REMEDIAL LAW
‘SPECIAL PROCEEDINGS
SPECIAL
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Toft or prevent oretess | establohment of th ht
Special Proceeding is a remedy by which a | Bwrong Stowe a act
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uy seetelte eeee ot is govemed by ocinary | We governed by special
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SECTION 1. SUBJECT MATTER oF _ | Scie! rules. (eee
SPECIAL PROCEEDINGS Tis ears By cours of Tis hear by cours oF
General juiedcton. | ied jrdicton
‘Special Proceedings Enumerated in The cbt arusnentitee
Rules OF Court (SEG ErPaneT Vac) ites by pleasing | RSLS
1 Seltement of esate of deceased persons; | and partes respond” | Puan and parton
2. Escheat; ee Ae ‘oppesition.
3. Guardianship and custody of children: Sacre ;
4 Trustees, see
5. Adoption: PraESenTT
8. Restission and revocation of adoption; es ners
7 Hewenon finn persons Ore tomes |
fabeas corpus, ae
9. Change of nai; nother forthe Keres by,
10, Voluntary dissolution of corporations: enforcement or | Civil action pny ope
1. Judicial approval of voluntary recognition | protection ot | sutjcsta” | SERS
of minor natural children; tight or the ‘specific rules. status, a right or
12. Constitution of family nome; prevention or | a particular fact.
13. Declaration of absence and death; Dectoadauetaata?
14. Cancellation and correction of entries in pee ‘sueee —
{he ci registry Govained oy | Orcinaryruies | Goveredby |
Other Special Proceedings seaee 2, EDN SORA ang granary
Liquidation proceedings a eee
: ae z
1
2 Corporate rehabilitation:
3, Recognition and enforcement of arbitration
clause or award;
4. Vasalion, setting aside, correction or
modification of an arbitral award:
5. Any application with ¢ court for arbitration
assistance and supervision ron te
SECTION 2. APPLICABILITY OF RULES OF
CIVIL ACTIONS
In the absence of special provisions, the rules
Provided for in ordinary actions shall be, as far
a8 practicable, applicable in special
proceedings
‘EXECUTIVE COMMITTEE
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Kevin Avec Pangan, Ramla Quinto, Bevety Quintos, Loe Renin Reyes, tyreon Rutr, Faby Save, Cad Taba, Nor
Vitonors, Jove gel Davi Kale Orne Lage aye LarosaSan Beda College of Law
2011 CENTRALIZED BAR OPERATIONS
SETTLEMENT OF ESTATE OF DECEASED
PERSONS RULES 73-90
Procedure in Settlement Proceedings
(Judicial)
Petition for Probate of wil, Wany
(Rule 75-76)
Spee
Court order fixing the tine and place
for probate
Publication of hearing for 3 successive
‘weeks. Notice sal also be given to the
designaiediknown heirs, legatees and
devisees, and the executor if the one
petitioning fr allowance of the wil fe not the
testator
Issuance of Letters Testamentary/Administation
(A special administrator may be appointed)
dm 77-80%
= x -
Pblication of Notice for Fling Claims
+
Filing of Ci
(Rule 85)
Hd
Issuance of Orcer af Payment
or Sale of Provertios
4
Payment of Claims
SaleinforigaaesEncumbrance of
estate properties
Distibuton of remainder any]
(Buti can Sermade even before |
Payment if a bond is filed by the naa
Different Modes of Settlement of Estate of a
Deceased Person/Presumed Dead
1. Extrajudicial Settlement of Estate (Section
1, Rule 74):
Summary Settlement of Estate of Smalt
Value (Section 2, Ruio 74),
Partition (Rule 69):
Probate cf Will (Rule 75 (0 79):
Petition for letters oF Administration in
cases of intestacy (Ru
SECTION 1. WHERE ESTATE OF
DECEASED PERSONS SETTLED
Venue
1. INHABITANT (Resident) OF THE
PHILIPPINES (whether citizen or alien) ~
Court of the provincelcily where he resides
at the time of death
2. INHABITANT (Resident) OF FOREIGN
COUNTRY ~ Court of any. province
wherein he had his estate.
Residence means his personal, actual or
physical habitation, his actual residence or
Place of abode (Fule vs, CA, L-40502, Nov.
29, 1976),
‘The settiement of a decedent's estate is a
proceeding in rem.
