rule — since it deals with venue and comity between courts of equal and co-ordinate jurisdiction
— indicates that the court with whom the petition is first filed, must also first take cognizance of the settlement of
the estate in order to exercise jurisdiction over it to the exclusion of all other courts.
‣ Conversely, such court, may upon learning that a petition for probate of the decedent's last will has been presented in
another court where the decedent obviously had his conjugal domicile and resided with his surviving widow and their
minor children, and that the allegation of the intestate petition before it stating that the decedent died intestate may be
actually false, may decline to take cognizance of the petition and hold the petition before it in abeyance, and instead
defer to the second court which has before it the petition for probate of the decedent's alleged last will.
‣ It is equally conceded that the residence of the deceased or the location of his estate is not an element of
jurisdiction over the subject matter but merely of venue.
‣ We are not unaware of existing decisions to the effect that in probate cases the place of residence of the deceased is
regarded as a question of jurisdiction over the subject-matter. But we decline to follow this view because of its
mischievous consequences.
‣ For instance, a probate case has been submitted in good faith to the Court of First Instance of a province where the
deceased had not resided. All the parties, however, including all the creditors, have submitted themselves to the
jurisdiction of the court and the case is therein completely finished except for a claim of a creditor who also voluntarily
filed it with said court but on appeal from an adverse decision raises for the first time in this Court the question of
jurisdiction of the trial court for lack of residence of the deceased in the province.
‣ If we consider such question of residence as one affecting the jurisdiction of the trial court over the subject-matter, the
effect shall be that the whole proceedings including all decisions on the different incidents which have arisen in court
will have to be annulled and the same case will have to be commenced anew before another court of the same rank in
another province. That this is of mischievous effect in the prompt administration of justice is too obvious to require
comment.
‣ If the question of jurisdiction were to be made to depend only on who of the decedent's relatives gets first to file a
petition for settlement of the decedent's estate, then the established jurisprudence of the Court that Rule 73, section 1
provides only a rule of venue in order to preclude different courts which may properly assume jurisdiction from doing so
and creating conflicts between them to the detriment of the administration of justice, and that venue is waivable, would
be set at naught.
‣ As between relatives who unfortunately do not see eye to eye, it would be converted into a race as to who can file the
petition faster in the court of his/her choice regardless of whether the decedent is still in cuerpo presente and in
disregard of the decedent's actual last domicile, the fact that he left a last will and testament and the right of his
surviving widow named as executrix thereof. Such dire consequences were certainly not intended by the Rule nor
would they be in consonance with public policy and the orderly administration of justice.
‣ It is well settled in this jurisdiction that wrong venue is merely a waivable procedural defect
‣ It must be remembered that this Court is not inclined to annul proceedings regularly had in a lower court even if the
latter was not the proper venue therefor, if the net result would be to have the same proceedings repeated in some
other court of similar jurisdiction; more so in a case like the present where the objection against said proceedings is
raised too late.
RULE IN CASE TWO CASES WERE FILED FOR SETTLEMENT, INTESTATE PROCEEDINGS THEN TESTATE PROCEEDINGS
‣ What if two cases were filed upon the death of the decedent, intestate proceedings were first filed but subsequently, testate
proceedings were filed, in a different court and province, which court should assume jurisdiction?
‣ RULE: PROBATE PROCEEDINGS SHOULD REPLACE THE INTESTATE PROCEEDINGS, WITHOUT PREJUDICE THAT SHOULD THE
ALLEGED LAST WILL BE DISALLOWED, THE PROCEEDING SHALL CONTINUE AS INTESTACY
‣ Based on the principle that testate proceedings take precedence over the testate proceedings.
‣ ROBERTS VS LEONIDAS (1984)
‣ The intestate case should be consolidated with the testate case, and the judge assigned to the testate proceeding
should continue to hear the two cases. This is because the the principle that testate proceedings take precedence over
intestate proceedings over the same estate. Probate of wills is mandatory.
‣ URIARTE VS CFI (1977)
‣ The petitioners of the testate case should have submitted the will for probate either on motion in the pending intestate
proceeding or as a separate proceeding. If in the court of intestate proceedings pending before a court, it is found that
the decedent had left a will, the proceedings for the probate of the latter should replace the intestate proceedings
even if at that stage an administrator had already been appointed. But this is without prejudice that should the alleged
will be disallowed, the proceeding shall continue as an intestate one.
‣ CUENCO V. CA, 53 SCRA 360, G.R. NO. L-24742, OCTOBER 26, 1973
‣ It can not be denied that a special proceeding intended to effect the distribution of the estate of a deceased person,
whether in accordance with the law on intestate succession or in accordance with his will, is a "probate matter" or a
proceeding for the settlement of his estate.
‣ It is equally true, however, that in accordance with settled jurisprudence in this jurisdiction, testate proceedings for the
settlement of the estate of a deceased person take precedence over intestate proceedings for the same purpose.
CLARENCE TIU
‣ Thus it has been held repeatedly that, if in the course of intestate proceedings pending before a court of first
instance 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 state 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. As already adverted to, this is a clear indication that proceedings for
the probate of a will enjoy priority over intestate proceedings=
OBJECTIONS TO IMPROPER VENUE OF SETTLEMENT OF ESTATE

‣ RULE: ONCE THE COURT ASSUMES JURISDICTION (TAKES COGNIZANCE OF THE CASE), IT SHALL NOT BE CONTESTED SO FAR
AS IT DEPENDS ON THE DECEDENT’S PLACE OF RESIDENCE THE LOCATION OF HIS ESTATE, UNLESS:
1. IN AN APPEAL FROM THE COURT, IN THE ORIGINAL CASE
2. WHEN THE WANT OF JURISDICTION APPEARS ON THE RECORD
‣ Thus, venue may be assailed only when the estate proceedings are brought up on appeal, or if a plain reading of the records of
the case will immediately show that venue was improperly laid.
‣ For instance, while the petition for probate of the will alleges that the decedent was a resident of Makati City at the time of
death, but the petition was filed in Paranaque City, obviously the petition should be dismissed for improper venue because the
allegations of the petition indubitably show that it should have been filed in Makati.
‣ However the fact that the estate proceedings are initiated neither in the decedent’s residence at the time of death nor
where the decedent’s estate is located is NOT jurisdictional and may be waived if not raised.
‣ Objection to improper venue should be made in a motion to dismiss, and before the moan submits himself to the
jurisdiction of the probate court.
EXTENT OF JURISDICTION OF THE COURT IN CHARGE OF SETTLEMENT PROCEEDINGS; FUNCTIONS

‣ RULE: A COURT IN CHARGE OF SETTLEMENT PROCEEDINGS (SUCH AS A PROBATE COURT) EXERCISES LIMITED JURISDICTION
CONCERNED WITH THE ADMINISTRATION, LIQUIDATION AND DISTRIBUTION OF THE ESTATE, AND MATTERS INCIDENTAL
THERETO
‣ The main function of a probate court is to settle and liquidate the estates of deceased persons either summarily or through
the process of administration. Also, its jurisdiction extends to matters incidental and collateral to the settlement and
distribution of the estate,
‣ Thus, it has been ruled that it has the authority to:
1. Determine the heirs and their status as such
2. Make a just and legal distribution of the estate
3. Rule on the recognition of a natural child
4. Rule of the status of a woman claiming to be the legal wife.
5. Approve the sale of properties by his prospective heirs before final adjudication
6. Determine the legality of an heir by the testator
7. Pass upon the validity of a waiver of hereditary rights
8. Determine whether property included in the inventory is the conjugal or exclusive property of the deceased spouse
9. Determine whether a certain property is to be included or excluded in the estate of the decedent (but provisionally only,
without prejudice to a separate action for such purpose)
ADJUDICATION OF TITLE OF PROPERTIES BY THE COURT IN CHARGE OF SETTLEMENT PROCEEDINGS

‣ RULE: THE COURT IN CHARGE OF THE PROCEEDINGS FOR SETTLEMENT OF ESTATE CANNOT ADJUDICATE OR DETERMINE
TITLE TO PROPERTIES CLAIMED TO BE A PART OR NOT PART OF THE ESTATE OF THE DECEASED, IT MAY MERELY
PROVISIONALLY PASS UPON THE QUESTION OF ITS EXCLUSION/INCLUSION
‣ Basically, the issue of ownership is within the jurisdiction of regular courts (regular courts in the exercise of its general
jurisdiction), NOT a court in charge of settlement proceedings (regulars courts in the exercise of limited or probate
jurisdiction)
‣ As an exception, for the purpose of determining whether a certain property should or should not be included in the
inventory, the probate court should pass upon the title there but such determination is not conclusive and is subject to the
final decision in a separate action regarding ownership, which may be instituted by the parties.
‣ Questions of title may be passed on provisionally, but the final determination of the ownership of the property must be
threshed out in a separate civil action and not in the probate court.
‣ EXCEPT: THE COURT IN CHARGE OF THE PROCEEDINGS FOR SETTLEMENT OF ESTATE MAY PASS UPON ISSUE OF
OWNERSHIP IF THE FOLLOWING REQUIREMENTS ARE MET:
1. Where the interested parties are the heirs who have all appeared in the proceeding,
2. All the parties consent to the assumption of jurisdiction by the probate court
3. The question is one of collation or advancement; and
4. The rights of third parties are not impaired
CLARENCE TIU
‣ Note that jurisprudence provides the conjunction “or” in enumerating the exceptions but Atty. Melo said it must be
“and”, meaning the requirements must concur.
‣ REYES V. MOSQUEDA, 187 SCRA 661, G.R. NO. L-45262, JULY 23, 1990
‣ It is well-settled rule that 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 no dispute,
well and good; but if there is, then the parties, the administrator, and the opposing parties have to resort to an
ordinary action for a final determination of the conflicting claims of title because the probate court cannot do
so
‣ For the purpose of determining whether a certain property should or should not be included in the inventory, the
probate court may pass upon the title thereto but such determination is not conclusive and is subject to the final
decision in a separate action regarding ownership which may be instituted by the parties
‣ In this case, the provisional character of the exclusion of the contested properties in the inventory as stressed in the
order is within the jurisdiction of the probate court (because it’s merely provisional, without prejudice to a separate
action filed for the purpose of adjudicating title thereto)
‣ PIO BARRETTO REALTY DEVELOPMENT, INC. V. CA, 131 SCRA 606, G.R. NO. L-62431-33, AUGUST 31, 1984
‣ Issue in this case, was “For continually presuming that the three titled lots were part of the Drepin estate and for
refusing to provisionally pass upon the question of exclusion, did the respondent court act without or in excess of
jurisdiction or with grave abuse of discretion?”
‣ We hold that even with such presumption and refusal, the respondent court still acted within its jurisdiction and not with
grave abuse of discretion. After all, the jurisprudence and rule are both to the effect that the probate court "may"
provisionally pass upon the question of exclusion, not "should".
‣ The obvious reason is the probate court's limited jurisdiction and the principle that questions of title or ownership, which
result to inclusion in or exclusion from the inventory of the property, can only be settled in a separate action.
‣ Hence, even if respondent court presumed an the way that the properties sold by Drepin to petitioner were part of
Drepin's estate, that would not prevent nor defeat petitioner's remedy in a separate suit.
‣ Any ruling by the probate court to include those properties "is only provisional in character and is without prejudice to a
judgment in a separate action on the issue of title or ownershi
‣ COCA V. BORROMEO, 81 SCRA 278, G.R. NO. L-27082, JANUARY 31, 1978
‣ It should be clarified that whether a particular matter should be resolved by the Court of First Instance in the exercise of
its general jurisdiction or of its limited probate jurisdiction is in reality NOT a jurisdictional question. In essence, it is
a procedural question involving a mode of practice "which may be waived”
‣ As a general rule, the question as to title to property should not be passed upon in the estate or intestate proceeding.
That question should be ventilated in a separate action.
‣ BUT, the probate court may provisionally pass upon in an intestate or testate proceeding the question of inclusion in, or
exclusion from, the inventory of a piece of property without prejudice to its final determination in a separate
‣ EXCEPTIONS
‣ The general rule has qualifications or exceptions justified by expediency and convenience.
‣ Although generally, a probate court may not decide a question of title or ownership, yet in the following
cases, the probate court is competent to decide the question of ownership, provided the rights of third
parties are not impaired:
1. The interested parties are all heirs or
2. The question is one of collation or advancement, or
3. The parties consent to the assumption of jurisdiction by the probate court
‣ CORTES. V. CA, 340 SCRA 715, G.R. NO. 117417, SEPTEMBER 21, 2000
‣ The long standing rule is that probate courts, or those in charge of proceedings whether testate or intestate, cannot
adjudicate or determine title to properties claimed to be part of the estate and which are claimed to belong to outside
parties.
‣ Stated otherwise, "claims for title to, or right of possession of, personal or real property, made by the heirs themselves,
by title adverse to that of the deceased, or made by third persons, cannot be entertained by the (probate) court
‣ EXCEPTION
‣ In the present case, however, private respondent, who refused to vacate the house and lot being eyed as part of
the estate of the decedent cannot be considered an "outside party" for he is one of the three compulsory heirs of
the former. As such, he is very much involved in the settlement of the estate
‣ By way of exception to the above-mentioned rule, "when the parties are all heirs of the decedent, it is optional
upon them to submit to the probate court the question of title to property.
‣ Here, the probate court is competent to decide the question of ownership. More so, when the opposing parties
belong to the poor stratum of society and a separate action would be most expensive and inexpedient.
‣ ARANAS VS MERCADO, G.R. NO. 156407, JANUARY 12, 2014
CLARENCE TIU
‣ The objective of the Rules 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 administrator and in making a final and equitable
distribution of the estate and otherwise to facilitate the administration of the estate, hence the RTC that presides over
the administration of the estate is vested with wide discretion on the question of what properties should be included in
the inventory
CAN ISSUES PERTAINING TO MATTERS OF ESTATE SETTLEMENT BE ADJUDICATED IN ORDINARY ACTIONS?

‣ RULE A DETERMINATION OF HEIRSHIP CANNOT BE MADE IN AN ORDINARY ACTIONS, IT MUST BE MADE IN A SPECIAL
PROCEEDING FOR SUCH PURPOSE.
‣ EXCEPT: IN THE FOLLOWING SPECIAL CASES, IT MAY BE PASSED UPON IN ORDINARY ACTIONS
1. For the sake of practicality
2. Parties in the ordinary civil action had voluntarily submitted the issue to the trial court, and already presented
their evidence, and the trial court had already rendered judgment thereon
3. When a special proceeding had been instituted but had been finally closed and terminated, and hence, cannot
be re-opened
4. Other instances of a similar nature
‣ Basically, in this case, the issue (such as determination of heirship) properly pertains to courts in the exercise of limited
jurisdiction (thus a case for special proceeding must be filed), NOT courts in the exercise of limited jurisdiction. But note the
exceptions in jurisprudence, the basis of which is practicality and convenience.
‣ HEIRS OF YPON VS RICAFORTE, G.R. NO. 198680, JULY 8, 2013
‣ By way of exception, the need to institute a separate special proceeding for the determination of heirship may be dispensed
with for the sake of practicality, as when the parties in the ordinary civil action had voluntarily submitted the issue to the trial
court, and already presented their evidence regarding the issue of heirship, and the RTC had consequently rendered
judgment thereon, or when a special proceeding had been instituted but had been finally closed and terminated, and
hence, cannot be re-opened.
‣ In this case, however, none of the exceptions, or those of similar nature, appear to exist. Hence, there lies the need to
institute the proper special proceeding in order to determine the heirship of the parties involved, ultimately resulting to
the dismissal of the complaint.
‣ HEIRS OF GABATAN VS CA, G.R. NO. 150206, MARCH 13, 2009
‣ There appears to be only one parcel of land being claimed by the contending parties as their inheritance from the
decedent. It would be more practical to dispense with a separate special proceeding for the determination of the status of
respondent as the sole heir, specially in light of the fact that the parties had voluntarily submitted the issue to the trial court
and already presented their evidence regarding the issue of heirship.
SETTLEMENT OF CONJUGAL PROPERTY
Section 2. Where estate settled upon dissolution of marriage. — When the marriage is dissolved by the death of the
husband or wife, the community property shall be inventoried, administered, and liquidated, and the debts thereof
paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal
partnership shall be liquidated in the testate or intestate proceedings of either.
‣ RULE: UPON DEATH OF EITHER SPOUSE, 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, IT SHALL BE LIQUIDATED IN THE TESTATE OR INTESTATE PROCEEDINGS OF EITHER.
‣ A creditor cannot sue the surviving spouse of a decedent in an ordinary proceeding for collection of sum of money
chargeable against the conjugal property. The proper remedy is for the creditor to file a claim in the settlement of estate of
the decedent.
‣ The rationale is that upon the death of one spouse, powers of administration of the surviving spouse ceases and us passed
to the administrator appointed by the probate court in the settlement proceedings.
PRESUMPTION OF DEATH FOR PURPOSES OF SUCCESSION
Section 4. Presumption of death. — For purposes of settlement of his estate, a person shall be presumed dead if
absent and unheard from for the periods fixed in the Civil Code. But if such person proves to be alive, he shall be
entitled to the balance of his estate after payment of all his debts. The balance may be recovered by motion in the
same proceeding.
CIVIL CODE
CLARENCE TIU
Article 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be
presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten
years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that
his succession may be opened. (n)
Article 391. The following shall be presumed dead for all purposes, including the division of the estate among the
heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of
for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and his existence has not been known for
four years. (n)
Article 392. If the absentee appears, or without appearing his existence is proved, he shall recover his property in the
condition in which it may be found, and the price of any property that may have been alienated or the property
acquired therewith; but he cannot claim either fruits or rents. (194)
Article 393. Whoever claims a right pertaining to a person whose existence is not recognized must prove that he was
living at the time his existence was necessary in order to acquire said right. (195)
Article 394. Without prejudice to the provision of the preceding article, upon the opening of a succession to which an
absentee is called, his share shall accrue to his coheirs, unless he has heirs, assigns, or a representative. They shall
all, as the case may be, make an inventory of the property. (196a)
Article 395. The provisions of the preceding article are understood to be without prejudice to the action of petition for
inheritance or other rights which are vested in the absentee, his representatives or successors in interest. These
rights shall not be extinguished save by lapse of time fixed for prescription. In the record that is made in the Registry
of the real estate which accrues to the coheirs, the circumstance of its being subject to the provisions of this article
shall be stated. (197)
Article 396. Those who may have entered upon the inheritance shall appropriate the fruits received in good faith so
long as the absentee does not appear, or while his representatives or successors in interest do not bring the proper
actions. (198)
‣ Note that there is no independent action for the declaration of presumptive death, except that a spouse may seek the
declaration of presumptive death of his or her spouse for the purpose of remarriage under the Family Code
‣ If the absentee turns out to be alive, he or she may recover the balance of one’s estate after the payment of all debts.
‣ The balance may be recovered on motion in the same proceedings
‣ A person who was erroneously declared presumptively dead, either because the absentee appears or the fact that the
absentee is still alive is proved, may recover one’s property in the condition that it may be found and the price of the
property that may have been alienated or property acquired with such sums, but the fruits and rents may not be
recovered.
‣ How about the estate tax paid?
‣ What is the effect of absence on contingent rights of the absentee
‣ See Art. 393 to 396 of the Civil Code
Period of Absence for Presumptive Death
Absentee disappeared 7 years for all purposes except succession.

below 75 years of age 10 years is necessary for purposes of opening up the absentee’s succession
Absentee disappeared 7 years for all purposes except succession.

after 75 years of age 5 years only for purposes of opening up the absentee’s succession
Absentee disappeared 4 years when absentee disappeared under dangerous circumstances enumerated in Art. 391 of
under dangerous the Civil Code.
circumstances
CLARENCE TIU
RULE 74: SUMMARY SETTLEMENT OF ESTATE
2 kinds of Summary Settlement of Estate contemplated under Rule 74

1. Extrajudicial Settlement between Heirs
2. Summary Settlement of Estates of Small Value
EXTRAJUDICIAL SETTLEMENT BETWEEN HEIRS BY AGREEMENT
Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left no will and no debts and the
heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the
purpose, the parties may without securing letters of administration, divide the estate among themselves as they see
fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do
so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the entire estate by means
of an affidavit filled in the office of the register of deeds. The parties to an extrajudicial settlement, whether by public
instrument or by stipulation in a pending action for partition, or the sole heir who adjudicates the entire estate to
himself by means of an affidavit shall file, simultaneously with and as a condition precedent to the filing of the public
instrument, or stipulation in the action for partition, or of the affidavit in the office of the register of deeds, a bond
with the said register of deeds, in an amount equivalent to the value of the personal property involved as certified to
under oath by the parties concerned and conditioned upon the payment of any just claim that may be filed under
section 4 of this rule. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of
administration within two (2) years after the death of the decedent.
The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in
the manner provided in the nest succeeding section; but no extrajudicial settlement shall be binding upon any
person who has not participated therein or had no notice thereof.
Section 3. Bond to be filed by distributees. — The court, before allowing a partition in accordance with the provisions
of the preceding section, my require the distributees, if property other than real is to be distributed, to file a bond in
an amount to be fixed by court, conditioned for the payment of any just claim which may be filed under the next
succeeding section.
NATURE OF EXTRAJUDICIAL SETTLEMENT BY AGREEMENT; NOT MANDATORY

‣ Extrajudicial settlement is NOT a special proceeding, it is merely a contract or agreement between the heirs on how to partition
the estate extrajudicially.
‣ In order to afford the decedent’s heirs a cost-efficient manner of settling the estate, the Rules has provided them with the
option of doing so without court intervention
‣ The rationale behind this is that when a person dies without leaving pending obligations to be paid, the decedent’s heirs,
whether of age or not, are not bound to submit the property to a judicial administration and the appointment of an administrator
are superfluous and unnecessary proceedings
‣ This however does NOT preclude the heirs from resorting to judicial settlement to the estate if they do not desire to
resort for good reasons to an ordinary action of partition.
‣ The provision on extrajudicial settlement is NOT mandatory or compulsory. In fact, the heirs are given the discretion to pursue
this courts of action, provided only that the requisites therefor are present.
‣ Section 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort to an ordinary action of
partition, and it does NOT compel them to do so if they have good reasons to take a different court of action
‣ Rule 74, Sec. 1 is the exception to the general rule that when person dies leaving a property, it should be judicially
administered and the competent court should appoint a qualified administrator, in the order established in Sec. 6, Rule 78 in
case the decedent left no will, or in case he did, he failed to name an executor therein.
‣ But Atty. Melo says that this is rather the general rule. Almost all estates are settled through Extrajudicial Settlement as it is
less expensive and faster.
‣ If the heirs disagree on how they will distribute the estate, their remedy would be to file an ordinary action for Partition under
Rule 69.
REQUISITES FOR EXTRAJUDICIAL SETTLEMENT

1. DECEDENT DIED INTESTATE
‣ The decedent should have left no will
CLARENCE TIU
‣ If the decedent left a will, both substantive and procedural law mandate that the same be presented and admitted into
probate, and the estate be distributed in accordance with the decedent’s wishes
‣ The heirs cannot disregard the decedent’s disposition of one’s estate by resorting to extrajudicial settlement as this is
contrary to public policy
‣ The law enjoins that 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 nurgatory
‣ Absent legatees and devisees, or such of them as may have no knowledge of the will could be cheated of their
inheritance through the collusion of some of the heirs who might agree to the partition of the estate among themselves
to the exclusion of others.
‣ If the decedent left a will and no debts, and heirs desire to make an extrajudicial partition of the estate, they must first
present the will to the court for probate and divided the estate in accordance with the will
2. THERE ARE NO OUTSTANDING DEBTS AT THE TIME OF SETTLEMENT
‣ Sec. 1 provides for the presumption that the decedent left no debts.
‣ In order for this presumption to arise, no creditor should have filed a petition for letters of administration within two (2)
years after the decedent’s death.
3. HEIRS ARE ALL OF LEGAL AGE, OR MINORS REPRESENTED BY JUDICIAL GUARDIANS OR LEGAL REPRESENTATIVES
FORM OF EXTRAJUDICIAL SETTLEMENT

‣ The form of the extrajudicial settlement depends on the number of heirs
1. IF THE DECEDENT LEFT MORE THAN ONE HEIR
‣ The settlement must be made in a public instrument
2. IF THE DECEDENT LEFT ONLY ONE HEIR
‣ It suffices that the sole heir executed an affidavit of self-adjudication.
‣ Since it is an indispensable requisites that the decedent died intestate, necessarily only the decedent’s intestate heirs have the
right to extrajudicially settle the estate.
PROCEDURE OF EXTRAJUDICIAL SETTLEMENT

1. THE SETTLEMENT (MADE IN A PUBLIC INSTRUMENT OR BY MEANS OF AN AFFIDAVIT), MUST BE DULY FILED WITH THE
REGISTER OF DEEDS
‣ Can the heirs enter into an oral partition of the decedent’s estate?
‣ Yes, there is nothing in the rules that a written instrument or other formality is an essential requisite to the validity of the
partition. An oral partition is valid. Filing the public instrument or the affidavit of self-adjudication with the ROD is really
for the protection of the heirs. Failure to file this does NOT affect its validity when there are no creditors or when
no rights of creditors are involved. The object of registration is to serve as constructive notice, and this means 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 the rights of creditors are not affected. (Hernandez vs Andal 1947)
‣ Registration notifies third parties who wish to acquire the property that is subject to an encumbrance of two years,
counted from the date of distribution of the estate to the heirs (Rule 74, Sec. 4)
2. PUBLICATION OF THE SETTLEMENT IN A NEWSPAPER OF GENERAL CIRCULATION IN THE PROVINCE ONCE A WEEK FOR THREE
CONSECUTIVE WEEKS
‣ Note however, that compliance with the requirement of publication does NOT bind third persons who have not participated
in or who had no actual notice of the extrajudicial settlement.
‣ This is because the publication was after the fact of execution of the settlement.
‣ This requirement is for the benefit and protection of creditors, not the heirs who did not take part in the settlement.
3. FILING OF A BOND EQUIVALENT TO VALUE OF PERSONAL PROPERTY POSTED WITH THE REGISTERED OF DEEDS
‣ The bond is only required for personal property, not real property
‣ This is because personal property can easily be transferred, consumed or hidden.
‣ Real property is secured by being subject to a lien in favour of creditors, heirs or other persons for two years from the
distribution of the estate, notwithstanding any transfers of real estate that may have been made
‣ The deed to the real property will be annotated that it is subject to the claims of such persons, this gives notice to
purchasers.
‣ The amount of the bond is equivalent to the value of the property involved, which shall be certified to under oath by the
parties concerned.
‣ It is conditioned upon the payment of any claim that may be filed under Sec. 4
SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE
Section 2. Summary settlement of estate of small value. — Whenever the gross value of the estate of a deceased
person, whether he died testate or intestate, does not exceed ten thousand pesos, and that fact is made to appear to
the Court of First Instance having jurisdiction of the estate by the petition of an interested person and upon hearing,
CLARENCE TIU
which shall be held not less than one (1) month nor more than three (3) months from the date of the last publication
of a notice which shall be published once a week for three (3) consecutive weeks in a newspaper of general
circulation in the province, and after such other notice to interest persons as the court may direct, the court may
proceed summarily, without the appointment of an executor or administrator, and without delay, to grant, if proper,
allowance of the will, if any there be, to determine who are the persons legally entitled to participate in the estate,
and to apportion and divide it among them after the payment of such debts of the estate as the court shall then find
to be due; and such persons, in their own right, if they are of lawful age and legal capacity, or by their guardians or
trustees legally appointed and qualified, if otherwise, shall thereupon be entitled to receive and enter into the
possession of the portions of the estate so awarded to them respectively. The court shall make such order as may be
just respecting the costs of the proceedings, and all orders and judgments made or rendered in the course thereof
shall be recorded in the office of the clerk, and the order of partition or award, if it involves real estate, shall be
recorded in the proper register's office.
REQUISITES FOR SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE

1. The petition must allege that the gross value of the estate does not exceed P10,000
‣ ATTY. MELO: This is an outdated rule because the value of the estate contemplated is very small
2. A bond has been duly filed in an amount fixed by the Court
3. The petition must be published in a newspaper of general circulation once a week for three consecutive weeks. Notice
must also be given to other interested persons as may be directed by the court
‣ It is only upon compliance with these publication and notice requirements that the court may hear the petition
‣ Note that unlike extrajudicial settlement, this may be chosen by the heirs regardless of whether the decedent died testate or
intestate.
JURISDICTION OVER SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE

‣ Because of the small value required, the settlement necessarily falls within the exclusive jurisdiction of MTCs.
PROCEDURE OVER SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE

1. Summary settlement of estate is initiated by either the following through the filing of a petition with the proper MTC
a. The heirs,
b. Creditors; or
c. Other interested persons
2. The petition must be published in a newspaper of general circulation once a week for three consecutive weeks. Notice must
also be given to other interested persons as may be directed by the court
3. Hearing on the petition takes place, which must be not less than one month nor more than three months form the date of the
last publication of the notice
‣ During the hearing, the court may proceed summarily, and even without the appointment of an executor or administrator
‣ The court may also admit the will, if there is any, into probate. It may likewise determine the heirs and the persons legally
entitled to participate in the estate
‣ Court then orders the payment of debts if there by any if it finds them due, after which it may appropriation and divide the
estate among those entitled thereto.
THIRD PERSONS CANNOT INTERVENE IN THE PROCEEDINGS

‣ A third person cannot claim title and ownership against the decedent in the summary proceedings. Such claim must
be ventilated in an independent action
‣ The policy of the law is to terminate proceedings for the settlement of the estate with the least loss of time. This is
especially true for small estates for which the rules provide precisely a summary procedure dispensing with the
cumbersome steps normally involved in settlement proceedings.
‣ The third person’s remedy is to have the proper annotation for lis pedens
CLARENCE TIU
Extrajudicial Settlement vs Summary Settlement of Small Estates
Extrajudicial Settlement Summary Settlement of Small Estates
No court intervention is required Judicial adjudication although summary
The value of the estate is immaterial Gross value of the estate must not exceed P10,000
Allowed only in intestate succession Allowed in both testate and intestate succession
There must be no outstanding debts at the time of the Available even if there are debts, it is the court which will make
settlement of the estate provision for its payment
Resorted to at the instance of and by agreement of all heirs May be instituted by any interested party, even a creditor of
the estate without the consent of all the heirs
Amount of bond is equivalent to the value of the personal Amount of the bond is to be determined by the court
property
REMEDIES OF AGGRIEVED PARTIES AFTER THE EXTRAJUDICIAL OR SUMMARY SETTLEMENT OF ESTATE
Section 4. Liability of distributees and estate. — If it shall appear at any time within two (2) years after the settlement
and distribution of an estate in accordance with the provisions of either of the first two sections of this rule, that an
heir or other person has been unduly deprived of his lawful participation in the estate, such heir or such other
person may compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of
satisfying such lawful participation. And if within the same time of two (2) years, it shall appear that there are debts
outstanding against the estate which have not been paid, or that an heir or other person has been unduly deprived of
his lawful participation payable in money, the court having jurisdiction of the estate may, by order for that purpose,
after hearing, settle the amount of such debts or lawful participation and order how much and in what manner each
distributee shall contribute in the payment thereof, and may issue execution, if circumstances require, against the
bond provided in the preceding section or against the real estate belonging to the deceased, or both. Such bond and
such real estate shall remain charged with a liability to creditors, heirs, or other persons for the full period of two (2)
years after such distribution, notwithstanding any transfers of real estate that may have been made.
Section 5. Period for claim of minor or incapacitated person. — If on the date of the expiration of the period of two (2)
years prescribed in the preceding section the person authorized to file a claim is a minor or mentally incapacitated,
or is in prison or outside the Philippines, he may present his claim within one (1) year after such disability is
removed.
EXTRAJUDICIAL SETTLEMENT, ON WHOM BINDING?

‣ RULE: HEIRS WHO DID NOT PARTICIPATE NOR HAD ACTUAL NOTICE OF AN EXTRAJUDICIAL SETTLEMENT ARE NOT BOUND
BY IT. ONLY CREDITORS ARE BOUND BY PUBLICATION.
‣ The procedure outlined above is an ex parte proceeding.
‣ Publication that binds the world contemplates notice that has been sent out or issued before any deed of settlement,
partition or both us agreed upon (such as 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.
‣ Thus, publication of the settlement does NOT constitute constructive notice to the heirs who had no knowledge
or did not take part in it because the same was noticed after the fact of execution.
‣ The publication is for the benefit and protection of creditors and was never intended to deprive the heirs of their lawful
participation in the decedent's estate
REMEDIES OF AGGRIEVED PARTIES AFTER THE EXTRAJUDICIAL OR SUMMARY SETTLEMENT OF ESTATE

‣ Who are the aggrieved parties? It can either by a creditor, heir (who was unduly deprived of participation in the settlement), or
other interested persons
1. AGGRIEVED PARTIES MAY COMPEL THE HEIRS TO SETTLE THE DECEDENT’S ESTATE IN COURT
‣ This is when at any time within two (2) years after the settlement and distribution of an estate (under the rules of
extrajudicial settlement or summary settlement of small estates), the following scenarios occur:
a. There has been undue deprivation of lawful participation on the estate on the part of an heir or other interested person
b. There exists debts against the estate
CLARENCE TIU
c. There has been undue deprivation of lawful participation payable in money on the part of an heir or other interested
person
‣ In these cases, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of
such debts or lawful participation and order how much and in what manner each distributee shall contribute in the payment
thereof, and may issue execution:
a. Against the bond (if personal property) or
b. Against the real property (which is subjected to the lien)
‣ But see Sec. 5, If on the date of the expiration of the period of two (2) years prescribed in the preceding section the person
authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his
claim within one (1) year after such disability is removed.
‣ NOTE: This remedy (and the two year period) only applies in favour of heirs, creditors or interest persons who
participated or had notice of the settlement
‣ For creditors, they are notified through the publication requirement, thus the two-year period applies to them
‣ For heirs, the publication requirement does NOT notify them, they need to be actually notified. The two year
period does NOT heirs who had no participation nor notice of the settlement. Persons who did not participate
in the extrajudicial or summary settlement are NOT bound by it (Cua vs Vargas 2006)
‣ SAMPILO V. CA, 103 PHIL. 71, G.R. NO. L-10474, FEBRUARY 28, 1958
‣ There cannot be any doubt that those who took part or had knowledge of the extrajudicial settlement are bound
thereby. As to them the law is clear that if they claim to have been in any manner deprived of their lawful right or
share in the estate by the extrajudicial settlement, they may demand their rights or interest within the period of two
years, and both the distributes and estate would be liable to them for such rights or interest. Evidently, they are the
persons in accordance with the provision, may seek to remedy, the prejudice to their rights within the two-year
period.
‣ But as to those who did not take part in the settlement or had no notice of the death of the decedent or of
the settlement, there is no direct or express provision is unreasonable and unjust that they also be required
to assert their claims within the period of two years.
‣ To extend the effects of the settlement to them, to those who did not take part or had no knowledge thereof, without
any express legal provision to that effect, would be violative of the fundamental right to due process of law.
‣ The procedure outlined in Section 1 of Rule 74 of extrajudicial settlement, or by affidavit, is an ex parte
proceeding. It cannot by any reason or logic be contended that such settlement or distribution would affect
third persons who had no knowledge either of the death of the decedent or of the extrajudicial settlement or
affidavit, especially as no mention of such effect is made, either directly or by implication.
‣ In summary, the provisions of Section 4 of Rule 74, barring distributees or heirs from objecting to an extrajudicial
partition after the expiration of two 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, in addition, (2) when the provisions of
Section 1 of 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.
2. ACTION FOR RECONVEYANCE/ ANNULMENT OF THE EXTRAJUDICIAL SETTLEMENT
‣ This is the remedy of heirs who had no participation nor notice of the settlement
‣ What is the prescriptive period? Depends on the cause of action
a. BASED ON FRAUD: 4 YEARS FROM THE DISCOVERY OF THE FRAUD
‣ Fraud because the parties to the public instrument or affidavit stated that there were no other heirs, yet in fact,
there were.
‣ SAMPILO V. CA, 103 PHIL. 71, G.R. NO. L-10474, FEBRUARY 28, 1958
‣ The action to question the settlement in this case, is one based on fraud, as the persons executing the
settlement had declared in the affidavit of partition that the deceased left no other heirs except herself, but
when in truth, this was false, thus, the period to question the partition is four years as it is based on fraud
b. BASED ON CONSTRUCTIVE TRUST: 10 YEARS FROM THE REPUDIATION OF THE TRUST
‣ Based on Art. 1456, “If property is acquired through mistake or fraud, the person obtaining it is, by force of law,
considered a trustee of an implied trust for the benefit of the person from whom the property comes.”
‣ Prescriptive period is in Art. 1144, trust is an obligation created by law
‣ BUT, when plaintiff (legal owner, but not registered owner) is in possession of the land, it is imprescriptible
‣ MARQUEZ V. COURT OF APPEALS, 300 SCRA 653
‣ When the defendant for one reason or another, misrepresented in his unilateral affidavit that he was the only
heir of the decedent when in fact other heirs were still alive, and managed to secure a transfer of certificate of
title under his name, a constructive trust under Article 1456 was established.
‣ Constructive trusts are created in equity in order to prevent unjust enrichment. They arise contrary to intention
against one who, by fraud, duress or abuse of confidence, obtains or holds the legal, right to property which he
ought not, in equity and good conscience, to hold
‣ In this regard, it is settled that an action for reconveyance based on an implied or constructive trust prescribes
in ten years from the isuance of the Torrens title over the property.
CLARENCE TIU
‣ Reliance in previous cases is misplaced, in those cases, we ruled that the doctrine was based on the old Code
of Civil Procedure which provided that an action based on fraud prescribes within four years from the date of
discovery. However, with the effectivity of the present Civil Code on August 30, 1950, the provisions on
prescriptive periods are now governed by Articles 1139 to 1155. Since implied or constructive trusts are
obligations created by law then the prescriptive period to enforce the same prescribes in ten years
c. BASED ON NULLITY OF THE EXTRAJUDICIAL AGREEMENT: IMPRESCRIPTIBLE
‣ Premised on the fact that the extrajudicial agreement was VOID to begin with since it was absolutely simulated.
‣ Imprescriptibility is provided for under Art. 1410
‣ BAUTISTA VS BAUTISTA, G.R. NO. 160556, AUGUST 3, 2007
‣The deed of extra-judicial partition in the case at bar being invalid, the action to have it annulled does not
prescribe. As it is invalid, it transmitted no rights to the buyers/transferees
‣ This is seen also in Macababbad vs Masirag, G.R. No. 161237, January 14, 2009
‣ But note that if the property has already passed to an innocent purchased for value relying on the torrens title, then the
property cannot anymore be reconveyed, damages against the fraudulent heir is then due.
To summarize the remedies of aggrieved heirs:

