RULE 73 – JUDICIAL SETTLEMENT OF THE ESTATE A: An administrator with a will annexed refers to a person
tasked to distribute and settle the estate of the decedent who
JUDICIAL SETTLEMENT OF THE ESTATE OF THE DECEASED
PERSON
PRELIMINARY CONSIDERATION
Jurisdiction over judicial settlement of the estate of the
decedent
1. RTC (BP 129, SEC. 19(4))
a. In all matters of probate, both testate and
intestate, where the gross value of the
estate exceeds 300k or, in probate matters
in Metro Manila, where such gross value
exceeds 400k.
2. Shari’ah District Court (PD 1083, ART. 413)
3. MeTC/MTC/MCTC (SEC. 33, BP 129)
Q: When does the right to succeed begins?
A:
Art. 777. The rights to the succession are transmitted from
the moment of the death of the decedent.
Q: What is administration proceedings?
A: It is a proceeding for the liquidation of the estate and the
distribution of the residue among the heirs.
Q: What is a will?
A: It is a formal disposition of the properties of the decedent.
Q: What are the kinds of a will?
A: There are two kinds:
1. Holographic Will - a will signed, dated and in the
handwriting of the testator
2. Notarial Will - a will executed and signed by the
testator and subscribed (and sworn to) by a notary
public
Q: Who is a legatee?
A: A person to whom the gift of personal property is given by
virtue of a will.
Q: Who is a devisee?
A: A person to whom the gift of real property is given by virtue
of a will.
Q: Who is an executor?
A: An executor is one who is appointed by the testator by a
provision of the will.
Q: Who is an administrator?
A: An administrator is one who is appointed by the court.
Q: Who is an administrator with a will annexed?
left a will but no executor is named therein or the executor
named therein refuses to accept the trust.
VENUE AND PROCESSES (Rule 73)
Q: What is Sec. 1, Rule 73?
A:
Section 1. Where estate of deceased persons settled. — If
the decedent is an inhabitant of the Philippines at the time
of his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his
estate settled, in the Court of First Instance 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.
Q: What is the nature of venue in special proceedings?
A: It is waivable. If the parties fail to object or raise improper
venue as a defense, then the court may continue to hear and
decide on the case.
Q: What is the meaning of the term "resides"?
A: It shall be understood as the person's actual residence or
place of abode, provided he resides therein with continuity
and consistency.
In the case of Quiazon v. Ma. Lourdes Belen, the Supreme
Court held that it 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.
Q: exclusionary rule on venue in case of settlement of the
estate
A: the court first taking cognizance of the settlement of the
estate of a decedent, shall exercise jurisdiction to the exclusion
of all other courts.
Q: venue contest
A: GR: no. the juris shall not be contested in a suit or
proceeding
XPN: in an appeal from that court, in the original case, or when
the want of jurisdiction appears on the record.
Q: meaning reside
A: person’s actual residence or place of abode, provided he
resides therein with continuity and consistency.
Q: What is Sec. 2, Rule 73?
A:
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.
Q: What is Sec. 3, Rule 73?
A:
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.
Q: What are the powers of the court pursuant to Sec. 3, Rule
73?
A: The probate court shall have the following powers:
1. Orders the probate of the will of the decedent (Sec. 3,
Rule 77);
2. Grants letters of administration of the party best
entitled thereto or to any qualified participant (Sec. 5,
Rule 79);
3. Supervises and control all acts of administration;
4. Hears and approves claims against the estate of the
deceased (Sec. 11, Rule 86);
5. Orders payment of lawful debts (Sec. 11, Rule 88);
6. Authorizes sale, mortgage or any encumbrance of real
estate (Sec. 2, Rule 89);
7. Directs the delivery of the estate to those entitled
thereto (Sec. 1, Rule 90);
8. Issue warrants and processed necessary to compel
the attendance of witnesses or to carry into effect
their orders and judgments, and all other powers
granted them by law (Sec. 3, Rule 73);
9. If a person defies a probate orders, it may issue a
warrant for the apprehension and imprisonment of
such person until he performs such order or
judgment, or is released (Sec. 3, Rule 73).
10.
Q: nature of the power and jurisdiction of the probate court
A: probate court has limited and special jurisdictions, and it
cannot hear and dispose of collateral matters and issues which
may be properly threshed out only in an ordinary civil action.
Q: inherent power of the probate court
A: to determine what properties, rights and credits of the
deceased the administrator should include or exclude in the
inventory.
Q: What are the issues that can be resolved by the probate
court?
A: The probate court can resolve issues regarding:
1. approval of the sale of properties of a deceased
person by his heirs before final adjudication;
2. determination as to who are the heirs of the
decedent;
3. recognition of a natural child;
4. the status of a woman claiming to be the legal wife of
the decedent;
5. the legality of disinheritance of an heir by the
testator; and
6. to pass upon the validity of a waiver of hereditary
right. (Romero v. Court of Appeals)
Q: is it required that a special proceeding should be filed to
determine the heirs of the deceased before an ordinary
action can be filed to nullify an affidavit and extrajudicial
settlement of the said deceased.
A: Yes. There is a need to establish their status as such heirs in
the proper forum since the right they seek to protect or
enforce is that of an heir of one of the registered co-owners of
the property prior to the issuance of the new transfer
certificates of title that they seek to cancel. (Reyes vs.
Enriquez)
Q: Can the probate court resolve the issue of ownership?
A: As a general rule, the power of the probate court does not
extend to the determination of questions of ownership. The
probate court can pass upon issue of ownership when it is:
1. intended for determination of collation or
advancement;
2. the parties consent to the assumption of jurisdiction
by the probate court; and
3. the rights of third parties are not impaired. (Romero
v. Court of Appeals) !!!!!
Q: when can the probate court resolve issue of ownership
by way of exceptions
A: the probate court can pass upon issue of ownership when
it is intended for determination of collation or advancement,
when the parties consent. (XPN palate)
Q: What is the nature of the ruling of the probate court as far
as the issue of ownership is concern?
A: It is merely provisional and subject to the ruling of another
court in a separate action. The obvious reason is the probate
court's limited jurisdiction. (Pio Baretto v. Ada)
Q: If you want to question the propriety of the order of
collation, what is the remedy?
A: *No answer*
Q: What is the nature of the order of collation?
A: It is an interlocutory order.
Q: What is an interlocutory order?
A: It is an order that does not finally disposes of a case and
there is something left to be done by the court.
Q: What is execution?
A: It is the enforcement of the final order rendered by a court
of competent jurisdiction.
Q: Can the probate court issue the writ of execution?
A: Yes, the probate court can issue writs of execution in the
following instances:
1. Under Sec. 4, Rule 74, the writ of execution may be
issued against the bond or against the real estate
belonging to the deceased or both if it appears that:
a. there are debts outstanding against the estate which
have not been paid; or
b. that an heir or other person has been unduly deprived
of his lawful participation payable in money.
2. To cause for the partition of the properties; and
3. Under Rule 132, for the examination of the witnesses.
Q: What is Sec. 4, Rule 73?
A:
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.
Q: What are the periods under the New Civil Code to
determine whether the person shall be declared presumed
dead?
A:
Art. 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.
Art. 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.
Q: Will the provision of Art. 391 applicable if the missing
person jumped the ship that is being destroyed by fire?
A: No, it will not apply if the vessel was not lost or missing.
Instead, the rule on preponderance of evidence applies to
establish the fact of death. (Madrigal Shipping Co. v. Baens del
Rosario, et al.; Victory Shipping v. Workmen's CC)
Q: When does the presumption of death of four years not
applicable?
A:
Art. 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.
Q: What is the remedy of the person who reappears after
being declared as presumptively dead? How will he recover?
A: 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.
JURISPRUDENCE
Sec. 1
Uriarte vs. CFI – estate of a decedent inhabitant of the PH at
the time of his death whether a citizen or an alien, shall be in
the court of first instance in the province in which he resided
at the time of his death, and if he is an inhabitant of a foreign
country, the CFI of any province in which he had an estate.
Wrong venue is merely a waivable procedural defect.
Quiazon vs. Belen – residence 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. Must be with continuity and consistency.
Fule vs. CA – 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 ofjurisdiction
over the subject matter. As it is merely constitutive of venue.
Cuenco vs. CA – the place of residence of the deceased is not
an element of jurisdiction over the subject matter but merely
of venue.
Jao vs. Jao – in determining the residence at the time of death,
the following factors must be considered, namely: (a) capacity
to choose and freedom of choice; (b) physical presence at the
place chosen; and (c) intention to stay therein permanently.
Sec. 2
Calma vs. Taedo – after the death of either the spouses, no
complaint for the collection of indebtedness chargeable
against the conjugal partnership can be brought against the
surviving spouse. The claim must be made in the proceedings
for the liquidation and settlement of the conjugal property.
The reason for this is that upon death of one spouse, the
powers of administration of the surviving spouse ceases and is
passed to the administrator.
XPN: Ventura v. Militante – the trial court
nevertheless admitted the complaint and ruled, as the CA did
in this case, that since the defendant was also a party to the
obligation, the death of her husband did not preclude the
plaintiff from filing an ordinary collection suit against her.
Romero vs. CA – the probate court may resolve issue of
whether the property is conjugal or exclusive to one of the
spouse.
Reyes vs. Mosqueda – 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.
Barreto vs. Aa – 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.
Sec. 4
Jones vs. Hortiguela – the computation of the seven-year
period under Art. 390 begins not from the declaration of
absence, nor from the publication in the Official Gazette, but
from the date on which the last news concerning the absentee
is received.
Madrigal shipping vs. Baens del Rosario – Art. 391 cannot
apply if the vessel was not lost or missing but instead
destroyed by fire and washed ashore.

Sec. 3

Chua v. Absolute Management Corp - the court has the

inherent power to determine what properties, rights and
credits of the deceased the administrator should include or
exclude in the inventory.

Marcelino vs. Antonio – the probate court loses jurisdiction

of an estate under administration only after the payment of
all the debts and the remaining estate delivered to the heirs
entitled to receive the same.

The power to determine the legality or illegality of the

testamentary provision is inherent in the jurisdiction of the
court making a just and legal distribution of the inheritance.

Pimentel vs. Palanca - a separate action for the declaration

of heirs is not proper.

Ramos vs. Ortuzar – the better practice for the heir who has
not received his share, is to demand his share through a proper
motion in the same probate or administration proceedings, or
for reopening of the probate or administrative proceedings if
it had already been closed, and not through an independent
action.
 RULE 74 Sec. 11, Revised Rules of Procedure for Small Claim Cases
(A.M. No. 08-8-07-SC):

Section 11. Dismissal of the Claim. - After the court

SETTLEMENT OF THE ESTATE OF THE DECEASED PERSON
determines that the case falls under these Rules, it may,
from an examination of the allegations of the Statement of
PRELIMINARY CONSIDERATION Claim/s and such evidence attached thereto, by itself,
dismiss the case outright on any of the grounds for the
Q: Distinguish Venue from Jurisdiction. dismissal of the case...
A:
Venue Jurisdiction Q: When can venue be deemed waived?
The place, or geographical Power of the court to hear and A: If the one of the parties failed to object improper venue
area where an action is to be decide a case following Sec. 1, Rule 9 - when the parties failed to raise it as
filed and tried (Manila an objection.
Railroad Company v. Attorney
General, 20 Phil 523). Q: What is the remedy?
Can only be objected to Can be brought up at any stage A: On the part of the defending party, if there is improper
before the other party files a of the proceedings venue, he may file Motion to Dismiss. However, under the
responsive pleading (Answer) proposed amendments, improper venue is no longer a ground
May be waived by: Cannot be waived for Motion to Dismiss. It is now considered as a prohibited
1. Failure to object pleading.
through a motion to
dismiss or through Q: Can an ordinary civil action be joined with special
an affirmative proceedings?
A: No, under the rules on joinder of causes of action under Sec.
defense; or
5(b), Rule 2:
2. Motion of the
parties.
Section 5. Joinder of causes of action. — A party may in one
Matter of procedural law Matter of substantive law pleading assert, in the alternative or otherwise, as many
May be stipulated by the Cannot be the subject of the causes of action as he may have against an opposing party,
parties agreement of the parties subject to the following conditions:
Establishes a relation Establishes a relation between
between the plaintiff and the court and the subject xxx
defendant, or petitioner and matter.
respondent. (b) The joinder shall not include special civil actions or
GR: Not a ground for a motu It is a ground for a motu actions governed by special rules;
proprio dismissal (Riano, proprio dismissal in case of
2014) lack of jurisdiction over the xxx
XPN: In cases subject to subject matter (Riano, 2014;
summary procedure (Ibid.) Sec. 1, Rule 9) Q: What is intervention?
A: Under Rule 19, an intervention is an ancillary action that
(UST Golden Notes 2019) may be filed by a party who is not a party to the original action
but “who has a legal interest in the matter in litigation, or in
Sec. 1, Rule 9 is also applicable in special proceedings. the success of either of the parties, or an interest against
both, or is so situated as to be adversely affected by a
Section 1. Defenses and objections not pleaded. — distribution or other disposition of property in the custody of
Defenses and objections not pleaded either in a motion to the court or of an officer thereof.”
dismiss or in the answer are deemed waived. However,
when it appears from the pleadings or the evidence on Q: In cases of contingent claims, is intervention allowed in
record that the court has no jurisdiction over the subject special proceedings?
matter, that there is another action pending between the A: No, in the case of Hilado v. Court of Appeals, the Supreme
same parties for the same cause, or that the action is Court stated that notwithstanding Sec. 2, Rule 72, intervention
barred by a prior judgment or by statute of limitations, under Rule 19 simply does not extend to creditors of a
the court shall dismiss the claim. decedent whose credit is based on a contingent claim. The
definition of "intervention" under Rule 19 simply does not
accommodate contingent claims. Claims against the estate of
the decedent may filed pursuant to Sec. 9, Rule 86. Hence,
intervention is not allowed.
Dean Tan: A contingent claim may also involve a legal interest.
Q: What is an estate?
A: Estate is the degree, quantity, nature and extent of interest
which a person has in real or personal property.
Q: What is settlement of the estate of a deceased?
A: Settlement of the estate of a deceased is the process of
administration by the executor or administrator carried so far
that all the debts and legacies has been paid and the individual
shares of distributees in the corpus of the estate, or the
residuary portion, as the case may be, definitely ascertained
and determined and accounts filed and passed, so that nothing
remains but to make final distribution (administration and
liquidation proceeding).
Q: What are the kinds of settlement of the estate of a
deceased?
A: There are three kinds:
1. Extrajudicial settlement of the estate - refers to the
settlement of the estate wherein the heirs partition
the estate among themselves through a public
document or the sole heir adjudicate to himself the
entire estate through an affidavit;
2. Summary settlement of the estate; and
3. Judicial settlement of the estate
Q: What is probate proceeding?
A: This refers to a proceeding that determines the authenticity
of a will.
Q: What is estate proceeding?
A: This refers to the settlement of the estate of a decedent
who has left a will.
Q: What is intestate proceeding?
A: This refers to the settlement of the estate of a decedent
who has not left a will.
Q: What is settlement of the estate of small value?
A: This refers to the settlement of the estate which has a gross
value that does not exceed P10,000 and such fact is made
known to the MTC or MeTC having jurisdiction of the estate
upon petition by interested party and upon hearing which
should be held not less than 1 month nor more than 3 months
from the date of last publication of notice which must be
published once a week for 3 consecutive weeks in
a newspaper of general circulation in the province.
Q: Why did you mention MTC or MeTC?
A: Because the value of the estate does not exceed P10,000.
According to BP 129, as amended by RA 7691, the MTC have
exclusive original jurisdiction over probate proceedings where
the gross value of the estate does not exceed P300,000 outside
of Metro Manila or P400,000 in Metro Manila.
Q: Is it required that the parties or heirs residing in the same
barangay refer the matter before the Lupon for purposes of
reconciliation first?
A: No. The Supreme Court held in the case of Vda. de Borromeo
v. Pogoy that the law on barangay conciliation applies only to
cases involving natural persons, and not where any of the
parties is a juridical person. Since the real party-in-interest in
this case is the intestate estate which is a juridical person, the
administrator may file the complaint in court without the same
being coursed to the barangay lupon for arbitration.
EXTRAJUDICIAL OR SUMMARY SETTLEMENT OF THE
ESTATE OF THE DECEASED PERSON (Rule 74)
Q: What is Sec. 1, Rule 74? When is extrajudicial settlement
allowed?
A:
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 filed in the office of the
register of deeds. The parties to an extrajudicial
settlement, whether by public instrument or by stipulation
in a pending action for partition, or the sole heir who
adjudicates the entire estate to himself by means of an
affidavit shall file, simultaneously with and as a condition
precedent to the filing of the public instrument, or
stipulation in the action for partition, or of the affidavit in
the office of the register of deeds, a bond with the said
register of deeds, in an amount equivalent to the value of
the personal property involved as certified to under oath
by the parties concerned and conditioned upon the
payment of any just claim that may be filed under section
4 of this rule. It shall be presumed that the decedent left
no debts if no creditor files a petition for letters of
administration within two (2) years after the death of the
decedent.
The fact of the extrajudicial settlement or administration
shall be published in a newspaper of general circulation in
the manner provided in the nest succeeding section; but
no extrajudicial settlement shall be binding upon any
person who has not participated therein or had no notice
thereof.
Q: Sec. 1, Rule 74 used the word "may." What is the meaning
of that?
A: It means that the parties have the discretion to settle the
estate wither extrajudicially or judicially.
Q: What is the general rule in the settlement of the estate of A: The purpose of publication is to protect the interests of the
a decedent? creditors and the interests of the heirs themselves against
A: The general rule is that the estate of the decedent must be tardy claims.
judicially administered. Q: Distinguish extrajudicial settlement of small estate and
settlement of estate of small value.
Q: What are the exceptions? A:
A: The exceptions are provided under Secs. 1 and 2, Rule 74. Extrajudicial Settlement of Summary Settlement of
1. Extrajudicial settlement the Estate of the Deceased the Estate of Small Value
2. Summary settlement of estates of small value. It is made by agreement of It is made through a petition
the parties or self- for settlement of the estate
Q: what are the requirements for a valid extrajudicial adjudication of a sole heir in filed before the court.
settlement of the estate of the decedent? the form of Extrajudicial
A: 1. Decedent left no will and no debts Settlement of the Estate or
2. heirs are all of age, or the minors are represented by their by Affidavit of Adjudication
judicial or legal representatives duly authorized for the of Sole Heirship.
purpose. It is filed before the Register It is filed with the
3. parties may, without securing letters of administration, of Deeds where the MTC/MCTC where the
divide the estate among themselves as they see fit by means property is located. decedent last resided or
of a public instrument filed in the office of the RD, and should where his estate may be
they disagree, they may do so in nay ordinary action for found.
partition. Amount of the estate is Gross value of the estate
SEE PROVISION. without limit. does not exceed
P10,000.00.
Q: What is Sec. 2, Rule 74? Instituted by the sole heir(s) Commenced by any person
A: of the deceased. having an interest over the
Section 2. Summary settlement of estate of small value. — property of the deceased.
Whenever the gross value of the estate of a deceased Applicable when there is no Applicable whether testate
person, whether he died testate or intestate, does not will left by the deceased. (with a will) or intestate
exceed ten thousand pesos, and that fact is made to (without a will).
appear to the Court of First Instance having jurisdiction of
the estate by the petition of an interested person and upon Q: requirements for the settlement of the estate of small
hearing, which shall be held not less than one (1) month value:
nor more than three (3) months from the date of the last A: 1. Gross value of the estate of a deceased does not exceed
publication of a notice which shall be published once a 10k.
week for three (3) consecutive weeks in a newspaper of 2. such fact is made to appear to the RTC
general circulation in the province, and after such other 3. hearing to be conducted which shall be held not less than 1
notice to interest persons as the court may direct, the month or more than3 months from the date of the last
court may proceed summarily, without the appointment of publication of a notice which shall be published once a week
an executor or administrator, and without delay, to grant, for three consecutive weeks.
if proper, allowance of the will, if any there be, to
determine who are the persons legally entitled to Q: Actions of the court upon compliance:
participate in the estate, and to apportion and divide it A: 1. Grant the allowance of thewill
among them after the payment of such debts of the estate 2. determine who are the persons legally entitled to
as the court shall then find to be due; and such persons, in participate in the estate if there is any
their own right, if they are of lawful age and legal capacity, 3. to apportion and divide it among them after the payment of
or by their guardians or trustees legally appointed and debts
qualified, if otherwise, shall thereupon be entitled to 4. make such order as may be just respecting the cost of the
receive and enter into the possession of the portions of the proceedings.
estate so awarded to them respectively. The court shall
make such order as may be just respecting the costs of the Q: What is Sec. 3, Rule 74?
proceedings, and all orders and judgments made or A:
rendered in the course thereof shall be recorded in the Section 3. Bond to be filed by distributees. — The court,
office of the clerk, and the order of partition or award, if it before allowing a partition in accordance with the
involves real estate, shall be recorded in the proper provisions of the preceding section, my require the
register's office. distributees, if property other than real is to be distributed,
to file a bond in an amount to be fixed by court,
Q: What is the purpose of publication? conditioned for the payment of any just claim which may
be filed under the next succeeding section.