‘Two Kinds of Settlement
1. Extrajudicial Settlement ~ a proceeding
where the decedent had left ao wills and
the heirs adjudicate the estate among
themseNes without seeking letters of
adrninisiration,
2. Judicial Settlement - Testate or intestate
preceeding instituted in the country where
decedent had his residence or had esiate
if nonresiaant
By, Liquidals SRstatel pad ts
i
est
courty (eget
al Bule: «Probate
issue of ownerstip:
Was Se
‘Ownership may (be ee \SIQNALLY
Gein for be. paioa® ot ipaising
probery in-inventory. aihout prajedlce to
Fe fra! Orla naan fv sepatae soon,
oy ee Oe
Winer ‘alt he plartiesijare -heifgloné they
submit the issue of ownegehipr to. the
probate: cour provided thalatherrights of
third parlles’are not préjuaice’d (Gerardo
vs C8 TB MBYPOREDB 1963)
as7REMEDIAL LAW
3. Question is one of collation or
advancement,
‘Other Questions which the Probate Court
can Determine
1. Who the heirs of the decedent are;
2. The recognition of a natural child,
3. The validity of disinheritance effected by
the testator,
4. Status of a woman who claims to be the
awful wife of the decedent;
5. The validity of @ waiver of hereditary
Fights;
‘The status of each heir,
Whether property in inventory is conjugal
or exclusive property of deceased spouse;
2. Matters incidental of collateral to the
settlement and distribution of the estate,
Exclusionary Rule
General Rule: The court first taking
cognizance of the settlement cf the estate of
the decedent shall exercise jurisdiction to the
exclusion of all other ecurts.
‘The probate court acquires juriedietion from
the moment the petition for the settiement of
estate is filed with said court, it cannot be
Givested of such jurisdiction by the subsequent
acts of the parties as by entering into
extrajudicial partition of the estate (Sandoval-
vs, Santiago, L-1723, May 30, 1949); or by
filing another petition for settlement in a proper
court of concurrent venue (De Boria vs. Tan,
77 Pri 872)
Exception: Estoppel by Laches
Note: Jurisdiction under Rule 73 Sec. 1 DOES
NOT relate to jurisciction per se but to venue.
Hence, institution in a court where the
decedent is neither an inhabitant nor had his
estate may be the subject of walver. (Lifarte
vs, CFI, L-21938-39, May 29 1970),
Remedy If Venue is Improperly Laid
General Rule: ORDINARY APPEAL not
certiorari or mandamus,
Exception: if want of jurisdiction appears on
the record of the case (Rule 73, Section 1).
Note: Festate proceedings —_ take
PRECEDENCE over intestate proceedings for
the same estate
Wf during the pondency of intestate
proceedings, a will of the decedent is
discovered, proceedings for tne probate of the
‘SPECIAL PROCEEDINGS
will shall repiace the intestate proceedings
even if an administrator had already been
appointed therein (Cuenco vs. CA, 1-24742,
Oct. 26, 1973).
SECTION 2. WHERE THE ESTATE
SETTLED UPON DISSOLUTION OF
MARRIAGE
Upon the death of either the husband or the
‘wife, the partnership affairs must be liquidated
in the testate or intestate proceedings of the
deceased husband or wife. If both have died,
liquidation may be made in the testate or
Intestate proceedings of either.
SECTION 3. PROCESS
‘The RTC may issue warrants and processes
to compel the attendance of witnesses.
Writ of Execution
General Rule: Probate court cannot issue
writs of execution,
Ratio: Its orders usually refer to the
adjudication of claims against the estete which
the executor/administrator may satisfy without
the need of executory process.
Exceptions: (CEE)
1. To satisfy the contributive share of the
devisees, legatees and helrs when the
latier had entered prior possession over
the estate (Sec. 6, Rule 86),
2. To enforce payment of the expenses of
panttion (Sec. 3, Rule 90};
3. To satsty the costs when a person is cited
for examination in probate proceedings
(Sec. 13, Rule 142),
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Genoral Rule: The settlement of the estate of
the decedent should be judicially administered
through an administrator or executor.
Exception: The heirs may resort to:
1. Extrajudicial settlement of estate (Sec. 1):
2. Summary settlement of estates of small
value (Sec, 2).
Note: in both exceptional circumstances, an
administrator or executor need not be
appointed under the exceptions.