1. Aggrieved heir is participant in the extrajudicial settlement, or had notice thereof
‣ Remedy is in Sec. 4, Rule 74, he may ask the court to compel the heirs to settle the decedent’s estate in court. The court
will then issue an order of execution against the bond (if personal property), or against the lien in the real property.
‣ Period to do this is two (2) years from the settlement and distribution of the estate
‣ But see Sec. 5, If on the date of the expiration of the period of two (2) years prescribed in the preceding section the person
authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his
claim within one (1) year after such disability is removed.
2. Aggrieved heir is NOT a participant in the extrajudicial settlement, or had NO notice thereof
‣ Remedies are either:
a. Action for reconveyance based on fraud (4 years from discovery) or constructive trust (10 years from repudiation, but
imprescriptible if plaintiff is in possession of the lands)
b. Action for annulment of Extrajudicial Settlement which is imprescriptible
‣ But if there was already an innocent purchaser for value under the torrens system, only damages is recoverable
JURISPRUDENCE
UTULO V. PASION VDA. DE GARCIA, 66 PHIL. 303, G.R. NO. 45904, SEPTEMBER 30, 1938
‣ Section 642 of the Code of Civil Procedure provides that if no executor is named in the will, or if a person dies intestate,
administration shall be granted" etc.
‣ This provision enunciates the general rule that when a person dies living property in the Philippine Islands, his property
should be judicially administered and the competent court should appoint a qualified administrator, in the order
established in the section, in case the deceased left no will, or in case he had left one should he fail to name an
executor therein.
‣ This rule, however, is subject to the exceptions established by sections 596 and 597 of the same Code, as finally amended.
‣ According to the first, when all the heirs are of lawful age and there are no debts due from the estate, they may agree
in writing to partition the property without instituting the judicial administration or applying for the appointment of an
administrator.
‣ According to the second, if the property left does not exceed six thousand pesos, the heirs may apply to the competent
court, after the required publications, to proceed with the summary partition and, after paying all the known obligations, to
partition all the property constituting the inheritance among themselves pursuant to law, without instituting the judicial
administration and the appointment of an administrator.
‣ In this jurisdiction, all of the property, real and personal, of a deceased person who dies intestate, is transmitted immediately to
his heirs. If then the property of the deceased, who dies intestate, passes immediately to his heirs, as owners, and there are no
debts, what reason can there be for the appointment of a judicial administrator to administer the estate for them and to deprive
the real owners of their possession to which they are immediately entitled?
‣ The rights to the succession of a person are transmitted from the moment of his death; in other words, the heirs succeed
immediately to all of the property of the deceased ancestor. The property belongs to the heirs at the moment of the death of the
ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death. In the
absence of debts existing against the estate, the heirs may enter upon the administration of the said property immediately. If
they desire to administer it jointly, they may do so. If they desire to partition it among themselves and can do this by mutual
agreement, they also have that privilege. The Code of Procedure in Civil Actions provides how an estate may be divided by a
petition for partition in case they cannot mutually agree in the division
‣ When the heirs are all of lawful age and there are no debts there is no reason why the estate should be burdened with
the cost and expenses of an administrator. The administrator has no right to intervene in any way whatsoever in the
division of the estate among the heirs when they are adults and when there are no debts against the estate
CLARENCE TIU
‣ When there are no debts and the heirs are all adults, their relation to the property left by their ancestor is the same as that of
any other coowners or owners in common, and they may recover their individual rights, the same as any other coowners of
undivided property. As co-owners, they can agree to a partition, if they cannot agree as to the division, then a suit for partition
of such personal property among the heirs of the deceased owner is maintenable where the estate is not in debts, the heirs are
all of age, and there is no administration upon the estate and no necessity thereof.
PEREIRA V. CA, 174 SCRA 154 (1989)

‣ Is a judicial administration proceeding necessary when the decedent dies intestate without leaving any debts?
‣ The general rule is that when a person dies leaving property, the same 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 had left one, should he fail to name an executor therein.
‣ EXCEPTION: When all the heirs are of lawful age and there are no debts due from the estate
‣ An exception to this rule is established in Section 1 of Rule 74. Under this exception, when all the heirs are of lawful
age and there are no debts due from the estate, they may agree in writing to partition the property without instituting
the judicial administration or applying for the appointment of an administrator.
‣ EXCEPTION TO EXCEPTION: Judicial Administration EVEN when all the heirs are of lawful age and there are no
debts due from the estate if there are GOOD REASONS
‣ Section 1, Rule 74 of the Revised Rules of Court, however, does NOT preclude the heirs from instituting administration
proceedings, even if the estate has no debts or obligations, if they do not desire to resort for good reasons to an
ordinary action for partition.
‣ While Section 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort to an ordinary action
for partition, the said provision does not compel them to do so if they have good reasons to take a different course of action.
‣ It should be noted that 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
‣ Thus, it has been repeatedly held 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. It has been uniformly held that in such case the judicial administration and the
appointment of an administrator are superfluous and unnecessary proceedings .
‣ Now, 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 on the circumstances of each case.
‣ In a case, We held that if the reason for seeking an appointment as administrator is merely to avoid a multiplicity of suits
since the heir seeking such appointment wants to ask for the annulment of certain transfers of property, that same objective
could be achieved in an action for partition and the trial court is not justified in issuing letters of administration.
‣ In still another case, We did not find so powerful a reason the argument that the appointment of the husband, a
usufructuary forced heir of his deceased wife, as judicial administrator is necessary in order for him to have legal capacity
to appear in the intestate proceedings of his wife's deceased mother, since he may just adduce proof of his being a forced
heir in the intestate proceedings of the latter.
‣ No “good reasons” in this case, simple partition proceedings is more proper
‣ There are only two surviving heirs, a wife of ten months and a sister, both of age. The parties admit that there are no debts
of the deceased to be paid. What is at once apparent is that these two heirs are not in good terms.
‣ The only conceivable reason why private respondent seeks appointment as administratrix is for her to obtain possession of
the alleged properties of the deceased for her own purposes, since these properties are presently in the hands of petitioner
who supposedly disposed of them fraudulently. We are of the opinion that this is not a compelling reason which will
necessitate a judicial administration of the estate of the deceased.
‣ To subject the estate, which does not appear to be substantial especially since the only real property left has been
extrajudicially settled, to an administration proceeding for no useful purpose would only unnecessarily expose it to the risk
of being wasted or squandered. In most instances of a similar nature, the claims of both parties as to the properties left by
the deceased may be properly ventilated in simple partition proceedings where the creditors, should there be any, are
protected in any event.
CLARENCE TIU
RULE 75: PRODUCTION OF WILL; ALLOWANCE OF WILL NECESSARY
PROBATE AND ALLOWANCE OF WILLS
Section 1. Allowance necessary. Conclusive as to execution. — No will shall pass either real or personal estate
unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be
conclusive as to its due execution.
KINDS OF WILLS
‣ A will has been defined as a species of conveyance whereby a person is permitted, with the formalities prescribed by law, to
control to a certain degree, the disposition of his estate after his death.
‣ A will is a personal, solemn, revocable, and free act by which a person disposes of his property, to take effect after his death.
‣ Two kinds of Wills under the Civil Code:
1. Attested/Notarial Will
‣ This must be acknowledged before a notary public by a testator and the attesting witness, among certain requirements
in Art. 804-808 of the Civil Code
2. Holographic Will
‣ This is one that is entirely handwritten, dated, and signed by the testator himself. It requires no attestation by witnesses
‣ A common requirement of both kinds of wills is that they should be in writing and must have been executed in a language or
dialect known to the testator.
INTERPRETATION OF WILLS
‣ When an uncertainty arises on the face of the will, as to the application of any of its provisions, the testator’s intention is to be
ascertained from the words of the will, takin into consideration the circumstances under which it was made.
‣ Such construction as will sustain and uphold the will in all its parts must be accepted.
‣ Since the will expresses the manner in which a person intends show his properties be disposed, the wishes and desires of the
testator must be strictly followed.
‣ Thus, a will cannot be the subject of a compromise agreement which would thereby defeat the very purposes of making a
will.
MANDATORY RULE ON PROBATE AND ALLOWANCE OF WILLS

‣ RULE: NO WILL SHALL PASS EITHER REAL OR PERSONAL ESTATE UNLESS IT IS PROVED AND ALLOWED IN THE PROPER COURT.
‣ The probate of a will is required before its provisions may be carried out.
‣ For a will to take effect, it has to be probated, approved or allowed in the proper testamentary proceedings.
‣ Probate refers to a judicial act whereby an instrument is adjudged valid is ordered to be recorded.
‣ It is the statutory method of establishing the proper execution of an instrument and giving notice of its contents.
‣ Its purpose is to finally and definitively settle 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.
‣ Remember that Art. 777 of the Civil Code provides that the rights to the succession are transmitted from the moment of the
death of the decedent. Art. 777 is not literally true as the heirs do not immediately receive the successional rights, because
the decedent may have left a will and that will be subjected to probate, but it is not pure fiction as the heirs receive certain
“vested” rights.
‣ The transmission of rights still take place at the precise moment of death, after the will is allowed and probated and the
court finally determines who the heirs are and the portions they will receive, this will retroact back to the point of the
death of the decedent.
‣ The law enjoins probate of the will and public policy requires it. Unless the will is probated and notice given to the whole
world, the right of a person to dispose of his property buy will may be rendered nurgatory
‣ Consequently, a petition for probate may be filed any time and the action to admit the decedent’s will does NOT prescribe.
It would be non sequitur to allow public policy to be evaded on the pretext of estoppel.
‣ The requirement of private is NOT limited to instruments designated as wills
‣ For as long as the instrument or document involves the disposition of estate that takes effect upon death, it should be
presented to the court for probate.
‣ Such as: donations mortis causa (even if the donation did not comply with the formalities required for the validity of
wills, it must still be presented and admitted to probate before rights may arise therefrom)
‣ The instrument must have a testamentary character, which refers to either the disposition of property or the appointment of
an executor.
‣ But note that disposition of property is not an essential element of wills. A will executed to revoke a previous will may is
required to be probated.
CLARENCE TIU
CONCLUSIVE EFFECT OF ALLOWANCE OF WILLS
‣ RULE: SUBJECT TO THE RIGHT OF APPEAL, SUCH ALLOWANCE OF THE WILL SHALL BE CONCLUSIVE AS TO ITS DUE
EXECUTION. THE JURISDICTION OF THE PROBATE COURT IS LIMITED TO THE EXTRINSIC VALIDITY OF WILLS.
‣ Once admitted into probate, it conclusively establishes against the whole world the fact that a will was duly executed with
the formalities prescribed by law.
‣ Once allowed, the principle of res judicata applies, it cannot be questioned against in a subsequent proceeding, not even in
an a criminal action for the forgery of the will.
‣ After the finality of allowance of a will, the issue as to the voluntariness of its execution cannot be raised anymore
‣ The allowance of a will is only conclusive as to its due execution, because the authority of the probate court is limited
to ascertaining whether the testator, being of sound mind, freely executed the will in accordance with the formalities
prescribed by law.
‣ Generally, it is only when the probate court has authenticated a will, and thus has admitted it into probate, that the court
looks into its intrinsic validity
‣ When the court determines the due execution of wills, it means that:
1. The formalities of the law have been complied with
‣ The civil code prescribes the formalities for attested and holographic wills
2. The capacity of the testator as been established
‣ This pertains to the testamentary capacity or soundness of mind of the testator, meaning he has knowledge of:
a. The nature of his estate (has an idea of how much he owns)
b. The objects of his bounty (knows who his relatives are)
c. The character of the testamentary act (that it is gratuitous, and takes effect upon death)
3. The will is genuine
‣ All of these refer to the extrinsic validity of a will
‣ EXCEPT: THE PROBATE COURT MAY RULE UPON THE WILL’S INTRINSIC VALIDITY, WHEN IT IS INTRINSICALLY VOID ON ITS
FACE
‣ Intrinsic validity pertains to the substance of the provisions of a will. It involves determining whether the provisions of the
will do not violate any laws.
‣ In exceptional instances, courts are not powerless to pass upon certain provisions of a will which it may declare invalid
even as it upholds the extrinsic validity of such will
‣ This is when a will is void on face value, the probate court may disregard passing on the extrinsic validity of the will for
practical considerations. The probate of a will may become an idle ceremony if it is apparent on the face of the will that
it is intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue (Nuguid vs Nuguid)
NATURE OF PROBATE PROCEEDINGS

‣ The probate of a will is a proceeding in rem because it binds the whole world by virtue of the publication of the petition.
‣ The probate court’s jurisdiction extends to all persons interested in said will or in the settlement of the estate of the decedent.
‣ Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to
make an objection of any sort against the right sought to be established, including the State.
‣ It is the publication of such notice that brings in the whole world as party in the case and vests the court with jurisdiction to
hear and decide it.
DUTIES OF THE CUSTODIAN AND EXECUTOR
Section 2. Custodian of will to deliver. — The person who has custody of a will shall, within twenty (20) days after he
knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor named in the
will.
Section 3. Executor to present will and accept or refuse trust. — A person named as executor in a will shall, within
twenty (20) days after he knows of the death of the testate, or within twenty (20) days after he knows that he is named
executor if he obtained such knowledge after the death of the testator, present such will to the court having
jurisdiction, unless the will has reached the court in any other manner, and shall, within such period, signify to the
court in writing his acceptance of the trust or his refusal to accept it.
Section 4. Custodian and executor subject to fine for neglect. — A person who neglects any of the duties required in
the two last preceding sections without excused satisfactory to the court shall be fined not exceeding two thousand
pesos.
CLARENCE TIU
Section 5. Person retaining will may be committed. — A person having custody of a will after the death of the testator
who neglects without reasonable cause to deliver the same, when ordered so to do, to the court having jurisdiction,
may be committed to prison and there kept until he delivers the will.
DUTIES OF A CUSTODIAN
‣ A custodian refers to a person who receives a will with knowledge, or under such circumstances that he ought to have
known that he was receiving custody of a will.
‣ Mere possession of a will does not make the holder thereof the custodian of the will.
‣ A custodian is chosen by the testator in advance, and entrusted with the custody of a will by mutual agreement with the
testator.
‣ This custodianship created a bailor-bailee relationship between the testator and custodian, the latter being the bailee.
‣ Duties of the Custodian:
1. The custodian, as bailee, is obligated to keep and preserve the will safely for the benefit of the testator until the
latter’s death.
‣ As a consequence, the custodian must keep the contents of the will inviolate, and must not reveal its contents to
anyone.
‣ At any given time, the testator-bailor, however, may order the custodian to return the will on demand.
2. The custodian, by accepting the will, does NOT undertaken to exercise diligence in inquiring into the testator’s
death.
‣ A custodian is not obligated to discover whether the testator is still alive or already dead. It is only when the custodian
agrees, obligates himself, and represents to another that one was well-equipped to obtain information auto the death of
the making of the will in his custody that one must disclose possession of the will and present it to the court for probate
within reasonable time after the testator’s death.
3. Within twenty (20) days after knowledge of the testator’s death, the custodian must deliver the will either to the
clerk of court in the place where the decedent last resided or the executory
‣ The same obligation is imposed on the executor who is also the custodian of the will
‣ The reason behind this is to ensure discovery of wills and to discourage its concealment.
‣ Failure to present the will to the court for probate within the period given does not preclude its probate
DUTIES OF AN EXECUTOR
‣ The executor named in the will is also given 20 days from either knowledge of the testator’s death or knowledge that one has
been named as executory to present the will to the court having jurisdiction, unless the will reached the court in some other
manner.
‣ An executor is given the same period to signify to the court in writing the acceptance or refusal of the trust.
‣ A moral obligation in the nature of a trust is imposed on the executor once one receives the will.
DOCTRINES FROM JURISPRUDENCE
ACAIN VS IAC, G.R. NO. 72706, OCTOBER 27, 1987

‣ Legal Standing to Intervene in Probate Proceedings
‣ In order that a person may be allowed to intervene in a probate proceeding he must have an interest iii the estate, or in the
will, or in the property to be affected by it either as executor or as a claimant of the estate and an interested 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
‣ In this case, at the outset, the intervenor appears to have an interest in the will as a testamentary heir, defined under Article
782 of the Civil Code as a person called to the succession either by the provision of a will or by operation of law. However,
intestacy having resulted from the preterition of respondent adopted child and the universal institution of heirs, petitioner is
in effect not an heir of the testator. He has no legal standing to petition for the probate of the will left by the deceased
‣ Authority of the Probate Court Limited to Extrinsic Validity of Wills
‣ 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 intrinsic validity of the will normally comes only after the Court has declared that the will has been duly authenticated.
Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of
the will
‣ EXCEPTION: Probate Court may pass upon intrinsic validity if the will is VOID on its face
‣ The general 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
‣ In one case, the Court held that as on its face the will appeared to have preterited the petitioner the respondent judge
should have denied its probate outright. Where circumstances demand that intrinsic validity of testamentary
CLARENCE TIU
provisions be passed upon even before the extrinsic validity of the will is resolved, the probate court should
meet the issue.
ABANGAN VS ABANGAN, G.R. NO. L-13431, NOVEMBER 12, 1919

‣ Substantial Compliance with the Solemnities of Attested Wills
‣ The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should
be interpreted in such a way as to attain these primordal ends.
‣ But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustative of the testator's
last will, must be disregarded. lawphil.net
NUGUID VS NUGUID, G.R. NO. L-23445, JUNE 23, 1966

‣ Authority of the Probate Court Generally Limited to Extrinsic Validity of Wills EXCEPT if will is intrinsically VOID on its
face
‣ In this case, right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a will. The
court's area of inquiry is limited — to an examination of, and resolution on, the extrinsic validity of the will. The due
execution thereof, the testatrix's testamentary capacity, and the compliance with the requisites or solemnities by law
prescribed, are the questions solely to be presented, and to be acted upon, by the court. Said court at this stage of the
proceedings — is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will, the legality of any
devise or legacy therein
‣ A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the will should be
allowed probate. For them, the meat of the case is the intrinsic validity of the will. Normally, this comes only after the court
has declared that the will has been duly authenticated.But petitioner and oppositors, in the court below and here on appeal,
travelled on the issue of law, to wit: Is the will intrinsically a nullity?
‣ 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 head-on the issue of the validity of the provisions of the will in question.After
all, there exists a justiciable controversy crying for solution.
MANINANG VS CA, G.R. NO. L-57848, JUNE 19, 1982

‣ Probate as a Mandatory Requirement
‣ Generally, the probate of a Will is mandatory. No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court.
‣ 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
‣ Authority of the Probate Court Generally Limited to Extrinsic Validity of Wills EXCEPT if will is intrinsically VOID on its
face
‣ Normally, the probate of a Will does not look into its intrinsic validity.
‣ The authentication of a will decides no other question than such as touch upon the capacity of the testator and the
compliance with those requisites or solemnities which the law prescribes for the validity of wills.
‣ It does not determine nor even by implication prejudge the validity or efficiency of the provisions, these may be impugned
as being vicious or null, notwithstanding its authentication. The questions relating to these points remain entirely
unaffected, and may be raised even after the will has been authenticated
‣ Opposition to the intrinsic validity or legality of the provisions of the will cannot be entertained in Probate proceeding
because its only purpose is merely to determine if the will has been executed in accordance with the requirements of the
law
‣ In a proceeding for the probate of a will, the Court's area of inquiry is limited to an examination of, and resolution on, the
extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared
that the will has been duly authenticated. However, where practical considerations demand that the intrinsic validity
of the will be passed upon, even before it is probated, the Court should meet that issue.
‣ The probate of a will might become an Idle ceremony if on its face it appears to be intrinsically void. Where
practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated,
the court should meet the issue
CLARENCE TIU
RULE 76: ALLOWANCE OR DISALLOWANCE OF WILL
FILING A PETITION FOR ALLOWANCE OF A WILL
Section 1. Who may petition for the allowance of will. — Any executor, devisee, or legatee named in a will, or any
other person interested in the estate, may, at any time after the death of the testator, petition the court having
jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition the court for the allowance of his will.
WHEN A WILL MAY BE PROBATED

‣ Ordinarily, probate proceedings are instituted only after the death of the testator, so much so that, after approving and allowing
the will, the court proceeds to issue letters testamentary and settle the estate of the testator.
‣ However, the current laws (Art. 838, Civil Code), and the Rules provide that the testator himself may, during his lifetime,
petition the court for the allowance of his will.
‣ Ante-mortem probate is a new feature introduced by the new Civil Code.
‣ Generally, the petition for probate is filed after the testator’s death, such proceeding does not prescribe and cannot be barred
by laches since it would be against public policy
‣ As an exception, the will may be admitted into probate even before the testator’s death, provided the the testator himself
petitions the court for its allowance
‣ Two kinds of probate:
1. Ante-Mortem Probate (prior to the testator’s death)
2. Post-Mortem Probate (after the testator’s death)
‣ Rationale for Ante-Mortem Probate
‣ The Code Commission explains the reason for the innovation thus: “Most of the cases that reach the courts involve either
the testamentary capacity of the testator or the formalities adopted in the execution of wills. There are relatively few cases
concerning the intrinsic validity of testamentary dispositions. It is far easier for the courts to determine the mental condition
of a testator during his lifetime than after his death. Fraud, intimidation and undue influence are minimized. Furthermore, if
a will does not comply with the requirements prescribed by law, the same may be corrected at once. The probate during the
testator’s life, therefore, will lessen the number of contests upon wills. Once a will is probated during the lifetime of the
testator, the only questions that may remain for the courts to decide after the testator’s death will refer to the intrinsic
validity of the testamentary dispositions. It is possible, of course, that even when the testator himself asks for the allowance
of the will, he may be acting under duress or undue influence, but these are rare cases.” (The Code Commission Report, p.
53)
‣ Advantages of Ante-Mortem Probate:
‣ Easier for the court to determine the mental capacity of the testator, since he is still alive
‣ Fraud, intimidation and undue influence is minimized
‣ Lessens the number of contests upon wills
‣ Disadvantages of Ante-Mortem Probate
‣ It may be superfluous or futile because the testator can easily make a subsequent will revoking it. So unless the testator is
very sure, it might be useless to have an ante-mortem probate.
WHO MAY FILE A PETITION FOR PROBATE

‣ Persons who may file a petition for Post-Mortem Probate:
1. Executor
2. Devisee
3. Legatee
4. Any other person interested in the estate
‣ Persons who may file a petition for Ante-Mortem Probate:
1. Only the testator himself
‣ An interested party is one who has a claim against the estate, such as an heir, or one who has a claim against the estate, such
as a creditor.
‣ The petition for probate shall prosper regardless of whether the petitioner has the will in his possession, is lost or destroyed.
‣ The persons enumerated in Sec. 1 (other than the testator) do NOT have the right to institute probate proceedings while the
testator is alive, that right being solely reserved in favour of the testator.
CONTENTS OF THE PETITION FOR ALLOWANCE OF A WILL
CLARENCE TIU
Section 2. Contents of petition. — A petition for the allowance of a will must show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent;
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters are prayed;
(e) If the will has not been delivered to the court, the name of the person having custody of it.
But no defect in the petition shall render void the allowance of the will, or the issuance of letters testamentary or of
administration with the will annexed.
‣ Jurisdictional facts in Section 2 pertain to the following facts which must be alleged:
1. Testator’s death
2. Testator’s residence at the time of death
3. The place where the testator left estate; if he is a non-resident
4. That the will has been delivered to the court and is in the possession thereof, unless not yet delivered; and
5. The value of the estate to determine the court with jurisdiction
‣ Note that the names of the heirs and their respective addresses are required to be stated in the petition for probate because it
allows the court to determine the persons who are entitled to notice as well as the manner notice shall be given.
HOW JURISDICTION IS ACQUIRED; PROCEDURE AFTER JURISDICTION IS ACQUIRED
Section 3. Court to appoint time for proving will. Notice thereof to be published. — When a will is delivered to, or a
petition for the allowance of a will is filed in, the court having jurisdiction, such court shall fix a time and place for
proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time
and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general
circulation in the province.
But no newspaper publication shall be made where the petition for probate has been filed by the testator himself.
Section 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. — The court shall also cause
copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known
heirs, legatees, and devisees of the testator resident in the Philippines at their places of residence, and deposited in
the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if such places of
residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he be not
the petitioner; also, to any person named as coexecutor not petitioning, if their places of residence be known.
Personal service of copies of the notice at lest (10) days before the day of hearing shall be equivalent to mailing.
If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs.
HOW DOES THE PROBATE COURT ACQUIRE JURISDICTION

‣ RULE: THE PROBATE COURT ACQUIRES JURISDICTION OVER THE SETTLEMENT PROCEEDINGS IN EITHER TWO WAYS:
1. ATTACHMENT OF A COPY OF THE WILL TO THE PETITION
‣ The original copy of the will need not be attached to the petition for probate.
‣ It is sufficient that a copy thereof is annexed to the petition since the submission of the original will is not a jurisdictional
requirement.
2. DELIVERY OF THE WILL TO THE COURT
‣ If the will is delivered to the court, it may, motu proprio, take steps to fix time and place for proving the will and issue
corresponding notices.
‣ Note that mere delivery of the will to the court is sufficient for it to take steps for the will’s allowance.
‣ The use in Sec. 3 of the disjunction in the words “when a will is delivered 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.
CLARENCE TIU
PROCEDURE AFTER THE PROBATE COURT OBTAINS JURISDICTION OVER THE PROCEEDINGS
‣ What happens after the Court obtains jurisdiction over the settlement proceedings (after the will was delivered or a petition for
allowance is filed)?
‣ RULE: THE PROBATE COURT HAS THE FOLLOWING OBLIGATIONS:
1. SET A HEARING
‣ Fix the time and place for proving the will when all concerned may appear to contest its allowance
2. CAUSE THE NOTICE OF HEARING TO BE PUBLISHED
‣ Cause the notice of the time and place to be published in for three successive weeks in a newspaper of general
3. IF POST-MORTEM PROBATE: CAUSE THE PERSONAL NOTICE TO THE KNOWN HEIRS, LEGATEES, AND DEVISEES OF THE
TESTATOR AND THE EXECUTOR, WITH KNOWN PHILIPPINE RESIDENCES
‣ It shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated
or other known heirs, legatees, and devisees of the testator resident in the Philippines at their places of residence, and
deposited in the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if such
places of residence be known.
‣ A copy of the notice must in like manner be mailed to the person named as executor, if he be not the petitioner; also, to
any person named as co-executor not petitioning, if their places of residence be known.
‣ Personal service of copies of the notice at lest (10) days before the day of hearing shall be equivalent to mailing.
‣ When the settlement proceeding is initiate by persons other than the testator, the court is required to send notice of the
time and place of hearing to the designated or other known heirs, legatees, and devisees who are residents of the
Philippines.
‣ But note that the court’s obligation to send notice attaches only when these persons and their place of residences
are known.
‣ Only known heirs, legatees, and devisees are required to be notified by the court
‣ In this case, since the petitioners are merely nephews and nieces of the decedent, and the will shows that Francisco
was instituted as the sole heir of the decedent, the latter had no legal obligation to personally notify the former of the
petition for probate (Alaban vs CA)
‣ If notice is given through personal service, the interested parties must be noticed at least ten days before the hearing.
‣ The requirement of publication constitutes a constructive notice that binds the whole world. This is mandatory
‣ A settlement proceeding may be annulled if it is shown that the notice is not published in accordance with Sec. 3
‣ BUT, when it is the testator who files the petition for probate, only the testator’s compulsory heirs are notified by the
court, in this case, the publication requirement is dispensed with.
4. IF ANTE-MORTEM PROBATE: CAUSE THE PERSONAL NOTICE TO THE TESTATOR’S COMPULSORY HEIRS
‣ If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs.
REQUIREMENTS OF HEARING FOR ALLOWANCE OF THE WILL COMMENCES; PROOF OF NOTICE AND
PUBLICATION
Section 5. Proof at hearing. What sufficient in absence of contest. — At the hearing compliance with the provisions of
the last two preceding sections must be shown before the introduction of testimony in support of the will. All such
testimony shall be taken under oath and reduced to writing. It no person appears to contest the allowance of the will,
the court may grant allowance thereof on the testimony of one of the subscribing witnesses only, if such witness
testify that the will was executed as is required by law. In the case of a holographic will, it shall be necessary that at
least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. In the absence of any such competent witness, and if the court deem
it necessary, expert testimony may be resorted to.
Section 11. Subscribing witnesses produced or accounted for where will contested. — If the will is contested, all the
subscribing witnesses, and the notary in the case of wills executed under the Civil Code of the Philippines, if present
in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any of
them must be satisfactorily shown to the court. If all or some of such witnesses are present in the Philippines but
outside the province where the will has been filed, their deposition must be taken. If any or all of them testify against
the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the
will may nevertheless, 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.
If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know the handwriting
of the testator explicitly declare that the will and the signature are in the handwriting of the testator; in the absence
of any competent witnesses, and if the court deem it necessary, expert testimony may be resorted to.
CLARENCE TIU
Section 7. Proof when witnesses do not reside in 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, on motion, direct it to be taken, and may authorize a photographic copy of the will to be
made and to be presented to the witness on his examination, who may be asked the same questions with respect to
it, and to the handwriting of the testator and others, as would be pertinent and competent if the original will were
present.
Section 8. Proof when witnesses dead or insane or do not reside in the Philippines. — If it appears at the time fixed
for the hearing that the subscribing witnesses are dead or insane, or that 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
will; and as evidence of the execution of the will, it may admit proof of the handwriting of the testator and of the
subscribing witnesses, or of any of them.
Section 12. Proof where testator petitions for allowance of holographic will. — Where the testator himself petitions
for the probate of his holographic will and no contest is filed, the fact that the affirms that the holographic will and
the signature are in his own handwriting, shall be sufficient evidence of the genuineness and due execution thereof.
If the holographic will is contested, the burden of disproving the genuineness and due execution thereof shall be on
the contestant. The testator to rebut the evidence for the contestant.
REQUIREMENTS BEFORE THE COURT PROCEEDS WITH HEARING THE PETITION FOR PROBATE
‣ RULE: IT MUST BE SHOWN THAT NOTICE WERE GIVEN TO THE PROPER PARTIES AND THAT THE PETITIONER COMPLIED WITH
THE PUBLICATION REQUIREMENT. BASICALLY, THE PETITIONER SHOULD PRESENT THE FOLLOWING:
1. Evidence that the order of the court fixing the time and place for proving the will has been published for three
successive weeks prior to the time appointed
‣ This may be proved by presenting to the court the affidavit of the publisher and copies of the actual newspapers on
which the notice was published.
‣ The court, however, is not compelled to dismiss the petition for probate if it fails to require or the petition fails to show
proof of notice or publication
‣ I thought this was mandatory? So what happens then?
2. Evidence that a notice of such hearing has been served upon the known heirs, legatees, devisees of the resident
testator at least 20/10 days prior
3. If the petitioner is not the executor, evidence that notice has been served upon the executor, if his place of
residence is known
4. Testimonies of witnesses in support of the will
‣ The required number of witnesses depend on whether the will’s due execution is contested or not
REQUIRED TESTIMONY OF WITNESSES; PROOF OF DUE EXECUTION

‣ Note that the testimony of these witnesses is for the purposes of proving the due execution of the will. Consequently, the fact of
whether the will is contested or not also depends whether the contention is against its due execution as well.
1. ATTESTED WILLS
a. Uncontested
‣ The testimony of one subscribing witness only
b. Contested
‣ The testimony of ALL the subscribing witnesses and the notary before whom the will was acknowledged must be
produced and examined before the court.
‣ As a rule in notarial wills, the courts must examine the testimony of the subscribing witnesses. However, the court may
examine other witnesses in the following instances(Rule 76, Sec. 11):
i. The subscribing witness is insane
ii. The subscribing witness is dead
iii. None of the subscribing witness reside in the Philippines
‣ The insanity, death or non-residence of the subscribing witnesses in the Philippines does not prevent the court from
admitting the will into probate as long as the testator’s sanity and the due execution of the will are proved. (Rule 76,
Sec. 8)
‣ If all or some of such witnesses are present in the Philippines but outside the province where the will has been filed,
their deposition must be taken. (Rule 76, Sec. 11)
‣ In this case, the court may, on motion, direct the deposition to be taken, and may authorize a photographic copy of
the will to be made and to be presented to the witness on his examination, who may be asked the same questions
CLARENCE TIU
with respect to it, and to the handwriting of the testator and others, as would be pertinent and competent if the
original will were present. (Rule 76, Sec. 7)
‣ Note that deposition may be resorted to if the deponent lives at least 100 kilometres away from the territorial
jurisdiction of the probate court (Rule 23, Sec. 4)
‣ NOTE that if any or all of them testify against the due execution of the will, or do not remember having attested to it, or
are otherwise of doubtful credibility, the will may nevertheless, 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. (Rule 76, Sec. 11)
2. HOLOGRAPHIC WILLS
a. Uncontested
‣ At least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator.
‣ BUT, in the absence of any such competent witness, and if the court deem it necessary, expert testimony may be
resorted to.
b. Contested
‣ At least three (3) witnesses who know the handwriting of the testator must explicitly declare that the will and the
signature are in the handwriting of the testator
‣ BUT in the absence of any competent witnesses, and if the court deem it necessary, expert testimony may be
resorted to
UNCONTESTED CONTESTED
ATTESTED OR The testimony of one subscribing The testimony of ALL the subscribing witnesses and the
NOTARIAL WILLS witness only notary before whom the will was acknowledged must be
(Rule 76, Sec. 5, 7, 8 produced and examined before the court. If they are alive, not
and 11) insane and present in the Philippines. If they are dead,
absent or insane, the court may examine other witnesses
HOLOGRAPHIC WILLS At least one witness who knows the At least three (3) witnesses who know the handwriting of
(Rule 76, Sec. 5, 7, 8 handwriting and signature of the the testator explicitly declare that the will and the signature
and 11) testator explicitly declare that the will are in the handwriting of the testator; in the absence of any
and the signature are in the competent witnesses, and if the court deem it necessary,
handwriting of the testator. expert testimony may be resorted to
HOLOGRAPHIC WILLS The fact that he affirms that the The burden of disproving the genuine and due execution
PETITIONED BY THE holographic will and the signature thereof shall be on the contestant, the testator may, in his
TESTATOR HIMSELF are in his own handwriting, shall be turn, present such additional proof as may be necessary to
(Rule 76, Sec. 12) sufficient evidence of the genuine rebut the evidence for the contestant
and due execution thereof
PROOF IN CASE OF ANTE-MORTEM PROBATE

‣ In case of ante-mortem probates of holographic wills, when no contest is filed, the affirmation of the testator and his
signature are sufficient to prove the will’s genuineness and due execution, no need for witnesses. (Rule 76, Sec. 12)
‣ But if the holographic will is contested, the burden of disproving the genuineness and due execution thereof shall be on the
contestant. The testator to rebut the evidence for the contestant
‣ Why does the rule only mention holographic wills? Can’t the testator probate his attested will?
PROBATE OF LOST OR DESTROYED WILLS
Section 6. Proof of lost or destroyed will. Certificate thereupon. — No will shall be proved as a lost or destroyed will
unless the execution and validity of the same be established, and the will is proved to have been in existence at the
time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the
testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two (2) credible
witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge,
under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded.
This contemplates a situation where the will has been lost or it has been destroyed without the authority of the testator
(unauthorized revocation)
CLARENCE TIU
PROBATE OF LOST OR DESTROYED WILLS
‣ RULE: NO WILL SHALL BE PROVED AS A LOST OR DESTROYED WILL UNLESS THE FOLLOWING ARE ESTABLISHED:
1. The will’s execution and validity
2. Will’s existence at the time of the death of the testator, or the fact that it has been fraudulently or accidentally destroyed in
the lifetime of the testator without his knowledge
3. Provisions of the will (by at least two credible witnesses)
HOW TO PROVE A THE DUE EXECUTION AND PROVISIONS OF A LOST OR DESTROYED WILL
‣ Practically, it depends on whether the will is notarial or holographic
1. Attested Wills
‣ This is easier, just present the subscribing witnesses, if you cannot, just present other credible witnesses
‣ It may be proved by a photocopy coupled with the testimony of the subscribing witnesses
2. Holographic Wills
‣ Generally, the original holographic will must be presented to the court. The will itself must be presented in probate. As the
document itself is the only material proof of authenticity (Gan vs Yap)
‣ The rationale is that if the holographic will is lost or destroyed and no other copy 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 the same handwritten statements of the testator and the handwritten will
‣ However, by way of exception, it has been held that a mere photocopy of the holographic will may be presented in lieu of
the original
PROCEDURE AFTER PROOF OF LOST OR DESTROYED WILLS

‣ When a lost will is proved:
1. The provisions thereof must be distinctly stated and certified by the judge, under the seal of the court
2. The certificate must be filed and recorded as other wills are filed and recorded.
CONTESTING A WILL
Section 10. Contestant to file grounds of contest. — Anyone appearing to contest the will must state in writing his
grounds for opposing its allowance, and serve a copy thereof on the petitioner and other parties interested in the
estate.
‣ RULE: A INTERESTED PERSON MAY CONTEST A WILL BY FILING A WRITTEN OPPOSITION, STATING HIS GROUNDS FOR
OPPOSITION, A COPY OF WHICH MUST BE SERVED TO THE PETITIONER AND OTHER INTERESTED PARTIES
‣ In order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate, or in the
will, or in the property to be affected by it either as executor or as a claimant of the estate.
‣ Interested party is one who would be benefited by the estate such as an heir or creditor.
‣ The reason for the rule excluding strangers from contesting the will, is not that thereby the court may be prevented from
learning facts which would justify or necessitate a denial of probate, but rather the courts and litigants should not be
molested by the intervention in the proceedings of persons with no interest in the estate which would entitle them to be
heard with relation thereto.
DISALLOWANCE OF WILLS; GROUNDS
Section 9. Grounds for disallowing will. — The will shall be disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;
(c) If it was executed 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 for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be
his will at the time of fixing his signature thereto.
DISALLOWANCE OF WILL
‣ All of the formalities required by the statute are of equal importance, and the courts have no discretion to dispense with them,
or supply a defect caused by a failure to comply with some of them.
CLARENCE TIU
‣ Parol or extrinsic evidence is not admissible to show that the decedent intended to execute his will according to all the
formalities prescribed by statute
‣ Sec. 9 is a reproduction of Art. 839 of the NCC. A will cannot be disallowed for grounds other than those stated here. The
enumeration is exclusive.
‣ The grounds for disallowance of a will are exclusive and may be categorized into three main groups:
1. NON-COMPLIANCE WITH THE LEGAL FORMALITIES REQUIRED BY LAW
‣ When the will is not executed and attested as required by law
2. LACK OF TESTAMENTARY CAPACITY
‣ Testator is insane or otherwise mentally incapable to make a will at time of execution.
‣ It looks into the testator’s capacity to dispose
‣ Testamentary capacity is determined at the time the will was executed and no other.
‣ Art. 799 of the NCC refers to testamentary capacity as the testator’s ability to know the following:
a. The nature of the estate to be disposed of
b. The objects of his bounty
c. The character of the testamentary act
4. THE WILL WAS NOT DULY EXECUTED
‣ Executed under duress, or the influence of fear, to threats
‣ Procured by undue and improper pressure and influence on the party of the beneficiary, or some other person, for his
benefit
‣ Signature of testator procured by fraud or trick and he did not intend that the instrument be his will at time of fixing his
signature
‣ Due execution refers to the testator’s voluntariness to dispose his estate.
Summary of the Formal Requirements of Wills in the New Civil Code
Formal Formal Requirements of Attested Wills Formal Requirements of