Q: What is Sec. 4, Rule 74? – remedy of an heir or person
unlawfully deprived in the settlement of the estate.
A:
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.
Q: who are the persons bound by the 2-year prescriptive
period.
A: 1. Persons who have participated/ taken part.
2. persons who had notice of the action (Sampilo v. CA)
Q: Rule in case there is debt not yet paid or an heir or person
unlawfully deprived of his participation payable in money.
A: 1. 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.
2. It 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.
Q: liability of the bond
A: bond and real estate remain charged with a liability to
creditors, heirs, or other persons for the full period of two
years after such distribution, notwithstanding any transfers of
real estate that may have been made.
REMEDIES OF EXCLUDED PARTIES
1. EXCLUDED CREDITOR
• PROCEED AGAINST THE BOND
• PETITION FOR LETTERS OF ADMINISTRATION
• PROCEED AGAINST THE REAL PROPERTY
2. EXCLUDED HEIR
• ACTION TO COMPEL SETTLEMENT OF ESTATE (SEC. 4,
RULE 74)
• ACTION FOR RESCISSION ON THE GROUND OF LESION
(ART. 1381(1), NCC)
• ACCION REIVINDICATORIA
• 10 YEARS, IMPLIED TRUST-ANNULMENT OF THE
GROUND OF FRAUD
The 4 year prescriptive period commences upon the
discovery of fraud (Gerona vs. de Guzman).
Q: What is Sec. 5, Rule 74?
A:
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.
JURISPRUDENCE 74
Daclag vs. macahilig – resolution of the case concerns only the
issueas between the parties, and will not in any way affect the
rights of the other heirs who have not participated in the
partition.
Cua vs. Vargas – the 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
notice after the fact of execution. It is geared for the protection
of the creditors and was never intended to deprive heirs of
their lawful participation in the decedent’s estate.
Arcilla vs. Montejo – the word may is used not only once but
in the whole section which indicates an intention to leave the
matter entirely to the discretion of the heirs.
Reyes v. CA – there is no law that requires partition among
heirs to be in writing to be valid. Prescribed formalities do not
come into play when there are no creditors or the rights of
creditors are not affected.
Pereira vs. CA – extrajudicial partition is an exception to the
GR than property of the deceased should be judicially
administered. EP is subject to exceptions such as 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.
Sampilo vs. CA – procedure outlined in Sec. 1, Rule 74 is an an
ex parte proceeding.
Reillo vs. San Jose – remedy in case the extrajjdicial settlement
is void is to file a complaint for partition under rule 69.
Pada-Kilario vs. CA – nolaw requires that partition among heirs
to be in writing and be registered in order to be valid. The
partition of inherited property need not be embodied in a
public document to be effective as regards the heirs that
participated therein.

Sps. Butiong vs. Plazo – action for partition does not preclude
the settlement of the issue of ownership. In fact, the
determination as to the existence of the same is necessary.
Partition is premised on the existence or non-existence of co-
ownership between parties. Until and unless the issue of co-
ownership is resolved, it would be premature to effect
partition of an estate.

Pedrosa vs. CA – no extrajudicial settlement shall be binding

upon any person who has not participated therein or had no
notice thereof.

Neri vs. Heirs of Uy – all the heirs should have participated in

the execution of the extrajudicial settlement of the estate. The
settlement was not valid and binding upon them and

Delgado vs. Heirs of Vda. De Damian – adjudication by an heir

of the decedent’s entire estate to himself by means of an
affidavit is allowed only if he is the sole heir to the estate.
 RULE 75 – TESTAMENTARY/PROBATE OF THE WILL
TESTAMENTARY PROCEEDINGS/ PROBATE OF THE WILL
PRODUCTION AND ALLOWANCE OF THE WILL (Rule 75)
Definition probate of the will or testamentary proceeding:
- a court proceeding to determine the authenticity of a will,
that is, to see if the will has been executed in accordance with
the requirement of law. (Enriques vs. Chua Ma)
Nature of probate of the will
- mandatory
Q: Why is it necessary to prove the will?
A: It is necessary because the Sec. 1, Rule 75 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 (Maninang v. Court of Appeals).
Q: in case two proceedings was filed, one for intestate and
the other one for testate
A: the intestate proceedings shall be consolidated with testate
proceedings.
Q: what are the issues that may be resolved by the probate
court
A: 1. Extrinsic validity of the will sought to be probated
2. the due execution thereof
3. testator’s testamentary capacity
4. compliance with the requisites of solemnities prescribes by
law. (Nufable vs. Nufable)
Q: What is Sec. 1, Rule 75?
A:
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.
Q: Why is the probate of the will necessary?
A: since (1) no will shall pass either real or personal estate
unless it is proved and allowed in the proper court; and (2) by
reason of public policy.
Q: XPNs to above rule:
A: 1. Division of estate by the heirs
b. partition by act inter vivos
Q: effect of allowance of the will
A: allowance of the will shall be conclusive as to its due
execution.
Q: Can the issue of ownership be resolved in probate
proceedings?
A: GR: the jurisdiction of the trial court either as an intestate
or a probate court relates only to matters having to do with the
settlement of the estate and probate of the will of deceased
persons but does not extend to the determination of questions
of ownership that arise during the proceedings. (Pastor vs. CA)
Q: exception to the above rule
A: an intestate or a probate court may hear and pass upon
questions of ownership when its purpose is to determine
whether or not a property should be included in the inventory.
In such situations, the adjudication is merely incidental and
provisional. (Pacioles vs. CHuatoco-Ching)
Q: can the issue of the determination of the decedent’s lawful
heirs be made in an action for cancellation and reconveyance
of property? Exceptions?
A: GR: No. the determination of a decedent’s lawful heirs
should be made in the corresponding special proceeding
precludes the RTC, in an ordinary action for cancellation of title
and reconveyance, from granting the same.
XPN: by reason of practicality, s when the parties in the civil
case had voluntarily submitted the issue to the trial court and
already presented their evidence regarding the issue of
heirship. (Ypon vs. Ricaforte)
Effects of a judgment or final order in probate or
administration of the estate or death of the testator - page
129.
Q: What is the duty of the custodian of the will?
A:
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.
Q: What is Sec. 3, Rule 75? – presentation of the will and
acceptance or refusal of trust
A:
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, (1) present such will to the court having
jurisdiction, unless the will has reached the court in any
other manner, and shall, within such period, (2) signify to
the court in writing his acceptance of the trust or his refusal
to accept it.
Q: What is the effect in case of refusal of the executor to
accept the trust?
A: The court may appoint an administrator.

Q: What is Sec. 4, Rule 75? – fine for neglect of the custodian
and exec utor
A:
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.
Q: What is the effect in case of retention of the will by a
person?
A:
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.
JURISPRUDENCE
Guevarra vs. Guevarra – then nature of the probate of the will
is mandatory.
person to dispose of his property by will may be rendered
nugatory.
(xpn to probate 1) Mcmicking vs. Sy Combieng – by
permitting partition and division of estate without judicial
proceedings would enable the heirs to delay and thereby avoid
expenses and waste.
(xpn to probate 2) Mang-Oy vs. CA – if the testator should
make a partition of his properties by an act inter vivos, or by
will, such partition shall stand insofar as it does not prejudice
the legitime of the forced heirs.
Nittscher vs. Dr. Nittscher – 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. claim of title should be settled
in an ordinary action before the regular courts.
Eng vs. Lee – mandamus cannot be used to enforce contractual
obligations involving the production of holographic will. (Eng
vs. Lee)
Mandamus cannot be used to enforce contractual obligations.
The writ is not appropriate to enforce a private right against an
individual.

Roberts vs. Leonidas – the intestate case should be

consolidated with the testate proceeding and the judge
assigned to t he testate proceeding should continue hearing
the two cases.

Nuguid vs. Nuguid – a will of this nature (preterition), no

matter how valid it may appear extrinsically, would be null
and void and separate or latter proceedings to determine the
intrinsic validity of the testamentary provisions would be
superfluous.

Maninang vs. CA – act done by a probate court in excess of its

jurisdiction may be corrected by certiorari under Rule 65.

Fernandez, et. al. vs. Dimagiba – the doctrine of estoppel is

not applicable in probate proceedings as the presentation and
probate of a will are requirements of public policy, being
primarily designed to protect the testator’s, expressed wishes,
which are entitled to respect as a consequence for the
decedent’s ownership and right of disposition within legal
limits.

Rañola vs. Sps Rañola – judicial compromise has the force and
effect of a judgment.

Sec. 1

(gr: probate) Maninang vs. CA – 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
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RULE 76 – ALLOWANCE OR DISALLOWANCE OF THE WILL
ALLOWANCE OR DISALLOWANCE OF THE WILL (Rule 76)
Q: Who may file the petition for the allowance of the will?
A:
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.
A: 1. Any executor;
2. Devisee;
3. Legatee named in a will;
4. Any other person interested in the estate; or
5. the testator himself may, during his lifetime, petition the
court for the allowance of his will.
Q: What are the contents of the petition for probate?
A:
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.
Q: What are the jurisdictional facts that must be established?
A: a. The death of the decedent, his residence at the time of
his death in the province where the probate court is sitting or
if he is an inhabitant of a foreign country, his having left his
estate in such province. (Cuenco vs. CA)
b. Names, ages, and residences of the heirs, legatees, and
devisees of the testator or decedent.
Q: What are the duties of the court upon filing the petition?
A:
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 (a) fix a time and place
for proving the will when all concerned may appear to
contest the allowance thereof, and shall (b) 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.
Q: What do you mean by "newspaper of general circulation"?
A: It is a newspaper which is circulated and published within
the jurisdiction of the court for purposes of disseminating
information and news with regular paying subscribers.
Q: is publication required if the testator filed the petition?
A: No. No newspaper publication shall be made where the
petition for probate has been filed by the testator himself.
Q: What is Sec. 4, Rule 76? – rule on notification of the parties
by the court
A:
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 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.
If the testator asks for the allowance of his own will, notice
shall be sent only to his compulsory heirs.
Q: what is the effect of personal service of the copies of
notice?
A: personal service of copies of the notice at least ten days
before the day of hearing shall be equivalent to mailing.
Q: what is the rule on notification if the testator filed the
petition?
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A: if the testator asks for the allowance of his own will, notice
shall be sent only to his compulsory heirs.
Q: What is Sec. 5, Rule 76? – requirement before the taking
of testimony of the witnesses
A:
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.
Q: what is the requirement before the taking of testimony of
the witnesses?
A: compliance with the provisions of the last two preceding
sections must be shown before the introduction of testimony
in support of the will.
Q: what is the required proof if there is no contest on the
petition for allowance of a notarial will?
A: if no person appears to contest the allowance of the will,
the court may grant allowance thereof on the basis of:
a.) at least one witness who knows the handwriting and
signature of the testator ezxplicitly declare that the will and
the signature are in the handwriting of the testator.
Q: rule in case of absence of competent witness?
A: in the absence of any such competent witness, and if the
court deem it necessary, expert testimony may be resorted to.
Q: What is Sec. 6, Rule 76? – proving a lost or destroyed will
A:
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.
Q: requirements in case of proving a lost or destroyed will
A: no will shall be proved as a lost or destroyed will unless the
following requirements are established, to wit:
1. the execution and validity of the same be established;
2. 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;
3. its provisions are clearly and distinctly proved by at least 2
credible witnesses.
Q: requirements when the lost will is proved?
A: when a lost will is proved, the provisions thereof must be:
1. distinctly stated and certified by the judge, under the seal of
the court; and
2. the certificate must be filed and recorded as other will are
filed and recorded.
Q: How to prove lost and destroyed will?
A: The lost or destroyed will may be proven in accordance
with Sec. 5, Rule 130 which provides that:
Section 5. When original document is unavailable. —
When the original document has been lost or destroyed, or
cannot be produced in court, the offeror, upon proof of its
execution or existence and the cause of its unavailability
without bad faith on his part, may prove its contents by a
copy, or by a recital of its contents in some authentic
document, or by the testimony of witnesses in the order
stated.
Q: What is the Best Evidence Rule?
A: Sec. 3, Rule 130 provides that:
Section 3. Original document must be
produced; exceptions. — When the subject of inquiry is the
contents of a document, no evidence shall be admissible
other than the original document itself, except in the
following cases:
(a) When the original has been lost or destroyed, or
cannot be produced in court, without bad faith on
the part of the offeror;
(b) When the original is in the custody or under the
control of the party against whom the evidence is
offered, and the latter fails to produce it after
reasonable notice;
(c) When the original consists of numerous accounts
or other documents which cannot be examined in
court without great loss of time and the fact
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sought to be established from them is only the
general result of the whole; and
(d) When the original is a public record in the custody of a
public officer or is recorded in a public office.
Q: What is Parole Evidence Rule?
A: Sec. 9, Rule 130 provides that:
Section 9. Evidence of written agreements. — When the
terms of an agreement have been reduced to writing, it is
considered as containing all the terms agreed upon and
there can be, between the parties and their successors in
interest, no evidence of such terms other than the
contents of the written agreement.
However, a party may present evidence to modify, explain
or add to the terms of written agreement if he puts in issue
in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in
the written agreement;
(b) The failure of the written agreement to express
the true intent and agreement of the parties
thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the
parties or their successors in interest after the
execution of the written agreement.
The term "agreement" includes wills.
Q: how to prove the due execution of a lost or destroyed
original document/will?
A: due execution of a lost or destroyed original document can
be proved by:
1. the testimony of the person/s who executed it;
b. the testimony of any person before whom its execution was
acknowledged;
c. any person who was present and saw it executed and
delivered or who thereafter saw it and recognized the
signature.
Q: What is the duty of the court when the subscribing
witnesses do not reside within the jurisdiction of the court?
A:
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.
Q: What is deposition?
A: A deposition is the taking of the testimony of any person,
whether he be a party or not, but at the instance of a party to
the action. This testimony is taken out of court.
Deposition may either be an oral examination or written
interrogatories. (UST Golden Notes 2019)
Q: What is Sec. 8, Rule 76? – required proof if the subscribing
witnesses are dead, insane, or not residing in the Philippines.
A:
Section 8. Proof when witnesses dead or insane or do not
reside in the Philippines. — If the 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.
Q: What are the grounds for the disallowance of the will?
A: Art. 839 of the New Civil Code provides for the substantive
basis for Sec. 9, Rule 76 Rules of Court.
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.
Q: What is its substantive basis?
A:
Art. 839. The will shall be disallowed in any of the following
cases:
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(1) If the formalities required by law have not been
complied with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its
execution;
(3) If it was executed through force or under duress,
or the influence of fear, or threats;
(4) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was procured by
fraud;
(6) If the testator acted by mistake or did not intend
that the instrument he signed should be his will at
the time of affixing his signature thereto.
Q: What is the duty of the contestant in case of contest on
the petition
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.
Q: What is the required proof in case of a contested will
Contested notarial will
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.
Contested holographic will
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.
Q: who has the burden of proof if the subscribing witness in
a will and a notary public failed to testify in probate of the
will?
A: petitioner should satisfactorily account for the incapacity
and failure of the said subscribing witness and of the notary
public to testify in court.
Q: required proof in case the testator field the petition for the
allowance of a holographic will?
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.
Q: what is the duty of the court upon satisfactory proof of all
the requirements?
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.
JURISPRUDENCE
Sec. 1
Ngo the Hua vs. Chung Kiat Hua – 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.
Sec. 3
Alaban vs. CA – probate of a will is considered action in rem.
Notice of the time and place for proving the will must be
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published. Petitioners became parties due to the publication

of the notice of hearing.