SECTION 1. EXTRAJUDICIAL
SETTLEMENT BY AGREEMENT BETWEEN
HEIRS
Extrajudicial Settlement
Procedure in oxtrajudicial” settlement by
agreement between/among heirs
Division of estate in public
instrument or affidavit of adjuceation
“The publi ntrumanto fiat of
_aquaieasn mate as wi he proper
Regi of Doods
i
Pubieaton af notion ofthe octal
exrajieat setiement once s woth fr 3
coneectve weeks na newspaper st
Senetlccuaon
Fling of bond equivalent to tie valve
of personal property
Requisites:
A. Substantive
1. The dacedent tet -
2. NO wil:
b._NO debts.
2 The heirs are all of age or the minors
are represented by their judicial or
legal representatives duly authorized
for the purpose
B. Procedurat
+ Division of estate must be in a
PUBLIC INSTRUMENT or by
AFFIDAVIT of SELF-ADJUDICATION
in the case of a sole heir,
Filed with proper Registry of Deeds;
Publication of notice of the fact of
cextrajucicial settlement once a week
for 3 CONSECUTIVE WEEKS;
4. Bond flied equivalent to the value of
PERSONAL property,
Note: The bond is required only when
personally is involved. If is a real estate, It
Shall be subject to a lien in favor of creditors,
heirs or other persons for the full period of 2
years from such distribution and. such lien
‘cannot be substituted by a bond (Rebong vs.
Ibafiez, L-1578, September 30, 1947).
‘The bond is the vaiue of the personal property
certified by the parties under oath and
CONDITIONED upon payment of just claims
fled under Sec. 4, Rule 74.
AFFIDAVIT OF SELF ADJUDICATION - it is
an affidavit required by Sec 1 of Rule 74 to be
‘executed by the sole heir of @ deceased
person in adjudicating to himself the entire
estate left by the decedent.
Is @ public instrument necessary for the
validity of an extrajudicial settlement?
NO. Private instrumentidacument or Oral
agreement of partion as well as a
compromise agreement entered _ without
Previous authority of the court is valid among
the heirs who participated in the extrajudicial
settlement. The requirement under Sec. 1,
Rule 74 that it must be in a public instrument is
NOT constitutive of the validity but is merely
evidentiary in nature (ermandez vs. Andal, (-
273, March 29, 1947}.
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159REMEDIAL LAW
SPECIAL PROCEEDINGS
ery
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PARTY even bya
. Order of hearing published, ONCE A
WEEK FOR 3 CONSECUTIVE
WEEKS in a newspaper of general
circulation,
Notice shail be served upon such
interested persons as the courl may direct:
260
4. Bond in an amount fixed by the court (not
value of personal property) conditioned
upon payment of just claims under Sec. 4.
Procedure in Summary Sottloment of
Estates of Small Value
Applicaton for summary eetiament
‘with an allegation thatthe gross
value of the estate does not exceed
P40, 000.00
Publication of notioe ofthe fact of summary
settlement ance a week for 2 cansecutve
weeks in a newspaper of general ereulation
{the court may alsa order notice to be given
to other persons as such court may direct
Hearing to be held not less than 1 month
ror more than 3 months from the date of
° the last publication of notice
SSeS eeSee eee
Court to procaed summary, without appointing
‘on executor/administrator, and fo make orders
‘ae may be necassary, such 2,
oC
jasessnssnansanl SOIAGISIASESINGISL
[[Siaiowace afte a Ta
Persons entiied to estate
Pay debts of estate which are cue
Filing of bond fixed by the court
ee.
Parthion of the estate
Secu Bob 10 Be HebsbY
DISTRIBUIEES 7 Se
eee Sto ot
court, une an, oxtrajiidicial: st
where the organ is.
personalSan Meda College of Law
2011 CENTRALIZED BAR OPERATIONS
SECTION 4. LIABILITY OF DISTRIBUTEES
AND ESTATE,
When settlement of estates in the courts
may be compelled:
1. If there is an undue deprivation of fawful
participation in the estate:
2. The existence of debts against the estate;
3. if there is an undue deprivation of lawful
participation payable in money.