Requirements of Holographic Wills
Wills in General
Art. 804, 818, 819 Art. 805-808 Art. 805-808, 810-814
1. Must be in 1. Subscribed by the testator or his agent in his presence and by his express 1. Must be completely
writing direction at the end thereof, in the presence of the witnesses handwritten by the
2. Must executed 2. Attested and subscribed by at least three credible witnesses in the testator
in a language presence of the testator and of one another 2. Must be dated by the
or dialect 3. The testator, or his agent, must sign every page, except the last, on the testator
known to the left margin in the presence of the witnesses 3. Must be signed by the
testator 4. The witnesses must sign every page, except the last, on the left margin in testator
3. Must not be a the presence of the testator and of one another 4. Necessity of witnesses
joint will 5. All pages numbered correlatively in letters on the upper part of each page who knows the
6. Attestation clause, stating handwriting and
a. The number of pages of the will signature of the
b. The fact that the testator or his agent under his express direction testator or expert
signed the will and every page thereof, in the presence of the testimony
witnesses 5. Additional dispositions
c. The fact that the witnesses witnessed and signed the will and every must each be dated
page thereof in the presence of the testator and one another, and signed
7. Acknowledgment before a notary public. 6. If each additional
8. For testator who is a literate deaf-mute, he must read the will personally disposition is signed
9. For testator who is an illiterate deaf-mute, he must designate two persons but undated, the last
to read the will and communicate to him, in some practicable manner, its disposition must be
contents. signed and dated.
10. For blind testators, will must be read to him twice, once by one of the 7. In case of any
subscribing witnesses, and another by the notary insertion, cancellation,
11. Witnesses must be competent. They must be: erasure or alteration in
a. Sound mind a holographic will, the
b. Age of eighteen years or more testator must
c. Not blind, deaf or dumb, and able to read and write. authenticate the same
d. Domiciled in the Philippines; by his full signature.
e. Have not been convicted of falsification of a document, perjury or false
testimony.
CLARENCE TIU
PROCEDURE AFTER WILL IS ADMITTED INTO PROBATE
Section 13. Certificate of allowance attached to prove 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 register of deeds of the province in which the lands lie.
‣ Once the will is admitted to probate, the following must be done:

1. The judge shall issue a certificate of allowance of the will, which must be signed by the judge and attested by the seal of
the court
2. The clerk must record and file the certificate of allowance
3. The will must be recorded in the register of deeds of the province where the land is located.
JURISPRUDENCE
SUMILANG V. RAMAGOSA, 21 SCRA 1369

‣ The petition below being for the probate of a will, the court's area of inquiry is limited to the extrinsic validity thereof. The
testator's testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law are the only
questions presented for the resolution of the court. Any inquiry into the intrinsic validity or efficacy of the provisions of the will or
the legality of any devise or legacy is premature.
‣ It is a well-settled rule that in order that a person may be allowed to intervene in a probate proceeding he must have an interest
in the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate; and an
interested party 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 like a creditor.
‣ The reason for the rule excluding strangers from contesting the will, is not that thereby the court may be prevented from
learning facts which would justify or necessitate a denial of probate, but rather that the courts and the litigants should not
be molested by the intervention in the proceedings of persons with no interest in the estate which would entitle them to be
heard with relation thereto.
DE JESUS V. DE JESUS, 134 SCRA 245

‣ If a will has been executed in substantial compliance 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.
‣ As a general rule, the “date” in a holographic Will should include the day, month, and year of its execution. However, when as
in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date “FEB./61” appearing on the holographic Will is a valid compliance with
Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance.
VDA. DE PEREZ V. TOLETE, 232 SCRA 722

‣ The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon
compliance with Art. 816 of the Civil Code of the Philippines.
‣ Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws is imperative. 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
‣ 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.
‣ 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" 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 Sec. 3 and 4 of Rule 76,
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.
‣ The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to notices of the time and place for
proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court, the "court shall also cause copies of the notice of
the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of
the testator" 
CLARENCE TIU
RULE 77: ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES
AND ADMINISTRATION OF ESTATE THEREUNDER
REPROBATE OF FOREIGN WILLS
Section 1. Will proved outside Philippines may be allowed here. — Wills proved and allowed in a foreign country,
according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in
the Philippines.
Section 2. Notice of hearing for allowance. — When a copy of such will and of the order or decree of the allowance
thereof, both duly authenticated, are filed with a petition for allowance in the Philippines, by the executor or other
person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause
notice thereof to be given as in case of an original will presented for allowance.
FOREIGN WILLS
‣ Refers to wills executed according to the laws of a foreign country, either by foreigners or Filipinos
‣ Remember that a testator (either a foreigner or Filipino), may, under the NCC, execute a will in accordance with the law of:
1. Philippines
2. Place of execution
3. Place of domicile
4. Place of residence
5. Place of citizenship
REPROBATE OF FOREIGN WILLS PROBATED IN A FOREIGN COUNTRY

‣ RULE: WILLS PROVED AND ALLOWED IN A FOREIGN COUNTRY MUST BE REPROBATED IN THE PHILIPPINES TO EFFECTUATE
ITS PROVISIONS
‣ This rule presupposes that there was a will executed, proved and allowed in a foreign country according to the laws of such
country
‣ Reprobate is a special proceeding to establish the validity of a will proved in a foreign country.
‣ Note that reprobate or re-authentication of a will already probated and allowed in a foreign country is different from probate
of a will, albeit executed abroad, presented for the first time before a competent court here.
‣ What about foreign wills NOT yet probated or allowed in a foreign country?
‣ Foreign wills must be probated first under the laws of the country in which it was executed (Atty. Melo)
PROCEDURE OF PROBATE OF FOREIGN WILLS

‣ This is mostly similar to regular probate proceedings
1. FILE A PETITION FOR ALLOWANCE OF A WILL IN THE COURT HAVING JURISDICTION
‣ This presupposes that the will is already admitted into probate in a foreign country
‣ The petition should be accompanied by:
a. An authenticated copy of the will; and
b. An authenticated decree of allowance
‣ The petition must be filed by either the:
a. Executor
b. Interested person
2. THE COURT SHALL FIX A TIME AND PLACE FOR THE HEARING, AND CAUSE NOTICE THEREOF TO BE GIVEN, AS IN CASE OF
AN ORIGINAL WILL PRESENTED FOR ALLOWANCE
‣ The petitioner must present evidence of the following before the reprobate of the will:
a. Due execution of the will in accordance with the foreign laws;
b. Testator has his domicile in the foreign country and not in the Philippines
c. The will has been admitted to probate in such country
d. The fact that the foreign tribunal is a probate court; and
e. The laws of a foreign country on procedure and allowance of wills
‣ A person who seeks to reprobate a will executed in a foreign country must prove the laws and procedure of that
foreign country on wills.
‣ This is because foreign laws do not prove themselves and our courts do not take judicial notice of them.
‣ Courts will presume that the foreign law is the same as local law following the doctrine of processual presumption the
absence of proof of the applicable foreign law.
CLARENCE TIU
‣ 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 Philippine law.
‣ Note that in accordance with the notice requirement, the will probated abroad is treated as if it were an original will or a will
that is presented for probate for the first time.
‣ Accordingly, compliance with Sec. 3 and 4 of Rule 76, which require publication and notice by mail or personally to the
known heirs, legatees, and devisees the testator resident in the Philippines, and to the executor, if he is not the
petitioner is required
SUMMARY OF THE REQUISITES FOR PROBATE OF FOREIGN WILLS PROVED AND ALLOWED ABROAD
1. The testator was domiciled in a foreign country
2. The will has been admitted to probate in such country
3. The foreign court is under the laws of said foreign country, a probate court with jurisdiction over the proceedings
4. Proof of compliance with the law on probate procedure on said foreign country
5. The legal requirements in said foreign country for the valid execution of the will have been complied with
6. Filing a petition in the Philippines with copy of the will and of its decree of allowance
7. Notice and hearing
EFFECT OF PROBATE OF FOREIGN WILLS
Section 3. When will allowed, and effect thereof. — If it appears at the hearing that the will should be allowed in the
Philippines, the 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.
Section 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.
‣ RULE: WHEN THE FOREIGN WILL IS ALLOWED, IT SHALL HAVE THE SAME EFFECTS AS IF ORIGINALLY PROVED AND ALLOWED
IN A PHILIPPINE PROBATE COURT
‣ Admission of a foreign will to probate has the following effects:
1. The court shall grant letters testamentary or letters of administration with the will annexed
2. The said letters shall extend only to the testator’s estate located in the Philippines
3. The estate shall be disposed of following the will after just debts and expenses of administration are paid
4. Any residue shall be disposed of as provided for estates in the Philippines belonging to persons who do not reside in
the country
‣ Note that the domiciliary administrator does NOT have the power to administer properties located outside the
Philippines by virtue of the will.
‣ The genera 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
property in another state or country. (In the Matter of the Testate Estate of Basil Gordon Butler, 1951)
JURISPRUDENCE
SUNTAY V. SUNTAY, 95 PHIL. 500 (1954)

‣ The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on procedure in
the probate or allowance of wills must also be proved. The legal requirements for the execution of a valid will in China in 1931
should also be established by competent evidence. There is no proof on these points.
‣ In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in
probate matters, it may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are
the a deposition or to a perpetuation of testimony, and even if it were so it does not measure same as those provided for in our
laws on the subject.
‣ It is a proceedings in rem and for the validity of such proceedings personal notice or by publication or both to all interested
parties must be made. The interested parties in the case were known to reside in the Philippines. The evidence shows that no
such notice was received by the interested parties residing in the Philippines.
CLARENCE TIU
RULE 78: LETTERS TESTAMENTARY AND OF ADMINISTRATION,
EXECUTORS AND ADMINISTRATORS
EXECUTORS AND ADMINISTRATORS
EXECUTORS
‣ A person nominated by a testator in his will to carry out his direction and request thereof and to dispose of the property
according to his testamentary provisions after his death
‣ The choice of executor is the precious prerogative of a testator, a necessary concomitant of his right to dispose of his property
in the manner he wishes. It is natural that the testator should desire to appoint one of his confidence, one who can be trusted
to carry out his wishes in the disposal of the estate.
‣ The curtailment of this right is considered as a curtailment of the right to dispose. And as the rights granted by will take
effect from the time of death, the management of his estate by the administrator of his choice should be made as soon as
practicable, when no reasonable objection to his assumption of the trust can be interposed any longer.
ADMINISTRATORS
‣ A person appointed by the probate court to administer and settle intestate estates; or testate estates where no executor is
named, or the executors named are incompetent; or refuses the trust or fails to give a bond
‣ The provisions in the Rules of Court providing for the appointment of an administrator where there is no will or the will does not
name an executor seeks to protect not only the estate of the deceased the but also the rights of the creditors in order that they
may be able to collect their credits, and of the heirs and legatees in order that they may receive the portion of the inheritance
or legacy appertaining to them after all the debts and expenses chargeable against the deceased’s estate have been paid.
‣ Therefore, the judicial administrator is the legal representative not only of the testate or intestate estate, but also of the
creditors, and heirs and legatees, inasmuch as he represents their interest in the estate of the deceased.
Comparison of Executor and Administrator
EXECUTOR ADMINISTRATOR
Definition A person nominated by a testator in his will to carry out A person appointed by the probate court to administer
his direction and request thereof and to dispose of the and settle intestate estates; or testate estates where no
property according to his testamentary provisions after executor is named, or the executors named are
his death incompetent; or refuses the trust or fails to give a bond
How Nominated by the testator and appointed by the Court Appointed by the Court in the following instances:
Appointed 1. The decedent died intestate
2. The will did not appoint an executor
3. The executor appointed in the will is incompetent
or refused the appointment, or failed to give a bond
4. The will was disallowed
Obligation to Required to present the will to the court within 20 days N/A
Present the after knowledge of the testator’s death or after he knows
Will to Court that he was appointed as executor (Rule 75, Sec. 3)
Bond Testator may direct that the executor serve without bond Always required to execute a bond
or with only his individual bond conditioned only to pay
the testator’s debts; but the court may require the
executor to execute a bond in case of change in
circumstance of for sufficient cause (Rule 81, Sec. 2)
Amount of If the testator makes a provision in the will for the Amount of compensation fixed by the Rules (Rule 85,
Compensation compensation of his executor, that provision shall be a Sec. 7)
full satisfaction for his services, unless he renounces by
a written instrument all the claim to the compensation as
provided in the will (Rule 85, Sec. 7)
TRUST RELATIONSHIP
‣ An executor or administrator occupies a position of trust and confidence.
‣ The law considers them as trustees of the estate and the funds of the estate as trust funds. As such, they are required to
exercise reasonable diligence and act in entire good faith in the performance of that trust
CLARENCE TIU
‣ Although the executor and administrator is not a guarantor or insurer of the safety of the estate nor are they expected to be
infallible, yet the same degree of prudence, care, and judgment which a person of fair average capacity and ability exercises in
similar transactions of one’s own, serves as the standard by which one’s conduct is to be judged
GENERAL QUALIFICATIONS OF EXECUTORS AND ADMINISTRATORS
Section 1. Who are incompetent to serve as executors or administrators. — No person in competent to serve as
executor or administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness, improvidence, or
want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude.
Section 3. Married women may serve. — 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.
‣ RULE: THE FOLLOWING ARE THE REQUIREMENTS FOR AN EXECUTOR OR ADMINISTRATOR:

1. AT LEAST 18 YEARS OLD
‣ Minors are disqualified as executors or administrators because they have no legal capacity to enter into contracts on
their own.
2. A RESIDENT OF THE PHILIPPINES
‣ Even though there is no statutory requirement that only residents may be appointed as executors or administrators, the
courts should not consent to the appointment of persons as administrators and guardians who are not personally
subject to the jurisdiction of courts. (Vancil vs Belmes, 2001)
3. THE COURT DEEMS SUCH PERSON AS FIT
‣ The fitness or unsuitability of a person’s appointment is within the sound judgment of the court. The courts may
consider a person unfit for the following reasons:
a. Drunkenness
‣ The degree must be which would impair a person’s sound judgment and reason that would necessarily affect a
person’s integrity and honesty
b. Improvidence
‣ This pertains to unwise or ill-advised spending.
‣ An improvident person lacks the good judgment and foresight necessary for the fulfilment of the executor and
administrator’s responsibilities to manage and preserve the estate.
c. Want of understanding or integrity
‣ Lack of understanding refers to a persons inability to know the nature and functions as executor or
administrator
‣ Lack of integrity connotes lack of credibility, which affects his honesty in the management of the estate.
d. Conviction of an offenses involving moral turpitude
‣ Note that not all criminal offenses involve moral turpitude, as to what crimes involve moral turpitude is for the
Supreme Court to determine
‣ Moral turpitude means an act of baseness, vileness, or depravity in the private duties which a man owes to 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, and modesty, or good morals. Moral turpitude is considered
as encompassing everything which is done contrary to justice, honest, or good morals (Republic vs Marcos
2009)
‣ The enumeration of basis for “unfitness” is NOT exclusive to those stated in Sec. 1. The court may consider other facts
that may show that the person is unfit as executor or administrator.
‣ Court has also considered “adverse interest” as a ground for disqualification. (Lim vs Diaz-Millarez 1966)
‣ Note that 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
WHEN THE EXECUTOR DIES
Section 2. Executor of executor not to administer estate. — The executor of an executor shall not, as such,
administer the estate of the first testator.
‣ RULE: WHEN THE EXECUTOR DIES, HIS EXECUTOR CANNOT ADMINISTER THE ESTATE OF THE FIRST TESTATOR.
CLARENCE TIU
‣ In this situation, the court may appoint an administrator de bonisnon as the new adminsitaror after the death of the
executor who was not able to settle the estate of the first decedent during his lifetime.
AUTHORITIES ISSUED BY THE COURT; APPOINTMENT OF EXECUTORS AND ADMINISTRATORS
Section 4. Letters testamentary issued when will allowed. — 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.
Section 5. Where some coexecutors disqualified others may act. — When all of the executors named in a will can not
act because of incompetency, 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, accept and give bond, and they may perform the
duties and discharge the trust required by the will.
Section 6. When and 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 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 have appointed, if competent and
willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be
incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of
the person to apply for administration or to request that administration be granted to some other person, it may
be granted to one or more of the principal creditors, if may be granted to one or more of the principal creditors, if
competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court
may select.
AUTHORITIES ISSUED BY THE COURT IN TESTATE OR INTESTATE PROCEEDINGS

‣ The court may issue either of three possible authorities:
1. Letters Testamentary
2. Letters of Administration with the Will Annexed
3. Letters of Administration
LETTERS TESTAMENTARY LETTERS OF ADMINISTRATION LETTERS OF ADMINISTRATION

WITH THE WILL ANNEXED
Definition The authority issued to the The authority issued by the court to a The authority issued by the court to a
executor named in the will to competent person to administer the competent person to administer the
manage and administer the estate of the deceased if the executor estate of the deceased who died
estate named in the will refuses to accept the intestate or with a void will or is not
office or is incompetent admitted into probate
When Issued The executor: There is a will but the executor is Either:
1. Is competent either: 1. Decedent died intestate
2. Accepts the trust, and 1. incompetent 2. The will is void or is not
3. Gives the required bond 2. Refuses the trust; or admitted to probate
3. Fails to give the bond required by
the rules.
ISSUANCE OF LETTERS TESTAMENTARY; APPOINTMENT OF EXECUTOR

‣ RULE: WHEN A WILL HAS BEEN ADMITTED TO PROBATE, IT IS THE DUTY OF THE COURT TO ISSUE LETTERS TESTAMENTARY
TO THE PERSON NAMED AS EXECUTOR UPON HIS APPLICATION.
‣ Only when the appointed executor is incompetent, refuses the trust, or fails to give the bond, may the court appoint other
persons to administer the estate
‣ The authority issued by the court will depend on whether the testator names an executor in the will and such executor’s
competence, willingness to accept, and compliance with the bond
‣ What if an aggrieved party wants to challenge the order of the probate court admitting the will into probate?
‣ He may appeal such decision, but the court must still issue the proper authority to appoint an executor or administrator
CLARENCE TIU
JOINT EXECUTORS
‣ RULE: IN CASE THERE ARE MULTIPLE EXECUTORS NAMED IN THE WILL, AND THEY CANNOT ACT BECAUSE OF ONE OR MORE
IS DISQUALIFIED AND REFUSES THE OFFICE, COURT MAY APPOINT THE ONES WHO ARE COMPETENT, ACCEPT AND GIVE
BOND, AND THEY MAY PERFORM THE DUTIES AND DISCHARGE THE TRUST REQUIRED BY THE WILL.
‣ The testator is not prohibited from nominating more than one person as his executor. In such case, the executor's exercise joint
administration over the estate.
‣ Note that the co-executors cannot voluntarily designate only one of them to administer the testator’s estate because this
would be contrary to the testator’s wishes.
ISSUANCE OF LETTERS OF ADMINISTRATION; APPOINTMENT OF AN ADMINISTRATOR

‣ RULE: 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 IN THE FOLLOWING ORDER OF
PREFERENCE:
1. Surviving spouse
‣ This refers to the partner in the conjugal partnership and the decedent’s heir.
‣ The spouse is the preferred administrator precisely because one is interested in the decedent’s estate as the partner in
the conjugal partnership.
‣ As owner of one-half of the conjugal properties and at the same time a compulsory heir, it would be unfair if the
surviving spouse be deprived of any hand in the administration of the decedent’s estate
‣ This assumes that the marriage is valid or at least voidable.
2. Next of kin
‣ “Next of kin” refers to those whose relationship with the decedent its such that they are entitled to share in the estate as
distributees, in short, an heir.
‣ In determining the decedent’s next of kind, the probate court may pass upon the issue of filiation especially when the
application for letters of administration claims to the decedent’s heir.
‣ A separate action will only result in a multiplicity of suits
‣ As between next of kin, the nearest of kin is to be preferred. Among members of a class, the strongest ground for
preference is the amount or preponderant of interest (Ventura vs Ventura 1988)
‣ Thus, the kin who has more interest (large share) in the estate is more preferred
3. Persons requested by the surviving spouse of next of kind
4. Principal creditors
‣ The court may appoint any of the decedent’s principal creditors only when the surviving spouse or next of kin is:
1. Incompetent
2. Unwilling to be appointed; or
3. Neglects for at least 30 days after the decedent’s death to apply for administration or to request that administration
be granted to some other person
5. Other persons selected by the court
‣ Note that this order of preference is limited to the selection of a regular administrator and does NOT apply to the selection of a
special administrator, the latter lies entirely in the discretion of the court and is not applicable (but more on this later)
‣ EXCEPTION: IN THESE CASES, IF THERE ARE REASONS JUSTIFYING THE APPOINTMENT OF AN ADMINISTRATOR OTHER THAN
THE ONE PREFERRED, THE COURT MAY DISREGARD THE ORDER OF PREFERENCE, AND APPOINT:
1. A PERSON WHO HAS MORE INTEREST IN THE ESTATE THAN THE ONE PREFERRED
‣ In determining who should be appointed as administrator, the principal consideration of the court is the interest in the
estate of the one to be appointed as such administrator.
‣ The preference is NOT absolute. As an exception, if there are other reasons justifying the appointment of an
administrator other than the one preferred, the court may disregard the order of preference
‣ If under the circumstances of the case, it develops that there is another who has more interest in the estate than the
one preferred, the preference may not be followed.
‣ An interested party is one who would be benefited in the estate, such as an heir, or one who has a claim against the
estate, such as a creditor.
‣ The underlying assumption behind the order of preference is that those who will reap the benefit of a wise, speedy,
economical administration of the estate, or, on the other hand, suffer the consequences of waste, improvidence, or
mismanagement, have the highest interest and most influential motive to administer the estate correctly.
‣ Basically, the reason is that he’s the person with most to lose
2. JOINT ADMINISTRATORS
‣ This is common in practice
‣ Joint administration may be granted, if the Courts finds justifiable reasons to do so
‣ This is also an exception to the order of preference of 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 estate.
CLARENCE TIU
‣ The Supreme Court has sanctioned the appointment of more than one administrator for the benefit of the estate and
those interested therein for the following reasons:
1. To have the benefits 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 interest of the
estate
5. When a person entitled to the administration or an estate desires to have another competent person associated
with him in the office
JURISPRUDENCE
GONZALES V. AGUINALDO, 190 SCRA 112 (1990)

‣ While it is conceded that the court is invested with ample discretion in the removal of an administrator, it however must have
some fact legally before it in order to justify a removal. There must be evidence of an act or omission on the part of the
administrator not conformable to or in disregard of the rules or the orders of the court, which it deems sufficient or substantial
to warrant the removal of the administrator. In making such a determination, the court must exercise good judgment, guided by
law and precedents.
CLARENCE TIU
RULE 79: OPPOSING ISSUANCE OF LETTERS TESTAMENTARY; PETITION
AND CONTEST FOR LETTERS OF ADMINISTRATION
OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY
Section 1. Opposition to issuance of letters testamentary. Simultaneous petition for administration. — Any person
interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named
therein as 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 time, be filed for letters of administration with the will annexed.
‣ RULE: ANY INTERESTED PERSON IN A WILL MAY FILE A WRITTEN OPPOSITION STATING THE GROUNDS WHY LETTERS
TESTAMENTARY SHOULD NOT ISSUE TO THE PERSONS NAMED THEREIN AS EXECUTORS, OR ANY OF THEM
‣ The interested person who is allowed to oppose the issuance of letters testamentary is one who stands to be benefited
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.
‣ Also, note that the heir who may be interested refers to forced or compulsory heirs only as they are the only heirs which
may be prejudiced by the will
‣ The rule does NOT require that the oppositor be qualified as administrator. A person may oppose the petition for probate
without simultaneously seeking appointment as administrator.
‣ Example: An heir who is a minor may oppose the appointment of his drunkard brother as executor, he is given the
standing too contest the appointment of an incompetent person
FILING A PETITION FOR ISSUANCE OF LETTERS OF ADMINISTRATION; PROCEDURE
Section 2. Contents of petition for letters of administration. — A petition for letters of administration must be filed by
an interested person and must show, so far as known to the petitioner:
(b) The names, ages, and residences of the heirs, and the names and residences of the creditors, of the decedent;
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters of administration are prayed.
But no defect in the petition shall render void the issuance of letters of administration.
Section 6. When letters of administration granted to any applicant. — Letters of administration may be granted to any
qualified applicant, though it appears that there are other competent persons having better right to the
administration, if such persons fail to appear when notified and claim the issuance of letters to themselves.
Section 3. Court to set time for hearing. Notice thereof. — When a petition for letters of administration is filed in the
court having jurisdiction, such court shall fix a time and place for hearing the petition, and shall cause notice thereof
to be given to the known heirs and creditors of the decedent, and to any other persons believed to have an interest in
the estate, in the manner provided in sections 3 and 4 of Rule 76.
RULE 76
Section 3. Court to appoint time for proving will. Notice thereof to be published. — When a will is delivered to, or a
petition for the allowance of a will is filed in, the court having jurisdiction, such court shall fix a time and place for
proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time
and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general
Section 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. — The court shall also cause
copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known
heirs, legatees, and devisees of the testator resident in the Philippines at their places of residence, and deposited in
the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if such places of
residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he be not
the petitioner; also, to any person named as coexecutor not petitioning, if their places of residence be known.
CLARENCE TIU
Personal service of copies of the notice at lest (10) days before the day of hearing shall be equivalent to mailing.
RULE 79
Section 4. Opposition to petition for administration. — Any interested person may, by filing a written opposition,
contest the petition on the ground of the incompetency of the person for whom letters are prayed therein, or on the
ground of the contestant's own right to the administration, and may pray that letters issue to himself, or to any
competent person or person named in the opposition.
Section 5. Hearing and order for letters to issue. — At the hearing of the petition, it must first be shown that notice
has been given as hereinabove required, and thereafter the court shall hear the proofs of the parties in support of
their respective allegations, and if satisfied that the decedent left no will, or that there is no competent and willing
executor, it shall order the issuance of letters of administration to the party best entitled thereto.
WHO MAY FILE A PETITION FOR LETTERS OF ADMINISTRATION?

‣ RULE: A PETITION FOR LETTERS OF ADMINISTRATION MUST BE FILED BY ANY INTERESTED PERSON
‣ Note that under Sec. 6, letters of administration may be granted to any qualified applicant, though it appears that there are
other competent persons having better right to the administration, if such persons fail to appear when notified and claim the
issuance of letters to themselves.
CONTENTS OF THE PETITION FOR LETTERS OF ADMINISTRATION

‣ RULE: THE PETITION MUST SHOW, SO FAR AS KNOWN TO THE PETITIONER:
1. The jurisdictional facts:
a. The death of the testator
b. Residence at the time of death in the province where the probate is located
c. If the decedent was a non-resident, the fact of being a resident of a foreign country and that the decedent has left an
estate in the province where the court is sitting
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 character of the property of the estate
4. The name of the person for whom letters of administration are prayed.But no defect in the petition shall render void the
issuance of letters of administration.
‣ Similarities with Contents of Petition for Probate
‣ The contents of a petition for letters of administration are similar to the contents required for a petition for the probate of a
will
‣ The only difference between the contents is the requirement in a petition for probate that the name of the will’s custodian
be stated if the will has not yet been delivered to the court
‣ What if there is a defect in the Petition for Letters of Administration?
‣ It shall NOT render void the issuance of letters of administration, the appointment remains until the court appoints a new
person
PROCEDURE FOR THE ISSUANCE OF LETTERS OF ADMINISTRATION

1. INTERESTED PERSON FILES A PETITION FOR THE ISSUANCE OF LETTERS OF ADMINISTRATION
‣ See Sec. 2 and 6, as discussed above
2. SET A HEARING
‣ When a petition for letters of administration is filed in the court having jurisdiction, such court shall fix a time and place for
hearing the petition
3. CAUSE THE NOTICE OF HEARING TO BE PUBLISHED
‣ Publication and notice through publication of the petition for the settlement of estate of deceased person is jurisdictional,
the absence of which makes court orders affecting other persons, subsequent to the petition void and subject to annulment.
‣ Without the requisite publication and notice, the court does not acquire jurisdiction over the subject matter.
‣ Note that Sec. 3 says “notice shall be casued…in the manner provided in sections 3 and 4 of Rule 76”
‣ Following Sec. 3, Rule 76, the notice must be published in a newspaper of general circulation in the province where the
court has jurisdiction once a week for three consecutive weeks.
4. NOTICE TO KNOWN HEIRS, CREDITORS AND OTHER INTERESTED PERSONS
‣ Court must cause notice thereof to be given to the known heirs and creditors of the decedent, and to any other persons
believed to have an interest in the estate
‣ Note that Sec. 3 says “notice shall be caused…in the manner provided in sections 3 and 4 of Rule 76”
‣ Under Sec. 4, Rule 76, this must be either by personal service or registered mail.
5. WRITTEN OPPOSITIONS MAY BE FILED TO CONTEST THE PETITION
CLARENCE TIU
‣ See Sec. 4
‣ Any interested person may, by filing a written opposition, contest the petition on the following grounds:
1. Incompetency of the person for whom letters are prayed for
2. The contestant’s own right to the administration
‣ The oppositor may also pray that letters issue to himself, or to any competent person or person named in the
opposition
6. ACTUAL HEARING
‣ See Sec. 5
‣ At the hearing of the petition, the following must be shown before the court issues letters of administration:
1. That notice has been given in the manner required
2. Proofs of the parties in support of their respective allegations
3. Proofs that the decedent left no will, or that there is no competent and willing executor
JURISPRUDENCE
SAGUINSIN V. LINDAYAG – NOT AN HEIR OR CREDITOR, NO STANDING

‣ A petition for letters of administration must be filed an "interested person". An interested party is defined in this connection 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.
PILIPINAS SHELL V. DUMLAO, 206 SCRA 40

‣ Sec. 2, Rule 79 requires that the petition must be filed by an interested person, 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; this interest must be material and direct, not merely
indirect or contingent. If the petition was not filed by such interested person, the proceedings may be dismissed for lack of
capacity to institute the proceedings by a motion to dismiss.
‣ BUT, such defect may be barred by waiver or estoppel, as in this case where the administrator and the rest of the heirs
voluntarily submitted to the jurisdiction of the trial court, they even expressly affirmed and invoked such jurisdiction in
praying for reliefs and remedies in their favour
‣ Saguinsin vs. Lindayag: where the dismissal of a petition for letters of administration was affirmed because the petitioner "is
not an heir of her deceased sister and, therefore, has no material and direct interest in her estate." In the said case, this Court
defined an interested party 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; this interest must be material and direct, not merely indirect or contingent
‣ The Saguinsin doctrine is not, however, without exception. An objection to a petition for letters of administration on that ground
may be barred by waiver or estoppel.
‣ The administrator did not file a motion to dismiss the petition filed by Gonzalez on the ground of lack of capacity to sue; he
instead filed an Opposition which, unfortunately, did not ask for the dismissal of the petition but merely opposed the issuance of
letters of administration in favor of Gonzalez because, among other reasons, he is a stranger to the estate. The Opposition
also proposed that Bonifacio Canonoy, one of the children of the deceased Regino Canonoy, be appointed administrator of the
latter's intestate estate. The failure to move for a dismissal amounted to a waiver of the above-mentioned ground.
‣ Based on Section 8, Rule 15: “A motion attacking a pleading or a proceeding shall include all objections then available, and
all objections not so included shall be deemed waived.”
CLARENCE TIU
RULE 80: SPECIAL ADMINISTRATOR
APPOINTMENT OF SPECIAL ADMINISTRATOR
Section 1. Appointment of special administrator. — When there is delay in granting letters testamentary or of
administration by any cause including an appeal from the allowance or disallowance of a will, the court may appoint
a special administrator to take possession and charge of the estate of the deceased until the questions causing the
delay are decided and executors or administrators appointed.
RULE 86
Section 8. Claim of executor or administrator against an estate. — 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
administrator to pay to the special administrator necessary funds to defend such claim.
NATURE OF OFFICE
‣ A special administrator is an officer of the court who is subject to its supervision and control, expected to work for the best
interest of the entire estate, with a view to its smooth administration and speedy settlement.
‣ When appointed, he is not regarded as an agent or representative of the parties suggesting the appointment.
‣ The principal objective of the his appointment is to be a temporary administrator is to preserve the estate until it can pass to
the hands of a person fully authorised to administer it for the benefit of creditors and heirs.
‣ But Atty. Melo says that usually the Special Administrator manages for a long period of time, parang hindi na temporary
WHEN A SPECIAL ADMINISTRATOR MAY BE APPOINTED

‣ THE APPOINTMENT OF A SPECIAL ADMINISTRATOR IS JUSTIFIED ONLY IN TWO INSTANCES:
1. WHEN THERE IS DELAY IN GRANTING LETTERS TESTAMENTARY OR OF ADMINISTRATION DUE TO ANY CAUSE
‣ Note that the delay may be for any cause, this is broad enough to included any cause or reason for the delay in
granting such letters, such as:
a. An appeal from the allowance or disallowance of a will
b. An appeal is pending on the removal of an executor or administrator
c. Where the parties cannot agree among themselves
d. Where there is a disagreement as to who should be appointed as administrator
‣ The special administrator’s powers exist until the questions causing the delay are decided or when the executor or
administrator is appointed.
2. WHEN THE EXECUTOR OR ADMINISTRATOR IS A CLAIMANT AGAINST THE ESTATE HE REPRESENTS
‣ See Rule 86, Sec. 6
‣ In this case, the special administrator administers only the portion over which there is a claim
‣ Who is the person to be appointed as special administrator? Can the court just appoint and remove special
administrators?
‣ The selection or removal of special administrators is within the court’s discretion
‣ The rules regarding the selection or removal of regular administrators do NOT apply to special administrators.
‣ The court may appoint or remove special administrators based on grounds other than those enumerated ion the rules,
at their discretion
‣ A court is not required to follow the order of preference prescribed under Sec. 6, Rule 78 for the appointment of a
special administrator
‣ The preference only pertains to the appointment of a regular administrator
‣ BUT, the Supreme Court has recognized that a court may take into account such principles in the appointment
‣ Thus, even if a special administrator had already been appointed, once the court finds the appointee no longer entitled
to its confidence, it is justified in withdrawing the appointment and giving no valid effect thereto.
‣ Can the court appoint a special administrator immediately upon the filing of the petition for settlement, even before
notice to interested parties?
‣ NO. Notice through publication of the petition for the settlement of the estate is jurisdictional, the absence of which makes
court orders affecting other persons, subsequent to the petition void and subject to annulment (De Guzman vs Angeles
1988)
‣ May an order of appointment of a special administrator be appealed?
CLARENCE TIU
‣ NO. the appointment of special administrator is an interlocutory or preliminary order to the main case for the grant of letters
testamentary or of administration. The appointment or removal of special administrators, being discretionary, is thus
interlocutory and may only be assailed through a petition for certiorari under Rule 65, NOT by appeal
Regular Administrator vs Special Administrator
REGULAR ADMINISTRATOR SPECIAL ADMINISTRATOR
Remedy of The court’s order of appointment may be appealed The court’s order of appointment is interlocutory and
the Aggrieved NOT appealable. The appointment may only be
Party challenged through an action for certiorari based on
grave abuse of discretion amounting to lack or excess
of jurisdiction
Instances Either: Either:

when 1. Decedent dies intestate 1. There is delay in the grating of letters
appointment 2. Decedent fails to appoint an executor in the will testamentary or administration for any cause
is made by 3. Will was disallowed 2. When the executor or administrator is a claimant
the Court against the estate but only as to the portion over
which there is a claim (Rule 86, Sec. 8)
As to the One of the obligations is to pay and discharge all the He is NOT empowered to pay the estate debts, unless
Power to Pay debts of the estate (Rule 81, Sec. 1(b)) ordered by the court (Rule 80, Sec. 2)
the Estate’s
Debts
Powers and An executor or administrator may only perform all 1. Possession and charge of the decedent’s estate
Duties acts of administration even without a court order. He 2. Preservation of the decedent’s estate
may only perform acts of ownership with the consent 3. Commencement and maintenance of suits as
and order of the court administrator
1. Possess and manage the estate of the 4. Sale only of perishable and other property in
deceased to say debts and expenses of accordance with the court’s order
administration (Rule 84, Sec. 3) 5. Payment of the decedent’s debts if ordered by the
2. In case the estate has interest in a partnership, court
the power to have access to, examine and take 6. Prepare and return a true inventory of the
copies of, books and papers relating to the decedent’s estate that may come into his
partnership business, and examine and make possession or knowledge
invoices of the property belonging to such 7. Render an accounting of the decedent’s estate he
partnership (Rule 84, Sec. 1) received
3. With the approval of the court, to compound or 8. Deliver the decedent’s estate to the person
compromise with a debtor of the deceased (Rule appointment as executor or administrator or such
87, Sec. 4) other person authorised to receive them
Conditions of 1. To make and return to the court, within three (3) 1. Make and return a true inventory of the goods,
the Bond months, a true and complete inventory of all chattels, rights, credits, and estate of the
Required goods, chattels, rights, credits, and estate of the deceased which come to his possession or
deceased which shall come to his possession or knowledge
knowledge or to the possession of any other 2. Truly account for the decedent’s estate as are
person for him; received by him when required by the court
2. To administer according to these rules, and, if an 3. Deliver the estate to the person appointed
executor, according to the will of the testator, all executor or administrator, or to such other person
goods, chattels, rights, credits, and estate which as may be authorized to receive them.
shall at any time come to his possession or to the
possession of any other person for him, and from
the proceeds to pay and discharge all debts,
legacies, and charges on the same, or such
dividends thereon as shall be decreed by the
court;
3. To render a true and just account of his
administration to the court within one (1) years,
and at any other time when required by the court;
4. To perform all orders of the court by him to be
performed.
CLARENCE TIU
POWERS AND DUTIES OF A SPECIAL ADMINISTRATOR
Section 2. Powers and duties of special administrator. — Such special administrator shall take possession and
charge of the goods, chattels, rights, credits, and estate of the deceased and preserve the same for the executors or
administrator afterwards appointed, and for that purpose may commence and maintain suits as administrator. He may
sell only such perishable and other property as the court orders sold. A special administrator shall not be liable to
pay any debts of the deceased unless so ordered by the court.
The special administrator’s powers are limited to the following actions:

(1) Possession and charge of the decedent’s estate
(2) Preservation of the decedent’s estate
(3) Commencement and maintenance of suits as administrator
(4) Sale only of perishable and other property in accordance with the court’s order
(5) Payment of the decedent’s debts if ordered by the court
(6) Prepare and return a true inventory of the decedent’s estate that may come into his possession or knowledge
(7) Render an accounting of the decedent’s estate he received
(8) Deliver the decedent’s estate to the person appointment as executor or administrator or such other person
authorised to receive them
CEASE OF POWERS; EFFECT ON PENDING SUITS
Section 3. When powers of special administrator cease. Transfer of effects. Pending suits. — When letters
testamentary or of administration are granted on the estate of the deceased, the powers of the special administrator
shall cease, and he shall forthwith deliver to the executor or administrator the goods, chattels, money, and estate of
the deceased in his hands. The executor or administrator may prosecute to final judgment suits commenced by such
special administrator.
JURISPRUDENCE
DE GUZMAN V. ANGELES 162 SCRA 347