It is the publication of such notice that brings in the whole

world as a party in the case and vests the court with
jurisdiction to hear and decide it. Even if other parties were not
mentioned in the petition for probate, they eventually became
parties as a consequence of the publication of the notice of
hearing.

Personal notice upon the heirs is a matter of procedural

convenience and not a jurisdictional requisite.

Sec. 5

Baguio Trinity Developers, Inc. vs. Heirs of Jose Ramos – when

the original document has been lost and its unavailability has
been established, a party “may prove its contents by a copy or
by a recital of its contents in some authentic document or by
the testimony of witnesses in the order stated.”

Sec . 9

Ajero vs. CA – in a petition to admit a holographic will to

probate, the only issues to be resolved are:
1. whether the instrument submitted is, indeed, the
decedent’s last will and testament;
2. whether said will was executed in accordance with the
formalities prescribed by law;
3. whether the decedent had the necessary testamentary
capacity at the time the will was executed; and
4. whether the execution of the will and its signing were the
voluntary acts of the decedent.

Sec. 11

Baltazar vs. Laxa – a testament may not be disallowed just

because the attesting witnesses declare against its due
execution, neither does it have to be necessarily allowed just
because all the attesting witnesses declare in favor of its
legalization; what is decisive is that the court is convinced by
evidence before it, not necessarily from the attesting
witnesses.

Codoy vs. Calugay – the possibility of false document being

adhjudged as the willof the testator cannot be
eliminated,which is why if the holographic will is contested,
the law requires three witnesses to declare theat the will was
in the handwriting of the deceased.
 RULE 77 – ALLOWANCE OF THE WILL PROVED OUTSIDE OF
THE PHILIPPINES AND THE ADMINISTRATION OF THE ESTATE
RULE 77
Allowance of Will Proved Outside of Philippines and
Administration of Estate Thereunder
Q: May the will be proved and allowed abroad, be allowed in
the Philippines?
A: yes
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.
Q: What is reprobate?
A: the allowance of a will which is already probated and
allowed in a foreign country
Q: What is the substantive basis of section 1 of Rule 77?
A: Art. 816 of the New Civil Code
Art. 816. The will of an alien who is abroad produces effect
in the Philippines if made with the formalities prescribed by
the law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with
those which this Code prescribes. (n)
Q: what are the mattersto be resolved in case of reprobate of
the will?
1. Its due execution must be established.
2. It must be executed in conformity with the
formalities required under the laws of the country
where it was executed, or in the country where he
resides, or under the New Civil Code.
3. it was probated in another country.
4. the foreign law must be properly pleaded and
proved in accordance with sections 24 and 25 of Rule
132. (De Perez vs. Tolete)
Q: How do you prove foreign laws?
A: Sections 24 and 25 of Rule 132.
Q: what are the requisites in order that private international
law to be admissible?
A: private international law, a foreign law must be properly
pleaded and proved as a fact. In the absence of pleading and
proof, the laws of the foreign country or state will be presumed
to be the same as our local or domestic law. page 165
Q: How to prove foreign laws?
A: foreign laws may be proven by the following:
1. publication of the said foreign laws;
2. by a copy duly attested by the officer in custody thereof.
Q: how to prove public documents in an official record?
A: record of public documents may be evidenced by:
1. an official publication thereof; or
2. by a copy attested by the officer having the legal custody of
the record, or by his deputy, and accompanied, if the record is
not kept in the Ph, with a certificate that such officer has the
custody.
Q: persons authorized to issue a certification if the codument
is kept in a foreign country:
A: 1. Secretary of the embassy or legation;
2. consul general, consul;
3. vice consul;
4. consular agent; or
5. any officer in the foreign service of the Philippines stationed
in the foreign country in which the record is kept and
authenticated by the seal of his office;
Section 24. Proof of official record. — The record of public
documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines,
with a certificate that such officer has the custody. If the
office in which the record is kept is in foreign country, the
certificate may be made by a secretary of the embassy or
legation, consul general, consul, vice consul, or consular
agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office.
(25a)
Section 25. What attestation of copy must state. —
Whenever a copy of a document or record is attested for
the purpose of evidence, the attestation must state, in
substance, that the copy is a correct copy of the original, or
a specific part thereof, as the case may be. The attestation
must be under the official seal of the attesting officer, if
there be any, or if he be the clerk of a court having a seal,
under the seal of such court. (26a)
Q: Why is there a need to prove foreign laws?
A: Our courts can’t take judicial notice of foreign laws, so it
must be pleaded and proved in court.
Q: What is judicial notice?
A: It is the cognizance of the courts of justice of certain facts
which they have the authority to act upon and recognize.
Q: Other requirements for reprobate?
A: The attestation must state that the copy is the original copy
of the law or a specific part thereof and that the attesting
officer has the custody of such document and attested by seal
of such officer, or in case of a clerk of court, by the seal of such
court.
Q: What would be the effect if there was failure to prove
foreign laws?
A: Under the doctrine of processual presumption, if the foreign
law is pleaded but not proved, it shall be presumed that it is
the same as Philippine laws.
Q: What is the Lord Coke’s doctrine?
A:
Q: What is the effect of foreign laws? (2007 Bar Question)
Section 48. Effect of foreign judgments or final orders. —
The effect of a judgment or final order of a tribunal of a
foreign country, having jurisdiction to render the judgment
or final order is as follows:
(a) In case of a judgment or final order upon a specific
thing, the judgment or final order, is conclusive
upon the title to the thing, and
(b) In case of a judgment or final order against a
person, the judgment or final order is presumptive
evidence of a right as between the parties and
their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled
by evidence of a want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact. (50a)
Q: How to repel foreign laws?
1. Want of jurisdiction
2. Want of notice
3. Collusion
4. Fraud
5. Clear mistake of law or fact
Q: What is the doctrine of presumed identity approach?
A: the foreign law must be pleaded and proved. If it is not
pleaded or if pleaded but not proven, it shall be presumed to
be the same as Philippine laws.
Q: What are the requirements for the application of the
doctrine?
1. Issue must be one of fact and not of law
2. The law must be proved and properly pleaded
Q: What are the effects of the allowance of the will?
A: The will shall have the same effect as if originally proved and
allowed in such court
Q: what is the rule on notice of hearing?
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.
Q: what are the duties of the Court in allowing the will?
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 proves and allowed in such court.
Q: What is the effect of the allowance of the will?
A: as mandated by the above-cited rule, the will shall have the
same effectas if originally proves and allowed in such court.
Q: How is the estate administered?
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.
Q: effects of the reprobate of the will:
A: 1. The will shall be treated as if originally proved and
allowed in the Ph courts. (De Perez vs. Tolete)
2. Letters testamentary or administration with a will annexed
shall extend to all estates of the Philippines;
3. After payment of just debts and expenses of administration,
the residue of the estate shall be disposed of as provided by
law in cases of estates in the Philippines belonging to persons
who are inhabitants of another state or country.
JURISPRUDENCE:
In re: Palaganas v. Palaganas – a foreign will can be given legal
effects in our jurisdiction. Rule 77 applies only to reprobate of
a will, it cannot be made to apply to where the will is presented
for the first time before a competent court.
Sec. 2
De Pere vs. Tolete – 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 be 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.

(duty of the court in case of reprobate) Palaganas case also –

in reprobate, the local court acknowledges as binding the
findings of the foreign probate court provided its jurisdiuction
over the matter can be established.

(rationale of proving foreign laws) PCIB vs. Escolin – 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.

Ancheta vs. Guersey-Dalaygon – foreign laws do not prove

themselves in our jurisdiction and our courts are not
authorized to take judicial notice of them. Hence, executors or
administrators of the decedent’s estate are duty-bound to
introduce in evidence the pertinent law of the foreign court
which admitted to probate thewill of the decedent.

ATCI overseas corporation vs. Echin – processual presumption

Noveras vs. Noveras – absent a valid recognition of the divorce

decree, it follows that the parties are stilllegally married in the
Philippines. In this case, the presentation of a copy of foreign
divorce decree without seal from the office where the divorce
decree was obtained is not sufficient.

BE Johannes vs. Harvey – when a person dies intestate owning

property in the country of his domicile as well as in a foreign
country, administration is had in both countries.

Testate Estate of Perkins vs. Benguet Consolidated – that

which is granted in the jurisdiction of decedent’s last domicile
is termed the principal/domiciliary administration, while any
other administration is termed the ancillary administration.
The ancillary administration is proper, whenever a person dies,
leaving in a country other than that of his last domicile,
property to be administered in the nature of assets of the
deceased liable for his individual debts or to be distributed
among his heirs.
RULE 78 – PERSONS TO WHOM LETTERS TESTAMENTARY IS
ISSUED Q: What is section 2 of Rule 78? – executor of an executor
RULE 78 CANNOT administer the estate
Letters Testamentary and of Administration, When and Section 2. Executor of executor not to administer estate.
to Whom Issued — The executor of an executor shall not, as such, administer
the estate of the first testator

Q: What is letters administration?

Q: What is section 3 of Rule 78? – married woman may serve
A: grant of authority to administer the estate of a deceased
as executrix of the estate
person to a person appointed by the court
Section 3. Married women may serve. — A married woman
may serve as executrix or administratrix, and the marriage
Q: What is letters testamentary?
of a single woman shall not affect her authority so to serve
A: grant of authority to administer the estate of a deceased
under a previous appointment.
person to the executor named in the will.

Subject to the following conditions:

Q: Executor meaning
1. if he is competent;
A: person designated and charged by the testator in his will to
2. accepts the trust; and
carry out the provisions thereof and, upon the allowance of the
3. gives bond as required by these rules.
will, said person, unless he is unfit to discharge the trust as
executor, takes over the administration of the estate. (Albinbo
Q: Is it required that the petition for issuance of letter
vs. Pano)
testamentary be accompanied by certification of non-forum
shopping?
Q: Who are incompetent to serve as executors or
A: NO. A petition for the issuance of a letter testamentary is
administrators? Disqualified as executor
not an initiatory pleading that requires a certification of non-
forum shopping. (Nittscher vs. Nittscher)
Section 1. Who are incompetent to serve as
executors or administrators. — No person in competent to
Q: What is section 4 of Rule 78? – when will letters
serve as executor or administrator who:
testamentary be issued
(a) Is a minor;
(b) Is not a resident of the Philippines; and
Section 4. Letters testamentary issued when will allowed.
(c) Is in the opinion of the court unfit to execute the
— When a will has been proved and allowed, the court
duties of the trust by reason of drunkenness, improvidence,
shall issue letters testamentary thereon to the person
or want of understanding or integrity, or by reason of
named as executor therein, if he is competent, accepts the
conviction of an offense involving moral turpitude.
trust, and gives bond as required by these rules.

1. Minor
Q: what is the rule in case some of the executors are
2. Non-resident of the Philippines
disqualified?
3. One who is in the opinion of the court unfit to execute
the duties of the trust by reason of drunkenness,
A: Section 5. Where some coexecutors disqualified
improvidence, or want of understanding or integrity,
others may act. — When all of the executors named in a will
or by reason of conviction of an offense involving
cannot act because of incompetency, refusal to accept the
moral turpitude. (Marcelo vs. Marcelo)
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
Q: What do you mean by convicted of a crime involving
competent, accept and give bond, and they may perform the
“moral turpitude”?
duties and discharge the trust required by the will.
A: Convicted of crimes which affects the integrity or honesty of
a person
Q: Who may be appointed as administrator?
Republic vs. Marcos – the choice of his executor is a precious
prerogative of a testator, a necessary concomitant of his right
to dispose of his property in the manner he wishes.
 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.
Q: Will the enumeration in Section 6 of Rule 78 be applicable
to special administrators?
A: No, because the appointment of a special administrator
depends upon the discretion of the trial court
Q: Distinguish a regular from special administrator?
A: Regular Administrator - named by testator in a will or
chosen by the court under the rules
Special Administrator - if there is a delay by any cause including
an appeal of the allowance or disallowance, a special
administrator may be appointed.
Q: Who is an interested person?
A: person who will be benefited by the estate, or one who has
a claim against the estate
Q: What is the remedy in case of appointment of a regular
administrator?
A: Appeal because it is an order that fully disposes of the case
in accordance with Rule 41, sec.1
Section 1. Subject of appeal. — An appeal may be taken
from a judgment or final order that completely disposes of
the case, or of a particular matter therein when declared by
these Rules to be appealable.
xxx
or a particular matter = “ibig sabihin wala nang gagawin”
If (1) no executor is named in the will, or (2) the executor or
executors are incompetent, (3) refuse the trust, or (4) fail to
give bond, or (5) a person dies intestate, administration shall
be granted to the following:
A. SURVIVING SPOUSE OR NEXT OF KIN
B. PRINCIPAL CREDITORS
C. PERSON APPOINTED BY THE COURT
Quiazon vs. Belen – next of kin refers to those whose
relationship with the decedent in such that they are entitled to
share in the estate as distributees.
Q: is the order of preference in the appointment under Sec.
6, Rule 78 applicable in the appointment of SPECIAL
ADMINISTRATOR?
A: NO. The preference under Sec. 6 for the next of kin refers to
the appointment of a regular administrator, and not of a
special administrator, as the appointment of the latter lies
entirely in the discretion of the court. (Tan vs. Gedorio)
in the same case, it was held that the only remedy against the
appointment of a special administrator is Certiorari under Rule
65. However in this case, the court said that the abuse of
discretion must be patent and gross. The court ruled that the
better remedy is to pursue the appointment of a regular
administrator and put to an end the delay which necessitated
the appointment of special administrator.
Q: who may file a petition for letters administration?
A: it must be filed by an interested person. (Tayag vs. Tayag
Gallor)
Delgado vs. Damian – in the appointment of an administrator,
the principal consideration is the interest in the estate of the
one to be appointed. The order of preference does not rule out
the appointment of co-administrators, especially in cases
where justice and equity demand that opposing parties or
factions be represented in the management of the estates.
Q: nature of the appointment of co-administrator – the
selection of an administrator lies in the sound discretion of the
trial court based on the attending facts and circustances of the
case. (Suntay III v. Cojuangco-Suntay)
RULE 79 – OPPOSITION FOR THE ISSUANCE OF
LT
RULE 79
Opposing Issuance Of Letters Testamentary.
Petition And Contest For Letters Of
Administration
Q: What is section 1 of Rule 79? – rules in filing
an opposition to the issuance of letter
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.
Q: when can a petition for administration be
filed?
A: a petition may, at the time, be filed for letters
of administration with the will annexed.
Q: who may oppose the petition for issuance of
letter administration?
A: ONLY an interested person may oppose the
petition for issuance of letters of administration.
An interested person is one who would be
benefited by the estate such as an heir, or one
who has a claim against the estate, such as a
creditor; his interest is material and direct, and
not one that is only indirect or contingent. (Vda.
De Chua vs. CA; Maloles II vs. Phillips; Intestate
Estate of Julio Magbanwa)
Q: nature of the interest of the party
A: the interest must be material and direct and
not merely indirect or contingent. (Saguinsin vs.
Lindayag)
Q: effect of lack of interest
A: it is a ground for the dismissal of the action
onn the ground of lack of legal capacity to sue.
(Pilipinas Shell vs. Dumlao)
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:
(a) The jurisdictional facts;
(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.
Q: is it required that the petition for issuance of
letter testamentary be accompanied by a
certification of non-forum shopping?
A: No. the petition for the issuance of letters
testamentary is not an initiatory pleading, but a
mere continuation of the original petitionfor the
probate of the deceased. (Nittscher v. Nittscher)
Q: is mere allegation in the petition that the
petitioner is an illegitimate child without
stating that she was acknowledged or
recognized sufficient to state a cause of action?
A: Yes. The allegation that respondent is an
illegitimate child of the decedent suffices even
without further stating that she has been so
recognized or acknowledged. (Tayag vs. Tayag-
Gallor)
Q: What is the duty of the court upon the filing
of the petition for letters administration
 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.
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.