Note: The bar against distributes from
objecting to an extrajudicial partition atter the
expiration of two years is applicable only’
2. To persons who have participated or taken:
part or had notice of the extrajudicial
partition, and
b. When all the persons or heirs of the
decedent nave taken part in the
extrajudicial settlement (Sampilo vs. CA,
£10474, February 28, 1958)
Remedies of the Aggrieved Parties After
Settiement of tho Estate
Within two (2) yrs. - claim against the
bond or the real estate or both (Rule 74,
Sec. 4}
2 Rescission in case of pretertion of
compulsory heir in partition tainted with
bad faith (Article 1104, NCC):
Reconveyance of real property;
Action to annul 3 deed of extrajudicial
settlement on the ground of fraud which
should be filed within 4 years from the
discovery of trauss
Potition for Relief on the ground of FAME
~ fraud, accident, mistake, excusable
negligence ~ 60 days after the petitioner
learns of the juégment, final order ot other
proceeding to be set aside, and not more
than 6 months after such judgment or final
order was entered (Rule 38);
Reopening by Intervention within anytime
before rendition of judgment, as long as it
is within the reglementary' period of 2
year
New ‘action to annul settlement within
regiomentary periad of 2 years
An heir deprived of his share may file an
action for reconveyance based on an im
oF constructive trust which prescribes 10 years
from the date of registration or date of
issuance of certificate of title or from actual
discovery of fraud ifthe registration was made
in bad faith (Marquez vs, CA, GR No. 128715.
December 29, 1998)
Where the estate has been summarily settled,
the unpaid creditor may, within 2 years, fle 2
motion in court wherein such summary
settlement was had, for the payment of his
credit,
After the lapse of 2 years, an ordinary action
may be insttuted against the distributees
within the statute of limitations BUT NOT
acainst the bond,
‘The 2-year fen upon the real property
distributed by extrajudicial or summary
settlement shall be annotated on the title
issued to the distributes and after 2 years will
be cancelled by the register of deeds without
need of court order (LC CIRCULAR 143).
Such lien cannot “be discharged nor the
annotation be cancelled within the 2 year
period even if the distributees offer to post a
bond to answer for contingent claims from
which lien is established (Rebong vs. Jbanez,
11578, September 30, 1947)
SECTION 5. PERIOD FOR CLAIM OF
MINOR OR INCAPACITATED PERSON
If on the date of the expiration of the two-year
period, the creditor or heir is
4. Amminor: or
2. incapacitated; or
3, in prison; or
4. Outside the Philippines
He may present his claim within ONE YEAR
atter such disability is removed (Sec. 5 Rule
75),
ica oun
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SECTION Acca
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Ingen bin
of personal pune os ae
However.’a-wil may Bélsystainag én the
basis ‘of AMtible: 4080. Of the Tay) Code
which states. that “ifsthé testajor should
make # partitign’of his propertieg by an act
inter vivés, oF BY-wvill, Such partition shall
stand In.80'far 23 does
6aREMEDIAL LAW
‘SPECIAL PROCEEDINGS
legitimé of the forced heir" (Mang-Oy vs.
CA, L-27421, September 12, 1986),
3. ‘Imprescriptible ~ because of the public
policy to obey the will of the testator.
4, The doctrine of estoppel does not
apply.
‘The presentation and probate of the wil is
required by public policy. It involves public
interest (Femandez vs, Dimagiba, L-
23698, October 12, 1967).
SECTION 2, CUSTODIAN OF WILL TO
DELIVER :
The custodian must deliver the wil to the court
or to the executor within 20 days after he
leams of the death of the testator.
SECTION 3. EXECUTOR TO PRESENT
WILL AND ACCEPT OR REFUSE TRUST
The executor of the will shall, within 20 days
after he knows of the testator's death or after
he knows that he is named an executor if he
knows it atter the testator's death shall
1. Present the will to the court (unless it has
Teached the court in any other manner).
and
2. Signity in writing his acceptance or refusal
of the trust.
SECTION 4. CUSTODIAN AND EXECUTOR
‘SUBJECT TO FINE FOR NEGLECT
Afine not exceeding ° 2,000.
SECTION 5. PERSON RETAINING WILL
MAY BE COMMITTED.
tes oy ier trace
penetra
Probate is the act of proving in 2 court a
document purporting 10 be the last will ane
testament of a deceased person in order that It
may be officially recognized, registered and
Provisions carried out insofar as they are in
Accordance with the law (siso refermad fo as
allowance of the wil,
SECTION 4. WHO MAY PETITION FOR THE
ALLOWANCE OF WiLL,
Executor,
2. Devisee ar legatee named in the wil
3. Person inieresied in the estate; (ov heirs)
162
An INTERESTED PARTY is ons who
would be benefited by the estate, such 2¢
aan heir, or one who has a claim against
the estate, such as a creditor (Sumilarig
vs Ramagosa, 1-23135, December 26,
1967)
4. Testator himself during his lifetime;
5. Any creditor - as preparatory step for fling
of his claim therein (Regalado, p.30),
Who may be a party in probate?