‣ There is a difference between the jurisdiction of the probate court over the proceedings for the administration of an estate and
its jurisdiction over the persons who are interested in the settlement of the estate of the deceased person. The court may also
have jurisdiction over the "estate" of the deceased person but the determination of the properties comprising that estate must
follow established rules.
‣ 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.
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 void and should 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.
CORONA V. CA, 116 SCRA 316

‣ The executrix’s choice of Special Administrator considering her own inability to serve and the wide latitude of discretion given
her by the testatrix in her Will is entitled to the highest consideration.
‣ Objections to Nenita’s appointment on grounds of impracticality and lack of kinship are overshadowed by the fact that justice
and equity demand that the side of the deceased wife and the faction of the surviving husband be represented in the
management of the decedent’s estate.
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RULE 81: BOND OF EXECUTORS AND ADMINISTRATORS
REQUIREMENT OF BOND FOR EXECUTORS AND ADMINISTRATORS
Section 1. Bond to be given issuance of letters. Amount. Conditions. — Before an executor or administrator enters
upon the execution of his trust, and letters testamentary or 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 three (3) months, a true and complete inventory of all goods, chattels,
rights, credits, and estate of the deceased which shall come to his possession or knowledge or to the possession
of any other person for him;
(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) years, and at any other time
when required by the court;
(d) To perform all orders of the court by him to be performed.
NATURE OF THE BOND REQUIRED

‣ The bond required by law is for the benefit of the heirs, creditors, and the estate
‣ It answers for the administrator’s or executor’s failure to fulfil any of the conditions of the bond
‣ Note that the bond is required as a prerequisite to the appointment as a executor and administrator
‣ Standard of Responsibility of Executors and Administrators
‣ Their standard of responsibility is comparable to that of a bailee
‣ They must act honestly and in good faith, otherwise, they become personally liable to those interested in the estate for
waste, conversion or embezzlement.
‣ For as long as their is good faith and the acts are done following the usual rules and methods of conducting business, the
administrator cannot be held responsible for business losses.
REQUIREMENT OF A BOND FOR EXECUTORS AND ADMINISTRATORS

‣ RULE: BEFORE AN EXECUTOR OR ADMINISTRATOR ENTERS UPON THE EXECUTION OF HIS TRUST, AND LETTERS
TESTAMENTARY OR ADMINISTRATION ISSUE, HE SHALL GIVE A BOND, IN SUCH SUM AS THE COURT DIRECTS, CONDITIONED
ON THE FOLLOWING OBLIGATIONS:
1. MAKE AN INVENTORY
‣ To make and return to the court, within three (3) months, a true and complete inventory of all goods, chattels,
rights, credits, and estate of the deceased which shall come to his possession or knowledge or to the possession of
any other person for him
‣ Note that for as long as the administrator has knowledge that a certain property belongs to the decedent’s estate, he
must include it in the inventory.
‣ Remember that the Court may provisionally rule on its inclusion or exclusion in the estate
2. ADMINISTER AND LIQUIDATE THE ESTATE IN ACCORDANCE WITH THE RULES AND THE WILL OF THE TESTATOR
‣ 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
3. RENDER AN ACCOUNTING
‣ To render a true and just account of his administration to the court within one (1) years, and at any other time when
required by the court;
4. PERFORM OTHER COURT ORDERS
‣ To perform all orders of the court by him to be performed.
EXCEPTION TO THE BOND REQUIREMENT (FOR EXECUTORS ONLY)
Section 2. Bond of executor where directed in will. When further bond required. — If the testator in his will directs
that the executors serve without bond, or with only his individual bond, he may be allowed by the court to give bond
in such sum and with such surety as the court approves conditioned only to pay the debts of the testator; but the
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court may require of the executor a further bond in case of a change in his circumstance, or for other sufficient case,
with the conditions named in the last preceding section.
‣ As rule, executors are required to give a bond conditioned on their performance of the obligations in Sec. 1. An exception to
this rule is a provision in the decedent’s will exempting the named executor from giving a bond
‣ BUT, in this case, the court may nevertheless, require the executor to give a bond on the condition that the executor shall
pay the decedent’s debts.
‣ The court also has the discretion to require the executor to give additional bond whenever there is a change in his
circumstances or in other sufficient cases.
BOND OF JOINT EXECUTORS OR ADMINISTRATORS
Section 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.
‣ The court may either require:

1. Separate bond from each, or
2. Joint bond from all.
BOND OF A SPECIAL ADMINISTRATORS
Section 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.
‣ The conditions for the special administrator’s bond are limited compared with the conditions for the regular administrator’s
bond. These are:
1. MAKE AN INVENTORY
‣ Make and return a true inventory of the goods, chattels, rights, credits, and estate of the deceased which come to his
possession or knowledge
2. RENDER AN ACCOUNTING
‣ Truly account for the decedent’s estate as are received by him when required by the court
3. DELIVER THE ESTATE TO THE REGULAR EXECUTOR OR ADMINISTRATOR
‣ Deliver the estate to the person appointed executor or administrator, or to such other person as may be authorized to
receive them.
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RULE 82: REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION
AND REMOVAL OF EXECUTORS OR ADMINISTRATORS
REVOCATION OF LETTERS OF ADMINISTRATION
Section 1. Administration revoked if will discovered. Proceedings thereupon. — If after letters of administration have
been granted on the estate of a decedent as if he had died intestate, his will is proved and allowed by the court, the
letters of administration shall be revoked and all powers thereunder cease, and the administrator shall forthwith
surrender the letters to the court, and render his account with such time as the court directs. Proceeding for the
issuance of letters testamentary or of administration under the will shall be as hereinbefore provided.
INSTANCES WHEN LETTERS OF ADMINISTRATION MAY BE REVOKED

‣ Two instances when the court may revoke letters of administration that have already been granted:
1. WHEN THE DECEDENT’S WILL IS DISCOVERED AND ADMITTED TO PROBATE
‣ Mere discovery of the decedent’s will is not sufficient basis to revoke the letters of administration.
‣ The fact of discovery does not ipso facto nullify the letters of administration issued by the court
‣ The decedent’s will must be probated first before revocation may take place
2. WHEN LETTERS OF ADMINISTRATION ARE ILLEGALLY ISSUED OR ISSUED WITHOUT JURISDICTION
‣ This does not appear in Sec. 1, but it is a recognized ground.
EFFECTS OF REVOCATION OF LETTERS OF ADMINISTRATION

1. All powers under the letters of administration cease
2. The administrator shall surrender the letters to the court
3. The administration must render his account within the time given by the court
4. Proceedings for the issuance of letters testamentary or administration shall follow
REMOVAL OF EXECUTOR OR ADMINISTRATOR
Section 2. Court may be remove or accept resignation of executor or administrator. Proceeding upon death,
resignation, or removal. — If an executor or administrator neglects to render his account and settle the estate
according to law, or to perform an order or judgment of the court, or a duty expressly provided by these rules, or
absconds, or becomes insane, or otherwise incapable or insuitable to discharge the trust, the court may remove him,
or in its discretion, may permit him to resign. When an executor or administrator dies, resign, or is removed the
remaining executor or administrator may administer the the trust alone, unless the court grants letters to someone to
act with him. If there is no remaining executor or administrator, administration may be to any suitable person.
REMOVAL OF EXECUTOR OR ADMINISTRATOR; DISTINGUISHED FROM REVOCATION

‣ Sec. 1 only contemplates the administrator, Sec. 2 pertains to the executor or administrator,
‣ While Sec. 1 refers to revocation of the letters of administration, Sec. 2 refers to the administrator’s or executor’s removal
‣ The difference lies in the fact that in Sec. 1, the letters of administration should not have been issued in the first place, the
letters of administration are revoked for circumstances or grounds that exist prior to its issuance.
‣ Sec. 2 presupposes that letters of administration/testamentary were lawfully issued, but for reasons that occur after the
letters are issued, there is sufficient basis to remove the person appointed as administrator or executor
GROUNDS FOR REMOVAL OR RESIGNATION

‣ An administrator/executor may be removed or allowed to resign for the following grounds:
1. Neglect to render one’s account and settle the estate according to law
2. Neglect to perform an order or judgment of the court, or a duty expressly provided by the Rules of Court
3. Absconds
4. Becomes insane or otherwise incapable or unsuitable to discharge the trust
‣ Sec. 2 is NOT exclusive, a court is justified in removing an administrator if it loses confidence in him. A court is justified in
removing an administrator if it loses confidence. The determination of a person’s suitability for the office of administration rests,
to a great extent, in the sound judgment of the court exercising the power of appointment.
‣ The Supreme Court has recognised the following as sufficient basis to remove an administrator:
1. An administrator who disbursed funds of the estate without judicial approval
2. False representation by an administrator in securing his appointment
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3. An administrator who holds an interest adverse to that of the estate or by his conduct showing unfitness to discharge the
trust
4. An administrator who has the physical inability and consequent unsuitability to manage the estate
‣ The removal of an administrator under Sec. 2 is within the discretion of the court appointing him.
‣ Note that the grounds enumerated for removal pertain to the regular administrator, the court has a wider latitude in the removal
of a special administrator.
WHO MAY ASK FOR THE REMOVAL OF THE EXECUTOR OR ADMINISTRATOR?

‣ Anyone who has an interest in the estate
‣ While the provision is silent, jurisprudence provides that a creditor, even a contingent one, would have the personality to seek
such relief.
‣ This is because 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 fulfil such purpose.
HOW RESIGNATION IS MADE

‣ Note that the court may also allow the resignation of the executor/administrator due to the same grounds. In which case, the
following steps must be made:
1. The executor/administrator submits a resignation letter to the court
2. He prepares and inventory of the properties in his possession
CONSEQUENCE OF THE REMOVAL OR RESIGNATION

‣ When an executor or administrator dies, resign, or is removed the remaining executor or administrator may administer the
the trust alone, unless the court grants letters to someone to act with him.
‣ If there is no remaining executor or administrator, administration may be to any suitable person.
‣ If there are two or more joint administrators the removal of one does not automatically extend to the other, unless the court
provides for it.
VALIDITY OF ACTS BEFORE REVOCATION, RESIGNATION OR REMOVAL OF AN EXECUTOR OR

ADMINISTRATOR
Section 3. Acts before revocation, resignation, or removal to be valid. — The lawful acts of an executor or
administrator before the revocation of his letters testamentary 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.
‣ RULE: ACTS ONE PRIOR TO THE REVOCATION, REMOVAL OR RESIGNATION SHALL REMAIN VALID.
‣ They are not nullified
POWERS OF NEW EXECUTOR OR ADMINISTRATOR
Section 4. Powers of new executor or administrator. Renewal of license to sell real estate. — The person to 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 estate not
administered that the former executor 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
executor or 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 hearing.
‣ The new administrator or executor is given the following powers:

1. To collect and settle the estate not administered that the former executor or administrator had
2. To prosecute or defend actions commenced by or against the former executor or administrator
3. To execute on judgments recovered in the name of such former executor or administrator
‣ BUT, the new administrator or executor cannot sell or mortgage the decedent’s real estate pursuant to an authority granted to
the former administrator or executor
‣ He must secure a renewal of such authority from the court, but notice and hearing are not required for purposes of
renewing such authority. 
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RULE 83: INVENTORY AND APPRAISAL. PROVISION FOR SUPPORT OF
FAMILY
DUTY OF EXECUTOR OR ADMINISTRATOR TO MAKE AN INVENTORY AND APPRAISAL
Section 1. Inventory and appraisal to be returned within three months. — Within three (3) months after his
appointment every executor or administrator shall return to the court a true inventory and appraisal of all real and
personal estate of the deceased which has come into his possession or knowledge. In the appraisement of such
estate, the court may order one or more of the inheritance tax appraisers to give his or their assistance.
Section 2. Certain article not to be inventoried. — The wearing apparel of the surviving husband or wife and minor
children., the marriage bed and bedding, and such provisions and other articles as will necessarily be consumed in
the substinence of the family of the deceased, under the direction of the court, shall not be considered as assets, nor
administered as such, and shall not be included in the inventory.
REQUIREMENT OF SUBMISSION OF INVENTORY AND APPRAISAL OF THE ESTATE

‣ RULE: ADMINISTRATOR OR EXECUTOR IS REQUIRED TO RETURN TO THE COURT A TRUE INVENTORY AND APPRAISAL OF ALL
REAL AND PERSONAL ESTATE OF THE DECEASED WHICH HAS COME INTO HIS POSSESSION OR KNOWLEDGE, WITHIN 3
MONTHS FROM HIS APPOINTMENT.
‣ Sec. 1 of Rule 83 requires the administrator/executor to return to the court a true inventory and appraisal of all the real
and personal estate of the deceased within three months from his appointment, while Sec. 8 of Rule 85 requires the him to
render an account of his administration within one year from receipt of letters testamentary or of administration.
‣ The purpose of the inventory is to aid the court in revising the accounts and determining the liabilities of the executor
or administrator in making a final and equitable distribution (partition) of the estate and otherwise to facilitate the
administration of the estate.
‣ Remember that the probate court has the authority to provisionally determine whether a certain property should be included
in the inventory
‣ The period of 3 months is NOT mandatory.
‣ The use of the word “all” in Sec. 1, Rule 83 means that no properties appearing to belong to the decedent can be excluded
from the inventory. The fact that the properties were already covered by Torrens titles in the name of a third person cannot
be a valid basis for immediately excluding certain properties from the inventory. The Torrens system is not a mode of
acquiring title to lands, as it is merely a system of registration of titles to lands. (Aranas vs Mercado 2014)
PROPERTIES EXCLUDED FROM THE INVENTORY

1. Wearing apparel of the surviving spouse and minor children of the deceased
2. Marriage bed and bedding
3. Provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased
ALLOWANCE FOR SUPPORT OF THE DECEASED’S FAMILY
Section 3. Allowance to widow and family. — The widow and minor or incapacitated children of a deceased person,
during the settlement of the estate, shall receive therefrom, under the direction of the court, such allowance as are
provided by law.
‣ The widow and the minor or incapacitated children of the decedent are entitled to receive an allowance while the estate is
being settled.
‣ An emancipated child of the decedent is also entitled to support, since the Civil Code, as substantive law, gives him such
right during the liquidation of the estate, such right cannot be impaired by procedural law. (Santero vs CFI 1987)
‣ These allowances are in the nature of advance payments of their share in the estate, which shall be deducted from their
respective shares that may be allotted to them.
‣ The allowance does not actually encumber the decedent’s property; rather it refers to the general estate, which includes the
surviving spouse’s share in the conjugal partnership
‣ Consequently, the allowance must still be granted even if the decedent’s liabilities exceed the value of the estate
‣ BUT, the allowance may be denied when the decedent’s liabilities exceed the estate’s value where the surviving spouse did not
contribute any property to the marriage.
‣ In this case, there would be no property left from which their advances may be deducted after the creditors are paid 
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RULE 84: GENERAL POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS
GENERAL POWERS OF EXECUTORS OR ADMINISTRATORS
Section 2. Executor or administrator to keep buildings in repair. — An executor or administrator shall maintain in
tenanble 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.
Section 3. Executor or administrator to retain whole estate to pay debts, and to administer estate not willed. — 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.
‣ RULE: AN EXECUTOR OR ADMINISTRATOR MAY ONLY PERFORM ALL ACTS OF ADMINISTRATION EVEN WITHOUT A COURT
ORDER. HE MAY ONLY PERFORM ACTS OF OWNERSHIP WITH THE CONSENT AND ORDER OF THE COURT
‣ The court appoints an executor or administrator to facilitate the liquidation and distribution of the decedent’s estate.
‣ They are appointed to effectively manage the estate and prevent its dissipation.
‣ Their powers are circumscribed by the purpose of their appointment which is to manage the decedent’s estate
‣ Hence, an executor or administrator may only perform all acts of administration. For acts of ownership, they need to obtain
a court order.
‣ Examples of acts of administration:
1. Maintain in 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 (Rule 84, Sec. 2)
2. Possess and manage the decedent’s real and personal properties as may be necessary for the payment of debts and
expenses of administration (Rule 84, Sec. 3)
3. Entering into lease contracts, even if it exceeds one year
‣ Entering into a lease contract is merely an act of administration, even if the lease exceeds one year, and thus no
court order is necessary. The provision requiring agents to secure an SPA for lease contracts exceeding one year
does not apply to executors or administrators. While agents and administrators have identical duties, the latter
cannot be considered as the court’s agent, he represents not long the court but the heir and creditors of the estate,
as well. (San Diego vs Nombre 1964)
‣ Note that the right of an executor or administrator to the possession and management of the real and personal properties is
NOT absolute and can only be exercised “so long as it is necessary for the payment of the debts and expenses of
administration.”
ENUMERATED POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS (IN THE RULES)
‣ Powers:
1. Possess and manage the estate of the deceased to say debts and expenses of administration (Rule 84, Sec. 3)
2. In case the estate has interest in a partnership, the power to have access to, examine and take copies of, books and
papers relating to the partnership business, and examine and make invoices of the property belonging to such partnership
(Rule 84, Sec. 1)
3. With the approval of the court, to compound or compromise with a debtor of the deceased (Rule 87, Sec. 4)
‣ Duties
1. Maintain the estate in tenantable repair (Rule 84, Sec. 2)
2. Deliver the same to the heirs or devisees when directed by the court (Rule 84, Sec. 2)
SPECIAL POWERS OF EXECUTORS OR ADMINISTRATORS IN THE ESTATE’S INTEREST IN A PARTNERSHIP
Section 1. Executor or administrator to have access to partnership books and property. How right enforced. — 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 make examine and make invoices of the
property belonging to such partnership; and 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, as in this section provided, and may
punish any partner failing to do so for contempt.
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‣ Sec. 1 refers to the special powers granted to the executor or administrator when the estate involve belongs to a partner
‣ The provision contemplates that the decedent, during his lifetime, was a member of a partnership
‣ Due to the nature of a contract of partnership, the rules provide for safeguards to protect the deceased partner’s interest in the
partnership:
1. The executor or administrator shall at all times have access to, and may examine and take copies of books and
papers relating to the partnership business
2. The executor or administrator may examine and make invoices of the property belonging to the partnership
‣ On the written application of such executor or administrator, the court may order any 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.
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RULE 85: ACCOUNTABILITY AND COMPENSATION OF EXECUTORS
AND ADMINISTRATORS
ACCOUNTABILITY/LIABILITY OF THE EXECUTOR OR ADMINISTRATOR
Section 1. Executor or administrator chargeable with all estate and income. — Except as otherwise expressly
provided in the following sections, every executor or administrator is chargeable in his account with the whole of the
estate of the deceased which has come into his possession, at the value of the appraisement contained 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.
Section 2. Not to profit by increase or lose by decrease in value. — No executor or administrator shall profit by the
increase, or 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 the appraisement, and if any is sold for the less than
the appraisement, he is not responsible for the loss, if the sale has justly made. If he 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.
Section 3. When not accountable for debts due estate. — No executor or administrator shall be accountable for debts
due the deceased which remain uncollected without his fault.
Section 4. Accountable for income from realty used by him. — 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, whose determination in this respect shall be final.
Section 5. Accountable if he neglects or delays to raise or pay money. — When an executor or administrator neglects
or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased,
or neglects to pay over the money he has in his hands, and the value of the estate is thereby lessened or
unnecessary cost or interest accrues, or the persons interested suffer loss, the same shall be deemed waste and the
damage sustained may be charged and allowed against him in his account, and he shall be liable therefor on his
bond.
Section 6. When allowed money paid as cost. — The amount paid by an executor or administrator for costs awarded
against him shall be allowed in his administration 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.
‣ RULE: THE EXECUTOR OR ADMINISTRATOR IS ACCOUNTABLE FOR THE WHOLE ESTATE OF THE DECEDENT WHICH HAS COME
TO HIS POSSESSION AT THE VALUE OF THE APPRAISEMENT
‣ While an executor/administrator has the duty to prepare a complete and true inventory of the decedent’s estate which
comes to his possession and knowledge (Sec. 1, Rule 83), Sec. 1, Rule 85 only refers to those which come to his
possession.
‣ Thus, an executor/administrator is not accountable for property that, although it comes to his knowledge, does not
come to his possession.
‣ As an exception, if the executor/administrator gains knowledge respecting the deceased’s estate, he may be held
accountable if he fails to recover possession of the same through his fault or negligence. (Sec. 3, Rule 85)
‣ Executor/administrator is also accountable (is liable) for:
1. If he uses or occupies any part of the real estate himself (Sec. 4, Rule 85)
2. If he neglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of
the deceased, or neglects to pay over the money he has in his hands, and the value of the estate is thereby lessened
or unnecessary cost or interest accrues, or the persons interested suffer loss (Sec. 5, Rule 85)
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EXPENSES AND FEES ALLOWED THE EXECUTOR OR ADMINISTRATOR
Section 7. What expenses and fees allowed executor or administrator. Not to charge for services as attorney.
Compensation provided by will controls unless renounced. — An executor or administrator shall be allowed the
necessary expenses the care, management, and settlement of the estate, and for his services, four pesos 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 two per centum of the first five thousand pesos of such value, one per centum
of so much of such value as exceeds five thousand pesos and does not exceed thirty thousand pesos, one-half per
centum of so much of such value as exceed one hundred thousand pesos. But in any special case, where the estate
is large, and the settlement has been attended with great difficulty, and has required a high degree of capacity on the
part of the executor or administrator, a greater sum may be allowed. If objection to the fees allowed be taken, the
allowance may be re-examined on appeal.
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.
When the executors or administrator is an attorney, he shall not charge against the estate any professional fees for
legal services rendered by him.
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 claim to the
compensation provided by the will.
‣ An executor or administrator is allowed the necessary expenses in the care, management and settlement of the estate.
He is entitled to possess and manage the decedent’s real and personal estate as long as it is necessary for the
payment of the debts and expenses of administration.
‣ Administration expenses should be those which are necessary for the management of the estate, for protecting it against
destruction or deterioration, and, possibly, for the production of fruits. They are expenses entailed for the preservation and
productivity of the estate and its management for purposes of liquidation, payment of debts, and distribution of residue among
the persons entitled thereto (De Guzman vs De Guzman-Carillo 1978)
‣ If the executor/administrator is seeking compensation an amount greater than that ordinarily allowed in the rules, it is required
that the estate is large, its settlement having been attended with great difficulty and required a high degree of capacity.
The amount of his free in special cases under the Rules is a matter largely in the discretion of the probate court (De
Gala- Sison vs Madela)
DUTY OF THE EXECUTOR OR ADMINISTRATOR TO RENDER AN ACCOUNT OF ADMINISTRATION
Section 8. When executor or administrator to render account. — 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.
Section 9. Examinations on oath with respect to account — 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. The heirs, legatees, distributees, and
creditors of the estate shall have the same privilege as the executor or administrator of being examined on oath on
any matter relating to an administration account.
Section 10. Account to be settled on notice. — Before the account of an executor or administrator is allowed, notice
shall be given to persons interested of the time and place of examining and allowing the same; and such notice may
be given personally to such persons interested or by advertisement in a newspaper or newspapers, or both, as the
court directs.
CLARENCE TIU
Section 11. Surety on bond may be party to accounting. — 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.
‣ RULE: AN EXECUTOR OR ADMINISTRATOR SHALL RENDER AN ACCOUNT OF HIS ADMINISTRATION WITHIN ONE (1) YEAR
FROM THE TIME OF RECEIVING LETTERS TESTAMENTARY OR OF ADMINISTRATION, AND HE SHALL RENDER SUCH FURTHER
ACCOUNTS AS THE COURT MAY REQUIRE UNTIL THE ESTATE IS WHOLLY SETTLED.
‣ Note that before the account of an executor or administrator is allowed, notice shall be given to persons interested of the
time and place of examining and allowing the same; and 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)
‣ Instances when notice has to be given to interested parties in the course of the administration:
1. Before the account of an executor/administrator is allowed, in reference to the time and place of examining and allowing
such account (Sec. 10, Rule 85)
2. In the petition to authorize the executor or administrator to sell personal estate, or to sell, mortgage, or otherwise
encumber real estates (Sec. 7b, Rule 89)
3. In the hearing for the application of an order for distribution of the estate residue (Sec. 1, Rule 90) 
CLARENCE TIU
RULE 86: CLAIMS AGAINST ESTATE
*This is one of the most important rules in the Rules of Court
PRESENTATION OF CLAIMS AGAINST THE ESTATE; NOTICE TO CREDITORS; PROCEDURE
Section 1. Notice to creditors to be issued by court. — Immediately after granting letters testamentary or of
administration, the court shall issue a notice requiring all persons having money claims against the decedent to file
them in the office of the clerk of said court.
Section 3. Publication of notice to creditors. — Every executor or administrator shall, immediately after the notice to
creditors is issued, cause the same to be published three (3) weeks successively in a newspaper of general
circulation in the province, and to be posted for the same period in four public places in the province and in two
public places in the municipality where the decedent last resided.
Section 4. Filing of copy of printed notice. — Within ten (10) days after the notice has been published and posted in
accordance with the preceding section, the executor or administrator shall file or cause to be filed in the court a
printed copy of the notice accompanied with an affidavit setting forth the dates of the first and last publication
thereof and the name of the newspaper in which the same is printed.
Section 5. Claims which must be filed under the notice. If not filed, barred; exceptions. — All claims for money
against the decent, arising from contract, express or implied, whether the same be due, not due, or contingent, all
claims for funeral expenses and expense for the last sickness of the decedent, and judgment for money against the
decent, must be filed within the time limited in the notice; otherwise they are barred forever,
RULE 87: ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

Section 1. Actions which may and which may not be brought against executor or administrator. — No action upon a
claim for the recovery of money or debt or interest thereon shall be commenced against the executor or
administrator; but to recover real or personal property, or an interest therein, from the estate, or to enforce a lien
thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced
against him.
RULE 3: PARTIES TO CIVIL ACTIONS (RULES OF CIVIL PROCEDURE)

SECTION 16. Death of party; duty of counsel. - Whenever a party to a pending action dies, and the claim is not
thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of
the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to
comply with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an
executor or administrator and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be substituted within a
period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear
within the specified period, the court may order the opposing party, within a specified time, to procure the
appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for
and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party,
may be recovered as costs. (16a, 17a)
SECTION 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 the entry of
final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially
provided in these Rules for prosecuting claims against the estate of a deceased person. (21a)
REVISED PENAL CODE
CLARENCE TIU
Article 89. How criminal liability is totally extinguished. - Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal penalties and as to pecuniary penalties, liability therefor is
extinguished only when the death of the offender occurs before final judgment. 
RULE 111: PROSECUTION OF CIVIL ACTION (RULES OF CRIMINAL PROCEDURE)

Section 4. Effect of death on civil actions. — The death of the accused after arraignment and during the pendency of
the criminal action shall extinguish the civil liability arising from the delict. However, the independent civil action
instituted under section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources
of obligation may be continued against the estate or legal representative of the accused after proper substitution or
against said estate, as the case may be. The heirs of the accused may be substituted for the deceased without
requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the
minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be substituted within a
period of thirty (30) days from notice.
A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in these
rules for prosecuting claims against the estate of the deceased.
If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action the offended
party may file against the estate of the deceased. (n)
NATURE OF PRESENTING CLAIMS AGAINST THE ESTATE

‣ A money claim against the estate is more akin to a motion for creditor’s claim to be recognised and taken into consideration in
the proper disposition of the properties 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.
‣ Hence a contingent money claim, not being an initiatory pleading does not require a certification against non-forum
shopping
‣ But do money claims under Rule 86, in general, require a certification against non-forum shopping?
PURPOSE OF PRESENTING CLAIMS AGAINST THE ESTATE IN THE PROBATE COURT

‣ The purpose of presentation of claims against 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.
‣ This is to avoid multiplicity of suits
‣ Further, the primary object of the provisions requiring presentation of claims is to apprise the administrator/executor 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 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, all of them shall
share pro rata in the liquidation of the estate
‣ The probate court cannot order the payment of money without a claim filed with it. Legally speaking, the allowance of the claim
would be like rendering judgment without the filing of a complaint, or even the making or presentment of a claim.
PROCEDURE FOR PRESENTATION OF CLAIMS OF CREDITORS AGAINST THE ESTATE

‣ This is what comes after granting letters testamentary or of administration
1. COURT ISSUES A NOTICE TO CREDITORS
‣ This contains an order
1. Requiring all persons having money claims against the decedent to file them in the office of the clerk of said court
2. Court fixes a definite period for the filing of the claims (this is the statute of non-claims, more on this later in Sec. 2
and 5)
‣ The claim against the estate need not be in any particular form, it is sufficient if it states the character and amount of the
claim, enables the representative to provide for its payment, and serves to bar all other claims by reason of its particularity
and designation.
2. POSTING AND PUBLICATION
‣ Immediately after the notice to the creditors is issued, the executor or administrator shall then cause the following:
CLARENCE TIU
1. Publication of the notice three weeks successively in a newspaper of general circulation in the province
2. Posting of the notice for three weeks successively in four public places in the province and two public places in the
municipality where the decedent last resided
‣ Publication amounts to constructive notice and is binding against the whole world.
‣ Consequently a creditor cannot be permitted ti file his claim beyond the period fixed in the notice on the ground that he
had no knowledge of the administration proceedings
‣ Note that this rule is different in the case of heirs, their must be actual notice in their case.
3. FILING OF COPY OF PRINTED NOTICE, WITH AFFIDAVIT
‣ A copy of the printed notice must be filed with the court within ten days after publication and posting
‣ Aside from the actual printed copy, the affidavit of the published notice must also be submitted, setting forth the dates of
the first and last publication, as well as the newspaper on which it was printed.
‣ The rational behind this provision is to inform the creditors as well as the courts that the notice requirement has been duly
followed
TYPES OF CLAIMS IN GENERAL; TRANSMISSIBILITY OF RIGHTS AND OBLIGATIONS

‣ Claims for civil liability may be based on different sources of obligations: law, contract, quasi-contract, delict and quasi-delict.
‣ All sources, except delicts (criminal liability is extinguished by death, Art. 89, RPC), generally survive the death of the
decedent
‣ As a general rule, the death of either the creditor or debtor does not extinguish the obligation. Obligations are transmissible
to the heirs, except when the transmission is prevented by law, the stipulations of the parties, to the nature of the obligation
(those which are personal obligations). Rule 86, Sec. 5 expressly allows the prosecution of money claims arising from a
contract against the estate of a deceased debtor. Death does not generally extinguish these claims, 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 vs
Republic-Asahi Glass Corp., 2006)
TYPES OF CLAIMS THAT MAY BE FILED UNDER RULE 86

‣ RULE: ONLY THE FOLLOWING CLAIMS NEED TO BE PRESENTED AGAINST THE ESTATE AND IS GOVERNED BY RULE 86:
1. CLAIMS FOR MONEY AGAINST THE DECEDENT ARISING FROM CONTRACT, EXPRESS OR IMPLIED, CONTRACTED PRIOR TO
THE DECEDENT’S DEATH, WHETHER DUE OR CONTINGENT
‣ Claims for money must be based on contract, whether express or implied
‣ Implied contracts are quasi-contracts. They are covered here.
‣ They may be due or contingent
‣ Under Rule 87, Sec. 1, the filing of an ordinary action to recover (contractual) money claims against the estate
(executor or administrator) is not allowed once the debtor dies, it must be filed under Rule 86 and claimed in the
administration proceedings that is taken to settle the estate of the deceased
2. CLAIMS FOR FUNERAL EXPENSES AND EXPENSES FOR LAST SICKNESS OF DECEDENT
‣ Generally, only money claims based on liabilities that rose before the decedent’s death may be claimed under Rule 86.
‣ By way of exception, funeral expenses and expenses for the decedent’s last illness may be claimed against the estate.
3. JUDGMENTS FOR MONEY AGAINST DECEDENT, RENDERED PRIOR TO THE DECEDENT’S DEATH
‣ These pertain to claims against the estate (whether based on contract or not) where there is already final judgment but
the judgment debtor dies before levy and execution of his properties.
‣ When a judgment in a civil case (regardless of the source of obligation, as long as it is a judgment for money) has
become final and executory, execution is not a proper remedy to enforce payment against the deceased defendant, the
claimant should present the claim before the probate court.
‣ In this case, the claim need not be proved again in the probate court, the judgment is conclusive.
‣ This also covers pending money claims arising form contract, already filed in court, where the decedent as the
defendant dies, prior to final judgment, the action will be allowed to proceed until final judgement under the rules of
substitution of parties. If there eventually is a judgment for money against the decedent, then it is enforced under Rule
86, and not under by the court rendering such judgment. (Rule 3, Sec. 16 and 20)
‣ What are contingent claims?

‣ Contingent claims refer to those claims which liability depends on some future envy that may or may not happen, and
which makes it uncertain whether there will ever be any liability.
‣ The rules provide that a contingent claim is to be presented in the administration proceedings in the same manner as any
ordinary claim, and that when the contingency arises which converts the contingent claim into a valid claim, the court
should then be informed that the claim had already matured
‣ See Sec. 5, it may be approved at their present value
‣ In case of contingent claims, court will just set apart money for that, if the condition is not fulfilled, money goes to the heirs
accordingly
CLARENCE TIU
‣ What about money claims based on contract, against the decedent instituted prior to his death but pending at the time
of death?
‣ See Rule 3, Sec. 20 and Sec. 16
‣ 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 the entry of final judgment.
‣ The court will just order a substitution in accordance with Rule 3, Sec. 16
‣ A favorable judgment will then be enforced against the estate in accordance with Rule 86
‣ What about claims contracted after the death of the decedent?
‣ Claims originating after the decedent’s death may be allowed as expenses of administration, but not as money claims
under Rule 86.
‣ Such expenses may be collected from the administrator or executor personally or by motion in the testate or intestate
proceedings without the formality and limitations for money claims
‣ This is because to subject expenses after the death of the decedent to the procedure for money claims would mean
that no one would contract with the estate, since the procedure for payment would take too long.
‣ EXCEPTION: in certain cases, claim originating after the decedent’s death must be filed as a money claim:
1. Funeral expenses
2. Wherein the administrator sold, mortgaged or encumbered real property belonging to the estate of the decedent,
pursuant to an authority given by the probate court. Once the deed together with the corresponding court order
authorizing the administrator is recorded in the proper Registry of Deeds, said deed shall be valid as if it has been
executed by the deceased himself. (See Sec. 7, Rule 89 in relation to PNB vs CA 2001)
‣ Thus, in this case, the debt is as if it was executed by the deceased in his lifetime, thus it must be filed as a money
claim, not as expenses of administration
‣ What about claims for taxes?
‣ Claims for taxes, whether assess before or after the death of the decedent do NOT fall under the procedure for claims
against the estate. They can be collected from the heirs even after the distribution of the properties of the decedent. They
are exempted from the application of the statute of non-claims.
‣ The heirs shall be liable for this, in proportion to their share in the inheritance.
‣ What about claims of creditors of the conjugal partnership?
‣ They should file their claim in accordance with Rule 86 and present their claims against the estate.
‣ After the death of either spouse, no complaint for the collection of indebtedness chargeable against the conjugal
partnership can be brought against the surviving spouse. Instead the claim must be made in the proceedings for the
liquidation and settlement of the conjugal property.
‣ The reason for this is that upon the death of one spouse, the powers of administration of the surviving spouse cease and
are passed to the administrator or executor.
‣ The surviving spouse is not even a de facto administrator such that conveyances made by him of any property belonging to
the partnership prior to the liquidation of the mass of conjugal partnership property are void
‣ What about money judgments against the estate?
‣ It should be satisfied under Rule 86 and a claim must be filed against the estate. The creditor cannot anymore collect by
execution in the court which rendered the judgment, once the defendant dies.
‣ Availing of a writ of execution is an improper remedy for the payment of debts and expenses of administration. The ordinary
procedure is for the claimant to present a claim before the probate court so that said court may order the administrator to
pay the amount thereof.
‣ The legal basis for such procedure is the fact that in 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 court and such 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 the court judgment, to seize the properties but ask the court for an order to require the administrator to
pay the amount due from the estate and required to be paid.
‣ But if execution has already been effected, as when the properties have already been levied when the decedent has died,
then the execution sale may proceed. The date of actual levy of execution is the cut-off date
‣ What about non-money claims based on contract (action for reconveyance of property, etc.) not yet instituted or
pending against the decedent at the time of his death?
‣ Rule 87. If pending, Rule 3, Sec. 16
‣ What about non-contractual claims? Such those that arise out of other sources of obligations? (law, delict, quasi-
delict, quasi-contract?), not yet instituted or pending against the decedent at the time of his death?
‣ Basically, if based on contract, file claim against estate under Rule 86. If based on other sources of obligations, file
separate action against executor or administrator under Rule 87.
‣ Delict
‣ See Art. 89 of the RPC and Rule 111, Sec. 4 of the Rules of Criminal Procedure
‣ The criminal liability and the corresponding civil liability ex delicto is extinguished upon the death of the accused.
‣ The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil
liability arising from the delict.
CLARENCE TIU
‣ This is the same rule, even if accused dies before arraignment.
‣ But even if the accused dies before final conviction, the independent civil liabilities survive
‣ The independent civil action may be continued against the estate or legal representative of the accused after
proper substitution or against said estate, as the case may be. The heirs of the accused may be substituted for the
deceased without requiring the appointment of an executor or administrator and the court may appoint a guardian
ad litem for the minor heirs. (Rule 111, Sec. 4)
‣ If accused dies after final conviction, the civil liability ex delicto enforced as an ordinary money claim
‣ This falls under judgments for money, since there is already a judgment when the accused died.
‣ What if there is already final conviction but the civil liability ex delicto is reserved and subsequently instituted only
after such final conviction, then the accused dies during its pendency?
‣ The action survives and it may be continued against the heirs of the deceased under the rules of substitution
(Rule 3, Sec. 16) The civil liability ex delicto survives in this case (even though it is pending), as the criminal
liability has already been settled, there's no more issue on the criminal liability.
‣ Quasi-Delict
‣ A separate civil action must be filed against the executor or administrator of the estate of the accused, under Rule 87,
Sec. 1
‣ Note that the defendant in this case is the executor or administrator.
TIME FOR FILING CLAIMS; STATUTE OF NON-CLAIMS
Section 2. Time within which claims shall be filed. — In the notice provided in the preceding section, the court shall
state the time for the filing of claims against the estate, which shall not be more than twelve (12) not less than six (6)
months after the date of the first publication of the notice. However, at any time before an order of distribution is
entered, on application of a creditor who has failed to file his claim within the previously limited, the court may, for
cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding one (1)
month.
Section 5. Claims which must be filed under the notice. If not filed, barred; exceptions. — All claims for money
against the decent, arising from contract, express or implied, whether the same be due, not due, or contingent, all
claims for funeral expenses and expense for the last sickness of the decedent, and judgment for money against the
decent, 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 bring against the claimants. Where an
executor or administrator commences an action, or prosecutes an action already commenced by the deceased in his
lifetime, the debtor may set forth by answer the claims he has against the decedent, instead of presenting them
independently to the court as herein provided, and mutual claims may be set off against each other in such action;
and if final judgment is rendered in favor of the defendant, the amount so determined shall be considered the true
balance against the estate, as though the claim had been presented directly before the court in the administration
proceedings. Claims not yet due, or contingent, may be approved at their present value.
‣ RULE: THE TIME WITHIN WHICH CLAIMS MAY BE FILED UNDER RULE 86, AS FIXED BY THE COURT IN THE NOTICE TO
CREDITORS, SHOULD NOT BE MORE THAN 12 MONTHS, NOR LESS THAN 6 MONTHS, RECKONED FROM THE DATE OF THE
FIRST PUBLICATION OF THE NOTICE. SUCH PERIOD FIXED BY THE COURT FOR FILING CLAIMS IS MANDATORY, FAILURE TO FILE
WITHIN SUCH PERIOD BARS THE CLAIM FOREVER.
‣ Note that the court sets a specific date or period in the notice for the creditors to file their claims. The rule just gives the
range within which the court must set its period
‣ The range of the period specified in the rule is intended to give the probate court the discretion to fix the period for the filing
of claims
‣ The probate court is permitted to set the period provided it is not less than 6 months nor more than 12 months from the
date of the first publication of the notice thereof.
‣ The purpose of the law, in fixing a period within which claims against an estate must be presented is to protect 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.
‣ It is also to insure a speedy settlement of the affairs of the deceased person and the early delivery of the property to
the person entitled to the same
‣ This is called the “statute of non-claims”. It supersedes the statute of limitations.
‣ Even if a claim has not yet prescribed under the statute of limitations, if such claim is not made with the probate court
within the time set forth in the notice, the creditor may no longer collect because of the statute of non-claims
CLARENCE TIU
‣ The statute of non-claims effectively shorts the statute of limitations as regard the right of action to pursue the debtor is
concerned.
‣ Before a creditor may go against the estate, the claim must both be within the statute of limitations and statute of non-
claims. In short both statutes must concur before the creditor may collect against the estate
‣ EXCEPTION: IN THESE CASES, THE CREDITOR MAY ENFORCE THEIR CLAIM, EVEN IF THEY FAILED TO CLAIM IT WITHIN THE
PERIOD SET IN THE NOTICE:
1. CREDITOR, FOR JUST CAUSES, MAY APPLY WITH THE COURT FOR A NEW PERIOD, BEFORE AN ORDER OF DISTRIBUTION IS
ENTERED, AND SUCH PERIOD SHOULD NOT EXCEED 1 MONTH FROM THE ORDER OF THE COURT ALLOWING THE SAME,
‣ The period prescribed in the notice to creditors while mandatory, is not without exception. It is not exclusive.
‣ Money claims against the estate may be allowed any time before an order of distribution is entered.
‣ But this is upon the discretion of the court upon showing of good cause and terms that are equitable.
‣ The claim must be of apparent merit and causes show to justify the tardiness in the filing of the claim
‣ The court has no authority to admit a belated claim for no cause or for an insufficient cause
‣ What is considered sufficient cause is left to the discretion of the court.
‣ Note that the one month extension does not commence from the expiration of the original period for filing claims. It
begins from the date of the order of the court allowing said belated filing.
2. CREDITOR MAY SET UP HIS CLAIM AS A COUNTER-CLAIM IN AN ACTION FILED BY THE EXECUTOR OR ADMINISTRATOR
AGAINST HIM
‣ See. Rule 86, Sec. 5
3. WAIVER BY THE ESTATE OF THE STATUTE OF NON-CLAIMS
‣ Though the presentment of probate claims is mandatory, it is generally understood that it may be waiver by the estate’s
representative.
‣ Waiver is to be determined from the administrator’s acts and conduct. The administrator’s failure to plead the statute of
non-claims and his active participation and resistance to the plaintiff’s claim in a civil suit, amounts to waiver. (Ignacio
vs Pampanga Bus Company 1967)
CLAIM TO ENFORCE SOLIDARY OR JOINT OBLIGATIONS
Section 6. Solidary obligation of decedent. — Where the obligation of the decedent is solidary with another debtor,
the claim shall be filed against the decedent as if he were the only debtor, without prejudice to the right of the estate
to recover contribution from the debtor. In a joint obligation of the decedent, the claim shall be confined to the
portion belonging to him.
WHEN THE CLAIM IS A SOLIDARY OBLIGATION