Q: what are the grounds for the filing of

opposition to the petition?
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.

Q: What is the relief available to the oppositor?

A: Oppositor may pray that letters issued to
himself, or to any competent person or person
named in the opposition.

Q: What is the duty of the court during the

hearing on the petition?
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.

Q: To whom letters administration shall be

issued?
 RULE 80 - SPECIAL ADMINISTRATOR
RULE 80
Special Administrator
Q: Who is a special administrator?
A: A special administrator is a representative of a decedent,
appointed by the probate court to care for and preserve his
estate until an executor or general administrator is appointed.
(Heirs of Castillo vs. Gabriel)
Q: What is section 1 of Rule 80?
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.
Q: when can a court appoint a special administrator?
A: ONLY when there is delay in granting letters testamentary
or of administration by any cause. (Medina vs. Gonzales)
In the same case, the court ruled that the specific and limited
powers of special administrators and that their appointment is
merely temporary and subsists only until a regular
administrator is duly appointed.
Q: what is the nature of an order of appointment of special
administrator? What is the remedy?
A: the appointment of a special administrator is an
interlocutory or preliminary order to the main case for the
grant of letter of administration in a testate or intestate
proceedings, and as such not appealable which can be the
subject of a petition for certiorari under Rule 65. (Manungas
vs. Parreo)
Q: What is the primary objective of appointment of special
administrator?
A: A special administrator is regarded not as a representative
of the agent of the parties suggesting the appointment, but as
the administrator in charge of the estate, and, in fact, as an
officer of the court. As such officer, heirs subject to the
supervision and control of the probate court and is expected
to work for the best interests of the entire estate, especially
its smooth administration and earliest settlement. (Heirs of
Castillo vs. Gabriel)
Q: Principal object of appointment of temporary
administrator
A: to preserve the estate until it can pass into the hands of
person fully authorized to administer it for the benefit of
creditors and heirs. (Ibid)
Q: What are the guiding principles in the appointment of
special administrator?
A: the trial court has the discretion to appoint anyone as a
special administrator of the estate, such discretion must be
exercised with reason, guided by the directives of equity,
justice and legal principles. (manungas vs. loreto)
In the same case: it will be prudent and reasonable to appoint
someone interested in preserving the estate for its eventual
distribution to the heirs.
Q: Is the order of preference in the appointment of regular
administrator applicable in case of special administrator?
A: No. The preference under Sec. 6, Rule 78 of the Rules of
Court refers to the appointment of a regular administrator and
not of a special administrator as the appointment of the latter
lies entirely in the discretion of the court and is not appealable.
(Tan vs. Gedorio)
The only remedy against the appointment of SA is certiorari
under Rule 65.
Q: Nature of the duty of the SA
A: SAs are officers of the court subject to the supervision and
control of the probate court and are expected to work for the
best interests of the entire estate, its smooth administration,
and its earliest settlement. (Corona vs. CA)
Q: Nature of the appointment of a special administrator
A: The appointment of special administrator is merely
discretionary on the part of the probate court, but such
discretion must be based on reason, equity, justice and legal
principle. (Fule vs. CA)
Q: What is the nature of the order of appointment of special
administrator?
A: Courts may appoint or remove special administrators based
on grounds other those enumerated in the Rules, at their
discretion, as long as the said discretion is exercised without
grave abuse, higher courts will not interfere with it. (Co vs.
Rosario)
Q: What is nature of the choice of executrix of SA?
A: the choice of the executrix of SA deserves highest
consideration from the probate court. (Corona vs. CA)
Q: What are the powers 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.
Q: What is the remedy for an order of appointment of a
special administrator?
A: Motion for reconsideration. Upon denial, a special civil
action for Certiorari under Rule 65, because it is an
interlocutory order, which cannot be appealed. Sec. 1 of Rule
41 provides that no appeal may be taken from an interlocutory
order. Furthermore, under the last paragraph of the same
section, it states that “In any of the foregoing circumstances,
the aggrieved party may file an appropriate special civil action
as provided in Rule 65.” Under Rule 65, certiorari is allowed to
annul the order of court or any quasi-judicial tribunal on the
ground of grave abuse of discretion.
Note: Wag daw isagot na “because it is an interlocutory
order, which cannot be appealed” kasi nakukulangan si sir.
And important yung word na “to annul” sa certiorari.
Rule 41, Section 1. Subject of appeal. — An appeal may be
taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein when
declared by these Rules to be appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or
reconsideration;
(b) An order denying a petition for relief or any similar
motion seeking relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a judgment
by consent, confession or compromise on the
ground of fraud, mistake or duress, or any other
ground vitiating consent;
(f) An order of execution;
(g) A judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending, unless
the court allows an appeal therefrom; and
(h) An order dismissing an action without prejudice.
In all the above instances where the judgment or final order
is not appealable, the aggrieved party may file an
appropriate special civil action under Rule 65. (n)
Rule 65, Section 1. Petition for certiorari. — When any
tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess its or his
jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary course
of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty
and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may
require.
The petition shall be accompanied by a certified true copy
of the judgment, order or resolution subject thereof, copies
of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping as
provided in the third paragraph of section 3, Rule 46.
Q: Q: What is the purpose of certiorari?
A: to annul the final orders of quasi-judicial tribunals
Q: What is the duty of the SA in case of payment of debts?
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.
Q: What are the grounds for the removal of SA?
A: The court may remove the SA not able to comply with the
payment of the bond which is required in Rule 81 and also,
there was evident bad faith on the part of the respondents and
administrators. (Ocampo vs. Ocampo)
Q: What is the nature of the power of the court to appoint
or remove SA?
A: Courts may appoint or remove special administrators based
on grounds other those enumerated in the Rules, at their
discretion. (Co vs. Rosario)
Even if a special administrator had already been appointed,
once the court finds the appropriate no longer entitled to its
confidence, it is justified in withdrawing the appointment and
giving no valid effect thereto. (Ibid)
 RULE 81 – BOND OF EXECUTORS AND ADMINISTRATORS
RULE 81
Bond of Executors and Administrators
Q: What is the object and purpose of administration bond?
A: Its object and purpose is to safeguard the properties of the
decedent, and, therefore, the bond should not be considered
as part of the necessary expenses chargeable against the
estate, not being included among the acts constituting the
care, management, and settlement of estate. (Ocampo vs.
Ocampo)
Q: What are the conditionalities under the Bond/duties of
the executor or administrator as conditions to the bond
posted?
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.
A: 1. Inventory of the estate
2. Administration of the estate
3. accounting of the estate
4. other acts
Q: May the testator direct the postingor non-posting of the
bond in his will?
A: Yes, as expressly provided by Sec. 2.
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 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.
Q: May the court order posting of additional bond?
A: yes, as also expressly provided by above cited rule.
Q: Rule on posting of bond in case of two or more executors
or administrators.
A:
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.
Q: Bond of special administrator
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.
Ocampo vs. Ocampo – the administration bond is for the
benefit of the creditors and the heirs, as it compels the
administrator to perform the trust reposed in, and discharge
the obligations incumbent upon him, therefore, it should not
be considered as part of the necessary expenses chargeable
against the estate, not being included among the acts
constituting the care, management, and settlement of the
estate.
 RULE 82 – REVOCATION OF ADMINISTRATION, DEATH,
RESIGNATION AND REMOVAL OF E/A
RULE 82
Revocation of Administration, Death, Resignation, and
Removal of Executors or Administrators
Q: When will a letter of administration be deemed revoked?/
what is the duty of the administrator after the revocation?/
what is the rule on the proceeding for the issuance of the
letters?
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.
Q: Removal, resignation, or death of an 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.
Q: Can the administrator be removed without just cause?
A: No. Administrators have such an interest in the execution of
their trust as to entitle them to protection from removal
without just cause. (Gonzales vs. Aguinaldo)
Q: What are the issues that may be passed upon in the
removal of the administrator?
A: The probate court shall pass upon and resolve the issues of
fitness or unfitness and the application of the order of
preference under Sec. 6 of Rule 78. (Ocampo vs. Ocampo)
Q: What is the nature of the order of removal of the court?
A: Trial court’s action of removing the administrator deserves
respect by the appellate court except when there is an error or
grave abuse of discretion. (Matute vs. CA)
Q: What is the effect if the administrator has an adverse
interest in the estate?
A: the person is unsuitable for the appointment of an
administrator. (Medina vs. CA)
Q: What is the nature of the power of the probate court in
determining the executor or administrator?
A: The determination of executor or administrator is
discretionary upon the court. (Matuto vs. CA)
Q: What is the requirement for the removal of
administrator?
A: The grounds for the removal of administrator must be
proved by evidence (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. (Gonzales vs. Aguinaldo)
Q: Where will the monetary claim against the person
administering the estate be made?
A: A monetary claim against the person administering an
estate, in relation to his or her acts of administration, in its
ordinary course , can be filed at the court where a special
proceeding for the settlement of the estate is pending.
(Pascual vs. CA)
Q: What is the remedy of a creditor though his claim is
contingent against the incompetency of the administrator?
A: The proper remedy of the creditor is to seek the removal of
the administrator in accordance with Sec. 2, Rule 81. (Hilado
vs. CA)
Q: What is the effect in case of revocation or resignation on
the acts done of the 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.
Can also answer Vda de Bacaling vs. Laguna: the acts of the
executor or administrator, done in GF prior to the revocation
of the letters, will be protected, and a similar protection will
be extended to rights acquired under a previous grant of
administration.

Q: What are the powers of a 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.
 RULE 83
INVENTORY AND APPRAISAL OF PROPERTIES AND
PROVISION FOR SUPPORT OF THE FAMILY

Q: What is the duty of the executor or administrator after

appointment?
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.

Q: What are the properties not included in the inventory of

the properties?
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.

Q: What is the rule on the allowance of the widow and

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.

Q: Are grandchildren entitled to provisional support from the

estate?
A: No. Grandchildren are not entitled to provisional support
from the funds of the decedent’s estate. (Estate of Hilario Ruiz
vs. CA)
 RULE 84 A: Under Rule 71, contempt is misbehavior before the court
General Powers and Duties of Executors and
Administrators Q: What are the kinds of contempt?
A: Under the rules and existing jurisprudence, there are 6 kinds
Q: What are the powers of regular administrator or of contempt.
executor? 1. Direct contempt
Section 1. Executor or administrator to have access to 2. Indirect contempt
partnership books and property. How right enforced. — 3. Out of court contempt
The executor or administrator of the estate of a deceased 4. In court contempt
partner shall at all times have access to, and may examine 5. Criminal contempt
and take copies of, books and papers relating to the 6. Civil contempt
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.
Section 2. Executor or administrator to keep buildings in
repair. — An executor or administrator shall maintain in
tenantable repair the houses and other structures and
fences belonging to the estate, and deliver the same in such
repair to the heirs or devisees when directed 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.

Q: What is the nature of the duty of the executor or

administrator to render an account?
A: The duty of an executor or administrator to render an
account is not a mere incident of an administration
proceedings, but rather it is mandatory. (Vda. De Chua vs. CA)

Q: What is the duty of the executor or administrator to pay

debts and expenses?
A: 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.
(Managquil vs. Atty. Villega)

Q: What is contempt?
 RULE 85
Accountability and Compensation of Executors and
Administrators
Q: What is section 1 of Rule 85? – matters which can be
charged against 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.
Q: What are those not included in the inventory?
Rule 83, 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.
1. wearing apparel of the surviving husband or wife and
minor children.,
2. the marriage bed and bedding,
3. such provisions and other articles as will necessarily
be consumed in the substinence of the family of the
deceased
Q: Limitations on the power of the executor or adminsitrator.
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.
Q: Liability of the E/A for uncollected debts without his fault.
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.
Q: What is the rule in case the executor or administrator uses
part of the real estate?
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.
Q: Rule in case of neglect or delay in raising or paying money
by the E/A
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.
Q: Rule in case of an amount paid by an E/A for costs awarded
against him
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.
Q: rule on allowable expenses of the E/A
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.
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.
Q: Rule on notice before the allowance of the 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.

When the executors or administrator is an Q: May the surety be made party to the accounting?
attorney, he shall not charge against the
estate any professional fees for legal Section 11. Surety on bond may be party to accounting. —
services rendered by him. Upon the settlement of the account of an executor or
administrator, a person liable as surety in respect to such
When the deceased by will makes some account may, upon application, be admitted as party to
other provision for the compensation of such accounting.
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.

Q: Duty of the E/A after one year

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.

Q: Rule on the examination of the E/A on any account.

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
3A – Study Circle
A.Y. 2019-2020
RULE 86
Claims Against Estate
Q: What if the executor or administrator has a claim against
the estate ?
A: appoint a special 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 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.
Q: What is Section 1 of Rule 86? – Duty of the court after
issuance of letters testamentary or administration
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.
Q: What is the purpose of the fixing of the period of claims
A: The purpose of fixing the time of claim is to ensure a speedy
settlement of the affairs of the deceased person and the early
delivery of the property to the person entitled to the same.
Q: What is the purpose of the presentation of the claims
against the estate?
A: The purpose of presentation of claims against decedents of
the estate in the probate court is to protect the estate of
deceased persons to enable the executor or administrator to
examine each claim and determine whether it is a proper one
which should be allowed. (Estate of Olave vs. Reyes)
Q: What is Section 2 of Rule 86? – time within which claims
shall be filed/ Principle of statute of non-claims
Section 2. Time within which claims shall be filed. — In the
notice provided in the preceding section, the court shall
estate 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.
Q: To whom shall extension be granted?
A: Creditors who failed to file their claims, but they must show
good cause, and the terms of extension shall be on equitable
terms
Q: What is the principle of statute of non-claims?
A: Any interested person who has a claim against the estate
must file his claim within a period of not less than 6 months,
nor more than 12 months from the date of first publication of
the notice. If such person did not file a claim, then it will be
barred.
Q: As to the extension
A: The creditors who failed to file their claims may ask for the
extension on equitable terms and only for good cause. The
extension must not exceed 1 month.
Q: What is Section 3 of Rule 86? – duty of the executor or
administrator after the issuance of the notice to creditors by
the 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.
Q: What is the purpose of publication?
A: To inform persons having an claim in the estate that they
must file their claims within the specified period
Q: What is Section 4 of Rule 86? – What will the E/A do after
the publication and posting of the notice?
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.
3A – Study Circle
A.Y. 2019-2020

Q: What is Section 5 of Rule 86? (The most important
provision under Rule 86) – Claims allowed under the notice to
the creditors
Section 5. Claims which must be filed under the notice. If
not filed, barred; exceptions. — All claims for money
against the decedent, arising from contract, express or
implied, whether the same be due, not due, or contingent,
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.
Q: Can a fourth-party complaint be included in the claims
against the estate?
A: Yes. Fourth-party complaint must be included in the claim
against the estate. (MBTC vs. Absolute Management Corp)
Q: What are the actions that survive the death and may be
enforced against the estate of the decedent?
A: Those provided under section 1 of Rule 87 in connection
with section 20 of Rule 3.
1. Action to recover real or personal property, or an
interest therein
2. Action to enforce a lien thereon
3. Action to recover damages for an injury to person or
property, real or personal
4. Those provided under section 20 of Rule 3.
but shall instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by the plaintiff
therein shall be enforced in the manner especially provided
in these Rules for prosecuting claims against the estate of a
deceased person. (21a)
Q: What is the nature of money claims arising from contract?
A: Money claims arising from contract against the estate is an
action that survives.
Stronghold insurance vs. Republic-Asahi – death of either the
creditor or the debtor does not extinguish the obligation and
only obligations that are personal or are identified with the
persons themselves are extinguished by death.
Q: What is the criterion in determining whether the action
survives or not?
A: It depends on the nature of the action and the damage sued
for, and the wrong complained of affects primarily and
principally property and property rights, the injuries to the
person being merely incidental. (Bonilla vs. Barcena)
Q: Can the claim for taxes be enforced against the estate of
the decedent?
A: Yes, claims for taxes survive the death of the decedent and
can be enforced against the estate. Claims for taxes may be
collected even after the distribution of the decedent’s estate
among his heirs who shall be liable therefor in proportion of
their share in the inheritance. (Government of the PH vs.
Pamintuan)
Q: What is the reason for the liability of the estate for the
claim of taxes?
A: Taxes are the lifeblood of the Government and their prompt
and certain availability are imperious need. (Vera vs. Hon.
Fernandez)
Q: Can a claim be made against a deceased surety on the
performance bond?
A: Yes, death is not a defense that he or his estate can set up
to wipe out the obligations under the performance bond.
(Stronghold Insurance vs. Republic-Asahi)