Jn general, any person having a direct and
‘material interest in the will or estate.
SECTION 2. CONTENTS OF PETITION
1. The jurisdictional facts ~ death of the
testator and his residence at the time of
Geath or the province where estate was
left by the decedent who is a non-resident;
2, The names, ages, and residences of the
heirs, legates, ‘and devisees of the
testator or decedent;
3. The probable value and character of the
property of the estate:
4. The name of the person for whom letters
are prayed; and
5, The name of the person having custody of
the wil if it has not been delivered to the
court
But no defect in the petition shall render void
the allowance of the will, or the issuance of
letiers testamentary or of administration with
the will annexed,
Effect of the Probate of a Will
tis conclusive as to the EXECUTION and the
VALIDITY of the wil (even against the State)
Thus, a criminal case against the forger may
not le after the wil has been probated,
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SSan Beda College of Lav
2011 CENTRALIZED BAR OPERATIONS
Is apparent on its face (Acain vs. IAC GR
No. 72706, October 27, 1987;
Nepumuceno-vs. CA, L-62952, October 9,
1985).
Extrinsic Validity means due execution of the
wil.
Moaning of Due Execution
That the will was executed sticily in
accordance with the formalities required
by faw;
2. That the testator was of sound and
disposing mind when he executed the
3, That there was no vitiation of consent
through duress, fear or threats!
4. That it was not procured by undue or
improper pressure or influence on the part
of the beneficiary, or some other person
for his benefit;
5, That the signature of the testator is
genuine. ie., it was not procured through
fraud and that the testator intended that
what he executed was his last will and
testament,
SECTION 3. COURT TO APPOINT TIME
FOR PROVING WILL. NOTICE THEREOF
TO BE PUBLISHED
Jurisdictional Requirements
PUBLICATION for 3 WEEKS successively of
the order setting the case for hearing AND
sending NOTICES to all persons interested
are JURISDICTIONAL REQUIREMENTS.
If the petition for probate is on the testator’s
‘own initiative during his lifetime (Ante
Mortem)
1. No publication is necessary (Sec. 3); and
2. Notice shall be made only to the
compulsory heirs (Sec. 4).
Note: Three (3) weeks successively is not
strictly 21 days, It is sufficient that publication
has been made once a week successively
three times, even if less than twenty- one days
intervened between the first and last
publication
SECTION 4. HEIRS, DEVISEES, LEGATEES,
AND EXECUTORS TO BE NOTIFIED BY
SAIL OR PERSONALLY
Persons to be Given Notice:
1. Designated or known heirs, legatees and
devisees, and
2 Execuior and co-executor if not the
petitioner,
‘Modes of Notification
1, IF by mall: 20 days before hearing
2. IF through personal service: 10 days
before hearing
SECTION 5. PROOF AT HEARING. WHAT
SUFFICIENT IN ABSENCE OF CONTEST
Atthe hearing, compliance of publication and
‘notice must first be shown before introduction
of testimony in suppor of the will
Evidence Required in Support of a Will
1. Uncontested will (Sec.5)
a. Notarial Wills - Testimony of at least
‘one of the subscribing witnesses may
be allowed, if such witness testifies
that the will was executed as is
required by law.
i If all subscribing witnesses
reside outside the province —
deposition is allowed (See.7)
i, If the subscribing witnesses aro
dead, insane, or none of them
resides in the Philippines ~ The
court may admit testimony of
other witnesses to prove the
sanity of the testator, and the
‘due execution of the wil, and as
evidence of the execution of the
will, may admit proof of the
handwriting of the testator and
fof the subscribing witnesses or
of any of them (Sec. 8).
b. Holographic Wills - the testimony of
fone witness who knows the
handwriting and signature of the
testator. In the absence thereof and if
the court deem it necessary, expert
testimony may he resorted to.
2. Gontested Wil (Sec.11)
2 Notarial Wi nce subscribing
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163REMEDIAL LAW
‘SPECIAL PROCEEDINGS
b. Holographic Wills - 3 witnesses who
know the handwriting of testator. In
the absence thereof and if the court
doom it necessary, testimony of an
expert witness may be resorted to
HOWEVER, in Codoy vs. Calugay,
GR no. 123486, Aug. 12, 1999,
SC ruled that if the holographic willis.
contested, 3 witnesses who know the
handwriting and signature of the
testator are now required/mandatory
to prove its authenticity and for ts
allowance.