‣ RULE: WHERE THE OBLIGATION OF THE DECEDENT IS SOLIDARY WITH ANOTHER DEBTOR, THE CLAIM SHALL BE FILED
AGAINST THE DECEDENT AS IF HE WERE THE ONLY DEBTOR, WITHOUT PREJUDICE TO THE RIGHT OF THE ESTATE TO RECOVER
CONTRIBUTION FROM THE DEBTOR.
‣ If the obligation is solidary, the creditor is mandated to file a claim against the decedent as if he were the only debtor, to
collect the entire amount.
‣ But if the creditors success in collecting from the decedent debtor, the estate has the right to recover the respective
contributions of the other debtors.
‣ The failure to file a claim for the solidary obligation against the estate bars it
‣ But note that the claim is only barred against the estate, the creditor may still claim from the other surviving solidary
debtors. He can choose not to proceed against the estate and proceed against the surviving debtors instead.
‣ Sec. 7 merely sets up the procedure in enforcing collection in case a creditor chooses to pursue his claim against the
estate of the deceased solidary debtor.
‣ Remember that under the rules of solidary obligations, the creditor has the option to proceed against anyone of the
soldiary debtors, singly or simultaneously, and fully satisfy his claim against any one of them. The paying debtor is
entitled to the proportional share of the others.
‣ What if the creditor proceeds against a surviving solidary debtor, who pays the entire debt, can the latter claim
reimbursement of the proportionate share of the deceased debtor? What if he paid after the lapse of the statute of non-
claims, how will he claim reimbursement then?
WHEN THE CLAIM IS A JOINT OBLIGATION

‣ RULE: WHERE THE OBLIGATION OF THE DECEDENT IS JOINT, THE CLAIM SHALL BE CONFINED TO THE PORTION BELONGING
TO HIM.
‣ If the obligation is joint, the claim shall be properly limited to the portion owed by the decedent.
CLARENCE TIU
CLAIM TO ENFORCE SECURED OBLIGATIONS
Section 7. Mortgage debt due from estate. — A creditor holding a claim against the deceased secured by mortgage or
other collateral security, may abandon the security and prosecute his claim in the manner provided in this rule, and
share in the general distribution of the assets of the estate; or he may foreclose his mortgage or realize upon his
security, by action in court, making the executor or administrator a party defendant, and if there is a judgment for a
deficiency, after the sale of the mortgaged premises, or the property pledged, in the foreclosure or other proceeding
to realize upon the security, he may claim his deficiency judgment in the manner provided in the preceding section or
he may rely upon his mortgage or other security alone, and foreclosure the same at any time within the period of the
statute of limitations, and in that event he shall not be admitted as a creditor, and shall receive no share in the
distribution of the other assets of estate; but nothing herein contained shall prohibit the executor or administrator
from redeeming the property mortgaged or pledged, by paying the debt for which it is held as security, under the
direction of the court, if the court shall adjudge it to be for the best interest of the estate that such redemption shall
be made.
‣ RULE: THERE ARE THREE, DISTINCT, INDEPENDENT, AND MUTUALLY EXCLUSIVE OPTIONS AVAILABLE TO A SECURED
CREDITOR, ELECTION OF ONE EFFECTIVELY BARS THE EXERCISE OF THE OTHERS
1. WAIVE THE SECURITY AND CLAIM THE ENTIRE DEBT FROM THE ESTATE AS AN ORDINARY CLAIM
‣ Abandon the security and prosecute his claim against the estate and share in the general distribution of the assets
thereof
‣ Use this if the value of the property mortgaged is very insufficient to satisfy the loan
2. JUDICIAL FORECLOSURE AND PROVE THE DEFICIENCY AS AN ORDINARY CLAIM
‣ Foreclose his mortgage or realise upon his security by action in court, making the executor or administrator a party
defendant and if there is judgment for deficiency, he may file a contingent claim against the estate within the statute of
non-claims
3. RELY ON THE SECURITY EXCLUSIVELY, EXTRA-JUDICIALLY FORECLOSING IT AT ANY TIME BEFORE IT IS BARRED BY
PRESCRIPTION, WITHOUT RIGHT TO FILE AN ORDINARY CLAIM FOR THE DEFICIENCY
‣ Rely solely in his mortgage and foreclose extrajudicially the same at anytime within the period of the statute of
limitations but he cannot be admitted as creditor and shall not receive in the distribution of other assets of the estate
‣ Note that the mortgagee even after the death of the mortgagor as a third alternative under Sec. 7, Rule 86.
‣ Extra-judicial foreclosure is provided for under Act No. 3135. The result of extra-judicial foreclosure is that the creditor
waives his right to recover any deficiency from the estate. The operation of Act. 3135 does not entirely discount the
application of Sec. 7, Rule 86. Rather, the two complement each other within their respective spheres of operation. On
one hand Sec. 7 Rule 86 lays down the options for the secured creditor to claim against the estate and, according to
jurisprudence, the availment of the third option bars him from claiming any deficiency amount. On the other hand, after
the third option is chosen, the procedure governing the manner in which eh extra-judicial foreclosure should proceed
would still be governed by the provisions of Act. No. 3135. Simply put, Sec. 7 Rule 86 governs the parameters and the
extent to which a claim may be advanced against the estate, whereas Act No. 3135 sets out the specific procedure to
be followed when the creditor subsequently chooses the third option— specifically, that of extra-judicially foreclosing
real property belonging to the estate. The application of the procedure under Act No. 3135 must be concordant with
Sec. 7, Rule 86 as the latter is a special rule applicable to claims against the estate, and at the same time, since Sec.
7, Rule 86 does not detail the procedure for extra-judicial foreclosures, the formalities governing the manner of availing
of the third option— such as the place where the application for extra-judicial foreclosure is filed, there requirements of
publication and posting and the place of sale— must be governed by Act No. 3135. (Maglasang vs Manila Banking
Corporation, 2013)
‣ It must be emphasised that these remedies are distinct, independent, and mutually exclusive from each other
‣ If the creditor chooses to abandon the security, he cannot later maintain an action upon the mortgage to foreclose it. The
law does not permit him that he may have both remedies. If he elects one he must renounce the other. If he fails in one, he
fails utterly. He is not permitted to annoy those interested in the estate of the deceased by two actions for exactly the same
purpose
‣ Can the estate redeem the foreclosed property?
‣ Yes. If the court adjudges that it would be in the best interest of the estate, it may order the executor or administrator to
redeem property mortgaged or pledged by paying the debt for which it is held as security.
CLAIM BY EXECUTOR OF ADMINISTRATOR
Section 8. Claim of executor or administrator against an estate. — 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
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the general administrator or executor in the settlement of other claims. The court may order the executor or
administrator to pay to the special administrator necessary funds to defend such claim.
‣ RULE: AN EXECUTOR OR ADMINISTRATOR WHO HAS A CLAIM AGAINST THE ESTATE HE REPRESENTS IS REQUIRED TO GIVE
WRITTEN NOTICE TO THE COURT. THE COURT WILL THEN APPOINT A SPECIAL ADMINISTRATOR
‣ This comes into play where the administrator is a creditor
‣ The executor or administrator having a claim against the estate cannot simply pay himself from the estate.
‣ A special administrator will be appointed to defend such claim
‣ The special administrator is vested with the same power and subjected to the same liability as the general executor or
administrator but only as to the adjustment of the claim
‣ The SA will handle the claim of the regular executor or administration
PROCEDURE FOR FILING CLAIMS
Section 9. How to file a claim. Contents thereof. Notice to executor or administrator. — A claim may be filed by
delivering the same with the necessary vouchers to the clerk of court and by serving a copy thereof on the executor
or administrator. If the claim be founded on a bond, bill, note, or any other instrument, the original need not be filed,
but a copy thereof with all indorsements shall be attached to the claim and filed therewith. On demand, however, of
the executor or administrator, or by order of the court or judge, the original shall be exhibited, unless it be list or
destroyed, in which case the claimant must accompany his claim with affidavit or affidavits containing a copy or
particular description of the instrument and stating its loss or destruction. When the claim is due, it must be
supported by affidavit stating the amount justly due, that no payments have been made thereon which are not
credited, and that there are no offsets to the same, to the knowledge of the affiant. If the claim is not due, or is
contingent, when filed, it must also be supported by affidavits stating the particulars thereof. When the affidavit is
made by a person other than the claimant, he must set forth therein the reason why it is not made by the claimant.
The claim once filed shall be attached to the record of the case in which the letters testamentary or of administration
were issued, although the court, in its discretion, and as a matter of convenience, may order all the claims to be
collected in a separate folder.
PROCEDURE FOR FILING CLAIMS AGAINST THE ESTATE

1. Claim must be delivered with the necessary vouchers to the clerk of court
‣ Vouchers pertain to the affidavit to be submitted by the claimant
‣ But if the claim is founded on written documents, the original need not be filed upon the submission of the affidavit. It
suffices that a copy of the written instrument is attached to the claim and filed with the court.
2. A copy must be served on the executor or administrator
3. If the claim is founded on an instrument, it must be attached to the claim and filed therewith
4. If the claim is due, an affidavit supporting such claim must be filed, stating:
a. The amount justly due
b. That no payments have been thereon which are not credited
c. That there are no offsets to the same
5. If the claim is not due or is contingent, it must be supported by affidavits stating its particulars
6. When a person other than the claimant makes the affidavit, the reasons why it is not made by the claimant must be stated
ANSWER OF THE ESTATE TO CLAIMS AGAINST IT
Section 10. Answer of executor or administrator. Offsets —Within fifteen (15) days after service of a copy of the claim
on the executor or administrator, he shall file his answer admitting or denying the claim specifically, 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. The executor or administrator in his answer 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 filing such answer.
Section 11. Disposition of admitted claim. — Any claim admitted entirely by the executor or administrator shall
immediately be submitted by the clerk to the court who may approve the same without hearing; but the court, in its
discretion, before approving the claim, may order that known heirs, legatees, or devisees be notified and heard. If
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upon hearing, an heir, legatees, 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 the preceding section.
‣ RULE: THE EXECUTOR OR ADMINISTRATOR MUST FILE AN ANSWER WITHIN 15 DAYS AFTER SERVICE OF A COPY OF THE
CLAIM, WHERE IT IS REQUIRED THAT HE:
1. Either specifically admit or deny the claim
‣ Any claim admitted entirely by the executor or administrator shall immediately be submitted by the clerk to the court
who may approve the same without hearing
‣ But the court, in its discretion, before approving the claim, may order that known heirs, legatees, or devisees be
notified and heard.
‣ If upon hearing, an heir, legatees, or devisee opposes the claim, the court may, in its discretion, allow him fifteen
(15) days to file an answer to the claim
2. Allege in offset any claim which the decedent before death had against the claimant
‣ Failure to allege such offset shall bar the claim forever.
‣ Note that the court, in its discretion, may extend the time for the filing of the answer
TRIAL OF CONTESTED CLAIM
Section 12. Trial of contested claim. — 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.
‣ The obligation of the clerk of court to set the claim for hearing arises upon the happening of either:
1. The filing of answer to the claim; or
2. The expiration of the time for such filing
‣ Notice shall be sent to both parties as to the setting of the claim for trial. The court may also refer the claim to a commissioner
JUDGMENT OF CLAIMS; APPEAL OF JUDGMENT
Section 13. Judgment appealable. — The judgment of the court approving or disapproving a claim, shall be filed with
the record of the administration proceedings with notice to both parties, and is 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 thejudgment creditor
any priority of payment.
RULE 109: Appeals in Special Proceedings

Section 1. Orders or judgments from which appeals may be taken. — An interested person may appeal in special
proceedings from an order or judgment rendered by a Court of First Instance or a Juvenile and Domestic Relations
Court, where such order or judgment:
(c) Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented
on behalf of the estate in offset to a claim against it
‣ Note that a judgment approving or disapproving a claim is appealable.

‣ Upon judgment, there is no priority, no preference, no lien, you have to wait until other claims are adjudicated and expenses
are first paid.
COSTS
Section 14. Costs. — When the executor or administrator, in his answer, admits and offers to pay part of a claim, and
the claimant refuses to accept the amount offered in satisfaction of his claim, if he fails to obtain a more favorable
judgment, he cannot recover costs, but must pay to the executor or administrator costs from the time of the offer.
Where an action commenced against the deceased for money has been discontinued and the claim embraced therein
presented as in this rule provided, the prevailing party shall be allowed the costs of his action up to the time of its
discontinuance.
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JURISPRUDENCE
ECHAUS V. BLANCO, 179 SCRA 704

‣ Estoppel on the Part of the Estate
‣ When PCIB as administrator of the Estate of C.N. Hodges was ordered to be substituted as defendant, it registered no
objection to the order. Thus, even if admitted for the sake of argument that the trial court, after the death of C.N. Hodges
has no jurisdiction to render a judgment in the CIVIL CASE, the argument must fail.
‣ PCIB, participated actively in the said case. It did not appeal the decision rendered, neither did it raise the issue of
jurisdiction at any stage. It has been consistently held that while lack of jurisdiction may be assailed at any stage, a party’s
active participation in the proceedings before the court without jurisdiction will bar such party from assailing such lack of
jurisdiction
‣ Statute of Non-Claims
‣ Although Rule 27 of the Rules of Court provides a 12-month period from publication of notice for the filing of claims, the
said period does not always bar the claim.
‣ While Echaus may have filed her motion to direct payment more than 4 years from the publication of the notice, Rule 86 of
the Rules of Court allows a creditor to file his claim after the period set by the court, provided that the same was made
before an order of distribution is entered, at the court’s discretion and upon such terms as are equitable.
‣ Thus, it is clear that the period prescribed in the notice to creditors is not exclusive. In the case at hand, an order of
distribution was yet to be issued at the time Echaus’ motion to direct payment of the judgment credit was filed.
‣ While the judgment in the CIVIL CASE has become final and executory, execution is not the proper remedy to enforce its
payment. The ordinary procedure to settle claims of indebtedness against the estate of a deceased person is for the
claimant to present a claim before the probate court so that said court may order the administrator to pay the amount. This
was the procedure correctly chosen by Echaus.
‣ The legal basis for such a procedure is the fact that in 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 Court and such 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. Garlitos)
ALIPIO V. COURT OF APPEALS, 341 SCRA 441

‣ A creditor cannot sue the surviving spouse of a decedent in an ordinary proceeding for the collection of a sum of money
chargeable against the conjugal partnership and that the proper remedy is for him to file a claim in the settlement of estate of
the decedent. The claim must be made in the proceedings for the liquidation and settlement of the conjugal property. The
reason for this is that upon the death of one spouse, the powers of administration of the surviving spouse ceases and is
passed to the administrator appointed by the court having jurisdiction over the settlement of estate proceedings.
‣ Indeed, the surviving spouse is not even a de facto administrator such that conveyances made by him of any property
belonging to the partnership prior to the liquidation of the mass of conjugal partnership property is void.
‣ Even after the death of one of the spouses, there is no liquidation of the conjugal partnership. This does not mean, however,
that the conjugal partnership continues.
ALDAMIZ V. CFI, 85 PHIL. 228

‣ Attorney’s fees as expenses of administration
‣ The correct procedure for the collection of attorney's fees, is for the counsel to request the administrator to make payment
and file an action against him in his personal capacity and not as an administrator should he fail to pay. If judgment is
rendered against the administrator and he pays, he may include the fees so paid in his account to the court. The attorney
also may, instead of bringing such an action, file a petition in the testate or intestate proceeding "asking that the court, after
notice to all persons interested, allow his claim and direct the administrator to pay it as an expense of administration.”
‣ In the instant case, as above stated, no written petition for the payment of attorney's fees has ever been filed by
respondent attorney and the interested parties had not been previously notified thereof nor of the hearing held by the court.
Consequently, the order issued by the respondent court and all subsequent orders implementing it, are null and void, as
having been issued in excess of jurisdiction.
‣ Issuance of Writ of Execution
‣ The order of execution is also null and void because 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 Rule 89, section 3, and Rule 90, section 2. And when
sale or mortgage of real estate is to be made, the regulations contained in Rule 90, section 7, should be complied with.
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‣ Execution may issue only where the devisees, legatees or heirs have entered into possession of their respective portions in
the estate prior to settlement and payment of the debts and expenses of administration and it is later ascertained that there
are such debts and expenses to be paid, in which case "the court having jurisdiction of the estate may, by order for that
purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person
shall contribute, and may issue execution if circumstances require"
PNB V. COURT OF APPEALS G.R. NO. 121597, 360 SCRA 370, JUNE 29, 2001
‣ Rule on Mortgage of Estate Property after the Death of the Deceased
‣ It must be pointed out that petitioner’s cited cases involve ordinary debts secured by a mortgage. The case at bar, we must
stress, involves a foreclosure of mortgage arising out of a settlement of estate, wherein the administrator mortgaged a
property belonging to the estate of the decedent, pursuant to an authority given by the probate court. As the Court of
Appeals correctly stated, the Rules of Court on Special Proceedings comes into play decisively.
‣ To begin with, it is clear from the text of Section 7, Rule 89, that 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. Section 7 provides in part:
‣ Sec. 7. Rule 89. Regulations for granting authority to sell, mortgage, or otherwise encumber estate – The court having
jurisdiction of the estate of the deceased may authorize the executor or administrator to sell personal estate, or to sell,
mortgage, or otherwise encumber real estate, in cases provided by these rules when it appears necessary or beneficial
under the following regulations: (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 valid as if the deed had been
executed by the deceased in his lifetime.
‣ In the present case, it is undisputed that the conditions under the aforecited rule have been complied with. It follows that
we must consider Sec. 7 of Rule 86, appropriately applicable to the controversy at hand.
‣ Rule on Remedies of Mortgagee against the Estate
‣ Petitioner contends that when the proceeds of the sale are insufficient to pay the debt, the mortgagee has the right to
recover the deficiency from the debtor. It also contends that Act 3135, otherwise known as "An Act to Regulate the Sale of
Property under Special Powers Inserted in or Annexed to Real Estate Mortgages," is the law applicable to this case of
foreclosure sale and not Section 7 of Rule 86 of the Revised Rules of Court 6 as held by the Court of Appeals.
‣ Private respondents argue that having chosen the remedy of extrajudicial foreclosure of the mortgaged property of the
deceased, petitioner is precluded from pursuing its deficiency claim against the estate of Antonio M. Chua. This they say is
pursuant to Section 7, Rule 86 of the Rules of Court.
‣ Petitioner’s cited cases involve ordinary debts secured by a mortgage. The case at bar, we must stress, involves a
foreclosure of mortgage arising out of a settlement of estate, wherein the administrator mortgaged a property belonging to
the estate of the decedent, pursuant to an authority given by the probate court. As the Court of Appeals correctly stated, the
Rules of Court on Special Proceedings comes into play decisively. 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.
‣ In the present case, it is undisputed that the conditions under the aforecited rule have been complied with. It follows that
we must consider Sec. 7 of Rule 86, appropriately applicable to the controversy at hand. Case law now holds that this rule
grants to the mortgagee three distinct, independent and mutually exclusive remedies that can be alternatively pursued by
the mortgage creditor for the satisfaction of his credit in case the mortgagor dies, among them:
1. To waive the mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim;
2. To foreclose the mortgage judicially and prove any deficiency as an ordinary claim; and
3. To rely on the extrajudicial mortgage exclusively, foreclosing the same at any time before it is barred by prescription
without right to file a claim for any deficiency
‣ The plain result of adopting the last mode of foreclosure is that the creditor waives his right to recover any deficiency from
the estate Following the Perez ruling that the third mode includes extrajudicial foreclosure sales, the result of extrajudicial
foreclosure is that the creditor waives any further deficiency claim.
‣ Clearly, in our view, petitioner herein has chosen the mortgage-creditor’s option of extrajudicially foreclosing the mortgaged
property of the Chuas. This choice now bars any subsequent deficiency claim against the estate of the deceased, Antonio
M. Chua. Petitioner may no longer avail of the complaint for the recovery of the balance of indebtedness against said
estate, after petitioner foreclosed the property securing the mortgage in its favor. It follows that in this case no further
liability remains on the part of respondents and the late Antonio M. Chua’s estate.
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RULE 87: ACTIONS BY AND AGAINST THE EXECUTORS AND
ADMINISTRATORS
ACTIONS AGAINST OR BY THE EXECUTOR OR ADMINISTRATOR
Section 1. Actions which may and which may not be brought against executor or administrator. — No action upon a
claim for the recovery of money or debt or interest thereon shall be commenced against the executor or
administrator; but to recover real or personal property, or an interest therein, from the estate, or to enforce a lien
thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced
against him.
Section 2. Executor or administrator may bring or defend actions which survive. — For the recovery or protection of
the property or rights of the deceased, an executor or administrator may bring or defend, in the right of deceased,
actions for causes which survive.
Section 5. Mortgage due estate may be foreclosed. — A mortgage belonging to the estate of a deceased person, as
mortgagee or assignee of the right or a mortgage, may be foreclosed by the executor or administrator.
Remember that if it’s a money claim based on contract, funeral expenses and expenses for last sickness of decedent, or money
judgments, you need to file it against the estate under Rule 86. All other actions that survive the death of the decedent are filed
against the executor or administrator.
ACTIONS AGAINST THE EXECUTOR OR ADMINISTRATOR

‣ RULE: ONLY THE FOLLOWING ACTIONS MAY BE COMMENTED AGAINST THE EXECUTOR OR ADMINISTRATOR:
1. RECOVERY OF REAL OR PERSONAL PROPERTY OR AN INTEREST THEREIN
‣ Such as an action for quieting of title with damages, an action for recovery of personal property such as a motor
vehicle.
2. ENFORCEMENT OF A LIEN ON REAL OR PERSONAL PROPERTY
‣ Such as foreclosure of mortgage
3. RECOVERY OF DAMAGES FOR AN INJURY TO PERSON OR PROPERTY, WHETHER REAL OR PERSONAL
‣ Such as actions based on torts
ACTIONS BY THE EXECUTOR OR ADMINISTRATOR

‣ RULE: AN EXECUTOR OR ADMINISTRATOR MAY BRING ACTIONS FOR CAUSES WHICH SURVIVE, FOR THE RECOVERY OR
PROTECTION OF THE PROPERTY OR RIGHTS OF THE DECEASED
‣ The executor or administrator may likewise sue ups any cause of a action which accrued to the decedent during his
lifetime.
‣ Thus, any action affecting property rights of a deceased which may be brought by or against him if he were alive may be
instituted for prosecuted by or against the administrator, unless by its very nature if cannot survive, because death
extinguishes such right.
‣ Under Sec. 5, the executor or administrator may also foreclose mortgage belonging to the estate, as mortgagee or
assignee of the mortgage.
‣ Remember that the executor or administrator must with due diligence, foreclose mortgages belonging to the estate. His
failure to foreclose or delay until the mortgaged property has depreciated such that the full amount of the debt cannot
be recovered, is chargeable against him.
ACTIONS FOR THE BENEFIT OF CREDITORS IN CASE OF FRAUDULENT CONVEYANCE BY DECEDENT
Section 9. Property fraudulently conveyed by deceased may be recovered. When executor or administrator must
bring action. — When 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 lifetime had conveyed real or personal property, or a
right or interest therein, or an debt or credit, with intent to defraud his creditors or to avoid any right, debt, or duty;
or had so conveyed such property, right, interest, debt or credit 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
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such property, right, interest, debt, or credit for the benefit of the creditors; but he shall not be bound to commence
the action unless on application of the creditors of the deceased, not unless the creditors making the application pay
such part of the costs and expenses, or give security therefor to the executor or administrator, as the court deems
equitable.
‣ RULE: AN EXECUTOR OR ADMINISTRATOR MAY COMMENCE AND PROSECUTE TO FINAL JUDGMENT AN ACTION FOR THE
RECOVERY OF PROPERTY, RIGHT, INTEREST OR CREDIT FOR THE BENEFIT OF CREDITORS, PROVIDED THE FOLLOWING
CIRCUMSTANCES CONCUR:
1. There is deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of
administration
2. The deceased in his lifetime had converted real or personal property, right or interest therein, or debit or credit
3. Such conveyance was:
a. Made with intent to defraud his creditors
b. Made to avoid any right, debt, or duty, or had so conveyed such property, right interest, debt or creditors
c. The subject of the attempted conveyance would be liable to attachment by any of them in his lifetime
4. There is an application by the concerned creditors of the deceased to the court
5. The concerned creditors pay part of the costs and expenses or give security to the executor or administrator, as the court
deems equitable
ACTIONS BY THE CREDITORS ON BEHALF OF THE EXECUTOR OR ADMINISTRATOR
Section 10. When creditor may bring action. Lien for costs. — When there is such a deficiency of assets, and the
deceased in his lifetime had made or attempted such a conveyance, as is stated in the last preceding section, and the
executor or administrator has not commenced the action therein provided for, any creditor of the estate may, with the
permission of the court, commence and prosecute to final judgment, in the name of the executor or administrator, a
like action for the recovery of the subject of the conveyance or attempted conveyance for the benefit of the creditors.
But the action shall not be commenced until the creditor has filed in a court a bond executed to the executor or
administrator, in an amount approved by the judge, conditioned to indemnify the executor or administrator against
the costs and expenses incurred by reason of such action. Such creditor shall have a lien upon any judgment
recovered by him in the action for such costs and other expenses incurred therein as the court deems equitable.
Where the conveyance or attempted conveyance had been made by the deceased in his lifetime in favor of the
executor or administrator, the action which a credit may bring shall be in the name of all the creditors, and
permission of the court and filing of bond as above prescribed, are not necessary.
This section applies if the executor or administrator fails to bring the action in Sec. 9 or the action is directed against him
FRAUDULENT CONVEYANCE OF DECEDENT TO THIRD PERSONS AND EXECUTOR/ADMINISTRATOR FAILS TO BRING ACTION
‣ RULE: THE CREDITOR MAY BRING AN ACTION IN THE NAME OF THE EXECUTOR OR ADMINISTRATOR FOR THE RECOVERY OF
PROPERTY FRAUDULENTLY CONVEYED BY THE DECEASED UPON CONCURRENCE OF THE FOLLOWING:
1. There is a deficiency of assets
2. The deceased in his lifetime had converted real or personal property, right or interest therein, or debit or credit
3. Such conveyance was:
a. Made with intent to defraud his creditors
b. Made to avoid any right, debt, or duty, or had so conveyed such property, right interest, debt or creditors
c. The subject of the attempted conveyance would be liable to attachment by any of them in his lifetime
4. The executor or administrator has not commenced the action provided in Sec. 9
5. The creditor has filed a bond executed to the executor or administrator in an amount approved by the judge, conditioned to
indemnity the executor or administrator against the costs and expenses incurred by reason of such action
‣ First three are the same circumstances as in Sec. 9
‣ Note that the action is brought in behalf of the executor or administrator
‣ When the demand is in favour 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. For obvious
reasons, the demand cannot be made because the third persons not under the jurisdiction the court are involved (Paula vs
Essay 1955)
FRAUDULENT CONVEYANCE OF DECEDENT TO THE EXECUTOR OR ADMINISTRATOR

‣ RULE: IN CASE THE CONVEYANCE BY THE DECEDENT IS IN FAVOUR OF THE EXECUTOR OR ADMINISTRATOR, THE ACTION
COMMENCED BY ALL THE CREDITORS IN THEIR OWN NAME
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‣ This is also premised with the same circumstances in Sec. 9, the only difference being, that the decedent in this case
conveyed the property to the executor or administrator himself
‣ Obviously the executor or administrator would not bring the action against himself under Sec. 9, and the action cannot be
instituted by creditors on behalf of them, the action would be in the name of all the creditors seeking to recover
‣ Note that in this case, the court’s permission and the filing of bond are dispensed with
‣ In this case, it seems that the demand would be by mere motion since the action is against the executor or administrator to
whom the court has jurisdiction over.
EFFECT OF SUCCESSFUL ACTION INSTITUTED BY THE CREDITORS

‣ RULE: IF THE CREDITOR IS SUCCESSFUL, HE SHALL HAVE A LIEN UPON ANY JUDGMENT RECOVERED BY HIM FOR ALL
REASONABLE COSTS AND EXPENSES
ACTIONS BY THE HEIRS AGAINST AND ON BEHALF OF THE EXECUTOR OR ADMINISTRATOR
Section 3. Heir may not sue until shall assigned — 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 there is an order of the court assigning such lands to such heir or devisee or
until the time allowed for paying debts has expired.
ACTIONS BY HEIRS AGAINST THE EXECUTOR OR ADMINISTRATOR

‣ RULE: 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
‣ EXCEPTION: IN THESE CASES, THE SUIT MAY ALREADY PROSPER:
1. There is an order of the court assigning the property to such heir
2. The time allowed for the payment of a debt has expired
‣ Simply put, the partition and delivery of his corresponding share must precede the suit filed by the heir.
‣ An executor or administrator who assumes the trust takes possession of the property left by the decedent for the
purpose of paying debts. While his debts are undetermined and unpaid, no residue may be settled for distribution
among the heirs and devisees. Consequently, before distribution is made, or before any residue is known, the
heirs or devisees have no cause of action against the executor or administrator for recovery of property left by
the deceased (Lao vs Dee 1952)
ACTIONS BY HEIRS AGAINST THIRD PERSONS ON BEHALF OF THE ESTATE

‣ RULE: HEIRS HAVE NO LEGAL STANDING TO SUE FOR RECOVERY OR PROTECTION OF THE PROPERTY RIGHTS OF THE
DECEASED AGAINST THIRD PERSONS
‣ This is because the proper person to bring the action is the executor or administrator
‣ EXCEPTION: IN THESE CASES, HEIRS MAY BRING AN ACTION ON BEHALF OF THE ESTATE:
1. Pending the filing of administration proceedings
2. Administration proceedings have already been commenced, but an administrator has not yet been appointed
3. The executor or administrator is unwilling or refuses to bring suit
4. The executor or administrator is alleged to have participated in the act complained of and he is made a party defendant
‣ The exceptions are recognized in jurisprudence
‣ In one case, the heirs were allowed to file a petition for correction of clerical errors in the description of property in the
project of partition after it was approved by the probate court (Vda de Reyes vs CA 1989)
COMPROMISE BETWEEN EXECUTOR OR ADMINISTRATOR AND THE DECEDENT’S DEBTOR
Section 4. Executor or administrator may compound with debtor. — Within the approval of the court, an executor or
administrator may compound with the debtor of the deceased for a debt due, and may give a discharge of such debt
on receiving a just dividend of the estate of the debtor.
‣ Sec. 4 empowers the executor or administrator to compromise with the decedent’s debtor, with the approval of the court.
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PROCEEDINGS TO ELICIT INFORMATION; CONCEALMENT, EMBEZZLEMENT OR CONVEYANCE OF ESTATE
PROPERTY
Section 6. Proceedings when property concealed, embezzled, or fraudulently conveyed. — If an executor or

administrator, heir, legatee, creditor or other individual interested in the estate of the deceased, complains to the
court having jurisdiction of the estate that a person is suspected of having concealed, embezzled, or conveyed away
any of the money, goods, or chattels of the deceased, or that such person has in his possession or has knowledge of
any deed, conveyance, bond, contract, or other writing which contains evidence of or tends or discloses the right,
title, interest, or claim of the deceased, the court may cite such suspected person to appear before it any may
examine him on oath on the matter of such complaint; and if the person so cited refuses to appear, or to answer on
such examination or such interrogatories as are put to him, the court may punish him for contempt, and may commit
him to prison until he submits to the order of the court. The interrogatories put any such person, and his answers
thereto, shall be in writing and shall be filed in the clerk's office.
Section 7. Person entrusted with estate compelled to render account. — The court, on complaint of an executor or
administrator, may cite a person entrusted by an executor or administrator with any part of the estate of the
deceased to appear before it, and may require such person to render a full account, on oath, of the money, goods,
chattels, bonds, account, or other papers belonging to such estate as came to his possession in trust for such
executor or administrator, and of his proceedings thereon; and 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.
Section 8. Embezzlement before letters issued — If a person, before the granting of letters testamentary or of
administration on the estate of the deceased, embezzles or alienates any of the money, goods, chattels, or effectsof
such deceased, such person 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 such estate.
PROCEEDINGS TO ELICIT INFORMATION

‣ RULE: IN THE FOLLOWING CASES, THE COURT MAY REQUIRE THE EXAMINATION OF PERSONS AND CITE THEM TO APPEAR IN
COURT. IF THE PERSON CITED REFUSES, THE COURT MAY PUNISH HIM FOR CONTEMPT:
1. A PERSON IS SUSPECTED OF HAVING CONCEALED, EMBEZZLED, OR CONVEYED AWAY ANY MONEY, GOODS, OR
CHATTELS OF THE DECEASED (SEC. 6)
‣ Note that Sec. 6 only provides a proceeding for examining persons suspected of having concealed, embezzled, or
conveyed away property of the deceased
‣ To obtain possession, recourse must generally be had to an ordinary action
‣ The purpose of the proceeding is to elicit evidence, and the section does not authorize the court to enforce delivery of
possession of the things involved.
‣ Any interested person may complain to the court
‣ This includes the executor or administrator, heir, legatee, creditor or other individual interested in the estate of the
deceased
2. A PERSON HAS IN HIS POSSESSION OR KNOWLEDGE OF ANY DEED, CONVEYANCE, BOND, CONTRACT, OF OTHER
WRITING, WHICH CONTAINS EVIDENCE OF OR TENDS OR DISCLOSES THE RIGHT, TITLE, INTEREST, OR CLAIM OF THE
DECEASED. (SEC. 6)
‣ This contemplates withholding of information or documentary evidence tending to disclose rights or claims of the
deceased to such property or to disclose the possession of his last will and testament.
‣ Any interested person may complain to the court
3. A PERSON ENTRUSTED BY AN EXECUTOR OR ADMINISTRATOR WITH ANY PART OF THE ESTATE (SEC. 7)
‣ The executor or administrator may complain to the court
‣ The court, in this case, require such person to render a full account, on oath, of the money, goods, chattels, bonds,
account, or other papers belonging to such estate as came to his possession in trust for such executor or administrator,
and of his proceedings thereon
DOUBLE VALUE RULE IN CASE OF EMBEZZLEMENT OR ALIENATION OF ESTATE

‣ RULE: IF BEFORE THE GRANT OF LETTERS TESTAMENTARY OR OF ADMINISTRATION, A PERSON EMBEZZLES OR ALIENATES
MONEY OR PROPERTY OF THE DECEASED, SUCH PERSON SHALL BE LIABLE TO AN ACTION IN FAVOUR OF THE EXECUTOR OR
ADMINISTRATOR FOR DOUBLE THE VALUE OF THE PROPERTY SOLD, EMBEZZLED OR ALIENATED
‣ See Sec. 8
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JURISPRUDENCE
JAVIER V. ARANETA 93 PHIL 1115

‣ The necessity of filing of claims against the estate (for pending actions in court [but note this was under the old rules]) only
obtains if the claim is for recovery of money, debt or interest thereon, and the defendant dies before final judgment in the Court
of First Instance (Rule 3, section 21, Rules of Court), but not when the claim is for damages for an injury to person or property
(Rule 88, section 1).In Rule 88, section 1, it is provided that actions to recover damages for injury to person or property, real or
personal, may be maintained against the executor or administrator of the deceased.”
‣ Under Rule 3, section 17, Rules of Court, when a party dies and the claim is not thereby extinguished, the court shall order the
legal representative of the deceased, of the heirs, to be substituted for him within a period of 30 days, or within such time as
may be granted
PASCUAL V. PASCUAL, 73 PHIL 561