Rule 3, Section 20. Action and 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
Q: Can the claims based on a quasi-contract and contingent
claims be made against the estate of the decedent?
A: Yes, the liabilities of the deceased arising from quasi-
contracts should be filed as claims in the settlement of his
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estate, as provided in Sec. 5, Rule 86. (MBTC vs. Absolute
Management Corp)
Q: What is the remedy of the claimant if he failed to claim
within the time prescribed?
A: The claim may be set forth as counterclaims in any action
that the executor or administrator may bring against the
claimants.
Q: Rule if claim is not yet due or contingent
A: May be approved at their present value
Q: What does the word “claims” connotes?
A: The word “claims” as used in statues requiring the
presentation of claims against the decedent’s estate is
generally construed to mean debts or demands of a pecuniary
nature which could have been enforced against the deceased
in his lifetime and could have been reduced to simple money
judgments; and among these are those founded upon
contract. (Gutierrez vs. Baretto-Datu)
In case of claim against the estate arising from quasi-
contract, the specific provisions of Sec. 5 of Rule 86 should
prevail over the general provisions of Sec. 11 of Rule 6 on the
settlement of the estate of deceased persons where claims
against the deceased should be field. (MBTC vs. Absolute
Management Corp)
Q: Can the share of heirs, legatees, or devisees be the subject
of attachment?
A: Yes, under section 9 of Rule 57
Rule 57, Section 9. Effect of attachment of interests in
property belonging to the estate of a decedent. — The
attachment of the interest of an heir, legatee, or devisee in
the property belonging to the estate of a decedent shall not
impair the powers of the executor, administrator, or other
personal representative of the decedent over such property
for the purpose of administration. Such personal
representative, however, shall report the attachment to the
court when any petition for distribution is filed, and in the
order made upon such petition, distribution may be
awarded to such heir, legatee or devisee, but the property
attached shall be ordered delivered to the sheriff making
the levy, subject to the claim of such heir, legatee, or
devisee, or any person claiming under him. (9a)
Q: Can the right, title, and interest on the estate be the
subject of attachment?
A: Yes, as provided by the above-cited provisionof therules
that, during the pendency of such administration the right,
title, and interest which the heirs, devisees, or legatees may
have in the properties may be attached subject to the
administration of the estate. (Cook vs. Escobar)
Q: Rule in case the obligation of the decedent is solidary/joint
with another debtor.
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.
Q: What is the liability of surety company?
A: A surety company’s liability under the performance bond it
issues is solidary. The death of the principal obligor does not,
as a rule, extinguish the obligation and the solidary nature of
that liability. (Stronghold Insurance vs. Republic-Asahi)
Q: What is an attachment?
A: It is a provisional remedy, by virtue of which, a plaintiff or
other party, may have the property of the adverse party be
taken into the custody of the court as security for the
satisfaction of any judgment. It is ancillary and preliminary,
resorted before the finality of judgment to secure the property
of the adverse party and prevent its dissipation.
Preservation of property = Receivership
Restrict rights over property = injunction
Q: What are the kinds of attachment?
1. Levy on attachment
2. Garnishment
Q: What are the remedies of a mortgagee - creditor?****
1. Abandon his mortgage and participate in the
settlement and share in the general distribution of
the estate
2. Pursue the mortgage, claim the debt on the proceeds
of the mortgage, and in case of deficiency of the
foreclosure mortgage, he can claim his deficiency
judgment in the manner provided in the preceding
section (Section 6)
3. He may rely upon his mortgage or other security
alone and foreclose the same at any time within the
period of the statute of limitation
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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.
Q: What are the remedies of accreditor on a contract entered
into by the lawyer of the estate?
A: the creditor can prosecute an action against the
administrator as an individual or present a petition in the
proceeding relating to the settlement of the estate. (Ramos vs.
Bidin)
Q: What is the rule in case of monetary claims against the
administrator in relation to his acts of administration?
A: Monetary claim against the administrator has a relation to
his acts of administration such claims can be presented for
payment with the court where the settlement of the estate is
pending. (Quirino vs. Gorospe)
Q: How to file a claim?
DIVIDE THE PROVISION TO THE FOLLOWING:
A. Claims based on vouchers
B. Claims based on bond, bill, note or instrument
C. Claims which is due
D. Claims whichis not due or contingent
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.
You only need an affidavit if the document is not the original.
Take note of the important provisions in Rule 86: Sections 2,
5, 7, 9, 13
Q: What does the E/A allege in his answer?
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.
Q: What is the duty of the court upon submission of the
claim?
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Section 11. Disposition of admitted claim. — Any claim prevailing party shall be allowed the costs of his action up
admitted entirely by the executor or administrator shall to the time of its discontinuance.
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 in
the manner prescribed in the preceding section.’

Q: What is the rule in case the claim is contested/ can the

court refer the claim to the commissioner?

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.

Q: Remedy against the judgment on the claim

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 the
judgment creditor any priority of payment.

Q: may the judgment on the claim of the SA’s commission be

appealed?
A: Yes, the ruling on the extent of the Special Administrators
commission – effectively, a claim by the SA against the estate
– is the lower court’s last word on the matter and one that is
appealable. (Briones vs. Henson-Cruz)

Q: Why is it appealable?

A: It is appealable because the order with regard to the claim

is already a final adjudication in that issue. Therefore, it is
subject of an appeal.

Q: Rules in case of payment of cost

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

RULE 87 – ACTIONS BY AND AGAINST THE
E/A
Q: What are the actions which may or may not be brought 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.
Q: Can you give me an example of an action which can be filed
against the executor or administrator?
(Or otherwise known as an action that survives the death)
A:
1. Action for the recovery of money arising from
contract, express or implied (Sec 20, Rule 3);
2. Actions to recover real property;
3. Recovery of personal property or an interest therein,
from estate, or to enforce a lien thereon; and
4. Actions to recover damages for an injury to person or
property, real or personal, may be commenced
against him. (Sec. 1, Rule 87)
Q: Can you file an action for recovery of money against the
executor or administrator?
A: NO.
Q: What is the nature of an action for quieting of title with
damages?
A: an action for quieting of title with damages is an action
involving real property which is an action that survives.
(Galigumba vs. Palanog)
Q: What is the effect of the death of the accused as far as the
Civil Action is concerned?
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. (Sec. 4, Rule
111)
GUIDELINES TO BE OBSERVED WHN THE ACCUSED DIES
BEFORE THE FINAL JUDGMENT – PEOPLE VS BAYOTAS PAGE
277 SUPER HABA.
Q: What is the effect of death of accused pending appeal?
A: Death of the accused pending appeal of his conviction
extinguishes his criminal liability as well as the civil liability
based solely thereon. The claim for civil liability survives
notwithstanding the death of accused, if the same may also be
predicated on a source of obligation other than delict. (Hilado
vs. CA Azarcon)
Q: How can the claim against a third person be commenced?
A: Claim by the administrator against third person is by way of
an independent action and not by motion. (Dela Cruz vs.
Camon)
Q: When does the liability of an administrator for tax
payment begin?
A: The assessment is deemed made when the notice to this
effect is released, mailed or sent to the taxpayer for the
purpose of giving effect to said assessment. (Republic vs. Dela
Rama)
Q: To whom the power to recover properties belong?
A: The power to recover properties against third person
belongs to the administrator not the court. (Chua vs. Absolute
Management Corp)
Q: May a writ of attachment be secured to protect the estate?
A: Yes, issuance of a writ of attachment can be availed of for
the protection of the estate not of the creditor. (Gruenberg vs.
CA)
Q: What is Principle of Survivorship Disqualification or the
Dead Man’s Statute?
A: Parties or assignor of parties to a case, or persons in whose
behalf a case is prosecuted, against an executor or
administrator or other representative of a deceased person, or
against a person of unsound mind, upon a claim or demand
against the estate of such deceased person or against such
person of unsound mind, cannot be made to testify as to any
matter of fact occurring before the death of such deceased
person or before such person became of unsound mind. (Sec.
23, Rule 130)
Q: Rationale of Dead Man’s Statute
A: The reason for the rule on the application of Dead Man’s
Statute is that:
1. If the death has closed the lips of one party, the policy of the
law is close the lips of the other. (Maxillon vs. Tabotabo)
2. The temptation to falsehood and concealment in such cases
is considered too great to allow the surviving party to testify in
his own behalf. (Maralit vs. Lardizabal)
Q: Requisites in order that Dead Man’s Statute will apply?
A: In order that disqualification by reason of death or insanity
of the adverse party will apply, the following requisites must
concur:
1. That the witness offered for examination is the party
plaintiff or assignor of party to a case, or persons in whose
behalf a case is prosecuted;
2. That the case is against an executor or administrator or
other representative of a deceased person, or against a person
of unsound mind;
3. That the case is upon a claim or demand against the estate
of such deceased person or against such person of unsound
mind, or cannot testify;
4. That the testimony to be given is on any matter of fact
occurring before the death of such deceased person or before
such person became of unsound mind.
Q: What are the instances where the disqualification will not
apply?
A: Page 286
Q: What are the powers of the executor or administrator
under Sec. 2 of Rule 87?
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
Q: Can an heir file an action on behalf of the executor? In
other words, can an heir file an action regarding the estate of
the decedent?
A: No, because the rules provide that it is the executor or
administrator who should file an action for the protection of
the estate of the decedent.
Q: Is that rule absolute?
A: No. By way of exception, an heir can bring an action on the
estate if:
(a) There is no appointed administrator;
Go Chan vs. Young – When no administrator has been
appointed, there is all the more reason to recognize
the heirs as the proper representatives of the
deceased.
(b) if the appointed executor or administrator refuses to
bring suit. (p. 287-288)
Riofero vs. CA – another instance where the heir can
bring action on the estate is in case the executor or
administrator refuses to bring suit or he has alleged
to have participated in the act complained of and he
is made a party defendant.
(c) When the administrator is alleged to have
participated in the act complained of and he is made
a party defendant (Rioferio v. CA)
Q: Can the heirs bring an action to annul foreclosure
proceedings due to fraud committed by the administrator?
A: Yes, the heirs, who have an interest to assert and to protect
may bring the action to annul the foreclosure proceedings, but
it falls under the exception. (Velasquez vs. George)
Q: When can the heir bring action on the lands and any
damages?
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.
Q: Can laches be applied against the heir?
A: No, in the absence of indication of knowledge of the heir of
the existence of said orders of the intestate court.
(Pahamotang vs. PNB)
Q: What is Sec. 4 of Rule 87? – rule on the compounding of
the debt due
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.
Q: Sec. 5? – rule in case the mortgage is due to the estate
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.
Q: What is the rule regarding the estate fraudulently
conveyed?
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.
Q: What is the nature of the production and examination?
A: The procedure is inquisitorial in nature, designed as
economical and efficient mode of discovering properties of the
estate. (Rivera vs. Ramirez)
Q: What is the duty of the court upon complaint of E/A?
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.
Q: Liability of the person who embezzles or alienates
property of the estate before the issuance of the letters?
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 effects
of 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.
Q: Rule on recovery of property fraudulently conveyed by the
deceased during his lifetime?
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 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.
Q: When can a creditor file an action for and 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.
Requirements for the creditor to file action (continuation of
the provision):
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.
 RULE 88
PAYMENT OF THE DEBTS OF THE ESTATE
Rule on the payment of debts:
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.
Q: Who shall pay the debts?
A: It is only the executor or administrator of the estate
whom the court may authorize to dispose of the
properties of the estate. (Request for assistance relative
to special proceedings no. 28)
Rule on the payment of debt from the part of the
estate when there is a provision in the will:
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.
Order of preference in the disposition of the property
of the estate for the payment of debts and expenses:
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.
Duty of the court if the contingent claim is valid:
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.
Rule on the allowance of contingent claims:
Section 5. How contingent claim becoming absolute in
two years allowed and paid. Action against distributees
later. — If such contingent claim becomes absolute and is
presented to the court, or to the executor or administrator,
within two (2) years from the time limited for other
creditors to present their claims, it may be allowed by the
court if not disputed by the executor or administrator and,
if disputed, it may be proved and allowed or disallowed by
the court as the facts may warrant. If the contingent claim
is allowed, the creditor shall receive payment to the same
extent as the other creditors if the estate retained by the
executor or administrator is sufficient. But if the claim is
not so presented, after having become absolute, within
said two (2) years, and allowed, the assets retained in the
hands of the executor or administrator, not exhausted in
the payment of claims, shall be disturbed by the order of
the court to the persons entitled to the same; but the
assets so distributed may still be applied to the payment
of the claim when established, and the creditor may
maintain an action against the distributees to recover the
debt, and such distributees and their estates shall be
liable for the debt in proportion to the estate they have
respectively received from the property of the deceased.
Q: Can the creditor file an action against a
distributee of the debtor’s assets?
A: Yes. 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. (De Bautista vs. De Guzman)
Rule on fixing of the distributive share of the devisee,
legatee, or heir when they are in possession of the
part of the estate:
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.
CONCURRENCE AND PREFERENCE OF CREDITS
UNDER THE NEW CIVIL CODE / NCC
New Civil Code, Art. 1059
NCC, 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)
Arts. 2239-2250
Article 2239. If there is property, other than that
mentioned in the preceding article, owned by two or more
persons, one of whom is the insolvent debtor, his
undivided share or interest therein shall be among the
assets to be taken possession of by the assignee for the
payment of the insolvent debtor's obligations. (n)
Article 2240. Property held by the insolvent debtor as a
trustee of an express or implied trust, shall be excluded
from the insolvency proceedings. (n)
Article 2241. With reference to specific movable property
of the debtor, the following claims or liens shall be
preferred:
(1) Duties, taxes and fees due thereon to the
State or any subdivision thereof;
(2) Claims arising from misappropriation, breach
of trust, or malfeasance by public officials
committed in the performance of their duties, on
the movables, money or securities obtained by
them;
(3) Claims for the unpaid price of movables sold,
on said movables, so long as they are in the
possession of the debtor, up to the value of the
same; and if the movable has been resold by the
debtor and the price is still unpaid, the lien may
be enforced on the price; this right is not lost by
the immobilization of the thing by destination,
provided it has not lost its form, substance and
identity; neither is the right lost by the sale of the
thing together with other property for a lump sum,
when the price thereof can be determined
proportionally;
(4) Credits guaranteed with a pledge so long as
the things pledged are in the hands of the
creditor, or those guaranteed by a chattel
mortgage, upon the things pledged or mortgaged,
up to the value thereof;
(5) Credits for the making, repair, safekeeping or
preservation of personal property, on the
movable thus made, repaired, kept or
possessed;
(6) Claims for laborers' wages, on the goods
manufactured or the work done;
(7) For expenses of salvage, upon the goods
salvaged;
(8) Credits between the landlord and the tenant,
arising from the contract of tenancy on shares, on
the share of each in the fruits or harvest;
(9) Credits for transportation, upon the goods
carried, for the price of the contract and incidental
expenses, until their delivery and for thirty days
thereafter;
(10) Credits for lodging and supplies usually
furnished to travellers by hotel keepers, on the
movables belonging to the guest as long as such
movables are in the hotel, but not for money
loaned to the guests;
(11) Credits for seeds and expenses for
cultivation and harvest advanced to the debtor,
upon the fruits harvested;
(12) Credits for rent for one year, upon the
personal property of the lessee existing on the
immovable leased and on the fruits of the same,
but not on money or instruments of credit;
(13) Claims in favor of the depositor if the
depositary has wrongfully sold the thing
deposited, upon the price of the sale.
In the foregoing cases, if the movables to which the lien
or preference attaches have been wrongfully taken, the
creditor may demand them from any possessor, within
thirty days from the unlawful seizure. (1922a)
Article 2242. With reference to specific immovable
property and real rights of the debtor, the following claims,
mortgages and liens shall be preferred, and shall
constitute an encumbrance on the immovable or real
right:
(1) Taxes due upon the land or building;
(2) For the unpaid price of real property sold,
upon the immovable sold;
(3) Claims of laborers, masons, mechanics and
other workmen, as well as of architects,
engineers and contractors, engaged in the
construction, reconstruction or repair of buildings,
canals or other works, upon said buildings, canals
or other works;
(4) Claims of furnishers of materials used in the
construction, reconstruction, or repair of
buildings, canals or other works, upon said
buildings, canals or other works;
(5) Mortgage credits recorded in the Registry of
Property, upon the real estate mortgaged;
(6) Expenses for the preservation or improvement
of real property when the law authorizes
reimbursement, upon the immovable preserved
or improved;
(7) Credits annotated in the Registry of Property,
in virtue of a judicial order, by attachments or
executions, upon the property affected, and only
as to later credits;
(8) Claims of co-heirs for warranty in the partition
of an immovable among them, upon the real
property thus divided;
(9) Claims of donors or real property for pecuniary
charges or other conditions imposed upon the
donee, upon the immovable donated;
(10) Credits of insurers, upon the property
insured, for the insurance premium for two years.
(1923a)
Article 2243. The claims or credits enumerated in the two
preceding articles shall be considered as mortgages or
pledges of real or personal property, or liens within the
purview of legal provisions governing insolvency. Taxes
mentioned in No. 1, article 2241, and No. 1, article 2242,
shall first be satisfied. (n)
Article 2244. With reference to other property, real and
personal, of the debtor, the following claims or credits
shall be preferred in the order named:
(1) Proper funeral expenses for the debtor, or
children under his or her parental authority who
have no property of their own, when approved by
the court;
(2) Credits for services rendered the insolvent by
employees, laborers, or household helpers for
 one year preceding the commencement of the
proceedings in insolvency;
(3) Expenses during the last illness of the debtor
or of his or her spouse and children under his or
her parental authority, if they have no property of
their own;
(4) Compensation due the laborers or their
dependents under laws providing for indemnity
for damages in cases of labor accident, or illness
resulting from the nature of the employment;
(5) Credits and advancements made to the debtor
for support of himself or herself, and family,
during the last year preceding the insolvency;
(6) Support during the insolvency proceedings,
and for three months thereafter;
(7) Fines and civil indemnification arising from a
criminal offense;
(8) Legal expenses, and expenses incurred in the
administration of the insolvent's estate for the
common interest of the creditors, when properly
authorized and approved by the court;
(9) Taxes and assessments due the national
government, other than those mentioned in
articles 2241, No. 1, and 2242, No. 1;
(10) Taxes and assessments due any province,
other than those referred to in articles 2241, No.
1, and 2242, No. 1;
(11) Taxes and assessments due any city or
municipality, other than those indicated in articles
2241, No. 1, and 2242, No. 1;
(12) Damages for death or personal injuries
caused by a quasi-delict;
(13) Gifts due to public and private institutions of
charity or beneficence;
(14) Credits which, without special privilege,
appear in (a) a public instrument; or (b) in a final
judgment, if they have been the subject of
litigation. These credits shall have preference
among themselves in the order of priority of the
dates of the instruments and of the judgments,
respectively. (1924a)
Article 2245. Credits of any other kind or class, or by any
other right or title not comprised in the four preceding
articles, shall enjoy no preference. (1925)
Article 2246. Those credits which enjoy preference with
respect to specific movables, exclude all others to the
extent of the value of the personal property to which the
preference refers.
Article 2247. If there are two or more credits with respect
to the same specific movable property, they shall be
satisfied pro rata, after the payment of duties, taxes and
fees due the State or any subdivision thereof. (1926a)
Article 2248. Those credits which enjoy preference in
relation to specific real property or real rights, exclude all
others to the extent of the value of the immovable or real
right to which the preference refers.
Article 2249. If there are two or more credits with respect
to the same specific real property or real rights, they shall
be satisfied pro rata, after the payment of the taxes and
assessments upon the immovable property or real right.
(1927a)
Article 2250. The excess, if any, after the payment of the
credits which enjoy preference with respect to specific
property, real or personal, shall be added to the free
property which the debtor may have, for the payment of
the other credits. (1928a)
Q: What are the instances when the probate court may issue
writ of execution? Nature?
A: The probate court may issue writ of execution in cases of
satisfaction of the contributive share; paymentof expenses for
partition; and satisfy the cost of the examination of the
property. (Pastor vs. CA)
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.
Rule on the payment of dividends in proportion to the
claims
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.
How will the estate of a non-resident decedent which
is insolvent be disposed of:
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, hi
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.
How to prove claims outside the PH against insolvent
resident’s estate
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 on the 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.
Duty of the court when the E/A dies
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.