General Rule: A holographic will if destroyed
CANNOT be probated,
Exception: if there exists a Photostatic or
Xerox copy thereof (Gan vs. Yap, L-12190,
August 30, 1956).
SECTION 6. PROOF OF LOST OR
DESTROYED = WILL. CERTIFICATE
THEREUPON
This section applies 10 a lost or destroyed
notarial will and not to a holographic wil
FACTS which should be PROVED in order
that @ lost or destroyed will may be allowed!
1. That the will has been duly executed by
the testator;
2. That the will was in existence when the
testator died, of If it was net, that it has
been fraudulently or accidentally
destroyed in the lifetime of the testator
without his knowledge: ana
3. The provisions of the will are cleanly
established by at least two credible
witnesses,
SECTION 7. PROOF WHEN WITNESSES DO
NOT RESIDE IN PROVINCE
SECTION 8. PROOF WHEN WITNESSES
DEAD OR INSANE OR DO NOT RESIDE IN
THE PHILIPPINES
SECTION 8. GROUNDS FOR DISALLOWING
WiLL
Grounds provided for are exclusive:
(rious)
1. Hot executed and attested as required by
law: (formalities)
If the testator was insane, of otherwise
‘mentally incapable to make a wil, at the
time of ts execution,
164
3. If it was executed under duress, or the
Influence of fear, or throats;
4, If it was procured by undue and improper
Pressure and influence, on the part of the
beneficiary, or of some other person for
his benefit,
5. 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 fime of fixing his signature
thereto.
Substantial Compliance Rule
If the will has been executed in substantial
compliance with the formalities of the law, and
the possibitiy of bad faith and fraud is
obviated, said will should be admitted to
probate (Art. 809, NCC).
Separate wills which contain essentially the
same provisions and pertain to properties
‘which in all probability are conjugal in nature,
practical considerations dictate their joint
probate (Va, De Perez vs. Tolete, GR. No.
76714, Juno 2, 1994)
SECTION 10. CONTESTANT TO FILE
GROUNDS OF CONTEST
Contestant must:
1. Stale in writing his grounds for opposing
the allowance of the will and
2. Serve a copy thereof to petitioner and
other interested partias.
SECTION 11. SUBSCRIBING WITNESSES
PRODUCED OR ACCOUNTED FOR WHERE
WILL CONTESTED.
SECTION 12. PROOF WHERE TESTATOR
PETITIONS — FOR ALLOWANCE OF
HOLOGRAPHIC WILL
ig ro is ndiantest testator,
fi" that” the: holographic awrifanc., (he
Sofatire are in ie code hare
SuTesger euidenee ot tne Genuine nes nd
Sve etseuteh hoger ages Ge
Incas corte ay A prot on
the contestant Pe
SECTION: | 13;
ALLOWANCE ATTACHEL
WILL. 7Q.BE RECORDED IN
OF REGISTER OF: poneSan Meda College of Zaww
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een aat Me a)
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ADMINISTRATION OF ESTATE
Manet
‘SECTION 4: WILL PROVED OUTSIDE THE
PHILIPPINES MAY BE PROVED HERE.
\tis a requirement that a wil that was probated
Ina foreign country be re-probated in the
Philippines. if the decedent owns properties in
different countries, separate proceedings must
bbe had to cover the same.
SECTION 2: NOTICE OF HEARING FOR
ALLOWANCE.
What should be filed:
Patition for allowance accompanied with:
1. Authenticated copy of the will
2. Authenticated decree of the allowance
thereof.
‘The court will then fix a time and place for
hearing and cause notice thereof to be given,
Matters to be proven during a re-probate
proceeding:
1. That the testator was domiciled in a
forelgn county.