‣ Action by Persons other than the Executor/Administrator on behalf of the Estate
‣ Under Rule 86, section 1, of the new Rules of Court (NOTE: This is under the old ROC.) 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 to heirs may act in his place.
‣ Here, the fictitious sale is alleged to have been made to the defendants, one of them, Miguel S. Pascual, being the
executor appointed by the probate court. Such executor naturally would not bring an action against himself for recovery of
the fishpond. His refusal to act may, therefore, be implied. And this brings the case under the exception. It should be noted
that in the complaint the prayer is that the fishpond be delivered not to the plaintiff but to the executor, thus indicating that
the action is brought in behalf of the estate of the deceased.
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RULE 88: PAYMENT OF DEBTS OF THE ESTATE
REQUIREMENTS FOR PAYMENTS OF DEBTS OF THE ESTATE
Section 1. Debts paid in full if estate sufficient. — If, after hearing all the money claims against the estate, and after
ascertaining the amount of such claims, it appears that there are sufficient assets to pay the debts, the executor or
administrator pay the same within the time limited for that purpose.
‣ This presupposes that a claim against the estate has been filed by a creditor in accordance with Rule 86
‣ RULE: THE FOLLOWING REQUISITES MUST CONCUR BEFORE THE EXECUTOR OR ADMINISTRATOR MAY PAY THE MONEY
CLAIMS AGAINST THE ESTATE:
1. Hearing
2. The amounts of such claims are ascertained
3. There are sufficient assets to pay the debt
ORDER OF PREFERENCE OF PAYMENT OF DEBTS
Section 2. Part of estate from which debt paid when provision made by will. — If the testator makes provision by his
will, or designates the estate to be appropriated for the payment of his debts, the expenses of administration, or the
family expenses, they shall be paid according to the provisions of the will; but if the provision made by the will or the
estate appropriated, is not sufficient for that purpose, such part of the estate of the testator, real or personal, as is
not disposed of by will, if any shall be appropriated for that purpose.
Section 3. Personalty first chargeable for debts, then realty. — The personal estate of the deceased not disposed of
by will shall be first chargeable with the payment of debts and expenses; and if said personal estate is not sufficient
for tat purpose, or its sale would redound to the detriment of the participants for the estate, the whole of the real
estate not dispose of by will, or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered
for that purpose by the executor or administrator, after obtaining the authority of the court therefor. Any deficiency
shall be met by contributions in accordance with the provisions of section 6 of this rule.
Section 6. Court to fix contributive shares where devisees, legalitees, or heirs have been possession. — Where
devisees, legalitees, or heirs have entered into possession of portions of the estate before the debts and expenses
have been settled and paid, and have become liable to contribute for the payment of such debts and expenses, the
court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of their several
liabilities, and order how much and in what manner each person shall contribute, and may issue execution as
circumstances require.
Section 7. Order of payment if estate insolvent — If the assets which can be appropriated for the payment of debts
are not sufficient for that purpose, the executor or administrator shall pay the debts against the estate, observing the
provisions of Articles 1059 and 2239 to 2251 of the Civil Code.
Section 8. Dividends to be paid in proportion to claims. — If there are no assets sufficient to pay the credits of any
once class of creditors after paying the credits entitled to preference over it, each creditor within such class 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.
NEW CIVIL CODE

Article 1059. If the assets of the estate of a decedent which can be applied to the payment of debts are not sufficient
for that purpose, the provisions of articles 2239 to 2251 on Preference of Credits shall be observed, provided that the
expenses referred to in article 2244, No. 8, shall be those involved in the administration of the decedent's estate. (n)
RULE 89: Sales, Mortgages, and Other Encumbrances of Property of Decedent
Section 2. When court may authorize sale, mortgage, or other encumbrance of realty to pay debts and legacies
through personalty not exhausted. — When the personal estate of the deceased is not sufficient to pay the debts,
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expenses of administration, and legacies, or where the sale of such personal estate may injure the business or other
interests of those interested in the estate, and where a testator has not otherwise made sufficient provision for the
payment of such debts, expenses, and legacies, the court, on the application of the executor or administrator and on
written notice of the heirs, devisees, and legatees residing in the Philippines, may authorize the executor or
administrator to sell, mortgage, or otherwise encumber so much as may be necessary of the real estate, in lieu of
personal estate, for the purpose of paying such debts, expenses, and legacies, if it clearly appears that such sale,
mortgage, or encumbrance would be beneficial to the persons interested; and if a part cannot be sold, mortgaged, or
otherwise encumbered without injury to those interested in the remainder, the authority may be for the sale,
mortgage, or other encumbrance of the whole of such real estate, or so much thereof as is necessary or beneficial
under the circumstances.
Section 8. When court may authorize conveyance of realty which deceased contracted to convey. Notice. Effect of
deed. — Where the deceased was in his lifetime under contract, binding in law, to deed real property, or an interest
therein, the court having jurisdiction of the estate may, on application for that purpose, authorize the executor or
administrator to convey such property according to such contract, or with such modifications as are agreed upon by
the parties and approved by the court; and if the contract is to convey real property to the executor or administrator,
the clerk of court shall execute the deed. The deed executed by such executor, administrator, or clerk of court shall
be as affectual to convey the property as if executed by the deceased in his lifetime; but no such conveyance shall
be authorized until notice of the application for that purpose has beengiven personally or by mail to all persons
interested, and such further notice has been given, by publication or otherwise, as the court deems proper; nor if the
assets in the hands of the executor or administrator will thereby be reduced so as to prevent a creditor from
receiving his full debt or diminish his dividend.
Section 9. When court may authorize conveyance of lands which deceased held in trust. — Where the deceased in his
lifetime held real property in trust for another person, the court may after notice given as required in the last
preceding section, authorize the executor or administrator to deed such property to the person, or his executor or
administrator, for whose use and benefit it was so held; and the court may order the execution of such trust, whether
created by deed or by law.
ORDER OF PREFERENCE FOR THE PAYMENT OF DEBTS OF THE ESTATE

1. FROM THE PORTION OR PROPERTY DESIGNATED IN THE WILL (SEC. 2)
‣ If the testator makes provision by his will, or designates the estate to be appropriated for the payment of his debts, the
expenses of administration, or the family expenses, they shall be paid according to the provisions of the will
‣ In any case where the provision in the will is insufficient to cover the entire debt, that part of the decedent’s estate not
disposed by will shall answer for such deficiency.
‣ Note that the provision in a will for the payment of a specific debt does not dispense with the requirement that a claim
should be filed against the estate.
2. FROM THE PERSONAL PROPERTY (SEC. 3)
‣ The personal estate of the deceased not disposed of by will shall be first chargeable with the payment of debts and
expenses
3. FROM THE REAL PROPERTY (SEC. 3)
‣ If said personal estate is not sufficient for that purpose, or its sale would redound to the detriment of the participants for the
estate, the whole of the real estate not dispose of by will, or so much thereof as is necessary, may be sold, mortgaged, or
otherwise encumbered for that purpose by the executor or administrator, after obtaining the authority of the court therefor.
4. FROM THE CONTRIBUTION OF DEVISEES, LEGATEES, OR HEIRS WHO HAVE BEEN IN POSSESSION OF PORTIONS OF THE ESTATE
BEFORE THE DEBTS AND EXPENSES HAVE BEEN SETTLED AND PAID (SEC. 6)
‣ Any deficiency shall be met by contributions in accordance with the provisions of section 6 of this rule. (Sec. 3)
‣ Where devisees, legalitees, or heirs have entered into possession of portions of the estate before the debts and expenses
have been settled and paid, and have become liable to contribute for the payment of such debts and expenses, the court
having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of their several liabilities,
and order how much and in what manner each person shall contribute, and may issue execution as circumstances require.
‣ Remember that a writ of execution may NOT issue to recover a claim against the estate
‣ An exception is provided here in Sec. 6, where a writ of execution may be issued against the devisees,
legatees, and heirs who have entered possession of portions of the estate before the settlement of debts and
expenses
‣ Execution may issue only where the devisees, legatees or heirs have entered possession of their respective portions in
the estate prior to settlement and payments of the debts and expenses of administration and it is later ascertain that
there are such debts and expenses to be paid, in which case the court having jurisdiction of the estate may, by order for
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that purpose, after hearing, settle the amount of their several liabilities and order how much and in what manner each
person shall contribute, and may issue execution if circumstances require. (Domingo vs Carlitos, 1963)
‣ NOTE: A legacy is not a debt of the estate, and according to Sec. 6, legatees are among those against whom
execution is authorized to be issued. Sec. 1 to 5, 7a, 15, and 16 all refer to the payment of legacies as if such
are debts. The correct rule is in Rue 90, Sec. 1 which does NOT include legacies as among those that should be
paid before order of distribution— only debts, funeral charges, expenses of administration, allowance to widow and
inheritance tax. Again it is only after the debts and expenses of administration have been paid that the residue shall be
given to heirs and those entitled by way of inheritance or legacy.
5. IN CASE THE ESTATE IS INSOLVENT, FOLLOW RULES ON CONCURRENCE AND PREFERENCE OF CREDITS (SEC. 7, 8)
‣ If the assets which can be appropriated for the payment of debts are not sufficient for that purpose, the executor or
administrator shall pay the debts against the estate, observing the provisions of Articles 1059 and 2239 to 2251 of the Civil
Code.
‣ If there are no assets sufficient to pay the credits of any once class of creditors after paying the credits entitled to
preference over it, each creditor within such class 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)
‣ Sec. 8 contemplates a situation where there are several creditors entitled to the same preference, in this case, the
proceeds shall be pro-rated among the creditors of the same preference. This, of course, assumes that the other
creditors entitled to a higher preference have been satisfied.
EXCEPTION TO THE ORDER OF PREFERENCE; WHEN REAL PROPERTY MAY BE CHARGED FIRST
‣ RULE: UPON APPLICATION OF THE EXECUTOR OR ADMINISTRATOR WITH THE COURT, AND WRITTEN NOTICE TO INTERESTED
PERSONS AND HEARING, REAL PROPERTY MAY BE CHARGED AHEAD OF THE DECEDENT’S PERSONAL PROPERTY IN THESE
CASES:
1. When the decedent’s personal property is insufficient
2. When the sale of personal property shall be detrimental to the participants of the estate
3. When the sale of personal property may injure the business or interests of those interested in the estate
4. When the testator has not made sufficient provision for payment of such debts, expenses, and legacies (Sec. 2, Rule 89)
5. When the decedent was, in his lifetime, under contract, binding in law, to deed real property to beneficiary (Sec. 8, Rule
89)
6. When the decedent during his lifetime held real property in trust for another (Sec. 9, Rule 89)
PAYMENT OF CONTINGENT CLAIMS/DEBTS
Section 4. Estate to be retained to meet contingent claims. — If the court is satisfied that a contingent claim duly
filed is valid, it may order the executor or administrator to retain in his hands sufficient estate to pay such contingent
claim when the same becomes absolute, or if the estate is insolvent, sufficient to pay a portion equal to the dividend
of the other creditors.
Section 5. How contingent claim becoming absolute in two years allowed and paid. Action against distributees later.
— If such contingent claim becomes absolute and is presented to the court, or to the executor or administrator,
within two (2) years from the time limited for other creditors to present their claims, it may be allowed by the court if
not disputed by the executor or administrator and, if disputed, it may be proved and allowed or disallowed by the
court as the facts may warrant. If the contingent claim is allowed, the creditor shall receive payment to the same
extent as the other creditors if the estate retained by the executor or administrator is sufficient. But if the claim is not
so presented, after having become absolute, within said two (2) years, and allowed, the assets retained in the hands
of the executor or administrator, not exhausted in the payment of claims, shall be distributed by the order of the
court to the persons entitled to the same; but the assets so distributed may still be applied to the payment of the
claim when established, and the creditor may maintain an action against the distributees to recover the debt, and
such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively
received from the property of the deceased.
Remember that a contingent claim is one that is subject to the happening of a condition, a future uncertain event.
RETENTION OF ESTATE TO MEET CONTINGENT CLAIMS

‣ RULE: IF THE COURT IS SATISFIED THAT A CONTINGENT CLAIM DULY FILED IS VALID, IT MAY ORDER THE EXECUTOR OR
ADMINISTRATOR TO RETAIN IN HIS HANDS SUFFICIENT ESTATE TO PAY SUCH CONTINGENT CLAIM WHEN THE SAME BECOMES
ABSOLUTE
‣ If the estate is insolvent, an amount sufficient to pay a portion equal to the dividend of the other creditors is retained
instead.
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‣ Duly filed means that the contingent claim was filed within the statue of non-claims under Rule 86. Remember that the
court fixed a period in the notice to creditors within which creditors must file their claims, otherwise they will be barred,
contingent claims should also be filed within such period.
PAYMENT OF CONTINGENT CLAIMS ONCE IT BECOMES ABSOLUTE AND DUE

‣ RULE: IF A CONTINGENT CLAIM BECOMES ABSOLUTE AND IS PRESENTED TO THE COURT, OR TO THE EXECUTOR OR
ADMINISTRATOR, WITHIN TWO (2) YEARS FROM THE TIME LIMITED FOR OTHER CREDITORS TO PRESENT THEIR CLAIMS, IT MAY
BE ALLOWED BY THE COURT, IN WHICH CASE, THE CREDITOR SHALL RECEIVE PAYMENT TO THE SAME EXTENT AS THE OTHER
CREDITORS IF THE ESTATE RETAINED BY THE EXECUTOR OR ADMINISTRATOR IS SUFFICIENT.
‣ if the claim is disputed by the executor/administrator, it may be proved and allowed or disallowed by the court as the facts
may warrant.
‣ But if the claim is not so presented, after having become absolute, within said two (2) years, and allowed, the assets
retained in the hands of the executor or administrator, not exhausted in the payment of claims, shall be distributed by the
order of the court to the persons entitled to the same (to the heirs, legatees, devises)
‣ But the assets so distributed may still be applied to the payment of the claim when established, and the creditor may
maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the
debt in proportion to the estate they have respectively received from the property of the deceased.
DISPOSAL OF ESTATE OF INSOLVENT NON-RESIDENT
Section 9. Estate of insolvent non-resident, how disposed of. — In case administration is taken in the Philippine of
the estate of a person who was at the time of his death an inhabitant of another country, and who died insolvent, his
estate found in the Philippines shall, as far as practicable, be so disposed of that his creditors here and elsewhere
may receive each an equal share, in proportion to their respective credits.
Section 10. When and how claim proved outside the Philippines against insolvent resident's estate paid. — If it
appears to the court having jurisdiction that claims have been duly proven in another country against the estate of an
insolvent who was at the time of his death 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 an opportunity to contest their
allowance, the court shall receive a certified list of such claims, when perfected in such country, 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; but the benefit of this and the
preceding sections shall not be extended to the creditors in another country if the property of such deceased person
there found is not equally apportioned to the creditors residing in the Philippines and the other creditor, according to
their respective claims.
‣ RULE: IF THE DECEDENT IS A NON-RESIDENT AND INSOLVENT, HIS ESTATE FOUND IN THE PHILIPPINES SHALL BE
DISTRIBUTED TO HIS CREDITORS, BOTH HERE AND OUTSIDE THE COUNTRY, IN PROPORTION TO THEIR RESPECTIVE SHARES
‣ See Sec. 10 for the procedure
COURT ORDER FOR PAYMENT OF DEBTS
Section 11. Order for payment of debts. — Before the expiration of the time limited for the payment of the debts, the
court shall order the payment thereof, and the distribution of the assets received by the executor or administrator for
that purpose among the creditors, as the circumstances of the estate require and in accordance with the provisions
of this rule.
Section 14. Creditors to be paid in accordance with terms of order. — When an order is made for the distribution of
assets among the creditors, the executor or administration shall, as soon as the time of payment arrives, pay the
creditors the amounts of their claims, or the dividend thereon, in accordance with the terms of such order.
Section 13. When subsequent distribution of assets ordered. — If the whole of the debts are not paid on the first
distribution, and if the whole assets are not distributed, or other assets afterwards come to the hands of the
executor or administrator, the court may from time to time make further orders for the distributions of assets.
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Section 12. Orders relating to payment of debts where appeal is taken. — If an appeal has been taken from a decision
of the court concerning a claim, the court may suspend the order for the payment of the debts or may order the
distributions among the creditors whose claims are definitely allowed, leaving in the hands of the executor or
administrator sufficient assets to pay the claim disputed and appealed. When a disputed claim is finally settled the
court having jurisdiction of the estate shall order the same to be paid out of the assets retained to the same extent
and in the same proportion with the claims of other creditors.
COURT ORDER REQUIRED FOR PAYMENT OF DEBTS AND DISTRIBUTION OF ASSETS

‣ RULE: BEFORE THE EXPIRATION OF THE TIME LIMITED FOR THE PAYMENT OF THE DEBTS, THE COURT SHALL ORDER THE
PAYMENT THEREOF, AND THE DISTRIBUTION OF THE ASSETS RECEIVED BY THE EXECUTOR OR ADMINISTRATOR FOR THAT
PURPOSE AMONG THE CREDITORS, AS THE CIRCUMSTANCES OF THE ESTATE REQUIRE (SEC. 11)
‣ When an order is made for the distribution of assets among the creditors, the executor or administration shall, as soon as
the time of payment arrives, pay the creditors the amounts of their claims, or the dividend thereon, in accordance with the
terms of such order. (Sec. 14)
‣ Note that the court is not precluded from making a single order of distribution of the estate. Sec. 13 recognises the court’s
power to make further orders for the distribution of the estate:
1. If the whole of the debts are not paid on the first distribution
2. If the whole assets are not distributed, or
3. If other assets afterwards come to the hands of the executor or administrator
WHEN AN APPEAL IS TAKEN AGAINST A COURT DECISION ON A CLAIM

‣ RULE: WHEN AN APPEAL IS TAKEN FROM ITS DECISION CONCERNING A CLAIM, THE CURT MAY TAKE EITHER OF THE
FOLLOWING COURSES OF ACTION:
1. Suspend the order for the payment of the debts
2. Order the distribution among the credits whose claims are definitely allowed, leaving in the hands of the executor or
administrator sufficient assets to pay the claims disputed and appealed
‣ Once the dispute has been settled, the court shall order the claim to be paid out of the assets retained to the same extent and
proportion with the claims of other creditors.
TIME PERIOD FOR PAYMENT OF DEBTS AND DISTRIBUTION
Section 15. Time for paying debts and legacies fixed, or extended after notice, within what periods. — On granting
letters testamentary or administration the court shall allow to the executor or administrator a time for disposing of
the estate and paying the debts and legacies of the deceased, which shall not, in the first instance, exceed one (1)
year; but the court may, on application of the executor or administrator and after hearing on such notice of the time
and place therefor given to all persons interested as it shall direct, extend the time as the circumstances of the estate
require not exceeding six (6) months for a single extension not so that the whole period allowed to the original
executor or administrator shall exceed two (2) years.
Section 16. Successor of dead executor or administrator may have time extended on notice within certain period. —
When an executor or administrator dies, and a new administrator of the same estate is appointed, the court may
extend the time allowed for the payment of the debts or legacies beyond the time allowed to the original executor 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.
RULES ON THE TIME PERIOD TO DISPOSE OF THE ESTATE

1. The executor or administrator has an initial period of one year from the issuance of letters testamentary or administration to:
a. Dispose of the estate
b. Pay the debts and legacies of the deceased
2. The executor or administrator may apply for an extension not exceeding 6 months for a single extension after hearing and
notice to all persons interested
3. The whole period allowed to the original executor or administrator shall not exceed 2 years.
4. The successor of the executor or administrator who died during the settlement of the estate may have the time extended on
notice, not exceeding 6 months at a time and not exceeding 6 months beyond the time allowed to the original executor or
administrator
5. Thus, the total allowable period if the executor or administrator dies is 2.5 years (30 months) 
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RULE 89: SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF
PROPERTY OF DECEDENT
SALE, MORTGAGE, ENCUMBRANCE, OR CONVEYANCE OF PERSONAL AND REAL PROPERTY
Section 1. Order of sale of personalty. — Upon the application of the executor or administrator, and on written notice
to the heirs and other persons interested, the court may order the whole or a part of the personal estate to be sold, if
it appears necessary for the purpose of paying debts, expenses of administration, or legacies, or for the preservation
of the property.
Section 2. When court may authorize sale, mortgage, or other encumbrance of realty to pay debts and legacies
through personalty not exhausted. — When the personal estate of the deceased is not sufficient to pay the debts,
expenses of administration, and legacies, or where the sale of such personal estate may injure the business or other
interests of those interested in the estate, and where a testator has not otherwise made sufficient provision for the
payment of such debts, expenses, and legacies, the court, on the application of the executor or administrator and on
written notice of the heirs, devisees, and legatees residing in the Philippines, may authorize the executor or
administrator to sell, mortgage, or otherwise encumber so much as may be necessary of the real estate, in lieu of
personal estate, for the purpose of paying such debts, expenses, and legacies, if it clearly appears that such sale,
mortgage, or encumbrance would be beneficial to the persons interested; and if a part cannot be sold, mortgaged, or
otherwise encumbered without injury to those interested in the remainder, the authority may be for the sale,
mortgage, or other encumbrance of the whole of such real estate, or so much thereof as is necessary or beneficial
under the circumstances.
Section 3. Persons interested may prevent such sale, etc., by giving bond. — No such authority to sell, mortgage, or
otherwise encumber real or personal estate shall be granted if any person interested in the estate gives a bond, in a
sum to be fixed by the court, conditioned to pay the debts, expenses of administration, and legacies within such time
as the court directs; and such bond shall be for the security of the creditors, as well as of the executor or
administrator, and may be prosecuted for the benefit of either.
Section 4. When court may authorize sale of estate as beneficial to interested persons. Disposal of proceeds. —
When it appears that the sale of the whole or a part of the real or personal estate, will be beneficial to the heirs,
devisees, legatees, and other interested persons, the court may, upon application of the executor or administrator
and on written notice to the heirs, devisees, and legatees who are interested in the estate to be sold, authorize the
executor or administrator to sell the whole or a part of said estate, although not necessary to pay debts, legacies, or
expenses of administration; but such authority shall not be granted if inconsistent with the provisions of a will. In
case of such sale, the proceeds shall be assigned to the persons entitled to the estate in the proper proportions.
Section 5. When court may authorize sale, mortgage, or other encumbrance of estate to pay debts and legacies in
other countries. — When 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 deceased in such other country is not
sufficient to pay the debts, expenses of administration, and legacies there, the 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 same manner as for the payment of debts or legacies in the
Philippines.
Section 6. When court may authorize sale, mortgage, or other encumbrance of realty acquired on execution or
foreclosure. — The court may authorize an executor or administrator to sell mortgage, or otherwise encumber real
estate acquired by him on execution or foreclosure sale, under the same cicumstances and under the same
regulations as prescribed in this rule for the sale, mortgage, or other encumbrance of other real estate.
Section 8. When court may authorize conveyance of realty which deceased contracted to convey. Notice. Effect of
deed. — Where the deceased was in his lifetime under contract, binding in law, to deed real property, or an interest
therein, the court having jurisdiction of the estate may, on application for that purpose, authorize the executor or
administrator to convey such property according to such contract, or with such modifications as are agreed upon by
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the parties and approved by the court; and if the contract is to convey real property to the executor or administrator,
the clerk of court shall execute the deed. The deed executed by such executor, administrator, or clerk of court shall
be as affectual to convey the property as if executed by the deceased in his lifetime; but no such conveyance shall
be authorized until notice of the application for that purpose has been given personally or by mail to all persons
interested, and such further notice has been given, by publication or otherwise, as the court deems proper; nor if the
assets in the hands of the executor or administrator will thereby be reduced so as to prevent a creditor from
receiving his full debt or diminish his dividend.
Section 9. When court may authorize conveyance of lands which deceased held in trust. — Where the deceased in his
lifetime held real property in trust for another person, the court may after notice given as required in the last
preceding section, authorize the executor or administrator to deed such property to the person, or his executor or
CASES WHEN COURT MAY ORDER THE SALE, MORTGAGE, ENCUMBRANCE OR CONVEYANCE OF PROPERTY OF THE ESTATE
1. SALE, MORTGAGE, ENCUMBRANCE OF REAL OR PERSONAL PROPERTY FOR THE PAYMENT OF DEBTS AND EXPENSES OF
ADMINISTRATION (SEC. 1 AND 2)
‣ Requisites of Sale of Personal Property:
1. Application of the executor or administrator with the Court
2. Written notice to the heirs and other persons interested
3. Showing that the sale is necessary for the payment of debts, expenses of administration, or legacies, or the
preservation of the property
‣ Requisites of Sale, Mortgage or Encumbrance of Real Property:
1. Application of the executor or administrator with the Court
2. Written notice to the heirs, devisees, legates, and other persons interested residing in the country
3. Showing that it would be beneficial to the person interested
‣ The executor or administrator is prohibited from selling property of the decedent without court order even if the heirs and
other persons interested have consented thereto.
‣ An executor or administrate may be held answerable for selling the decedent’s property without a court order.
‣ The assent of the heirs is insufficient to vest in him the power to dispose of the decedent’s property.
‣ Moreover, the court cannot motu proprio order the sale of property. It is essential that the executor or administrator applies
for such sale with the court.
‣ Note the preference of sale of personal property over real property
‣ Only when the personal estate of the deceased is not sufficient to pay the debts, expenses of administration, and
legacies, or where the sale of such personal estate may injure the business or other interests of those interested in the
estate, and where a testator has not otherwise made sufficient provision for the payment of such debts, expenses, and
legacies, may the court may authorize the executor or administrator to sell, mortgage, or otherwise encumber so much
as may be necessary of the real estate, in lieu of personal estate, for the purpose of paying such debts, expenses, and
legacies
‣ But note that the executor or administrator is not constrained to sell, mortgage, or encumber the whole property or
none. Only so much as may be necessary of the real estate need not be sold, mortgaged, or encumbered.
‣ Nevertheless, the whole real property may be sold or encumbered in the following instances:
a. If the sale, mortgage, or encumbrance of a part will injure those interested in the remainder
b. If it is necessary under the circumstances
2. IF THE SALE WILL BE BENEFICIAL TO THE HEIRS, DEVISEES, LEGATEES, AND OTHER INTERESTED PERSONS (SEC. 4)
‣ Requisites
a. Application of the executor or administrator with the Court
b. Written notice to the heirs, devisees, and legatees who are invested in the estate to be sold
c. Showing that the sale, is beneficial to the heirs, devisees, legatees, and other interested persons, even if it is not
necessary for the payment of debts and expenses
‣ While the sale may not be necessary for the payment of debts, expenses of administration, or legacies, the court may
nevertheless authorise such sale of real or personal property, in whole or in part, if the sale will be beneficial to the heirs,
devisees, legatees, and other interested persons
‣ The primary consideration for the court is the interest and benefit to the heirs, devisees, legatees, and other interested
persons.
‣ Any proceeds derived from such sale shall be assigned to the persons entitled to the estate in the proper portions.
‣ BUT, note that such authority to sell shall not be granted if inconsistent with the provisions of a will.
‣ This is the only limitation on sale otherwise beneficial to interested persons
3. IF THE ESTATE OF THE DECEASED IN ANOTHER COUNTRY IS NOT SUFFICIENT TO PAY THE DEBTS, EXPENSES OF
ADMINISTRATION IN SUCH COUNTRY (SEC. 5)
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‣ This occurs when 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 deceased in such other country is not sufficient to pay
the debts, expenses of administration, and legacies there
‣ The court, in this case, 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 same manner as for the
payment of debts or legacies in the Philippines.
4. IF THE REAL PROPERTY WAS ACQUIRED BY THE EXECUTOR OR ADMINISTRATOR ON EXECUTION OR FORECLOSURE SALE (SEC.
6)
‣ The court may authorize an executor or administrator to sell mortgage, or otherwise encumber real estate acquired by him
on execution or foreclosure sale
‣ This will be done under the same circumstances and under the same regulations as prescribed in this rule for the sale,
mortgage, or other encumbrance of other real estate.
5. WHERE THE DECEASED WAS IN HIS LIFETIME UNDER CONTRACT, BINDING IN LAW, TO DEED REAL PROPERTY, OR AN
INTEREST THEREIN (SEC. 8)
‣ Requisites:
a. The deceased was in his lifetime under contract, binding in law, to deed real property, or an interest therein
b. Application of the executor or administrator with the Court
c. Notice of the application for that purpose has been given personally or by mail to all persons interested, and such
further notice has been given, by publication or otherwise, as the court deems proper
d. It must be shown that the assets in the hands of the executor or administrator will not be reduced so as to prevent a
creditor from receiving his full debt or diminish his dividend.
‣ This presupposes that the contract entered into by the deceased during his lifetime is valid and binding. There should be no
controversy involving real property or interest therein.
‣ In this case, the court may authorize the executor or administrator to convey such property according to such contract, or
with such modifications as are agreed upon by the parties and approved by the court
‣ Note that if the contract is to convey real property to the executor or administrator, the clerk of court will execute the deed.
‣ The deed executed by such executor, administrator, or clerk of court shall be as affectual to convey the property as if
executed by the deceased in his lifetime
‣ Such sale must not reduce the value of the estate to the extent of depriving the creditors payment of their claims
6. WHERE THE DECEASED IN HIS LIFETIME HELD REAL PROPERTY IN TRUST FOR ANOTHER PERSON (SEC. 9)
‣ Requisites:
a. The deceased in his lifetime held real property in trust for another person
b. Application of the executor or administrator with the Court
c. Notice of the application for that purpose has been given personally or by mail to all persons interested, and such
further notice has been given, by publication or otherwise, as the court deems proper
‣ The court in this case may authorize the executor or administrator to deed such property to the person, or his executor or
HOW TO PREVENT THE SALE, MORTGAGE OR ENCUMBRANCE OF PERSONAL OR REAL PROPERTY

‣ But this only seems to apply in case of sale, mortgage or encumbrance of real or personal property for purposes of payment of
debts and expenses (number 1 above)
‣ RULE: ANY PERSON INTERESTED IN THE ESTATE MAY PREVENT THE SALE, MORTGAGE, OR ENCUMBRANCE OF REAL OR
PERSONAL PROPERTY PART OF THE ESTATE BY GIVING A BOND (SEC. 3)
‣ The amount of the bond will be fixed by the court
‣ The bond is conditioned on the payment debts, expenses of administration, and legacies, as well as security of the
creditors, executor, or administrator
PROCEDURE OF OBTAINING COURT AUTHORITY TO SELL, MORTGAGE, OR ENCUMBER PROPERTY
Section 7. Regulation for granting authority to sell, mortgage, or otherwise encumber estate. — The court having
jurisdiction of the estate of the deceased may authorize the executor or administrator to sell personal estate, or to
sell, mortgage, or otherwise encumber real estate, in cases provided by these rules and when it appears necessary or
beneficial under the following regulations.
(a) The executor or administrator shall file a written petition setting forth the debts due from the deceased, the
expenses of administration, the legacies, the value of the personal estate, the situation of the estate to be sold,
mortgaged, or otherwise encumbered, and such other facts as show that the sale, mortgage, or other
encumbrance is necessary or beneficial.
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(b) The court shall thereupon fix a time and place for hearing such petition, and cause notice stating the nature of the
petition, the reasons 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 this section 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;
(f) There shall be recorded in the registry of deeds of the province in which the real estate thus sold, mortgage, 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 deed had been executed by the deceased in
his lifetime.
‣ Note that when there is a court order authorizing the executor or administrator to sell, mortgage, or otherwise encumber real
estate and the deed along with the certified copy of the court order is recorded in the registry of deeds of the province in which
the real estate thus sold, mortgage, or otherwise encumbered is situated, the transaction is valid as if the deed had been
executed by the deceased in his lifetime.
‣ PNB V. COURT OF APPEALS G.R. NO. 121597, 360 SCRA 370, JUNE 29, 2001
‣ It must be pointed out that petitioner’s cited cases involve ordinary debts secured by a mortgage. The case at bar, we
must stress, involves a foreclosure of mortgage arising out of a settlement of estate, wherein the administrator
mortgaged a property belonging to the estate of the decedent, pursuant to an authority given by the probate court. As
the Court of Appeals correctly stated, the Rules of Court on Special Proceedings comes into play decisively.
‣ To begin with, it is clear from the text of Section 7, Rule 89, that 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. Section 7 provides in part:
‣ Sec. 7. Rule 89. Regulations for granting authority to sell, mortgage, or otherwise encumber estate – The court
having jurisdiction of the estate of the deceased may authorize the executor or administrator to sell personal estate,
or to sell, mortgage, or otherwise encumber real estate, in cases provided by these rules when it appears
necessary or beneficial under the following regulations: (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 valid
as if the deed had been executed by the deceased in his lifetime.
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RULE 90: DISTRIBUTION AND PARTITION OF THE ESTATE
ORDER OF DISTRIBUTION OF RESIDUE OF THE ESTATE TO THE HEIRS, DEVISES AND LEGATEES
Section 1. When order for distribution of reside made. — When the debts, funeral charges, and expenses of
administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate in accordance with
law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the
estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same,
naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover
their respective shares from the executor or administrator, or any other person having the same in his possession. If
there is a controversy before the court as to who are the lawful heirs of the deceased person or as the distributive
shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary
cases.
RULE 109: Appeals in Special Proceedings

Section 2. Advance distribution in special proceedings. — Notwithstanding a pending controversy or appeal in
proceedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem
proper and just, permit that such part of the estate may not be affected by the controversy or appeal be distributed
among the heirs or legatees, upon compliance with the conditions set forth in Rule 90 of this rules.
WHEN DISTRIBUTION OF THE ESTATE PROPERTIES MAY BE MADE

‣ RULE: THE ORDER OF DISTRIBUTION OF THE ESTATE PROPERTIES CAN ONLY BE MADE IN THE FOLLOWING INSTANCES:
1. LIQUIDATION AND DECLARATION OF HEIRS
‣ Liquidation refers to the determination of all assets of the estate and payment of all the debts and expneses.
‣ This refers to the payment of all the debts, funeral expenses, expenses of administration, allowance to the widow,
and estate tax
‣ The declaration of heirs is undertaken to determine to whom the residue of the estate should be distributed,
‣ But note that the declaration is made in the same proceeding, a separate action for declaration of heirs is not
proper
‣ After the foregoing payments are made, the residue may be distributed to those entitled thereto (the heirs, legatees,
and devises)
‣ It is only after the payment of all debs, funeral expenses, charges of administration, allowance to widow and inheritance
tax shall have been effected that the court should make the declaration of heirs or of such persons as are entitled to
law to the residue
‣ However, what the court is enjoined from doing is the distribution of the residue of the estate before its obligations
are first paid, but the court is not enjoined from making a declaration of heirs prior to the satisfaction of these
obligations
‣ The practice in the distributing of the estates of deceased persons is to assign the whole of the properties left for
distribution to the heirs in a certain definite proportion, an aliquot part pertaining to each of the heirs
‣ How do you ascertain amount of the net estate?
‣ Remember the law on succession!
‣ It is ascertained by deducting all payable obligations and charges form the value of the property owned by the
deceased at the time of death. Thereafter all the donations subject to collation would be added to it. This is the
partible estate
‣ From there, the legitimate of the compulsory heirs can be established. Thereafter, the court may determine whether
a donation has prejudiced the legitimes
2. BEFORE LIQUIDATION, BUT THE DISTRIBUTES EXECUTES A BOND OR MAKES A PROVISION TO MEET UNPAID OBLIGATIONS
(ADVANCE DISTRIBUTION OF THE ESTATE)
‣ Requisites:
a. Distributees or any of them must give a bond in a sum fixed by the court conditioned upon the payment of said
obligations within such time as the court directs, or when provision is made to meet those obligations.
b. Only part of the estate that is not affected by any pending controversy or appeal may be the subject of advance
distribution (Sec. 2, Rule 109)
3. PARTIAL (ADVANCE) DISTRIBUTION OF THE ESTATE
‣ Jurisprudence has recognized this, but it is discouraged.
‣ Where however, the estate has sufficient assets to ensure equitable distribution of the inheritance in accordance with
law and final judgment in the proceedings and it does not appear there are unpaid obligations, as contemplated in Rule
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90, for which provisions should have been made or a bond required, such partial distribution may be allowed.
However, partial distribution should as much as possible be discouraged by courts, and except in extreme cases,
such form of advances of inheritance should not be countenanced. The reason for this rule is that courts should guard
with utmost zeal and jealousy the estate of the decedent to the end that the creditors thereof be adequately protected
and all the right heirs be assured of their shares in the inheritance (Quasha Ancheta Pena vs LCN Construction Corp.
2008)
SALE OF UNDIVIDED SHARE OF THE ESTATE BY AN HEIR DURING THE PENDENCY OF ESTATE PROCEEDINGS
‣ RULE: AN HEIR OF THE DECEASED MAY SELL HIS UNDIVIDED SHARE OR IDEAL SHARE DURING THE PENDENCY OF THE
ESTATE PROCEEDINGS WITHOUT THE PRIOR APPROVAL OF THE PROBATE COURT
‣ This is premised on Art. 777 of the NCC where the rights to the inheritance are transmitted to the heirs upon the death of
the decedent, and also the fact that upon the death of the decedent, an implied co-ownership is created in favour of the
heirs over the estate.
‣ An heir may sell his undivided share as the co-owner with other heirs of the estate.
‣ Court approval is not necessary unless if specific property of the estate is sold.
‣ Although the right of an heir over the property of the decedent is inchoate as long as the estate has not been fully settled
and partitioned, the law allows a co-owner to exercise right of ownership over such inchoate right. But, once an action for
settlement of an estate is filed with the court, the properties included therein are under the control of the intestate court.
And not even the administrator may take possession of any property that is part of the estate without prior authority of the
court (Silverio vs CA 2009)
WHEN THE PROBATE COURT LOSES JURISDICTION OF THE ESTATE; PROJECT OF PARTITION
‣ RULE: 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
‣ Towards the end of the proceedings in a petition for settlement of estate, a project of partition is usually prepared and
presented to the court.
‣ The project of partition is a proposal for distribution of the hereditary estimates and determines the persons entitlement
thereto
‣ The finality of the approval of the project of partition by itself alone does not terminate the probate proceeding.
‣ As long as the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed
and terminated.
‣ This means that a judicial partition is not final and conclusive. It does not prevent an heir from brining an action
to obtain his share, provided the prescriptive period has not closed
EFFECT OF FINAL DECREE OF DISTRIBUTION

‣ RULE: A FINAL DECREE OF DISTRIBUTION VESTS THE TITLE TO THE LAND OF THE ESTATE IN THE DISTRIBUTEES
‣ If the decree is erroneous, it should be corrected by opportune appeal, for once it becomes final, its binding effect is like
any other judgment in rem, unless property set aside for lack of jurisdiction or fraud.
‣ Where the court has validly issued a decree of distribution and the same has become final, the validity or invalidity of the
project of partition becomes irrelevant.
‣ The only instance where 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 negligence. Even then, the better practice to secure relief is
reopening of the same case by proper motion within the reglamentary period, instead of an independent action, the effect
of which, if successful, would be, for another judge or court to throw our a decision or order already final and executed and
reshuffle properties long ago distributed and disposed of (Vda de Alberto vs CA 1989)
REMEDY OF HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE

‣ RULE: AN HEIR ENTITLED TO THE RESIDUE OF THE ESTATE MAY DEMAND HIS SHARE THROUGH THE FOLLOWING COURSES OF
ACTION:
1. HEIR WHO IS A NON-PARTY TO THE PARTITION
a. A motion in the same probate or administration proceedings
b. A motion to reopen the settlement proceedings, if it had already been closed
‣ The heir should not file an independent action which would be tried by another court or judge that might reverse a
decision or order of the probate court already final and executed and reshuffle properties long ago distributed and
disposed of.
‣ If the proceeding is already closed and it involves persons who are non-parties to the partition, a motion to reopen
may be filed by a non-party within 15 days or before the order closing the proceeding becomes final.
2. HEIR WHO IS A PARTY TO THE PARTITION
‣ With regard to parties to a partition agreement who have not yet received their share, their remedies are:
a. File a motion for execution within 5 years.
b. In cases such as forgery, etc, the following separate actions must be brought:
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i. Petition for Relief from Judgement (Rule 38)
ii. Petition for Annulment of Judgment (Rule 47)
iii. Petition for Certiorari (Rule 65)
REMEDY OF PRETERITED HEIR

‣ RULE: THE INTESTATE PROCEEDINGS, ALTHOUGH CLOSED AND TERMINATED CAN STILL BE OPENED WITHIN THE
PRESCRIPTIVE PERIOD UPON PETITION BY THE PRETERITED HEIR.
‣ The prescriptive period is 10 years, it being an action upon an obligation created by law
‣ Moreover, where the judgment has become final, the remedy of the party-heir would be to file an independent suit against
the parties and all other heirs for the recover of her share in the estate (Nunal vs CA 1993)
INSTANCES WHEN THE COURT MAY ISSUE A WRIT OF EXECUTION

‣ RULE: GENERALLY, A PROBATE COURT CANNOT ISSUE A WRIT OF EXECUTION
‣ EXCEPTIONS:
1. To satisfy the contributive shares of the devisees, legatees, or heirs when the latter had entered prior possession of
the estate (Sec. 6, Rule 88)
2. To enforce payment of the expenses of partition (Sec. 3, Rule 90)
3. To satisfy the costs when a person is cited for examination is probate proceedings (Sec. 13, Rule 142)
QUESTIONS AS TO ADVANCEMENT
Section 2. Questions as to advancement to be determined. — Questions as to advancement made, or alleged to have

been made, by the deceased to any heir may be heard and determined by the court having jurisdiction of the estate
proceedings; and the final order of the court thereon shall be binding on the person raising the questions and on the
heir.
‣ RULE: QUESTIONS AS TO ADVANCEMENT MADE OR ALLEGED TO HAVE BEEN MADE BY THE DECEASED TO ANY HEIR MAY BE
HEARD AND DETERMINED BY THE COURT HAVING JURISDICTION OF THE ESTATE PROCEEDINGS AND THE FINAL ORDER OF THE
COURT THEREON SHALL BE BINDING ON THE PERSONS RAISING THE QUESTIONS AND ON THE HEIR.
‣ While it may be true that the Rules used the word “may”, it is nevertheless clear that the same provision contemplates a
probate court when it speaks of the “court having jurisdiction of the estate proceedings”
‣ Thus, a court acting in its general jurisdiction is devoid of authority to render and adjudicate and resolve the issue of
advancement of real property.
‣ An action for reconveyance and annulment of title with damages is not the proper suit to thresh out the issue
PAYMENT OF EXPENSES OF PARTITION
Section 3. By whom expenses of partition paid. — If at the time of distribution the executor or administrator has
retained sufficient effects in his hands which may lawfully be applied for the expenses of partition of the properties
distributed, such expenses of partition may be paid by such executor or administrator when it appears equitable to
the court and not inconsistent with the intention of the testator; otherwise, they shall be paid by the parties in
proportion to their respective shares or interest in the premises, and the apportionment shall be settled and allowed
by the court, and, if any person interested in the partition does not pay his proportion or share, the court may issue
an execution in the name of the executor or administrator against the party not paying the sum assessed.
RECORDING THE ORDER OF PARTITION
Section 4. Recording the order of partition of estate. — Certified copies of final orders and judgments of the court
relating to the real estate or the partition thereof shall be recorded in the registry of deeds of the province where the
property is situated.
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RULE 91: ESCHEATS
NATURE OF ESCHEAT PROCEEDINGS
NATURE OF PROCEEDINGS
‣ Escheat is a proceeding whereby the state, by virtue of its sovereignty, steps in and claims the real or personal property of a
person who dies intestate leaving no heir.
‣ In the absence of a lawful owner, a property is claim by the estate to forestall an open “invitation to self-service by the first
comers”
‣ Escheat proceedings rest on the principle of ultimate ownership by the state of all property within its jurisdiction
KINDS OF ESCHEAT
‣ A petition for escheat may be filed under three circumstances:
1. When a person dies intestate, leaving the State as the last intestate heir (Sec. 1, Rule 91)
2. In case of a petition for reversion of property alienated in violation of Constitution or State (Sec. 5, Rule 91)
3. Unclaimed balances in banks (Act. 3936)
PETITION FOR ESCHEAT
Section 1. When an by whom petition filed. — When a person dies intestate, seized of real property in the Philippines,
leaving no heir or person by law entitled to the same, the Solicitor General or his representative inbehalf of the
Republic of the Philippines, may file a petition in the Court of First Instance of the province where the deceased last
resided or in which he had estate, if he resided out of the Philippines, setting forth the facts, and praying that the
estate of the deceased be declared escheated.
REQUISITES FOR FILING OF PETITION

‣ RULE: FOR AN ESCHEAT PROCEEDING TO PROSPER, THE FOLLOWING MUST BE PRESENT:
1. That a person died intestate
2. That he left no heirs or persons entitled by law to the same
3. That the deceased left properties
WHERE THE PETITION IS FILED

‣ RULE: A PETITION FOR ESCHEAT MAY BE FILED WITH:
1. RTC of the province where the deceased last resided, or
2. In which he had estate, if he was a non-resident
WHO MAY FILE THE PETITION; WHO MAY OPPOSE

‣ RULE: ESCHEAT PROCEEDINGS MUST BE INITIATED BY THE SOLICITOR GENERAL
‣ All interested parties, such as the actual occupant and the adjacent lot owners shall be personally notified of the
proceedings and given the opportunity to present their valid claims, otherwise the property will be reverted to the State.
(Tan vs City of Davao, 1988)
‣ Interested party is any person alleging to have a direct right or interest in the property sought to be escheat
‣ An interested party may file a motion to dismiss for failure to state a cause of action, where the petition for escheat does
not state facts which entitle petitioner to the remedy prayed for. He may also cite the other grounds for dismissal under the
Rules of Court (GoPoco Grocery vs Pacific Biscuit 1961)
ESCHEAT PROCEEDINGS CANNOT BE CONVERTED INTO SETTLEMENT OF ESTATE

‣ The proceedings were instituted as escheat proceedings and not for the settlement of the estate of deceased persons.
‣ The court acquired jurisdiction to heard the petition for escheat by virtue of the publication of the petition for escheat. The
jurisdiction cannot be converted into one for the distribution of the properties of the decedent.
‣ For the distribution of the estate of the decedent to be instituted, the proper petition must be presented and the proceedings
should comply with the requirements of the Rule. Hence the escheat court does not have the power to order, or to proceed
with, the distribution of the estate of a decedent in escheat proceedings, and adjudicate the properties to the oppositors.
(Municipality of Magellan vs Before 1960)
WAIVER OF RIGHT TO ESCHEAT

‣ RULE: THE RIGHT TO ESCHEAT MAY BE WAIVER, EITHER EXPRESSLY OR IMPLIEDLY
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‣ Hence, when the right to escheat claimed by the municipality has existed long prior to the registration proceedings
instituted by the Roman Catholic Archbishop of Manila, and, as the same has not been asserted in said proceedings, it is
remed to have been complete waived (Roman Catholic Archbishop of Manila vs Monte de Piedad 1939)
PROCEDURE UPON FILING OF PETITION FOR ESCHEAT; JUDGMENT
Section 2. Order for hearing. — If the petition is sufficient in form and substance, the court, by an order reciting the
purpose of the petition, shall fix a date and place for the hearing thereof, which date shall be not more than six (6)
months after the entry of the order, and shall direct that a copy of the order be published before the hearing at least
once a week for six (6) successive weeks in some newspaper of general circulation published in the province, as the
court shall be deem best.
Section 3. Hearing and judgment. — Upon satisfactory proof in open court on the date fixed in the order that such
order has been published as directed and that the person died intestate, seized of real or personal property in the
Philippines, leaving no heir or person entitled to the same, and no sufficient cause being shown to the contrary, the
court shall adjudge that the estate of the estate of the deceased in the Philippines, after the payment of just debts
and charges, shall escheat; and shall, pursuant to law, assign the personal estate to the municipality or city where he
last resided in the Philippines, and the real estate to the municipalities or cities, respectively, in which the same is
situated. If the deceased never resided in the Philippines, the whole estate may be assigned to the respective
municipalities or cities where the same is located. Shall estate shall be for the benefit of public schools, and public
charitable institutions and centers in said municipalities or cities.
The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent
trust, so that the only income from the property shall be used.
PROCEDURE UPON FILING OF PETITION FOR ESCHEAT

1. COURT SETS A HEARING
‣ If the petition is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date
and place for the hearing thereof, which date shall be not more than six (6) months after the entry of the order
2. NOTICE AND PUBLICATION
‣ All interested parties, such as the actual occupant and the adjacent lot owners shall be personally notified of the
proceedings and given the opportunity to present their valid claims (Tan vs City of Davao, 1988)
‣ The order for hearing must be published at least once a week for 6 consecutive weeks in a newspaper of general
‣ Note that this is a deviation from the other special proceedings, which require publication for only 3 consecutive weeks
‣ Publication of the notice of hearing is a jurisdictional requirement, the non-compliance with which affects the validity of the
proceedings (Divino vs Hilario 1936)
3. ACTUAL HEARING
‣ The Solicitor-General must show satisfactory proof in open court, on the date fixed in the order, that:
1. Such order has been published as directed and
2. The person died intestate, with real or personal property in the Philippines, leaving no heir or person entitled to the
same
4. JUDGMENT
‣ The court shall order the payment of just debts and charges, and thereafter adjust the estate escheated in favour of the
estate
EFFECT OF JUDGMENT IN ESCHEAT PROCEEDINGS

‣ RULE: A JUDGMENT IN ESCHEAT PROCEEDINGS WHEN RENDERED BY A COURT OF COMPETENT JURISDICTION IN
CONCLUSIVE AGAINST ALL PERSONS WITH ACTUAL OR CONSTRUCTIVE NOTICE, BUT NOT AGAINST THOSE WHO ARE NOT
PARTIES OR PRIVIES THERETO
‣ Doesn’t publication give constructive notice to the whole world?
DISTRIBUTION OF THE PROPERTIES ESCHEATED

1. RESIDENT DEFENDANT
a. Personal property: Municipality or city where he last resided in the Philippines
b. Real property: Municipalities or cities in which the properties are located
2. NON-RESIDENT DEFENDANT
‣ Respective municipalities or cities where the properties are located
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PERIOD FOR FILING CLAIM BY INTERESTED PERSONS WHEN ESTATE IS ESCHEATED
Section 4. When and by whom claim to estate filed. — If a devisee, legatee, heir, widow, widower, or other person
entitled to such estate appears and files a claim thereto with the court within five (5) years from the date of such
judgment, such person shall have possession of and title to the same, or if sold, the municipality or city shall be
accountable to him for the proceeds after deducting reasonable charges for the care of the estate; but a claim not
made within the said time shall be forever barred.
‣ RULE: A DEVISEE, LEGATEE, WIDOW, WIDOWER, OR OTHER PERSON ENTITLED TO THE ESTATE MUST FILE A CLAIM WITH THE
COURT WITHIN 5 YEARS FROM THE DATE OF SUCH JUDGMENT IN THE ESCHEAT PROCEEDINGS
‣ Since escheat is one of the incidents of sovereignty, the state may, and usually does, prescribes the conditions and limits
the time within which a claim to such property may be made.
‣ The procedure by which the escheated property may be recovered is generally prescribed by statute, and a time limit is
imposed within which such action must be brought.
‣ The five-year period is not a device capriciously conjured by the state to defraud any claimant, on the contrary, it is
decidedly prescribed to encourage would-be claimants to be punctilious in asserting their claims, otherwise, they may lose
them forever in a final judgment.
‣ If the claim is timely filed and valid, such person shall have possession of and title to the same, or if sold, the municipality
or city shall be accountable to him for the proceeds after deducting reasonable charges for the care of the estate
‣ Where claimants contested the escheat judgment in the guise of a petition for annulment filed before the CA after the
lapse of almost 8 years, the belated assertion of right militates against recovery (Republic vs CA and Solano)
‣ Note that where a person comes into an escheat proceeding as a claimant, the burden is on such intervenor to establish
his title to the property and his right to intervene (Divino vs Municipality of Guianga, 1936)
ESCHEAT PROCEEDINGS INVOLVING REVERSION OF LANDS
Section 5. Other actions for escheat. — Until otherwise provided by law, actions reversion or escheat of properties
alienated in violation of the Constitution or of any statute shall be governed by this rule, except that the action shall
be instituted in the province where the land lies in whole or in part.
1987 CONSTITUTION
ARTICLE XII: NATIONAL ECONOMY AND PATRIMONY
Section 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to
individuals, corporations, or associations qualified to acquire or hold lands of the public domain.
REVERSION OF LANDS
‣ Reversion of Lands can be:
1. Under Escheat Proceedings in Sec. 5, Rule 91 which is primarily based on Sec. 7, Art. 12 of the Constitution
2. Under Reversion Proceedings under the Public Land Act or other Laws
‣ Escheat proceedings may be instituted as a consequence of a violation Sec. 7, Art. 12 of the Constitution, which prohibits
transfers of private agricultural lands to aliens, whereas an action for reversion is expressly authorized under the Public Land
Act
‣ Note also that under RA 8436 “Agriculture and Fisheries Modernization Act of 1997”, idle agricultural lands may be subject to
reversion proceedings.
ESCHEAT AND REVERSIONS DISTINGUISHED

‣ Escheat and reversion proceedings have the same effects, but different procedures are followed
ESCHEAT OF UNCLAIMED BALANCES
Act No. 3936, as amended by PD No. 679: Unclaimed Balances Act
Sec. 1. "Unclaimed balances", within the meaning of this Act, shall include credits or deposits of money, bullion,
security or other evidence of indebtedness of any kind, and interest thereon with banks, buildings and loan
associations, and trust corporations, as hereinafter defined, in favor of any person known to be dead or who has not
made further deposits or withdrawals during the preceding ten years or more. Such unclaimed balances, together
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with the increase and proceeds thereof, shall be deposited with the Treasurer of the Philippines to the credit of the
Government of the Republic of the Philippines to be used as the National Assembly may direct.
"Banks", "building and loan associations" and "trust corporations", within the meaning of this Act, shall refer to
institutions defined under Section two, thirty-nine and fifty-six, respectively, of Republic Act Numbered Three
Hundred Thirty Seven, otherwise known as the General Banking Act, as amended, whether organized under special
charters or not.
Sec. 2. Immediately after the taking effect of this Act and within the month of January of every odd year, all banks,
building and loan associations, and trust corporations shall forward to the Treasurer of the Philippines a statement,
under oath, of their respective managing officers, of all credits and deposits held by them in favor of persons known
to be dead, or who have not made further deposits or withdrawals during the preceding ten years or more, arranged
in alphabetical order according to the names of creditors and depositors, and showing:
(a) The names and last known place of residence or post office addresses of the persons in whose favor such
unclaimed balances stand;
(b) The amount and the date of the outstanding unclaimed balance and whether the same is in money or in security,
and if the latter, the nature of the same;
(c) The date when the person in whose favor the unclaimed balance stands died, if known, or the date when he made
his last deposit or withdrawal; and
(d) The interest due on such unclaimed balance, if any, and the amount thereof.
A copy of the above sworn statement shall be posted in a conspicuous place in the premises of the bank, building
and loan association, or trust corporation concerned for at least sixty days from the date of filing thereof:
‣ Provided, That immediately before filing the above sworn statement, the bank, building and loan association, and
trust corporation shall communicate with the person in whose favor the unclaimed balance stands at his last
known place of residence or post office address.
It shall be the duty of the Treasurer of the Philippines to inform the Solicitor General from time to time the existence
of unclaimed balances held by banks, building and loan associations, and trust corporations.
Sec. 3. Whenever the Solicitor General shall be informed of such unclaimed balances, he shall commence an action
or actions in the name of the People of the Republic of the Philippines in the Court of First Instance of the province
or city where the bank, building and loan association or trust corporation is located, in which shall be joined as
parties the bank, building and loan association or trust corporation and all such creditors or depositors. All or any of
such creditors or depositors or banks, building and loan association or trust corporations may be included in one
action. Service of process in such action or actions shall be made by delivery of a copy of the complaint and
summons to the president, cashier, or managing officer of each defendant bank, building and loan association or
trust corporation and by publication of a copy of such summons in a newspaper of general circulation, either in
English, in Filipino, or in a local dialect, published in the locality where the bank, building and loan association or
trust corporation is situated, if there be any, and in case there is none, in the City of Manila, at such time as the court
may order. Upon the trial, the court must hear all parties who have appeared therein, and if it be determined that such
unclaimed balances in any defendant bank, building and loan association or trust corporation are unclaimed as
hereinbefore stated, then the court shall render judgment in favor of the Government of the Republic of the
Philippines, declaring that said unclaimed balances have escheated to the Government of the Republic of the
Philippines and commanding said bank, building and loan association or trust corporation to forthwith deposit the
same with the Treasurer of the Philippines to credit of the Government of the Republic of the Philippines to be used
as the National Assembly may direct.
At the time of issuing summons in the action above provided for, the clerk of court shall also issue a notice signed
by him, giving the title and number of said action, and referring to the complaint therein, and directed to all persons,
other than those named as defendants therein, claiming any interest in any unclaimed balance mentioned in said
complaint, and requiring them to appear within sixty days after the publication or first publication, if there are
several, of such summons, and show cause, if they have any, why the unclaimed balances involved in said action
should not be deposited with the Treasurer of the Philippines as in this Act provided and notifying them that if they
do not appear and show cause, the Government of the Republic of the Philippines will apply to the court for the relief
demanded in the complaint. A copy of said notice shall be attached to, and published with the copy of, said summons
required to be published as above, and at the end of the copy of such notice so published, there shall be a statement
of the date of publication, or first publication, if there are several, of said summons and notice. Any person interested
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may appear in said action and become a party thereto. Upon the publication or the completion of the publication, if
there are several, of the summons and notice, and the service of the summons on the defendant banks, building and
loan associations or trust corporations, the court shall have full and complete jurisdiction in the Republic of the
Philippines over the said unclaimed balances and over the persons having or claiming any interest in the said
unclaimed balances, or any of them, and shall have full and complete jurisdiction to hear and determine the issues
herein, and render the appropriate judgment thereon.
Sec. 4. If the president, cashier or managing officer of the bank, building and loan association, or trust corporation
neglects or refuses to make and file the sworn statement required by this action, such bank, building and loan
association, or trust corporation shall pay to the Government the sum of five hundred pesos a month for each month
or fraction thereof during which such default shall continue.
Sec. 5. Any bank, building and loan association or trust corporation which shall make any deposit with the Treasurer
of the Philippines in conformity with the provisions of this Act shall not thereafter be liable to any person for the
same and any action which may be brought by any person against in any bank, building and loan association, or
trust corporation for unclaimed balances so deposited with the Treasurer of the Philippines shall be defended by the
Solicitor General without cost to such bank, building and loan association or trust corporation.
RULE ON ESCHEAT OF UNCLAIMED BALANCES

‣ RULE: UNCLAIMED BALANCES WITH BANKS IN FAVOUR OF ANY PERSON UNHEARD FROM FOR A PERIOD 10 YEARS OR
MORE SHALL BE DEPOSITED WITH THE GOVERNMENT
‣ Unclaimed balances include credits or deposits of money, bullion, security, or other evidence of indebtedness of any kind,
and interest thereon.
‣ Escheat is not to penalize depositors for failing to deposit or withdraw from their accounts. It is a proceeding whereby the
state compels the surrender to it of unclaimed deposit balances when there is substantial ground for a belief that they have
been abandoned, forgotten, or without an owner (RCBC vs Hi-Tri Dev’t Corp. 2012)
‣ In case the bank complies with the provisions of the law and the unclaimed balances are eventually escheated to the
Republic, the bank is not liable to any person and any action brought by any person against the bank for unclaimed
balances so deposited shall be defended by the Solicitor General without cost to such bank.
PROCEDURE FOR ESCHEAT OF UNCLAIMED BALANCES

1. SWORN STATEMENT CONTAINING LIST OF UNCLAIMED BALANCES TO BE FILED BY BANKS AND OTHER SIMILAR INSTITUTIONS
‣ Act. No. 3936, as amended, outlines the proper procedure to be followed by banks and other similar institutions in filing a
sworn statement with the treasurer concerning format accounts.
‣ Sec. 2 sets a detailed system for notifying depositors of unclaimed balance. This notification is meant to inform them that
their deposit could be escheated if left unclaimed
‣ Accordingly, before filing a sworn statement, banks and other similar institutions are under obligation to communicate with
owners of format accounts.
‣ The purpose of this initial notice is for a bank to determine whether an inactive account has indeed been unclaimed,
abandoned, forgotten or left without an owner.
‣ If the depositor simply does not wish to touch the funds in the meantime, but still asserts ownership and dominion over
the dormant account, then the bank is no longer obligated to included the account in its sworn statement.
‣ It is not the intent of the law to force depositors into unnecessary litigation and defense of their rights, as the state is only
interested in escheating balances that have been abandoned and left without an owner.
2. SOLICITOR-GENERAL FILES A PETITION FOR ESCHEAT IN THE PROVINCE WHERE THE BANK IS LOCATED, IN WHICH IT SHALL
JOIN AS PARTIES THE BANK AND SUCH CREDITORS OR DEPOSITORS
‣ An action to recover unclaimed balances shall be commenced by the Solicitor-General in an action for escheat in the name
of the People of the Philippines in the RTC of the province where the bank is located, in which it shall be joined as parties
the bank and the creditors or depositors
‣ The bank is a real party in interest, as it stands to be injured by the suit. As the escheat proceedings would necessarily
deprive it with the use of such deposits. (Republic vs CFI of Manila 1988)
‣ Multiple actions are allowed. The phrase of “or actions” in Sec. 3 of Act no. 3936 is very significant as it manifests
awareness on the part of the legislators that a single action to cover all banks wherever located in the Philippines would not
be legally feasible in view of the venue prescribed for such action under the same section
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OVERVIEW: GENERAL GUARDIANS AND GUARDIANSHIP
DEFINITION OF GUARDIANSHIP
‣ Guardianship is a trust relation in which one person called a “guardian” acts for another called a “ward” whom the law regards
as incapable of managing his own affairs.
‣ A guardianship is designed to further the ward’s well-being, not that of the guardian. It is intended to preserve the ward’s
property, as well as to render ant assistance that the word may personally require.
‣ In particular, a guardian is a person in whom the law has entrusted the custody and control of the person or estate or both, of
an infant, insnare, or other person incapable of managing his own affairs.
‣ While custody involves immediate care and control, guardianship indicates not only those responsibilities, but those in loco
parentis as well.
BASIS OF GUARDIANSHIP
‣ Where minors are involved, the State acts as parens patriae. It is the duty of protecting the rights of persons or individuals who
because of age or incapability are in an unfavourable position vis-a-vis other parties.
PURPOSE AND NATURE OF GUARDIANSHIP

‣ A guardian is appointed to safeguard there rights and interests of minors and incompetent persons such that Courts should be
vigilant to see that there rights of such persons are properly protected.
‣ A guardianship is designed to further the ward’s well-being, not that of the guardian. It is intended to preserve the ward’s
property, as well as to render any assistance that the ward may personally require.
‣ It has been stated that while custody involves immediate care and control, guardianship indicates not only those
responsibilities, but those of one in loco parentis as well.
REMOVAL OF INCOMPETENT GUARDIANS

‣ A guardian is or becomes incompetent to serve the trust if he is so disqualified by mental incapacity, conviction of crime, moral
delinquency or physical disability as to be prevented from properly discharging the duties of his office
‣ A guardian, once appointed may be removed in case he becomes insane or otherwise incapable of discharging his trust or
unsuitable therefor, or has wasted or mismanaged the estate, or failed for 30 days after it is due to render an account or make
a return
FACTORS IN SELECTING GUARDIAN

‣ Having in mind that guardianship proceeding is instituted for the benefit and welfare o the ward, the selection of a guardian
must, therefore, suits this very purpose.
‣ Thus, in determining the selection of a guardian, the court may consider the financial situation, the physical condition, the
sound judgment, prudence and trustworthiness, the morals, character and conduct, and the present and past history of a
prospective appointee, as well as the probability of his, being able to exercise the powers and duties of a guardian for the full
period during which guardianship will be necessary.
RULE ON GUARDIANSHIP OF MINORS; IN RELATION TO RULE 92-97
RULES ON GUARDIANSHIP OF MINORS

Sec. 27. Effect of the rule. – This Rule amends Rules 92 to 97 inclusive of the Rules of Court on guardianship of
minors. Guardianship of incompetents who are not minors shall continue to be under the jurisdiction of the regular
courts and governed by the Rules of Court.
‣ Guardianship of minors as distinguished from “incompetents” other than minority is now governed by A.M. No. 03-03-05 SC, or
the Rule on Guardianship of Minors, which took effect on May 1, 2003.
‣ This was promulgated by the Supreme court which vested in the Family Courts exclusive jurisdiction over guardianship of
minors
‣ Sections 1 and 27 of the Rule on Guardianship of Minors make it clear that it shall apply only to petitions for guardianship over
the person, property, or both, of a minor.
‣ Petitions for guardianship of incompetents who are not minors shall continue to governed by Rule 92-97 and heard and tried by
RTCs.
‣ Thus, Rules 92-97 may therefore be deemed modified by the Rule on Guardianship of Minors
DETERMINATION OF WHICH RULES SHALL APPLY

‣ RULE: RULE ON GUARDIANSHIP OF MINORS APPLIES TO MINORS REFERS TO PERSONS BELOW 18 YEARS OF AGE. ON THE
OTHER HAND, RULE 92-97 GOVERN GUARDIANSHIP OVER INCOMPETENTS, WHICH INCLUDE THE FOLLOWING PERSONS:
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1. Persons suffering under the penalty of civil interdiction
2. Hospitalized lepers
3. Prodigals
4. Deaf and dumb who are unable to read and write
5. Those of unsound mind, even though they have lucid intervals
6. Persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without
outside aid, take care of themselves and manage their property
KINDS OF GUARDIANS
1. LEGAL GUARDIAN
‣ Is such by provision of law without the need for judicial appointment
‣ For instance, parents are the legal guardians over the persons of their minor children or in respect of their minor children’s
property where the value does not exceed P50,000
‣ When the property of the child under parental authority is worth P50,000 or less, the father or mother, without the necessity
of a court appointment shall be his legal guardian. But if the property of the child is worth more than P50,000, the father
and mother shall be considered the guardian of the child’s property, with the duties and obligations of guardians under the
Rules, but they are required to file a petition as required in the Rules on Guardianship of Minors, and furnish a bond as the
court may determine, but in no case less than 10% of the value of the property, or annual income, to guarantee the
performance of the obligations prescribed for general guardians. (Sec. 16, Rules on Guardianship of Minors)
2. GUARDIAN AD LITEM
‣ Is a competent person appointed by the court for purposes of a particular action or proceeding involving a minor.
‣ In resolving whether to appoint a guardian ad litem for the respondent, the appellate court needed only to determine
whether the individual for whom a guardian was proposed was so incapable of handling personal and financial affairs as to
warrant the need for the appointment of a temporary guardian. It only needed to make a find that, based on clear and
convincing evidence, the respondent is incompetent and that it is more like that not that his welfare requires the immediate
appointment of a temporary guardian. A finding that the person for whom a guardian ad litem is proposed is incapable of
managing his own personal and financial affairs by reason of his mental illness is enough (Rivera vs CA 2005)
‣ Guardians ad litem are considered officers of the court in a limited sense, and the office of such guardian is to represent
the interest of the incompetent or the minor. Whether or not to appoint a guardian ad litem for the petitioners is addressed
to the sound discretion of the court where the petition was filed, taking into account the best interest of the incompetent or
the minor. (Rivera vs CA 2005)
3. JUDICIAL GUARDIAN
‣ Is a person appointed but the court for the person, property, or both of the ward to represent the latter in all acts and
litigations
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RULE 92: VENUE (OF GUARDIANSHIP PROCEEDINGS)
Note that Rules 92-97 have been amended by the Rules on Guardianship of Minors as far as minors are concerned, thus it applies
only to incompetents
WHO ARE INCOMPETENT?
Section 2. Meaning of word "incompetent." — Under this rule, the word "incompetent" includes persons suffering the
penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and
write, those who are of unsound mind, even though they have lucid intervals, and persons not being of unsound
mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of
themselves and manage their property, becoming thereby an easy prey for deceit and exploitation.
‣ The word "incompetent" includes:

1. Persons suffering the penalty of civil interdiction
3. Prodigals
5. Those who are of unsound mind, even though they have lucid intervals
6. Persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without
outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation
‣ A finding that a person is incompetent should be anchored on clear, positive and definite evidence.
‣ Where the sanity of a person is at issue, expert opinion is not necessary, such observations of the trial judge coupled with the
evidence establishing the person’s state of mind will suffice (Oropesa vs Oropesa)
VENUE OF GUARDIANSHIP PROCEEDINGS
Section 1. Where to institute proceedings. — Guardianship of a person or estate of a minor or incompetent may be
instituted in the Court of First Instance of the province, or in the justice of the peace court of the municipality, or in
the municipal court chartered city where the minor or incompetent persons resides, and if he resides in a foreign
country, in the Court of First Instance of the province wherein his property or the party thereof is situated; provided,
however, that where the value of the property of such minor or incompetent exceeds that jurisdiction of the justice of
the peace or municipal court, the proceedings shall be instituted in the Court of First Instance.
In the City of Manila the proceedings shall be instituted in the Juvenile and Domestic Relations Court.
Section 3. Transfer of venue. — The court taking cognizance of a guardianship proceeding, may transfer the same to
the court of another province or municipality wherein the ward has acquired real property, if he has transferred
thereto his bona-fide residence, and the latter court shall have full jurisdiction to continue the proceedings, without
requiring payment of additional court fees.
VENUE OF GUARDIANSHIP PROCEEDINGS UNDER THE RULES OF COURT

1. WARD IS RESIDENT
‣ The proceedings should be filed in the proper court of the province where such ward resides
2. WARD IS NON-RESIDENT
‣ The proceedings should be filed in the proper court of the province where such ward’s properties or part thereof are
situated
‣ Note also that the court taking cognizance of a guardianship proceeding, may transfer the same to the court of another
province or municipality wherein the ward has acquired real property, if he has transferred thereto his bona-fide residence
PROPER COURT
1. Guardianship over the person or both: RTC
2. Guardianship over the property only: MTC or RTC depending on the value of the property involved
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RULE 93: APPOINTMENT OF GUARDIANS
WHO MAY FILE A PETITION FOR APPOINTMENT OF GUARDIAN FOR RESIDENT INCOMPETENT
Section 1. Who may petition for appointment of guardian for resident. — Any relative, friend, or other person on
behalf of a resident minor or incompetent who has no parent or lawful guardian, or the minor himself if fourteen
years of age or over, may petition the court having jurisdiction for the appointment of a general guardian for the
person or estate, or both, of such minor or incompetent. An officer of the Federal Administration of the United States
in the Philippines may also file a petition in favor of a ward thereof, and the Director of Health, in favor of an insane
person who should be hospitalized, or in favor of an isolated leper.
‣ The following persons may file the petition:

1. Relative
2. Friend
3. Other person on behalf of the incompetent who has no parent or lawful guardian
4. Director of Health in favour of an insane person who should be hospitalised or in favour of an isolated leper
‣ The rules reasonably assume that the people who best could help the trial court settle such issues would be those who are
closes to and most familiar with the supposed incompetent
CONTENTS OF PETITION FOR APPOINTMENT OF GUARDIAN
Section 2. Contents of petition. — A petition for the appointment of a general guardian must show, so far as known to
the petitioner:
(a) The jurisdiction facts;
(b) The minority or incompetency rendering the appointment necessary or convenient;
(c) The names, ages, and residence of the relatives of the minor or incompetent, and of the person having him in their
care;
(d) The probable value and character of his estate;
(e) The name of the person for whom letters of guardianship.
The petition shall be verified; but no defect in the petition or verification shall render void the issuance of letters of
guardianship.
‣ The jurisdictional facts are:

1. The incompetency of the person for whom guardianship is sought
2. That the ward is domiciled in the Philippines
PROCEDURE AFTER THE FILING OF PETITION FOR APPOINTMENT OF GUARDIAN OF RESIDENT

INCOMPETENT
Section 3. Court to set time for hearing. Notice thereof. — When a petition for the appointment of a general guardian
is filed, the court shall fix a time and place for hearing the same, and shall cause reasonable notice thereof to be
given to the persons mentioned in the petition residing in the province, including the minor if above 14 years of age
or the incompetent himself, and may direct other general or special notice thereof to be given.
Section 4. Opposition to petition. — Any interested person may, by filing a written opposition, contest the petition on
the ground of majority of the alleged minor, competency of the alleged incompetent, or the insuitability of the person
for whom letters are prayed, and may pray that the petition be dismissed, or that letters of guardianship issue to
himself, or to any suitable person named in the opposition.
Section 5. Hearing and order for letters to issue. — At the hearing of the petition the alleged in competent must be
present if able to attend, and it must be shown that the required notice has been given. Thereupon the courts shall
hear the evidence of the parties in support of their respective allegations, and, if the person in question is a minor, or
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incompetent it shall be appoint a suitable guardian of his person or estate, or both, with the powers and duties
hereinafter specified.
Section 8. Service of judgment. — Final orders or judgments under this rule shall be served upon the civil registrar of
the municipality or city where the minor or incompetent person resides or where his property or part thereof is
situated.
1. COURT SETS A HEARING

‣ When a petition for the appointment of a general guardian is filed, the court shall fix a time and place for hearing the same
2. NOTICE TO PERSONS MENTIONED IN THE PETITION RESIDING IN THE PROVINCE, INCLUDING THE INCOMPETENT HIMSELF,
‣ The court will also cause reasonable notice thereof to be given to the persons mentioned in the petition residing in the
province, including the incompetent himself, and may direct other general or special notice thereof to be given.
‣ Notice of hearing must be serve on the persons mentioned in the petition who are residing in the Philippines and the
incompetent himself for the court to acquire jurisdiction
‣ Service of notice upon the incompetent is jurisdictional. Without such notice, the court acquires no jurisdiction to
appoint a guardian
‣ Note that unlike in other types of special proceedings, publication is not required in a petition for appointment of guardians.
‣ The rules also do not necessitate that creditors of the minor or incompetent be identified and notified.
‣ The reason is simple, because their presence is not essential to the proceedings for appointment of guardian. They will
only insists that the supposed incompetent is actually capacitated to enter into contracts, so as to preserve the validity
of said contracts and keep the supposed incompetent obligated to comply therewith (Alamayri vs Pabale 2008)
3. WRITTEN OPPOSITION MAY BE FILED
‣ Any interested person may, by filing a written opposition, contest the petition on the grounds of:
a. Competency of the alleged incompetent, or
b. Insuitability of the person for whom letters are prayed
‣ The opponent may pray that the:
a. Petition be dismissed, or
b. Letters of guardianship issue to himself, or to any suitable person named in the opposition.
4. ACTUAL HEARING
‣ At the hearing of the petition:
a. The alleged incompetent must be present if able to attend, and
b. It must be shown that the required notice has been given.
‣ Thereupon the courts shall hear the evidence of the parties in support of their respective allegations
‣ The objectives of an RTC is to determine first, whether a person is indeed a minor or an incompetent who has no capacity
to care for himself and/or his properties, and second, who is most qualified to be appointed as his guardian.
5. ISSUANCE OF LETTERS OF GUARDIANSHIP
‣ If the court finds that the person in question is incompetent it shall appoint a suitable guardian of his person or estate, or
both
6. ANNOTATION OF JUDGMENT OR ORDER
‣ Final orders or judgments under this rule shall be served upon the civil registrar of the municipality or city where the minor
or incompetent person resides or where his property or part thereof is situated. (Sec. 8)
ISSUANCE OF LETTERS OF GUARDIANSHIP DURING PENDENCY OF APPEAL