Effects of appeal on the order of payment of debts:

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.

Rule on the subsequent distribution of assets:

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.

Rule on the payment of the creditors:

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.

When will the debts or legacies be paid:

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.

RULE 89
SALES, MORTGAGES, AND OTHER
ENCUMBRANCES OF PROPERTY OF DECEDENT
When will the personal estate be sold:
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.
Q: What is the effect of sale or encumbrance without
the authority of the court?
A: The probate court could rescind or nullify the
disposition of a property under administration that was
effected without its authority. (Sps. Lebin vs. Mirasol)
Duty of the court if the personal estate is not
sufficient to pay debts and legacies:
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.
Can the sale, mortgage or otherwise encumber real or
personal estate be prevented?
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.
Rule in case of sale of the estate which is beneficial
to the interested persons and the disposal of the
proceeds:
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.
Rule in case of sale, mortgage, or encumbrance of
estate for payment of debts and legacies in other
countries:
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.
Rule in case of sale, mortgage, or encumbrance of
realty acquired on execution or foreclosure:
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.
Rule to be followed in case of sale, mortgage, or
encumbrance of the estate:
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 will thereby be reduced so as to prevent a creditor from
encumbrance is necessary or beneficial. receiving his full debt or diminish his dividend.
(b) The court shall thereupon fix a time and place
for hearing such petition, and cause notice stating Rule in case of conveyance of lands held in trust by
the nature of the petition, the reasons for the the deceased:
same, and the time and place of hearing, to be Section 9. When court may authorize conveyance of
given personally or by mail to the persons lands which deceased held in trust. — Where the
interested, and may cause such further notice to deceased in his lifetime held real property in trust for
be given, by publication or otherwise, as it shall another person, the court may after notice given as
deem proper; required in the last preceding section, authorize the
(c) If the court requires it, the executor or executor or administrator to deed such property to the
administrator shall give an additional bond, in person, or his executor or administrator, for whose use
such sum as the court directs, conditioned that and benefit it was so held; and the court may order the
such executor or administrator will account for the execution of such trust, whether created by deed or by
proceeds of the sale, mortgage, or other law.
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.

Rule in caseof conveyance ofrealty contracted by the

ceased:
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 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
 RULE 90 – Distribution and Partition of
the Estate
Q: When can the distribution of the estate can
be made? [Sec. 1(1), Rule 90]
A: 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:
1. 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.
2. If there is a controversy before the court
as to who are the lawful heirs of the
deceased person or as to the distributive
shares to which each person is entitled
under the law, the controversy shall be
heard and decided as in ordinary cases.
Requirement for Distribution of Estate [Sec.
1(2), Rule 90]
A: No distribution shall be allowed until:
1. The payment of the obligations above
mentioned has been made or provided
for, unless the distributes or any of
them;
2. Give a bond in a sum to be fixed by the
court, conditioned for the payment of
said obligations within such time as the
court directs.
Q: When is an Estate Deemed Settled and
Distributed? (Agtarap v. Agtarap, June 8, 2011)
A: After the payment of the debts of the estate,
funeral charges, expenses of administration,
allowance to the widow and inheritance tax.
Vda. De Kilayko v. Tengco (March 27, 1992) –
The probate court, in the exercise of its
jurisdiction to distribute the estate, has the
power to determine the proportion or parts to
which each distributee is entitled. A project of
partition is merely a proposal for the distribution
of the hereditary estate which the court may
accept or reject.
Effect of Issuance of a Decree of Distribution of
the Estate (Ancheta vs. Guersay-Dalaygon, June
8, 2006)
- Vests the title to the land of the estate in
the distributes, which, if erroneous may
be corrected by a timely appeal
Effect of Non-compliance of the Order of
Distribution of Estate (Mari vs. Bonilia, March
19, 1949)
- Probate proceedings cannot be deemed
closed and terminated because a judicial
partition is not final and conclusive and
does not prevent the heirs from bringing
an action to obtain his shares, provided
the prescriptive period has not elapsed.
Remedies of an Heir who has not Received his
Shares (Solivio vs. CA, February 12, 1990)
- Demand his share through a proper
motion or for reopening of the probate
or administrative proceedings if it had
already been closed
Luzon Surety v. Quebrar (January 31, 1984)
citing Montemayor vs. Gutierez – The approval
of the project of partition did not necessarily
terminate the administration proceedings.
Requisites to Consider the Settlement
Proceeding Closed (Palicte vs. Ramolete,
September 21, 1987)
1. An order of distribution or assignment of
the estate of the decedent must have
already been issued;
2. All debts, funeral expenses, expenses of
administration, allowances, taxes, etc.
chargeable to the estate must have been
paid; and
3. Such order must be issued upon proper
and specific application for the purpose
of the interested party or parties.
PCIB vs. Escolin (March 29, 1974) - The order of
distribution and delivery of the residue of the
estate closes the settlement proceedings.
Ground(s) to Set Aside Final Liquidation (Vda.
De Alberto vs. CA, May 18, 1989) – An interested
heir is left out by reason of circumstances
beyond his control or through mistake or
inadvertence not imputable to negligence
- Remedy: Reopening the same case by
proper motion within the reglementary
period
Attack on the Validity of the Approval of the
Partition and Distribution may no longer be
done after the receipt of the share (Ralla vs.
Judge Untalan, April 27, 1989).
Determination of the Issue of Filiation of the
Claimant by the Probate Court (Guy vs. CA,
September 15, 2006)
- The court is not precluded to receive
evidence to determine the filiation of
the claimants even if the original petition
is for the issuance of letters
administration. Its jurisdiction extends
to matters collateral and incidental to
the settlement of the estate, with the
determination of heirship included.
Rule on Advancement (Sec. 2, Rule 90)
- 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.
Qualifications in the Advance Distribution of
the Estate (Pena vs. LCN Construction Corp.,
August 26, 2008): It can only be made on the
portion not affected by the controversy or
appeal and not subject of appeal.
Natcher vs. CA (October 2, 2001): Question on
advancement cannot be raised in an action for
reconveyance and annulment of title and
damages. The provision contemplates a probate
court when it speaks of the court having
jurisdiction of the estate proceedings.
Effect of Failure of the Parties to Submit the
Promised Compromise Agreement (Tabuada vs.
Ruiz Facts, June 27, 2008)
- It will not result to dismissal of the case
based on Sec. 3 last paragraph of Rule
17. Its dismissal should be ordered only
in the extreme case where the
termination of the proceeding is the sole
remedy consistent with equity and
justice, but not as penalty for neglect of
the parties.
Rule on Payment of Expenses of Partition (Sec.
3, Rule 90)
 1. If there is sufficient effects/funds – by
the executor or administrator
2. If there is no sufficient effects/funds – by
the parties in proportion to their
respective shares or interest in the
premises
3. Failure to pay the share – court may
issue an execution in the name of the
executor or administrator against the
party not paying the sum assessed
o Generally, it cannot be issued
because its orders usually refer
to the adjudication of claims
against the estate which the
executor or administrator may
satisfy without the necessity of
resorting to a writ of execution.
The probate court does not
render any judgment
enforceable by execution
(Pastor, Jr. vs. CA, June 24,
1983).

Issuance of Writ of Execution (Pastor, Jr. vs. CA,

June 24, 1983):
1. To satisfy debts if the estate out of the
contributive shares of devisees, legatees
and heirs in possession of the decedent’s
assets (Sec. 6, Rule 88);
2. To enforce payment of expenses of
partition (Sec. 3, Rule 90); and
3. To satisfy the costs when a person is
cited for examination in probate
proceedings (Sec. 13, Rule 142)

Rule on the Recording of the Order of Partition

(Sec. 4, Rule 90)
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.
 RULE 91 - ESCHEAT Filed for the purpose of Intended to revert
taking of property for back to the State the
public use property of the
Q: What is an Escheat? decedent leaving no
A: Escheat is a proceeding whereby the state, by heir to succeed or
virtue of its sovereignty, steps in and claims person by law entitled
abandoned, left vacant or unclaimed property to it
without there being an interested person having a Just compensation Just compensation is
legal claim (RCBC vs. Hi-Tri Development must be paid by the not required
Corporation and Luz R. Bakunawa, June 13, 2012). State
Venue of expropriation The venue lies with the
Escheat is a proceeding whereby the state, by is the Regional Trial Regional Trial Court
virtue of its sovereignty, steps in and claims the Court where the where the deceased
real or personal property of a person who dies property to be last resided or where
intestate leaving no heir (Republic vs. CA and expropriated is located his estate may be
Solano, January 31, 2002). found if he is residing
outside the
Q: What is the nature of Escheat Proceedings? Philippines.
A: It is an action in rem because it is brought against
the thing itself instead of a person (RCBC vs. Hi-Tri Q: What is Sec. 1 of Rule 91?
Development Corporation and Luz R. Bakunawa, A: When a person dies intestate, seized of real or
June 13, 2012). personal property in the Philippines, leaving no heir
or person by law entitled to the same, the Solicitor
Objective of Escheat Proceedings: state forfeiture General or his representative in behalf of the
of unclaimed balances (RCBC vs. Hi-Tri Development Republic of the Philippines, may file a petition in the
Corporation and Luz R. Bakunawa, June 13, 2012). Court of First Instance of the province where the
deceased last resided or in which he had estate, if
Q: What are the classifications of Escheat? he resided out of the Philippines, setting forth the
A: First, when the deceased dies intestate, leaving a facts, and praying that the estate of the deceased
property, without an heir. Second, in cases of be declared escheated. (Sec. 1, Rule 91)
reversion proceedings, whereby properties are
alienated in violation of the Constitution and other Interested Party in an Escheat Proceeding – any
statutes. person alleging to have a direct right or interest in
the property sought to be escheated (Republic vs.
Q: What is the distinction between Expropriation CA and Solano, January 31, 2002).
and Escheat?
Interested Party in an Action for Reversion –
Expropriation Escheat (Rule 91) Republic of the Philippines (Manese vs. Sps.
(Rule 67) Dioscoro Velasco and Gliceria Sulti, January 29,
It is a special civil It is a special 2009).
action governed Rule proceeding governed
67 by Rule 91 Q: Is an escheat applicable in case of dormant
accounts?
A: YES. In case of dormant accounts, th State
inquires into the status, custody, and ownership of
the unclaimed balance to determine whether the
inactivity was brought about by the fact of death or
absence of or abandonment by the depositor. If
after the proceedings the property remains without
a lawful owner interested to claim it, the property
shall be reverted to the State (RCBC v. Hi-Tri
Development Corporation and Luz Bakunawa,
January 13, 2012).
Real Party in Interest in an Escheat Proceeding in
case of Dormant Account: The bank because it
would necessarily deprive the bank of the use of
such deposits.
Manager’s Check in Escheat Proceedings: Cannot
be escheated because the instrument – although
accepted in advance – remains undelivered. Its
assigned fund is deemed to remain part of the
account which procured it (RCBC v. Hi-Tri
Development Corporation and Luz Bakunawa,
January 13, 2012).
Motion To Dismiss a Petition for Escheat: May be
filed when the petition for escheat is groundless
and such petition may be dismissed unconditionally
and the petitioner is not entitled to be afforded an
opportunity to amend his petition (Go Poco Grocery
vs. Pacific Biscuit Co., March 31, 1938).
Q: What is Sec. 2, order for hearing?
A: 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 deem
best.
Q: What is the purpose of the publication?
A: The purpose is to give constructive notice to all
interested parties who have a claim against the
estate, and to give effect to the in rem nature of the
Escheat proceeding.
Q: What is Sec. 3, hearing and judgment?
A: 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 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.
Such 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 only the income from the
property shall be used.
Q: What is direct and material interest?
A: A person has direct and material interest if a
party would be benefited or injured by the
judgment of the suit.
Effect of the Judgment in Escheat Proceedings:
Conclusive against all persons with actual or
constructive notice (Republic vs. CA and Solano,
January 31, 2002).
Q: What is the remedy of an heir in case of escheat
proceedings?
A: 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 said time shall be forever barred (Sec.
4, Rule 91).

Purpose of the Five-Year Period to File Claim: To

encourage would be claimants to be punctilious in
asserting their claims, otherwise, they may lose
them forever in a final judgment (Republic vs. CA
and Solano, January 31, 2002).

Q: What are the other actions for escheat?

A: Until otherwise provided by law, actions for
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 (Sec. 5, Rule 91).