2, That the will igs been admitted to probate
in such country:
3. That the foreign court was, under the laws
of ‘said forelgn country, a probate court
with jurisdiction over the proceedings;
4, The lew on probate procedure in sald
foreign country proof of compliance
therewith; end
5. The legal requirements in sald foreign
country for the valid execution of the will
Effects of the allowance of a will under
Fale 7:
‘The’ will shall be treated as if originally
proved and allowed in Philippine courts;
2. Letters testamentary or administration with
will annexed shall extend to all estates in
the Philippines,
3. After payment of just debts and expenses
Cf administration, the residue of the estate
shall be disposed of 3s provided by law in
cases of estates in the Phitppimes
belonging to persons who are inhabitants
cf another state or country
Notes: in the absence of proof of the forsh
law, it is presumed that itis the same as that in
the Philippines.
testator ane appay
The venue for the petition for re-probate is the
same as that provided for in Rule 73.
Rimage erat)
eNO MELE Go
Creme)
Who can administer the estate?
1. Executor - the one named by the testator
in his will for the administration of his
property after his death,
2. Administrator, regular or special (Rule
60) ~ the one ‘appointed by the Court in
accordance with the Rules or governing
statutes to administer and settle the
intestate estate,
3. Administrator with a will annexed (Rule
79, Section 1) - the one appointed by the
court in cases when, slthough there is a
will, the will does not appoint any executor,
or if appointed, said person is either
incapacitated or unwilling to seve as
such,
Who may serve as an executor or
administrator?
‘Any COMPETENT person may serve as
executor or administrator,
SECTION 1. WHO ARE INCOMPETENT To
SERVE AS EXECUTORS = OR
ADMINISTRATORS:
4. A minor
2. Anonresident;
3. One who in the opinion of the court is unfit
to exercise the duties of the trust by
reason of:
a. ies
a
Bidteorty:
Connor ee aR oneal Itng
4 She executor: oF C ;
adiister the estate ofp tekeator,
Appeirtedby fr
Hi gpae He stat ot
Nominstediby the:
eihcecrogua st
annexéc) orf the will
vas disalloyed ce it a
Porsopidid nct make 2
eatapestle
Sugbebsion
by court
165,REMEDIAL LAW
‘SPECIAL PROCEEDINGS
itor
‘Must present wil to the
‘court within 20 days
after he knows ofthe
‘death of teatator or ater
he knew that he was
‘appointed as executor
(ithe obiained such
knowledge after death
oftestator), uniess the
will hes reached the
‘court in any manner
No such duty
TTestator may provide
that he may serve
without a bond (BUT | Required untess
court may direct him to | exempted by law
sive a bond conditioned
‘only to pay debts)
‘Compensation may be
provided for by the Compensation is
testator inthe wil, ‘govemed by See. 7,
otherwise Sec. 7, Rute | Rule 8S
85 il be followed.
SECTION 2. EXECUTOR OF EXECUTOR
NOT TO ADMINISTER ESTATE
SECTION 3. MARRIED WOMEN MAY
SERVE
SECTION 4. LETTERS "TESTAMENTARY
ISSUED WHEN WILL ALLOWED.
Letters Testamentary is an authority issued
to an executor named in the will fo administer
the estate.
Letters of Administration is an authority
Issued by the court to a COMPETENT person
to administer the estate of the deceased who
died intestate
Letters of Administration with a will
Annexed is an authority issued by the court to
@ COMPETENT person to administer the
estate of the deceased Ifthe executor named
in the will refused to accept the office
SECTION WHERE SOME co.
EXECUTORS DISQUALIFIED, OTHERS
MAY ACT
SECTION 6. WHEN ARD TO WHOM
LETTERS OF ADMINISTRATION GRANTED
Order of Preference in Granting Letters of
Administration
1. The surviving husband of wite oF the next
of kin, oF both jn the discretion of the court,
fof to such person as such surviving
Spouse oF next of kin, requests to have
166
appointed, if competent and willing to
serve (SURVIVING SPOUSE OR NEXT
OF KIN OR THEIR NOMINEE);
Next of Kin has been defined as those
persons who are entitled by law to receive
the decedent's property (Regalado,
Remedial Law Compendium, (2008), p.
46).
2. Ifthe surviving spouse or the next of kin or
the person selected by them be
incompetent or unwilling to serve, of if the
surviving spouse or next of kin neglects for
30 days after the death of the decedent to
apply for administration by them or their
nominee, ANY one or more of the
PRINCIPAL CREDITORS, if competent
and willing to serve;
3. If there is no such creditor competent and
willing to serve, it may be granted to such
‘other person as the court may select
(STRANGER),
Note: As 2 general rule, the court cannot set
aside the order of preference under Sec. 6
Rute 76.