‣ The property of execution pending appeal in appointed respondent as guardian to succeed petitioner while the latter’s appeal
was still pending is proper. Upon urgent and compelling reasons, execution pending appeal is a matter of sound discretion
on the part of the trial court. Inasmuch as the primary objective for the institution of guardianship is for the protection of the
ward, there is more than sufficient reason for the immediate execution of the lower court’s judgment for the replacement of the
first guardian. (Francisco vs CA 1984)
PETITION FOR APPOINTMENT OF GUARDIAN FOR NON-RESIDENT INCOMPETENT
Section 6. When and how guardian for non-resident appointed. Notice. — When a person liable to be put under
guardianship resides without the Philippines but the estate therein, any relative or friend of such person, or any one
interested in his estate, in expectancy or otherwise, may petition a court having jurisdiction for the appointment of a
guardian for the estate, and if, after notice given to such person and in such manner as the court deems proper, by
publication or otherwise, and hearing, the court is satisfied that such non-resident is a minor or incompetent
rendering a guardian necessary or convenient, it may appoint a guardian for such estate. 
CLARENCE TIU
RULE 94: BONDS OF GUARDIANS
Section 1. Bond to be given before issuance of letters. Amount. Condition. — Before a guardian appointed enters
upon the execution of his trust, or letters of guardianship 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 three (3) months, a true and complete inventory of all the estate, real and
personal, of his ward which shall come to his possession or knowledge of any other person for him;
(b) To faithfully execute the duties of his trust, to manage and dispose of the estate according to these rules for the
best interests of the ward, and to provide for the proper care, custody, and education of the ward;
(c) To render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived
therefrom, and of the management and disposition of the same, at the time designated by these rules and such
other times as the courts directs, and at the expiration of his trust to settle his accounts with the court and deliver
and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to
the person lawfully entitled thereto;
(d) To perform all orders of the court by him to be performed.
Section 2. When new bond may be required and old sureties discharged. — Whenever it is deemed necessary, the
court may require a new bond to be given by the guardian, and may discharge the sureties on the old bond from
further liability, after due notice to interested persons, when no injury can result therefrom to those interested in the
estate.
Section 3. Bonds to be filed. Actions thereon. — Every bond given by a guardian shall be filed in the office of the
clerk of the court, and, in case of the breach of a condition thereof, may be prosecuted in the same proceeding or in
a separate action for the use and benefit of the ward or of any other person legally interested in the estate.
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RULE 95: SELLING AND ENCUMBERING PROPERTY OF THE WARD
Section 1. Petition of guardian for leave to sell or encumber estate. — When the income of the estate under
guardianship is insufficient to maintain the ward and his family, or to maintain and educate the ward when a minor, or
when it appears that it is for the benefit of the ward that his real estate or some part thereof be sold, or mortgaged or
otherwise encumbered, and the proceeds thereof put out at interest, or invested in some productive security, or in
the improvement or security or other real estate of the ward, the guardian may present a verified petition to the court
by which he was appointed setting forth such facts, and praying that an order issue authorizing the sale or
encumbrance.
Section 2. Order to show cause thereupon. — If it seems probable that such sale or encumbrance is necessary, or
would be beneficial to the ward, the court shall make an order directing the next of kin of the ward, and all persons
interested in the estate, to appear at a reasonable time and place therein specified to show cause why the prayer of
the petition should not be granted.
Section 3. Hearing on return of order. Costs. — At the time and place designated in the order to show cause, the
court shall hear the proofs and allegations of the petitioner and next of kin, and other persons interested, together
with their witnesses, and grant and refuse the prayer of the petition as the best interest of the ward require. The court
shall make such order as to cost of the hearing as may be just.
Section 4. Contents of order for sale or encumbrance, and how long effective. Bond. — If, after full examination, it
appears that it is necessary, or would be beneficial to the ward, to sell or encumber the estate, or some portion of it,
the court shall order such sale or encumbrance and that the proceeds thereof be expended for the maintenance of
the ward and his family, or the education of the ward, if a minor, or for the putting of the same interest, or the
investment of the same as the circumstances may require. The order shall specify the causes why the sale or
encumbrance is necessary or beneficial, and may direct that estate ordered sold be disposed of at either public or
private sale, subject to such conditions as to the time and manner of payment, and security where a part of the
payment is deferred as in the discretion of the court are deemed most beneficial to the ward. The original bond of the
guardian shall stand as security for the proper appropriation of the proceeds of the sale, but the judge may, if
deemed expedient, require an additional bond as a condition for the granting of the order of sale. No order of sale
granted in pursuance of this section shall continue in force more than one (1) year after granting the same, without a
sale being had.
Section 5. Court may order investment of proceeds and direct management of estate. — The court may authorize and
require the guardian to invest the proceeds of sales or encumbrances, and any other of his ward's money in his
hands, in real estate or otherwise, as shall be for the best interest of all concerned, and may make such other orders
for the management, investment, and disposition of the estate and effects, as circumstances may require.
CLARENCE TIU
RULE 96: GENERAL POWERS AND DUTIES OF GUARDIANS
Section 1. To what guardianship shall extend. — A guardian appointed shall have the care and custody of the person
of his ward, and the management of his estate, or the manangement of the estate only, as the case may be. The
guardian of the estate of a non-resident shall have the management of all the estate of the ward within the
Philippines, and no court other than that in which such guardian was appointed shall have jurisdiction over the
guardianship.
Section 2. Guardian to pay debts of ward. — Every guardian must pay the ward's just debts out of his personal estate
and the income of his real estate, if sufficient; if not, then out of his real estate upon obtaining an order for the sale
or encumbrance thereof.
Section 3. Guardian to settle accounts, collect debts, and appear in actions for ward. — A guardian must settle all
accounts of his ward, and demand, sue for, and receive all debts due him, or may, with the approval of the court,
compound for the same and give discharges to the debtor, on receiving a fair and just dividend of the estate and
effects; and he shall appear for and represent his ward in all actions and special proceedings, unless another person
be appointed for that purpose.
Section 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. — A guardian must manage
the estate of his ward frugally and without the waste, and apply the income and profits thereof, so far as may be
necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and ifsuch income
and profits be insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized
by order so to do, and apply to such of the proceeds as may be necessary to such maintenance.
Section 5. Guardian may be authorized to join in partition proceedings after hearing. — The court may authorized the
guardian to join in an assent to a partition of real or personal estate held by the ward jointly or in common with
others, but such authority shall only be granted after hearing, upon such notice to relatives of the ward as the court
may direct, and a careful investigation as to the necessity and propriety of the proposed action.
Section 6. Proceedings when the person suspected of embezzling or concealing property of ward. — Upon complaint
of the guardian or ward, or of any person having actual or prospective interest in the estate of the ward as creditor,
heir, or otherwise, that anyone is suspected of having embezzled, concealed, or conveyed away any money, goods, or
interest, or a written instrument, belonging to the ward or his estate, the court may cite the suspected person to
appear for examination touching such money, goods, interest, or instrument, and make such orders as will secure the
estate against such embezzlement, concealment or conveyance.
Section 7. Inventories and accounts of guardians, and appraisement of estates. — A guardian must render to the
court an inventory of the estate of his ward within three (3) months after his appointment, and annually after such
appointment an inventory and account, the rendition of any of which may be compelled upon the application of an
interested person. Such inventories and accounts shall be sworn to by the guardian. All the estate of the ward
described in the first inventory shall be appraised. In the appraisement the court may request the assistance of one
or more of the inheritance tax appraisers. And whenever any property of the ward not included in an inventory
already rendered is discovered, or suceeded to, or acquired by the ward, like proceedings shall be had for securing
an inventory and appraisement thereof within three (3) months after such discovery, succession, or acquisition.
Section 8. When guardian's accounts presented for settlement. Expenses and compensation allowed. — Upon the
expiration of a year from the time of his appointment, and as often thereafter as may be required, a guardian must
present his account to the court for settlement and allowance. In the settlement of the account, the guardian, other
than a parent, shall be allowed the amount of his reasonable expenses incurred in the execution of his trust and also
such compensation for his services as the court deems just, not exceeding fifteen per centum of the net income of
the ward.
CLARENCE TIU
RULE 97: TERMINATION OF GUARDIANSHIP
PETITION FOR DECLARATION OF COMPETENCY
Section 1. Petition that competency of ward be adjudged, and proceedings thereupon. — A person who has been
declared incompetent for any reason, or his guardian, relative, or friend, may petition the court to have his present
competency judicially determined. The petition shall be verified by oath, and shall state that such person is then
competent. Upon receiving the petition, the court shall fix a time for hearing the questions raised thereby, and cause
reasonable notice thereof to be given to the guardian of the person so declared incompetent, and to the ward. On the
trial, the guardian or relatives of the ward, and, in the discretion of the court, any other person, may contest the right
to the relief demanded, and witnesses may be called and examined by the parties or by the court on its own motion. If
it be found that the person is no longer incompetent, his competency shall be adjudged and the guardianship shall
cease.
‣ The guardian or the ward need not institute another proceeding for the declaration of the ward’s competency. The petition for
such declaration is merely a continuation of the guardianship proceedings
GROUNDS FOR REMOVAL OR RESIGNATION OF GUARDIANS
Section 2. When the guardian removed or allowed to resign. New appointment. — When a guardian becomes insane
or otherwise incapable of discharging his trust or unsuitable therefor, or has wasted or mismanaged the estate, or
failed for thirty (30) days after it is due to render an account or make a return, the court may, upon reasonable notice
to the guardian, remove him, and compel him to surrender the estate of the ward to the person found to be lawfully
entitled thereto. A guardian may resign when it appears proper to allow the same; and upon his resignation or
removal the court may appoint another in his place.
Section 3. Other termination of guardianship. — The marriage or voluntary emancipation of a minor ward terminates
the guardianship of the person of the ward, and shall enable the minor to administer his property as though he were
of age, but he cannot borrow the money or alienate or encumber real property without the consent of his father or
mother, or guardian. He can sue and be sued in court only with the assistance of his father, mother or guardian. The
guardian of any person may be discharged by the court when it appears, upon the application of the ward or
otherwise, that the guardianship is no longer necessary.
GROUNDS FOR REMOVAL OR RESIGNATION OF GUARDIANS:

1. Guardian becomes insane or otherwise incapable of discharging his trust or unsuitable therefor
2. The guardianship has wasted or mismanaged the estate
3. The guard failed for 30 days after it is due to render an account or make a return
4. Ward has been determine to be competent by the guardianship court
5. Guardianship is no longer necessary
Section 4. Record to be kept by the justice of the peace or municipal judge. — When a justice of the peace or
municipal court takes cognizance of the proceedings in pursuance of the provisions of these rules, the record of the
proceedings shall be kept as in the Court of First Instance.
Section 5. Service of judgment. — Final orders of judgments under this rule shall be served upon the civil registrar of
the municipality or city where the minor or incompetent person resides or where his property or part thereof is
situated.
JURISPRUDENCE
MARTINEZ V. MARTINEZ, 1 PHIL. 182, G.R. NO. 445 (1902)

‣ The acts which constitute prodigality are not defined in the Civil Code owing to the difficulty of applying general rules to the
varying circumstances of the case and the different situations of persons.
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‣ The declaration of prodigality must be made in an ordinary action. The proceedings must be instituted by the consort or the
forced heirs.
‣ Under our law it may be inferred that the acts of prodigality must show a morbid state of mind and a disposition to spend,
waste, and lessen the estate to such an extent as is likely to expose the family to want of support, or to deprive the forced heirs
of their undisposable part of the estate.
‣ Prodigality means not less rich, but state of want
‣ In this case, the testimony on the part of the plaintiff was wholly insufficient to support the allegations of his complaint. It was
vague, indefinite, and of an inconclusive nature. There is no evidence offered to show any transfers by sale or mortgage of
these properties. There is no proof that there was any money belonging to the estate, or other personal property, the transfer of
which could not be easily traced.
‣ While some of the witnesses state that the possessions of the wife have greatly increased since her marriage, there is no
evidence whatever to show that there has been any perceptible diminution of the defendant's property. This can be
accounted for only on the grounds that the father, so far from being a prodigal, is still in the full exercise of his faculties and
still possesses the industry, thrift, and ability that resulted in the accumulation of a splendid estate after the date of his
marriage with the mother of the plaintiff, to one-half of which estate the plaintiff has succeeded as heir of the mother.
STEGNER AND PHIL. TRUST CO. V. STEGNER, 102 PHIL 131

‣ Guardianship vs Trust
‣ PhilTrust was appointed as guardian over the properties of the minors. Having assumed office as "guardian" of the
properties of the wards, the company should be governed, in the management of the funds of said minors, by the
provisions of the Rules of Court on guardianship and not by the rules on trust corporations under the Corporation Law.
‣ Requirement of Authority from the Court before Investment of Estate Property
‣ Although the authority referred to in this Section may not have been secured prior to the investment of the properties of
funds of the ward, yet the Court believe that the court's approval of the annual inventories and accounts submitted by the
guardian, with the conformity and/or acquiescence of the U. S. Veterans Administration and the mother of the minors,
wherein the questioned investment was mentioned and accounted for, amounts to a ratification of the acts of the guardian
and compliance with the provisions of section 5, Rule 96 aforecited.
IN RE: GUARDIANSHIP OF LUIS RIBAYA, CARBONELL V. VDA DE RIBAYA; 74 PHIL 254

‣ The fact of conflict of interests between the guardian and the minor as heirs of the deceased alone is a sufficient ground for
removing and substituting the said guardian.
‣ This fact alone, independently of the five grounds specified by the trial court in its order substituting the appellant as
guardian of the property of the minor, suggests the property and advisability of relieving appellant as such guardian.
CLARENCE TIU
RULE ON GUARDIANSHIP OF MINORS (A.M. NO. 03-02-05)
APPLICABILITY OF THE RULES ON GUARDIANSHIP OF MINORS
Section 1. Applicability of the Rule. – This Rule shall apply to petitions for guardianship over the person or property,
or both, of a minor.
The father and the mother shall jointly exercise legal guardianship over the person and property of their
unemancipated common child without the necessity of a court appointment. In such case, this Rule shall be
suppletory to the provisions of the Family Code on guardianship. cralaw
WHO MAY FILE A PETITION FOR GUARDIANSHIP OF MINORS
Sec. 2. Who may petition for appointment of guardian. – On grounds authorized by law, any relative or other person
on behalf of a minor, or the minor himself if fourteen years of age or over, may petition the Family Court for the
appointment of a general guardian over the person or property, or both, of such minor. The petition may also be filed
by the Secretary of Social Welfare and Development and by the Secretary of Health in the case of an insane minor
who needs to be hospitalized.
‣ Only the following persons may file a petition for the appointment of guardian of a minor:
1. Relative
2. Other person on behalf of the minor
3. Minor himself if 14 years of age or over
4. Secretary of Social Welfare and Development and by the Secretary of Health in the case of an insane minor who needs to
be hospitalized.
‣ The petition may be for the appointment of a general guardian over the:
1. Person
2. Property
3. Both of such minor
WHERE TO FILE PETITION
Sec. 3. Where to file petition. – A petition for guardianship over the person or property, or both, of a minor may be
filed in the Family Court of the province or city where the minor actually resides. If he resides in a foreign country,
the petition shall be flied with the Family Court of the province or city where his property or any part thereof is
situated.
GROUNDS OF PETITION
Sec. 4. Grounds of petition. - The grounds for the appointment of a guardian over the person or property, or both, of a
minor are the following:
(a) death, continued absence, or incapacity of his parents;
(b) suspension, deprivation or termination of parental authority;
(c) remarriage of his surviving parent, if the latter Is found unsuitable to exercise parental authority; or
(d) when the best interests of the minor so require.
CONTENTS OF THE PETITION
Sec. 7. Contents of petition. – A petition for the appointment of a general guardian must allege the following:
(b) The name, age and residence of the prospective ward;
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(c) The ground rendering the appointment necessary or convenient;
(d) The death of the parents of the minor or the termination, deprivation or suspension of their parental authority;
(e) The remarriage of the minor’s surviving parent;
(f) The names, ages, and residences of relatives within the 4th civil degree of the minor, and of persons having him
in their care and custody;
(g) The probable value, character and location of the property of the minor; and
(h) The name, age and residence of the person for whom letters of guardianship
are prayed.
The petition shall be verified and accompanied by a certification against forum shopping. However, no defect in the
petition or verification shall render void the issuance of letters of guardianship.
QUALIFICATIONS OF GUARDIANS
Sec. 5. Qualifications of guardians. – In appointing a guardian, the court shall

consider the guardian’s:
(a) moral character;
(b) physical, mental and psychological condition;
(c) financial status;
(d) relationship of trust with the minor;
(e) availability to exercise the powers and duties of a guardian for the full period of the guardianship;
(f) lack of conflict of interest with the minor; and
(g) ability to manage the property of the minor.
‣ Note that the Supreme Court has held that courts should not appoint persons as guardians who are not within the jurisdiction of
our courts for they will find it difficult to protect the wards. Courts should appoint residents only (Vancil vs Belmes 2001)
ORDER OF PREFERENCE IN THE APPOINTMENT OF GUARDIAN
Sec. 6. Who may be appointed guardian of the person or property, or both, of a minor. – In default of parents or a
court-appointed guardian, the court may appoint a guardian of the person or property, or both, of a minor, observing
as far as practicable, the following order of preference:
(a) the surviving grandparent and In case several grandparents survive, the court shall select any of them taking Into
account all relevant considerations;
(b) the oldest brother or sister of the minor over twenty-one years of age, unless unfit or disqualified;
(c) the actual custodian of the minor over twenty-one years of age, unless unfit or disqualified; and
(d) any other person, who in the sound discretion of the court, would serve the best interests of the minor.
‣ Courts are directed to observe the order of preference only as far as practicable, pursuant to the principle that in the selection
of a guardian, the best interest of the minor is the primary consideration
PROCEDURE AFTER THE FILING OF PETITION FOR APPOINTMENT OF GUARDIAN OF RESIDENT MINORS
Sec. 8. Time and notice of hearing. – When a petition for the appointment of a general guardian is filed, the court
shall fix a time and place for its hearing, and shall cause reasonable notice to be given to the persons mentioned in
the petition, including the minor if he is fourteen years of age or over, and may direct other general or special notice
to be given.
Sec. 9. Case study report. – The court shall order a social worker to conduct a case study of the minor and all the
prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled
hearing. The social worker may intervene on behalf of the minor if he finds that the petition for guardianship should
be denied.
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Sec. 10. Opposition to petition. – Any interested person may contest the petition by filing a written opposition based
on such grounds as the majority of the minor or the unsuitability of the person for whom letters are prayed, and pray
that the petition be denied, or that letters of guardianship issue to himself, or to any suitable person named in the
opposition. 
Sec. 11. Hearing and order for letters to issue. – At the hearing of the petition, it must be shown that the requirement
of notice has been complied with. The prospective ward shall be presented to the court. The court shall hear the
evidence of the parties in support of their respective allegations. If warranted, the court shall appoint a suitable
guardian of the person or property, or both, of the minor.
At the discretion of the court, the hearing on guardianship may be closed to the public and the records of the case
shall not be released without its approval.
Sec. 13. Service of final and executory judgment or order. – The final and executory judgment or order shall be
served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of
the place where his property or part thereof is situated shall annotate the same in the corresponding title, and report
to the court his compliance within fifteen days from receipt of the order.
1. COURT SETS HEARING

‣ When a petition for the appointment of a general guardian is filed, the court shall fix a time and place for its hearing
2. SERVICE OF NOTICE TO THE PERSONS MENTIONED IN THE PETITION, INCLUDING THE MINOR IF HE IS FOURTEEN YEARS OF
AGE OR OVER
‣ The court shall also cause reasonable notice to be given to the persons mentioned in the petition, including the minor if he
is fourteen years of age or over, and may direct other general or special notice to be given.
‣ Where the minor is at least 14 years old, service of notice upon such minor is jurisdictional, without which the court does
not acquire jurisdiction over the petition
3. CASE STUDY REPORT
‣ The court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his
report and recommendation to the court for its guidance before the scheduled hearing.
‣ The social worker may intervene on behalf of the minor if he finds that the petition for guardianship should be denied.
4. WRITTEN OPPOSITIONS MAY BE FILED
‣ Any interested person may contest the petition by filing a written opposition based on:
a. Majority of the minor
b. Unsuitability of the person for whom letters are prayed
‣ The opponent may pray:
a. That the petition be denied, or
b. That letters of guardianship issue to himself, or to any suitable person named in the opposition
5. ACTUAL HEARING
‣ At the hearing of the petition:
a. It must be shown that the requirement of notice has been complied with.
b. The prospective ward shall be presented to the court.
‣ The court shall then hear the evidence of the parties in support of their respective allegations.
‣ At the discretion of the court, the hearing on guardianship may be closed to the public and the records of the case shall not
be released without its approval
6. ISSUANCE OF LETTERS OF GUARDIANSHIP
‣ If the petition is warranted, the court shall appoint a suitable guardian of the person or property, or both, of the minor.
7. ANNOTATION OF JUDGMENT OR ORDER
‣ The final and executory judgment or order shall be served upon the Local Civil Registrar of the municipality or city where
the minor resides and the Register of Deeds of the place where his property or part thereof is situated shall annotate the
same in the corresponding title, and report to the court his compliance within fifteen days from receipt of the order.
‣ This wills serve as notice to third parties dealing with the property of the existence of the guardianship and the limited
authority of the guardian.
APPOINTMENT OF GUARDIAN FOR NON-RESIDENT MINORS; PROCEDURE
Sec. 12. When and how a guardian of the property for non-resident minor is appointed; notice. – When the minor
resides outside the Philippines but has property in the Philippines, any relative or friend of such minor, or any one
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interested in his property, in expectancy or otherwise, may petition the Family Court for the appointment of a
guardian over the property.
Notice of hearing of the petition shall be given to the minor by publication or any other means as the court may deem
proper. The court may dispense with the presence of the non-resident minor.
If after hearing the court is satisfied that such non-resident is a minor and a guardian is necessary or convenient, it
may appoint a guardian over his property.
BOND OF GUARDIAN
Sec. 14. Bond of guardian; amount; conditions. - Before he enters upon the execution of his trust, or letters of
guardianship issue, an appointed guardian may be required to post a bond in such sum as the court shall determine
and conditioned as follows:
(a) To make and return to the court, within three months after the issuance of his letters of guardianship, a true and
complete Inventory of all the property, real and personal, of his ward which shall come to his possession or
knowledge or to the possession or knowledge of any other person in his behalf;
(b) To faithfully execute the duties of his trust, to manage and dispose of the property according to this rule for the
best interests of the ward, and to provide for his proper care, custody and education;
(c) To render a true and Just account of all the property of the ward in his hands, and of all proceeds or interest
derived therefrom, and of the management and disposition of the same, at the time designated by this rule and
such other times as the court directs; and at the expiration of his trust, to settle his accounts with the court and
deliver and pay over all the property, effects, and monies remaining in his hands, or due from him on such
settlement, to the person lawfully entitled thereto; and
(d) To perform all orders of the court and such other duties as may be required by law.
Sec. 15. Where to file the bond; action thereon. – The bond posted by a guardianshall be filed in the Family Court
and, In case of breach of any of its conditions, the guardian may be prosecuted in the same proceeding for the
benefit of the ward or of any other person legally interested in the property.
Whenever necessary, the court may require the guardian to post a new bond and may discharge from further liability
the sureties on the old bond after due notice to interested persons, if no injury may result therefrom to those
interested in the property.
Sec. 16. Bond of parents as guardians of property of minor. – If the market value of the property or the annual Income
of the child exceeds P50,000.00, the parent concerned shall furnish a bond In such amount as the court may
determine, but in no case less than ten per centurn of the value of such property or annual income, to guarantee the
performance of the obligations prescribed for general guardians.
A verified petition for approval of the bond shall be flied in the Family Court of the place where the child resides or, if
the child resides in a foreign country, in the Family Court of the place where the property or any part thereof is
situated.
The petition shall be docketed as a summary special proceeding In which all incidents and issues regarding the
performance of the obligations of a general guardian shall be heard and resolved.
GENERAL DUTIES AND POWERS OF THE GUARDIAN
Sec. 17. General duties of guardian. – A guardian shall have the care and custody of the person of his ward and the
management of his property, or only the management of his property. The guardian of the property of a nonresident
minor shall have the management of all his property within the Philippines.
A guardian shall perform the following duties:
(a) To pay the just debts of the ward out of the personal property and the income of the real property of the ward, If
the same is sufficient; otherwise, out of the real property of the ward upon obtaining an order for its sale or
encumbrance;
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(b) To settle all accounts of his ward, and demand, sue for, receive all debts due him, or may, with the approval of the
court, compound for the same and give discharges to the debtor on receiving a fair and just dividend of the
property and effects; and to appear for and represent the ward in all actions and special proceedings, unless
another person is appointed for that purpose;
(c) To manage the property of the ward frugally and without waste, and apply the income and profits thereon, insofar
as may be necessary, to the comfortable and suitable maintenance of the ward; and if such income and profits be
insufficient for that purpose, to sell or encumber the real or personal property, upon being authorized by the court
to do so;
(d) To consent to a partition of real or personal property owned by the ward jointly or in common with others upon
authority granted by the court after hearing, notice to relatives of the ward, and a careful investigation as to the
necessity and propriety of the proposed action;
(e) To submit to the court a verified inventory of the property of his ward within three months after his appointment,
and annually thereafter, the rendition of which may be required upon the application of an interested person;
(f) To report to the court any property of the ward not included in the inventory which is discovered, or succeeded to,
or acquired by the ward within three months after such discovery, succession, or acquisition; and
(g) To render to the court for its approval an accounting of the property one yearfrom his appointment, and every year
thereafter or as often as may be required.
POWER AND DUTIES OF THE GUARDIANSHIP COURT
Sec. 18. Power and duty of the court – The court may:
(a) Request the assistance of one or more commissioners in the appraisal of the property of the ward reported in the
initial and subsequent inventories;
(b) Authorize reimbursement to the guardian, other than a parent, of reasonable expenses incurred in the execution
of his trust, and allow payment of compensation for his services as the court may deem just, not exceeding ten
per centum of the net income of the ward, if any; otherwise, in such amount the court determines to be a
reasonable compensation for his services; and
(c) Upon complaint of the guardian or ward, or of any person having actual or prospective interest in the property at
the ward, require any person suspected of having embezzled, concealed, or disposed of any money, goods or
interest, or a written instrument belonging to the ward or his property to appear for examination concerning any
thereof and issue such orders as would secure the property against such embezzlement, concealment or
conveyance
SALE, ENCUMBRANCE, INVESTMENT OF THE MINOR’S PROPERTY
Sec. 19. Petition to sell or encumber property. - When the income of a property under guardianship is insufficient to
maintain and educate the ward, or when it is for his benefit that his personal or real property or any part thereof be
sold, mortgaged or otherwise encumbered, and the proceeds invested in safe and productive security, or in the
improvement or security of other real property, the guardian may file a verified petition setting forth such facts, and
praying that an order issue authorizing the sale or encumbrance of the property.
Sec. 20. Order to show cause. – If the sale or encumbrance is necessary or would be beneficial to the ward, the court
shall order his next of kin and all person/s interested in the property to appear at a reasonable time and place therein
specified and show cause why the petition should not be granted.
Sec. 21. Hearing on return of order; costs. – At the time and place designated in the order to show cause, the court
shall hear the allegations and evidence of the petitioner and next of kin, and other persons interested, together with
their witnesses, and grant or deny the petition as the best interests of the ward may require.
Sec. 22. Contents of order for sale or encumbrance and its duration; bond. – If, after full examination, it is necessary,
or would be beneficial to the ward, to sell or encumber the property, or some portion of it, the court shall order such
sale or encumbrance the proceeds of which shall be expended for the maintenance or the education of the ward, or
invested as the circumstances may require. The order shall specify the grounds for the sale or encumbrance and may
direct that the property ordered sold be disposed of at public sale, subject to such conditions as to the time and
CLARENCE TIU
manner of payment, and security where a part of the payment is deferred. The original bond of the guardian shall
stand as security for the proper appropriation of the proceeds of the sale or encumbrance, but the court may, if
deemed expedient, require an additional bond as a condition for the sale or encumbrance. The authority to sell or
encumber shall not extend beyond one year, unless renewed by the court.
Sec. 23. Court may order investment of proceeds and direct management of property. – The court may authorize and
require the guardian to invest the proceeds of sales or encumbrances, and any other money of his ward in his hands,
in real or personal property, for the best interests of the ward, and may make such other orders for the management,
investment, and disposition of theproperty and effects, as circumstances may warrant.
REMOVAL OR RESIGNATION OF GUARDIAN
Sec. 24. Grounds for removal or resignation of guardian. – When a guardian becomes insane or otherwise incapable
of discharging his trust or is found thereafter to be unsuitable, or has wasted or mismanaged the property of the
ward, or has failed to render an account or make a return for thirty days after it is due, the court may, upon
reasonable notice to the guardian, remove him as such and require him to surrender the property of the ward to the
person found to be lawfully entitled thereto.
The court may allow the guardian to resign for justifiable causes.
Upon the removal or resignation of the guardian, the court shall appoint a new one
No motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of
the property of the ward and the court has approved the same.
TERMINATION OF GUARDIANSHIP
Sec. 25. Ground for termination of guardianship. – The court motu proprio or upon verified motion of any person
allowed to file a petition for guardianship may terminate the guardianship on the ground that the ward has come of
age or has died. The guardian shall notify the court of such fact within ten days of its occurrence.
Sec. 26. Service of final and executory judgment or order. – The final and executory judgment or order shall be
served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of
the province or city where his property or any part thereof is situated. Both the Local Civil Registrar and’ the Register
of Deeds shall enter the final and executory judgment or order in the appropriate books in their offices.
‣ There are only two grounds for termination of guardianship:

1. The ward has come of age (emancipation)
2. The ward has died.
CLARENCE TIU
Comparison: Guardianship of Incompetent and Minors
RULES OF COURT (RULES 92-97) RULES ON GUARDIANSHIP OF MINORS
Applicability Person, property or both of incompetent persons, who Person, property or both of minors
are:
1. Persons suffering the penalty of civil interdiction
3. Prodigals
5. Those who are of unsound mind, even though
they have lucid intervals
6. Persons not being of unsound mind, but by
reason of age, disease, weak mind, and other
similar causes, cannot, without outside aid, take
care of themselves and manage their property,
becoming thereby an easy prey for deceit and
exploitation
Who may 1. Relative 1. Relative

Petition 2. Friend 2. Other person on behalf of the minor
3. Other person on behalf of the incompetent who 3. Minor himself if 14 years of age or over
has no parent or lawful guardian 4. Secretary of Social Welfare and Development
4. Director of Health in favour of an insane person and by the Secretary of Health in the case of
who should be hospitalised or in favour of an an insane minor who needs to be hospitalized.
isolated leper 5. Any one interested in the estate but only in
5. Any one interested in the estate but only in case case the minor is a non-resident with property
the incompetent is a non-resident with property within the Philippines
within the Philippines
Where to File Ward is resident Family Courts

Petition ‣ The proceedings should be filed in the proper court
of the province where such ward resides
Ward is non-resident
‣ The proceedings should be filed in the proper court
of the province where such ward’s properties or
part thereof are situated
Proper Court
1. Guardianship over the person or both: RTC
2. Guardianship over the property only: MTC or RTC
depending on the value of the property involved
Contents of the 1. The jurisdiction facts; 1. The jurisdictional facts;

Petition 2. The minority or incompetency rendering the 2. The name, age and residence of the prospective
appointment necessary or convenient; ward;
3. The names, ages, and residence of the relatives of 3. The ground rendering the appointment
the minor or incompetent, and of the person having necessary or convenient;
him in their care; 4. The death of the parents of the minor or the
4. The probable value and character of his estate; termination, deprivation or suspension of their
5. The name of the person for whom letters of parental authority;
guardianship. 5. The remarriage of the minor’s surviving parent;
6. The names, ages, and residences of relatives
within the 4th civil degree of the minor, and of
persons having him in their care and custody;
7. The probable value, character and location of
the property of the minor; and
8. The name, age and residence of the person for
whom letters of guardianship are prayed.
CLARENCE TIU
Procedure after 1. Court sets a hearing 1. Court sets hearing

Filing of 2. Service of Notice to persons mentioned in the 2. Service of Notice to the persons mentioned in
Petition petition residing in the province, including the the petition, including the minor if he is
incompetent himself, fourteen years of age or over
3. Written opposition may be filed 3. Case study report
4. Actual hearing 4. Written opposition may be filed
5. Issuance of Letters of Guardianship 5. Actual hearing
6. Annotation of Judgment or Order 6. Issuance of Letters of Guardianship
7. Annotation of Judgment or Order
Qualifications 1. Good financial condition 1. Good moral character

of Guardians 2. Physical condition 2. Physical, mental, and psychological condition
3. Sound judgment 3. Financial status
4. Prudence and trustworthiness 4. Relationship of trust with the minor
5. Morals, character, and conduct 5. Availability to exercise powers and duties of a
6. Present and past history of a prospective guardian for the full period of the guardianship
appointee, as well as the probability of his being to 6. Lack of conflict of interest with the minor
exercise the powers and duties of guardian for the 7. Ability to manage the property of the minor
full period during which guardianship may be 8. Philippine resident (in jurisprudence)
necessary (Francisco vs CA)
7. Philippine resident (in jurisprudence)
Who may be Normally the parents or court-appointed guardian,

Appointed as otherwise:
Guardians 1. The surviving grandparent and In case several
(Order of grandparents survive, the court shall select any
Preference) of them taking Into account all relevant
considerations;
2. The oldest brother or sister of the minor over
twenty-one years of age, unless unfit or
disqualified;
3. The actual custodian of the minor over twenty-
one years of age, unless unfit or disqualified;
and
4. Any other person, who in the sound discretion of
the court, would serve the best interests of the
minor.
Grounds to 1. Competency 1. Majority of the minor

Oppose the 2. Unsuitability 2. Unsuitability of the person for whom letters are
Petition prayed for
Conditions of 1. To make and return to the court, within three months after the issuance of his letters of guardianship, a
the Bond true and complete Inventory of all the property, real and personal, of his ward which shall come to his
possession or knowledge or to the possession or knowledge of any other person in his behalf;
2. To faithfully execute the duties of his trust, to manage and dispose of the property according to this rule
for the best interests of the ward, and to provide for his proper care, custody and education;
3. To render a true and Just account of all the property of the ward in his hands, and of all proceeds or
interest derived therefrom, and of the management and disposition of the same, at the time designated by
this rule and such other times as the court directs; and at the expiration of his trust, to settle his accounts
with the court and deliver and pay over all the property, effects, and monies remaining in his hands, or
due from him on such settlement, to the person lawfully entitled thereto; and
4. To perform all orders of the court and such other duties as may be required by law.
CLARENCE TIU
General 1. To pay the just debts of the ward out of the personal property and the income of the real property of the
Powers and ward, If the same is sufficient; otherwise, out of the real property of the ward upon obtaining an order for
Duties of its sale or encumbrance;
Guardians 2. To settle all accounts of his ward, and demand, sue for, receive all debts due him, or may, with the
approval of the court, compound for the same and give discharges to the debtor on receiving a fair and
just dividend of the property and effects; and to appear for and represent the ward in all actions and
special proceedings, unless another person is appointed for that purpose;
3. To manage the property of the ward frugally and without waste, and apply the income and profits thereon,
insofar as may be necessary, to the comfortable and suitable maintenance of the ward; and if such
income and profits be insufficient for that purpose, to sell or encumber the real or personal property, upon
being authorized by the court to do so;
4. To consent to a partition of real or personal property owned by the ward jointly or in common with others
upon authority granted by the court after hearing, notice to relatives of the ward, and a careful
investigation as to the necessity and propriety of the proposed action;
5. To submit to the court a verified inventory of the property of his ward within three months after his
appointment, and annually thereafter, the rendition of which may be required upon the application of an
interested person;
6. To report to the court any property of the ward not included in the inventory which is discovered, or
succeeded to, or acquired by the ward within three months after such discovery, succession, or
acquisition; and
7. To render to the court for its approval an accounting of the property one yearfrom his appointment, and
every year thereafter or as often as may be required.
Grounds for 1. Insanity

Removal or 2. Otherwise incapable of discharging his trust
Resignation 3. Unsuitable therefore
4. Wasted or mismanaged the estate
5. Failed for 30 days after it is due to render an account or make a return
Termination of The guardian of any person may be discharged by the 1. The ward has come of age (emancipation)
Guardianship court when it appears, upon the application of the ward 2. The ward has died.
or otherwise, that the guardianship is no longer
necessary.
CLARENCE TIU

CLARENCE TIU - Special Proceedings Notes (Midterms)

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RULE 72: GENERAL PROVISIONS FOR SPECIAL PROCEEDINGS 4

NATURE OF SPECIAL PROCEEDINGS 4

NATURE OF SPECIAL PROCEEDINGS

RULE 1: General Provisions

CIVIL ACTIONS VS SPECIAL PROCEEDINGS

CIVIL ACTIONS SPECIAL PROCEEDINGS

Court exercises General Jurisdiction Court exercises Limited Jurisdiction

SUBJECT-MATTER OF SPECIAL PROCEEDINGS

SUPPLETORY APPLICATION OF RULES OF ORDINARY CIVIL ACTIONS

NATCHER V. CA, 366 SCRA 385, G.R. NO. 133000, OCTOBER 2, 2001

SETTLEMENT OF ESTATE IN GENERAL

WHEN SUCCESSION VESTS

MODES OF SETTLEMENT OF ESTATE

VENUE AND PROCESS OF SETTLEMENT OF ESTATE

PROCEEDINGS FOR SETTLEMENT OF ESTATE IN GENERAL; COMPUTATION OF THE NET ESTATE

JURISDICTION OVER SETTLEMENT OF ESTATE

VENUE OF SETTLEMENT OF ESTATE

OBJECTIONS TO IMPROPER VENUE OF SETTLEMENT OF ESTATE

EXTENT OF JURISDICTION OF THE COURT IN CHARGE OF SETTLEMENT PROCEEDINGS; FUNCTIONS

ADJUDICATION OF TITLE OF PROPERTIES BY THE COURT IN CHARGE OF SETTLEMENT PROCEEDINGS

CAN ISSUES PERTAINING TO MATTERS OF ESTATE SETTLEMENT BE ADJUDICATED IN ORDINARY ACTIONS?

SETTLEMENT OF CONJUGAL PROPERTY

PRESUMPTION OF DEATH FOR PURPOSES OF SUCCESSION

Period of Absence for Presumptive Death

Absentee disappeared 7 years for all purposes except succession.

Absentee disappeared 7 years for all purposes except succession.

2 kinds of Summary Settlement of Estate contemplated under Rule 74

EXTRAJUDICIAL SETTLEMENT BETWEEN HEIRS BY AGREEMENT

NATURE OF EXTRAJUDICIAL SETTLEMENT BY AGREEMENT; NOT MANDATORY

REQUISITES FOR EXTRAJUDICIAL SETTLEMENT

FORM OF EXTRAJUDICIAL SETTLEMENT

PROCEDURE OF EXTRAJUDICIAL SETTLEMENT

SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE

REQUISITES FOR SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE

JURISDICTION OVER SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE

PROCEDURE OVER SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE

THIRD PERSONS CANNOT INTERVENE IN THE PROCEEDINGS

Extrajudicial Settlement Summary Settlement of Small Estates

No court intervention is required Judicial adjudication although summary

REMEDIES OF AGGRIEVED PARTIES AFTER THE EXTRAJUDICIAL OR SUMMARY SETTLEMENT OF ESTATE

EXTRAJUDICIAL SETTLEMENT, ON WHOM BINDING?

REMEDIES OF AGGRIEVED PARTIES AFTER THE EXTRAJUDICIAL OR SUMMARY SETTLEMENT OF ESTATE

To summarize the remedies of aggrieved heirs:

PEREIRA V. CA, 174 SCRA 154 (1989)

PROBATE AND ALLOWANCE OF WILLS

MANDATORY RULE ON PROBATE AND ALLOWANCE OF WILLS

NATURE OF PROBATE PROCEEDINGS

DUTIES OF THE CUSTODIAN AND EXECUTOR

DOCTRINES FROM JURISPRUDENCE

ACAIN VS IAC, G.R. NO. 72706, OCTOBER 27, 1987

ABANGAN VS ABANGAN, G.R. NO. L-13431, NOVEMBER 12, 1919

NUGUID VS NUGUID, G.R. NO. L-23445, JUNE 23, 1966

MANINANG VS CA, G.R. NO. L-57848, JUNE 19, 1982

FILING A PETITION FOR ALLOWANCE OF A WILL

WHEN A WILL MAY BE PROBATED

WHO MAY FILE A PETITION FOR PROBATE

CONTENTS OF THE PETITION FOR ALLOWANCE OF A WILL

HOW JURISDICTION IS ACQUIRED; PROCEDURE AFTER JURISDICTION IS ACQUIRED

HOW DOES THE PROBATE COURT ACQUIRE JURISDICTION

REQUIRED TESTIMONY OF WITNESSES; PROOF OF DUE EXECUTION

PROOF IN CASE OF ANTE-MORTEM PROBATE

PROBATE OF LOST OR DESTROYED WILLS

PROCEDURE AFTER PROOF OF LOST OR DESTROYED WILLS