Q: Is reversion or escheat proceeding applicable in

case a property is first acquired by a foreigner and
that property was subsequently transferred to a
Filipino citizen?
A: No, escheat would not lie if the property is
already in the name of a Filipino since there would
be no more public policy violated since the land is in
the hands of a Filipino qualified to acquire and own
such land (Republic of the Philippines v. Register of
Deeds of Roxas City, July 16, 2008).
 CHAPTER IV - the petition shall - the petition shall
be filed in the place be in the place
GUARDIANSHIP (RULE 92-97) where the where the minor’s
incompetent property or part
Q: What is guardianship? resides or if a non- thereof is situated,
A: Guardianship is the custody of the person and resident, with the which has
RTC of the place jurisdiction over
property or of the property only, of those who,
where the the guardianship
not being under parental authority, are incapable incompetent’s proceeding.
of taking care of themselves (Ibanez de Aldecoa property or part
vs. Hongkong & Shanghai Banking Corporation). thereof is situated,
which has
Q: Who is a guardian? jurisdiction over
A: A guardian is a person who acts for another the guardianship
proceeding for
whom the law regards as incapable of managing
such incompetent
his own affairs (Francisco vs. CA, January 31, As to court:
1984). - the petition shall - the petition shall
be filed with the be filed with the
Q: What are the kinds of guardianship? RTC (Sec. 1, Rule Family Courts (Sec.
A: The kinds of guardianship proceedings are as 92) 2 of A.M. No. 03-
follows: 02-05)
As to who may file:
1. Guardianship proceeding for
- Any relative, friend, - On grounds
incompetents which is governed by Rules or other person on authorized by law,
92-97 of the Rules of Court behalf of a resident any relative or
2. Guardianship proceeding for minors minor or other person on
which is governed by A.M. No. 03-02-05- incompetent who behalf of a minor,
SC has no parent or or the minor
lawful guardian, or himself if 14 years
the minor himself if of age or over, may
Purpose of Guardianship: To further the ward’s
14 years of age or petition the Family
well-being by preserving the ward’s property, as over, may petition Court for the
well as to render any assistance that the ward the court having appointment of a
may personally require (Oropersa vs. Oropesa, jurisdiction for the general guardian
April 25, 2012). appointment of a over the person or
general guardian property, or both,
for the person or of such minor. The
Q: What are the distinctions between
estate, or both, of petition may also
Guardianship under the Rules of Court and such minor or be filed by the
Guardianship under A.M. No. 03-02-05-SC? incompetent. (Sec. Secretary of Social
Guardianship of Guardianship of 1, Rule 93) Welfare and
Incompetents Minors OR Development and
As to purpose: - it governs - When a person by the Secretary of
- it governs guardianship of the liable to be put Health in the case
guardianship of the person of the under guardianship of an insane minor
person of the minor and his resides without the who needs to be
competent and his properties. Philippines but has hospitalized. (Sec. 2
estates. estate therein, any of A.M. 03-02-05)
As to venue: relative or friend of
 such person, or
anyone interested
in his estate, in
expectancy or
otherwise. (Sec. 6,
Rule 93)
Q: What are the kinds of guardians?
A: The following are kinds of guardians:
1. Natural guardian
2. Guardian ad litem
3. Judicial guardian
Jurisdiction of Courts:
1. Guardianship for Minors – Family Court
of the place where the minor’s property
or part thereof is situated, which has
jurisdiction over the guardianship
proceeding
2. Guardianship for Incompetents – Court
of First Instance (now RTC) of the
province, or in the justice of the peace
court of the municipality, or in the
municipal court of chartered city where
the minor or incompetent person resides
3. Guardianship Involving Muslims –
Shari’ah Distric Courts [Art. 143(a) of PD
1083, otherwise known as The Code of
Muslim Personal Laws of the Philippines]
Venue of the Proceedings (Sec. 1, Rule 92):
1. Court of First Instance (now RTC) of the
province, or in the justice of the peace
court of the municipality, or in the
municipal court of chartered city where
the minor or incompetent person resides
2. If he resides in a foreign country, in the
CFU (now RTC) of the province wherein
his property or the part thereof is
situated
3. If the value of the property of such minor
exceeds that jurisdiction of the justice of
the peace or municipal court, the
proceedings shall be instituted in the CFI
(now RTC)
Substantive Basis: Sec. 19(7) of BP 129 as
amended by RA Np. 7691
Q: Who is an incompetent (Sec. 2, Rule 92)?
A: The word “incompetent” includes:
1. persons suffering the penalty of civil
interdiction; or
2. 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;
3. 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.
Proof Required to Prove that the Ward is
Incompetent: Anchored on a clear, positive and
definite evidence (e.g. documentary evidence and
any expert medical testimony) (Orpesa vs.
Orpesa, April 25, 2012).
Rule on the Transfer of Venue (Sec. 3, Rule 92):
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 fee.
Objectives of the Hearing on the Appointment of
A Guardian: 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 (Alaymari vs. Pabale,
April 30, 2008).
Contents of the petition (Sec. 2, Rule 93)
A petition for the appointment of general
guardian must show the following:
(a) The jurisdictional 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 the
estate;
(e) The name of the person for whom letters
of guardianship.
Q: What are jurisdictional facts?
A: Jurisdictional facts are those which must be
specifically alleged for the court to take
cognizance, try, and hear the case.
Q: What are the jurisdictional facts that must be
alleged in a petition for guardianship over
incompetence?
A: The jurisdictional facts are as follows:
1. Fact of incompetency;
2. That the petition is filed in the court
where the incompetent resides or where
his property is situated;
3. Personal circumstances of the ward;
4. Personal circumstances of the petitioner
or any person who may be interested in
the property and person of the
incompetent;
5. Properties should include a description of
the probable value and character of the
estate of the incompetent
Rule on the Petition:
1. It shall be verified; and
2. No defect in the petition or verification
shall render void the issuance of letters of
guardianship.
Duty of the Court After the Filing of the Petition
(Sec. 3, Rule 93):
When a petition for the appointment of a general
guardian is filed, the court shall:
1. fix a time and place for hearing the same;
and
2. 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
Q: Is it required for creditors of the ward to be
notified of the petition for guardianship?
A: NO, because the primary objective of the
hearing is to appoint a guardian and determine
who among the candidates are qualified to be a
guardian. Creditors may not be notified because
their participation in such proceedings is not
essential.
Grounds in Opposing the Petition (Sec. 4, Rule
93):
1. majority of the alleged minor,
competency of the alleged incompetent;
or
2. the insuitability of the person for whom
letters are prayed
Reliefs Available to the Oppositor (sec. 4, Rule
93): The oppositor may pray that:
1. the petition be dismissed; or
2. letters of guardianship issue to himself, or
to any suitable person named in the
opposition
Duty of the Court During Hearings (Sec. 5, Rule
93): 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:
1. hear the evidence of the parties in
support of their respective allegations;
and
2. if the person in question is a minor, or
incompetent it shall appoint a suitable
guardian of his person or estate, or both,
with the powers and duties hereinafter
specified.
Rule on the Appointment of a Guardian in case of
Non-Resident Ward (Sec. 6, Rule 93): 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:
1. may petition a court having jurisdiction
for the appointment of a guardian for the
estate; and
2. 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.
Rule in case of Parents as Guardians (Sec. 7, Rule
93):
1. When the property of the child under
parental authority is worth two thousand
pesos or less, the father of the mother,
without the necessity of court
appointment, shall be his legal guardian.
2. When the property of the child is worth
more than two thousand pesos, the
father or the mother shall be considered
guardian of the child's property, with the
duties and obligations of guardians under
this rules, and shall file the petition
required by section 2 hereof.
3. For good reasons the court may,
however, appoint another suitable
person.
Rule on the Service of Final Order or Judgment
(Sec. 8, Rule 93): served upon the civil register of
the municipality or city where the minor or
incompetent person resides or where his property
or part thereof is situated
Conditionalities of the Bond of the Guardian (Sec.
1, Rule 94):
1. Inventory of the Estate – To make and
return to the court, within 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.
2. Management and Disposition of the
Estate – To faithfully execute the duties
of his trust, to manage and dispose of the
estate for the best interests of the ward
and to provide for the proper care,
custody and education of the ward.
3. Rendition of Account – 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
4. Performance of All Court Orders – To
perform all orders of the court by him to
be performed.
Rule on the Posting of a New Bond (Sec. 2, Rule
94): 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.
Liability on the Bond (Sec. 3, Rule 94): Every bond
given by a guardian shall be:
1. filed in the office of the clerk of the court;
and
2. 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.
Rule on the Filing of the Petition to Sell or
Encumber the Estate (Sec. 1, Rule 95): When the
income of the estate under guardianship is
insufficient, the guardian may present a verified
petition to the court by which he was appointed
during setting forth such facts and praying that an
order issue authorizing the sale or encumbrance
for the following purpose, to wit:
1. to maintain the ward and his family; or
2. to maintain and educate the ward when a
minor; or
3. 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.
Duty of the Court if Sale or Encumbrance is
Necessary (Sec. 2, Rule 95): 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.
Actions of the Court During Hearing (Sec. 3, Rule
95): At the time and place designated in the order
to show cause, the court shall:
1. hear the proofs and allegations of the
petitioner and next of kin, and other
persons interested, together with their
witnesses; and
2. grant and refuse the prayer of the
petition as the best interest of the ward
require.
3. The court shall make such order as to cost
of the hearing as may be just.
Purpose of the Sale or Encumbrance of the Estate
of the Ward (Sec. 4, Rule 95): The proceeds of the
sale or encumbrance shall thereof be:
1. Expended for the maintenance of the
ward and his family;
2. For the education of the ward, if a minor;
3. For the putting of the same interest; or
4. For the investment of the same as the
circumstances may require.
Contents of the Order (Sec. 4, Rule 95): The order
shall specify the following:
1. The causes why the sale or encumbrance
is necessary or beneficial; and
2. May direct the estate 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.
Purpose of the Original Bond Posted by the
Guardian (Sec, 4, Rule 95):
1. Shall stand as security for the proper
appropriation of the proceeds of the sale;
 2. The judge may, if deemed expedient,
require an additional bond as a condition
for granting the order of the sale.
Limitation on the Issuance of the Order (Sec. 4,
Rule 95): No order of sale shall continue in force
more than 1 year after granting the same, without
a sale being had.
Rule on the Investment of Proceeds of Sale or
Management of the Estate (Sec. 5, Rule 95): The
court may:
1. 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
2. May make such other orders for the
management, investment, and disposition
of the estate and effects, as
circumstances may require.
Duties of the Guardian (Sec. 1, Rule 96):
1. Have the care and custody of the person
of his ward;
2. The management of his estate;
3. The management of his estate only.
Duty of the Guardian of a Non-Resident (Sec. 1,
Rule 96): 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.
Q: What is the effect of the non-compliance of
the guardian on his duties and responsibilities?
A: The court shall deem that he vacated the trust.
Nature of the Power of the Legal Guardian
(Cabales vs. CA, August 31, 2007): The legal
guardian only has the plenary power of
administration of the minor’s party. It does NOT
include the power of alienation which needs
judicial authority.
Duty of the Ward with Respect to the Debt of the
Ward (Sec. 2, Rule 96): must pay the ward’s just
debts out of his personal estate, if sufficient; if
not, then out of his real estate upon obtaining
an order for the sale or encumbrance thereof.
Powers and Obligations of a Guardian (Sec. 3,
Rule 96):
1. Settle all accounts of his ward;
2. Demand, sue for, and receive all debts
due him;
OR
3. 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
4. He shall appear for and represent his
ward in all actions and special
proceedings, unless another person be
appointed for that purpose.
Duties of the Guardian as Regards the
Management of the Estate, Income and Profits
(Sec. 4, Rule 96):
1. Manage the estate of his ward frugally
and without the waste;
2. Apply the income and profits thereof, so
far as may be necessary, to the
comfortable and suitable maintenance of
the ward and his family; and
3. If such income and profits be insufficient
for that purpose, the guardian may sell or
encumber the real estate, upon being
authorized by order to do so, and apply to
such of the proceeds as may be necessary
to such maintenance.
Rule on the Partition of the Estate (Sec. 5, Rule
96): The court may authorize 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.
Actions of the Court in Case of Suspected
Embezzlement or Concealment of the Property of
the Ward (Sec. 6, Rule 96): The court may:
1. Cite the suspected person to appear for
examination touching such money, goods,
interest or instrument; and
2. Make such orders as will secure the
estate against such embezzlement,
concealment or conveyance.
Rule on the Delivery of the Property Embezzled,
Concealed or Conveyed (Parco & Bautista vs. CA
January 30, 1982):
GR: The guardianship court cannot actually order
the delivery of the property of the ward found to
be embezzled, concealed or conveyed.
XPN: Only in extreme cases, where the property
clearly belongs to the ward or where his title
thereto has been already judicially decided
Rendition of an Accounting of the Estate of the
Ward (Sec. 7, Rule 96): An inventory of the estate
of the ward must be rendered to the court within
3 months after his appointment and annually
after such appointment an inventory and
account.
Duty of the Guardian in Case of Accounting of the
Estate (Sec. 7, Rule 96): Inventories and accounts
shall be sworn to by the guardian and all the
estate of the ward described in the 1st inventory
shall be appraised.
Action of the Court in Case of Appraisement of
the Estate (Sec. 7, Rule 96): The court may
request the assistance of 1 or more of the
inheritance tax appraisers.
Rule in Case of Discovery or Acquisition of
Property of the Ward Not Included in the
Inventory (Sec. 7, Rule 96): Like proceedings shall
be had for securing an inventory and
appraisement thereof within 3 months after such
discovery, succession or acquisition.
Rule on the Presentation of the Accounting of
the Guardian to the Court (Sec. 8, Rule 96): Must
be done upon the expiration of a year from the
time of his appointment, and as often thereafter
as may be required.
Rule in Case of Allowance of His Expenses and
Compensation (Sec. 8, Rule 96): 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.
Q: Who may file a Petition for Judicial
Determination of Competency?
A: Person who has been declared incompetent for
any reason, or his guardian, relative or friend (Sec.
1, Rule 97).
Requirements on the Petition Judicial
Determination of Competency (Sec. 1, Rule 97):
The petition shall be verified by oath and shall
state that such person is then incompetent.
Duty of the Court Upon Receipt of the Petition
(Sec. 1, Rule 97): The court shall:
1. The court shall fix a time for hearing the
questions raised thereby; and
2. Cause reasonable notice thereof to be
given to the guardian of the person so
declared incompetent and to the ward.
Possible Actions of the Court During Trial on the
Petition (Sec. 1, Rule 97): The court may:
1. Allow any other person to contest the
right to the relief demanded;
 2. Witness may be called and examined by
the parties or by the court on its own
motion; and
3. If it be found that the person is no longer
incompetent, his competency shall be
adjudged and the guardianship shall
cease.
Q: What are the grounds for termination of
guardianship?
A:
1. When a guardian becomes insane or
otherwise incapable of discharging his
trust or unsuitable therefor;
2. When he has wasted or mismanaged the
estate; or
3. When he failed for 30 days after it is due
to render an account or make a return
(Sec. 2, Rule 97); and
4. Marriage or involuntary emancipation of
a minor ward (Sec. 3, Rule 97).
NOTE: These grounds are not exclusive.
Jurisprudence added additional grounds such as
death (Abad vs. Biason and Magno, December 5,
2012) and conflict of interest (Vda. De Bengson
vs. PNB, December 28, 1961).
Effect of Death of the Ward on the Guardianship
and Administration of the Estate (Manungas vs.
Loreto and Parreno, August 22, 2011): Does not
automatically disqualify the guardian to be a
special administration.
Acts of the Ward Which are Allowed After the
Termination of Guardianship (Sec. 3, Rule 97):
1. Administer his property as though he
were of age;
2. He cannot borrow the money or alienate
or encumber real property without the
consent of his father or mother or
guardian; and
3. He can sue and be sued in court only with
the assistance of his father, mother or
guardian.
Rule on the Discharge of the Guardian (Sec. 3,
Rule 97): May be done when it appears, upon
application of the ward or otherwise, that the
guardianship is no longer necessary.
Duty of the Court Upon Cognizance of the
Proceedings (Sec. 4, Rule 97): The record of the
proceedings shall be kept as in the CFI.
Rule on the Service of Judgment or Final Order of
the Court (Sec. 5, Rule 97): 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.
GUARDIANSHIP OF MINORS
(A.M. No. 02-03-05-SC)
Basis of Guardianship of Minor (De Leon vs.
Lorenzo, April 27, 1972): Where minors are
involved, the State acts as parens patriae which is
inherent in the Supreme power of every State… It
is a most beneficient function and often necessary
to be exercised in the interest of humanity, and
for the prevention of injury to those who cannot
protect themselves.
Q: Who are minors?
A: Minors are those who are age 18 and below, or
although 18 and above, are incapable of taking
care of themselves by reason of incapacity.
Rule on the Disposition or encumbrance of the
Property of a Minor by his Parents (Neri vs. Heirs
of Hadji Yusup Uy and Julpha Ibrahim Uy,
October 10, 2012): The father or mother does not
have the power to dispose or encumber the
property because such is granted by law only to a
judicial guardian of the ward’s property and even
only with the court’s prior approval.
Q: What court has jurisdiction over petition of
guardianship over minors?
A: Sec. 5(b) of R.A. 8369 or the Family Courts Act
states that the Family Courts shall have exclusive
original jurisdiction to hear petitions for
guardianship, custody of children, habeas corpus
in relation to the latter.
Q: Where to file the petition?
A: 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, or if he resides in a foreign
country, in the Family Court of the province or city
where his property is situated (Sec. 3 of A.M. 03-
02-05-SC).
Application of the Rule (Sec. 1 of A.M. 03-02-05-
SC): This Rule shall apply to:
1. Petitions for guardianship over the
person or property or both of a minor;
2. The father and the mother shall jointly
exercise the guardianship over the person
and property of their unemancipated
common child without the necessity of a
court appointment.
NOTE: Shall apply suppletory to the provisions of
the Family Code on Guardianship.
Q: Who may file the petition?
A:
1. Any relative or other person on behalf of
the minor;
2. The minor himself if 14 years of age or
over; or
3. By the Secretary of Social Welfare and
Development and by the Secretary of
Health in case of an insane minor who
needs to be hospitalized (Sec. 2 of A.M.
03-02-05-SC).
If the minor resides outside the Philippines:
1. Any relative or friend of such minor; or
2. Anyone interested in his property, in
expectancy or otherwise (Sec. 12 of A.M.
03-02-05-SC).
Rule on Notice of Hearing on the Petition (Sec. 12
of A.M. 03-02-05-SC): shall be given to the minor
by publication or any other means the court deem
proper
NOTE: The presence of the non-resident minor
may be dispensed with.
Grounds for the Filing of the Petition for the
Appointment of a Guardian of a Minor (Sec 4 of
A.M. 03-02-05-SC):
1. Death, continued absence or incapacity of
his parents;
2. Suspension, deprivation or termination of
parental authority;
3. Remarriage of his surviving parent, if the
latter is found unsuitable to exercise
parental authority; or
4. When the best interests of the minor so
require.
Qualifications of the Guardian (Sec. 5 of A.M. 03-
02-05-SC): The court shall consider the following,
to wit:
1. Moral character;
2. Physical, mental and psychological
condition,
3. Financial status;
4. Relationship of trust with the minor;
5. Availability to exercise the powers and
duties of a guardian for the full period of
the guardianship;
6. Lack of conflict of interest with the minor;
and
7. Ability to manage the property of the
minor.
Order of Preference in the Appointment of a
Guardian (Sec. 6 of A.M. 03-02-05-SC):
 1. Surviving grandparent and in case several
grandparents survive, the court shall
select any of them taking into account all
relevant considerations;
2. The oldest brother or sister of the minor
over 21 years of age, unless unfit or
disqualified;
3. The actual custodian of the minor over 21
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.
Q: What is the duty of the Court upon the filing
of the petition?
A: The Court shall:
1. Fix a time and place for its hearing
2. It shall cause reasonable notice to be
given to the persons mentioned in the
petition, including the minor if he is 14
years of age or over; and
3. It may direct other general or special
notice to be given (Sec. 8 of A.M. 03-02-
05-SC)).
Q: What are the contents of the petition for
guardianship over minors?
A: The contents, according to Sec. 7 of A.M. 03-
02-05-SC, are as follows:
1. The jurisdictional facts;
2. The name, age and residence of the
prospective wards;
3. The ground rendering the appointment
necessary or convenient;
4. The death of the parents of the minor or
the termination, deprivation or
suspension of their parental authority;
5. The remarriage of the minor’s surviving
parent;
6. The names, ages, and residences of
relatives within 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 minors;
and
8. The names, age and residence of the
person for whom letters of guardianship
are prayed;
9. The name, age and residence of the
person for whom letters of guardianship
are prayed.
Effect in Case of Defect in the Petition: No defect
in the petition or verification shall render void the
issuance of letters of guardianship (Sec. 7 of A.M.
03-02-05-SC).
Rule on the Case Study Report of the Minor by
the Social Worker (Sec. 7 of A.M. 03-02-05-SC):
The court shall order a social worker to:
1. Conduct a case study of the minor and all
the prospective guardians;
2. Submit his report and recommendation
to the court for its guidance before the
scheduled hearing.
NOTE: The social worker may intervene on behalf
of the minor if he finds that the petition for
guardianship should be denied.
Grounds for the Filing of the Opposition to the
Petition (Sec. 10 of A.M. 03-02-05-SC):
1. The majority of the minor; or
2. The unsuitability of the person for whom
the letters are prayed.
Remedies of the Oppositor (Sec. 10 of A.M. 03-
02-05-SC):
1. Pray that the petition be denied; or
2. That letter of guardianship issue to
himself, or to any suitable person named
in the opposition.
Actions of the Court at the Hearing of the
Petition (Sec. 11 of A.M. 03-02-05-SC): It must be
shown to the court that:
 1. The requirement of notice has been
complied with;
2. The prospective ward shall be presented
to the court;
3. The court shall hear the evidence of the
parties in support of their respective
allegations;
4. If warranted, the court shall appoint a
suitable guardian of the person or
property, or both, of the minor; and
5. 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.
Duty of the Guardian in case of Final and
Executory Judgment (Sec. 13 of A.M. 03-02-05-
SC): The final and executory judgment shall be:
1. 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;
2. It shall be annotated in the corresponding
title; and
3. Report to the court his compliance within
15 days from receipt of the order.
Conditionalities of the Bond (Sec. 14 of A.M. 03-
02-05-SC): An appointed guardian may be
required to post a bond in such sum as the court
shall determine and conditioned as follows:
1. Inventory of the Estate – To make and
return to the court, within 3 months after
the issuance of 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.
2. Management and Disposition of the
Estate – To faithfully execute the duties
of his trust, to manage and dispose of the
property for the best interests of the
ward and to provide for the proper care,
custody and education of the ward.
3. Rendition of Account – 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 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.
4. Performance of All Court Orders – To
perform all orders of the court and such
other duties as may be required by law.
Effect in Case of Breach of any of the Condition
(Sec. 15 of A.M. 03-02-05-SC): The guardian may
be prosecuted in the same proceeding for the
benefit of the ward or of any person legally
interested in the property.
NOTE: The court may require the posting of a new
bond whenever necessary.
Posting of the Bond of the Parent as Guardian of
the Minor (Sec. 16 of A.M. 03-02-05-SC): Required
if the market value of the property or the annual
income of the child exceeds P50,000.
NOTE: The bond, as determined by the court, shall
in no case be less than 10% of the value of such
property or annual income, to guarantee the
performance of the obligations prescribed for
general guardians.
Q: What are the prohibited acts of a parent or a
guardian?
A: Parents and guardians may not repudiate the
inheritance of their wards without judicial
approval. This is because repudiation amounts to
an alienation of property which must pass the
court’s scrutiny In order to protect the interest of
the ward (Guy vs. CA, September 15, 2006).
Q: Where to file the petition for approval of the
bond?
A: Family Court of the place where the child
resides o, 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 (Sec.
16 of A.M. 03-02-05-SC)
Nature of the Proceeding (Sec. 16 of A.M. 03-02-
05-SC): summary special proceeding
Scope of the Duty of the Guardian (Sec. 17 of
A.M. 03-02-05-SC): A guardian shall have:
1. The care and custody of the person of his
ward and the management of his
property; or
2. The management only of his property;
If the minor is a non-resident: management of all
his property within the Philippines
Duties and Functions of the Guardian (Sec. 17 of
A.M. 03-02-05-SC):
1. Payment of Debts – 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;
2. Settlement of All Accounts – 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. Management of Properties – 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. Consent to Partition – 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. Submission of Inventory of Property – 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. Reporting of Property not Included in the
Inventory – 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. Accounting of Property After One Year –
To render to the court for its approval an
accounting of the property one year from
his appointment, and every year
thereafter or as often as may be required.
Powers and Duties of the Court (Sec. 18 of A.M.
03-02-05-SC): The court may:
1. Assistance of Commissioner in the
Appraisal – Request the assistance of one
or more commissioners in the appraisal of
 the property of the ward reported in the
initial and subsequent inventories;
2. Reimbursement to Guardian of Expenses
– 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
3. Appearance for Examination – 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.
Rule on the Sale and Encumbrance of the
Property of the Minor (Sec. 19 of A.M. 03-02-05-
SC): 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, when:
1. The income of a property under
guardianship is insufficient to maintain
and educate the ward; or
2. 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.
Action of the Court if the Sale is Beneficial (Sec.
20 of A.M. 03-02-05-SC): The court shall:
1. Order his next of kin and all person/s
interested in the property to appear at a
reasonable time and place therein
specified; and
2. Show cause why the petition should not
be granted.
Duty of the Court During the Hearing on the
Petition to Sell or Encumber (Sec. 21 of A.M. 03-
02-05-SC): The court shall:
1. Hear the allegations and evidence of the
petitioner and next of kin, and other
persons interested, together with their
witnesses; and
2. Grant or deny the petition as the best
interests of the ward may require.
Rule on the Contents of the Order to Sell or
Encumber (Sec. 22 of A.M. 03-02-05-SC): 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:
1. Order the sale or encumbrance of the
proceeds of which shall be expended for
the maintenance or education of the
ward or invested as the circumstances
may require;
2. The order shall specify the grounds for
the sale or encumbrance and may direct
the property ordered sold be disposed of
at public sale, subject to such conditions
as to the time and manner of payment
and security where a part of the payment
is deferred.
Liability of the Bond (Sec. 22 of A.M. 03-02-05-
SC): The original bond of the guardian shall:
1. Stand as security for the proper
appropriation of the proceeds of the sale
or encumbrance;
 2. The court may, if deemed expedient,
require an additional bond as a condition
for the sale or encumbrance.
Period of Authority to Sale or Encumber (Sec. 22
of A.M. 03-02-05-SC): Shall not extend beyond
one year, unless renewed by the court
Rule on the Investment and Management of the
Property (Sec. 23 of A.M. 03-02-05-SC): The court
may order the following, to wit:
1. Authorize and require the guardian to
invest the proceed 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
2. May make such other orders for the
management, investment and disposition
of the property and effects, as
circumstances may warrant.
Grounds for the Removal of the termination
Guardian (Sec. 24 of A.M. 03-02-05-SC):
1. When a guardian becomes insane or
2. He is incapable of discharging his trust; or
3. He is found thereafter to be unsuitable
4. When he has wasted or mismanaged the
property of the ward; or
5. When he failed to render an account or
make a return for 30 days after it is due.
Rule on the Resignation of a Guardian (Sec. 24 of
A.M. 03-02-05-SC): The court may allow the
guardian to reign for justifiable causes.
Duty of the Court in Case of Removal or
Resignation of Guardian (Sec. 24 of A.M. 03-02-
05-SC): The court shall appoint a new one.
Requirement for Granting of the Removal or
Resignation (Sec. 24 of A.M. 03-02-05-SC): The
guardian must have submitted the proper
accounting of the property of the ward and the
court has approved the same.
Ground for Termination of Guardianship (Sec. 25
of A.M. 03-02-05-SC): The ward has come of age
or has died.
Duty of the Guardian (Sec. 25 of A.M. 03-02-05-
SC): The guardian shall notify the court of such
fact within 10 days of its occurrence.
Rule in Case of Final and Executory Judgment in
the Guardianship Proceeding (Sec. 26 of A.M. 03-
02-05-SC): 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
NOTE: Both the Local Civil Register and the
Register of Deeds shall enter the final and
executory judgment or order in the appropriate
books in their offices.
Effect of the Rule (Sec. 27 of A.M. 03-02-05-SC):
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.
 RULE 98 – TRUSTEES
Trust – right or property, real or personal, held by
one party for the benefit of another (Hostillos vs.
Borres, May 2, 1985)
Trustee – person to whom property or fund have
been committed in the belief or trust that he will
hold and apply the same for the benefit of those
who are entitled thereto according to an express
intention by the parties themselves or by deed, will
settlement or arrangement of another Chua vs.
Mapolo, May 13, 1985)
Trustor (Settlor) – one who creates a trust
Beneficiary – person for whose benefit the trust
was created (Art. 1440, NCC)
Express Trust – created by the direct and positive
acts of the parties, by some writing or deed, or will
or by words evincing an intention to create a trust
(O’laco vs. Co Cho Chit, March 31, 1993)
Implied Trust – without being express, are
deducible from the nature of the transaction as
matters of intent, or which are superinduced on
the transaction by operation of law as matters of
equity, independently of the particular intention of
the parties (O’laco vs. Co Cho Chit, March 31, 1993)
- May be established by parole evidence
(Yap vs. CA, August 17, 1999)
Resulting Trust – arises by implication of law and
presumed always to have been contemplated by
the parties, the intention as to which can be found
in the nature of their transaction although not
expressed in a deed or instrument of conveyance
(Yap vs. CA, August 17, 1999)
Constructive Trust – trust not created by any word
or phrase, either expressly or impliedly, evincing a
direct intention to create a trust, but one that
arises in order to satisfy the demands of justice
(Yap vs. CA, August 17, 1999)
Elements for the Existence of Trust (Canezo vs.
Roxas, November 23, 2007):
1. A trustor or settlor who executes the
instrument creating the trust;
2. A trustee who is a person expressly
designated to carry out the trust;
3. The trust res, consisting of duly identified
and definite real properties; and
4. The cestui que trust, or beneficiaries
whose identity must be clear.

Distinctions between an Executor/Administrator and Trustee

Points of Distinction Trustee (Rule 98) Executor or Administrator

As to Court Filed with the RTC
As to Venue Where the will was allowed, if it be
a will allowed in the Philippines,
otherwise, by the CFI of the
province in which the property, or
some portion thereof, affected by
the trust is situated
As to Purpose To give effect the provision of the
will or written instrument
As to Bond May be exempted or if requested by
the beneficiary
As to Termination Upon the turn-over of the property
to the beneficiary, or when the
period is provided by the will or
written instrument
Filed with the RTC, MeTC or MTC
where the settlement of the estate
is pending whether testate or
intestate
Where the decedent last resided at
the time of his death, or if he is a
resident abroad, where his estate
may be found
To settle the estate of the decedent
Not exempted from posting a bond
Upon the order of distribution and
the delivery of the residue of the
estate
Venue of the Appointment of Trustee (Sec, 1, Rule
98): Appointed by the CFI:
1. Where the will was allowed, if it be a will
allowed in the Philippines;
2. Province in which the property, or some
portion thereof, affected by the trust is
situated
Q: Can the Trustee acquire the property of the ward
by acquisitive acquisition?
A: NO. As a rule, a trustee cannot acquire by
prescription a property entrusted to him unless he
repudiates the trust (Torbela vs. Rosario, December
7, 2011)
Rule on the Appointment of the Trustee if He was
Omitted in the Will (Sec. 2, Rule 98): The proper CFI
shall appoint a trustee who shall have the same rights,
powers and duties, and in whom the estate shall vest,
as if he had been appointed by the testator.
Appointment of a New Trustee (Sec. 3, Rule 98): May
be appointed by the proper CFI should the trustee
under a written instrument declines, resigns, dies or
removed before the objects of the trust are
accomplished and no adequate provision is made in
such instrument for supplying the vacancy
Powers of the New Trustee (Sec. 3, Rule 98):
1. Same powers, rights, and duties as if he had
been appointed by the testator;
2. Trust estate shall vest in him in like manner
as it had vested or would have vested, in the
trustee in whose place he is substituted.
Duty of the Court in Case of Appointment of New
Trustee (Sec. 3, Rule 98): The court may order such
conveyance to be made by the former trustee or his
representatives, or by the other remaining trustees,
as may be necessary or proper to vest the trust in the
new trustee, either or jointly with the others.
Rule in Case the Trustee Derives His Authority
Abroad (Sec. 4, Rule 98): Such trustee shall, on
petition filed in the CFI of the province where the land
is situated, and after due notice to all persons
interested, be ordered to:
1. Apply to the court for appointment as
trustee; and
2. Upon his neglect or refusal to comply with
such order, the court shall declare such trust
vacant, and shall appoint a new trustee in
whom the trust estate shall vest in like
manner as if he had been originally
appointed by such court.
Duty of Trustee Before Performing His Duties (Sec. 5,
Rule 98): A trustee shall file with the clerk of the court
having jurisdiction of the trust a bond in the amount
fixed by the judge of said court, payable to the
Government of the Philippines and sufficient and
available for the protection of any party in interest.
Rule in Case of Failure of the Trustee to File a Bond
(Sec. 5, Rule 98): A trustee who neglects to file such
bond shall be considered:
1. That he has declined or resigned the trust;
2. The court may until further order exempt a
trustee under a will from giving a bond when
the testator has directed or requested such
exemption and may so exempt any trustee
when all persons beneficially interested in
the trust, being of full age, request the
exemption; and
3. Such exemption may be cancelled by the
court at any time and the trustee required to
forthwith file a bond.
Conditions of the Bond of the Trustee (Sec. 6, Rule
98): The following conditions shall be deemed to be
part of the bond whether written therein or not:
1. True Inventory of Trust Estate – That the
trustee will make and return to the court, at
such time as it may order, a true inventory of
all the real and personal estate belonging to
him as trustee, which at the time of the
making of such inventory shall have come to
his possession or knowledge;
2. Management and Disposition of Trust
Estate – That he will manage and dispose of
all such estate, and faithfully discharge his
trust in relation thereto, according to law
and the will of the testator or the provisions
of the instrument or order under which he is
appointed;
3. True Account of Trust Estate – That he will
render upon oath at least once a year until
his trust is fulfilled, unless he is excused
therefrom in any year by the court, a true
account of the property in his hands and the
management and disposition thereof, and
will render such other accounts as the court
may order;
4. Settlement of the Account and Delivery of
Remainder – That at the expiration of his
trust he will settle his account in court and
 pay over and deliver all the estate remaining
in his hands, or due from him on such
settlement, to the person or persons entitled
to thereto.

Rule in Case of Appointment of a Trustee as

Successor of Prior Trustee (Sec. 6, Rule 98): When the
trustee is appointed as a successor to a prior trustee,
the court may dispense with the making and return of
an inventory, if one has already been filed, and in such
case the condition of the bond shall be deemed to be
altered accordingly.

Rule on Appraisal of the Estate (Sec. 7, Rule 98):

When an inventory is required to be returned by a
trustee, the estate and effects belonging to the trust
shall be appraised and the court may order one or
more inheritance tax appraisers to assist in the
appraisement.

Rule on the Compensation of the Trustee (Sec. 7,

Rule 98): The compensation of the trustee shall be
fixed by the court, if it be not determined in the
instrument creating the trust.

Rule on Removal of Trustee (Sec. 8, Rule 98):

1. The removal appears essential in the interest
of the petitioner;
2. A trustee who is insane or otherwise
incapable of discharging his trust or
evidently unsuitable therefor.

Rule on Resignation of Trustee (Sec. 8, Rule 98): If it

appears to the court proper to allow such resignation.

Actions of the Court in Case of Sale or Encumbrance

of the Trust Estate (Sec. 9, Rule 98): When the sale or
encumbrance of any real or personal estate held in
trust is necessary or expedient, the court having
jurisdiction of the trust may, on petition and after due
notice and hearing:
1. Order such sale or encumbrance to be made;
and
2. The re-investment and application of the
proceeds thereof in such manner as will best
effect the objects of the trust.

Rule During the Proceedings (Sec. 9, Rule 98): The

petition, notice, hearing, order of sale or
encumbrance, and record of proceedings, shall
conform as nearly as may be to the provisions
concerning the sale or encumbrance by guardians of
the property of minors or other wards.