Exception:
In case the persons who have the preferential
right to be appointed under the RULE are not
competent or are unwiling to serve,
administration or they neglect to apply for
letters of administration for 30 days afer the
decedent's death, the letters may be granted
to such other person as the court may apport.
The Order of Appointment of Regular
Administrator ie final and eppealeble.
Basis for the Preferenti Right
‘The underiyingugssUBBUSAEEtpiatsoce who
ib coap ee nde
ceaipical Bt svatign of ne etc en
Pe ane tae BE UE coer
waste" iinprovidehoe of inisanagerhénth
tne higher interest ang paeetnuertial mete
co ee
vs. aati
weet
Note: a
forthe, benef
interestec
2675.
Seope or mI
The general Fug
only to the asséts ofSan Beda College of Lan
2011 CENTRALIZED BAR OPERATIONS
the state or country where it was granted, so
that an administrator appointed in one state or
country has no power over the property in
another state or country (Leon —_v.
Manufacturers Life Insurance Co. 90 Phil. 459,
463),
RSA
Do OR GA enor
CN aca ie etd
EOUISuanueh
SECTION 1. OPPOSITION TO ISSUANCE
OF LETTERS _TESTAMENTARY.
SIMULTANEOUS PETITION FOR
ADMINISTRATION
The main issue is the determination of the
Person who is rightfully entitled to.
administration
Persons to oppose the issuance of letter
Any person interested in the wil,
In order to be a patty, @ person must have
material and direct, and not one that is only
indirect or contingent, interest.
The opposition may be accompanied by a
Patition for the issuance of Letters of
Administration with the will annexed.
SECTION 2, CONTENTS OF A PETITION
FOR LETTERS OF ADMINISTRATION
4. The jurisdictional facts:
‘The names, ages. residences of heirs and
the names and ages of the creditors;
3. The probable value and character of the
estate; and
4. The name of the person for whom letters
are prayed for,
No defect dr the peiltion strait render void the
Issuance of the letters of administration.
SECTION 3. COURT TO SET TIME FOR
HEARING, NOTICE THEREOF
Publication for 3 weeks and notice to heirs,
creditors and other persons believed to hav:
an interest in the estate is required before
hearing,
Note: Sec 3 of this Rule is JURISDICTIONAL,
‘Where no notice as required by this section
has been given to persons believed to have an
interest in the estate of the deceased person,
the proceeding for the settlement of the estate
is void and should be annutied (Eusebio vs.
Valmores G.R. No. L-7019, May 31, 1958).
SECTION 4. OPPOSITION TO PETITION
FOR ADMINISTRATION
Grounds for Opposition:
1. Incompetence;
2. Preferential right of the heir under Sec. 6,
Rule 78.
SECTION 5. HEARING AND ORDER FOR
LETTERS TO ISSUE
Letters of Administration shall issue if it is
proven that
1. Notice as required in Sec. 3 was given;
and
2. The decedent left no will or there is no
competent and wiling executor.
SECTION 6. WHEN LETTERS OF
ADMINISTRATION GRANTED TO ANY
APPLICANT
Letters can be granted to any person or any
other applicant even if other competent
persons are present if the latter fail to claim
their letters when notified by the court
ieee ica
SECTION 14. APPOINTMENT OF SPECIAL
ADMINISTRATOR
When may a probate court appoint a
special administrator?
1. Delay in granting of tetters by any cause
Including appeal In the probate of the will,
2, Executor is a claimant of the estate he
represents (Seotion 8 Rule 86)
‘Ba jocelP tan nave tne ar
boa aennne
thagia general arn
ori ppc a
i
The Bete decerded ED 78
of the Rules oF Court! toa su Souse
mars "He EaBonerane St seieoubr
Sammistaiol, NOT. 10. that of spect
ea recs, igetee
fae Moccioear me
ee Br cnpleiin
the laters lid
probate. cou
ts. Do Guirea: GR No” iguembor
29, 1966)ape. gt
oe
167REMEDIAL LAW
ea
ert
‘Order of Appointment
Order of Appointment | is NTERLOCUTORY
is FINAL and is pny
APPEALABLE ApEn AB
‘One of the obligations
isto pay the debts of || Cannot pay debts of
Senee the estate
‘Appoinied when ‘Appointed when there
‘decedent died le delay in granting
intestate or did nat | letters testamentary or
‘appoint an executor in| administration or when
{he wil ocwilwas | the executors @
disallowed, leimant of the estate,
SECTION 2. POWERS AND DUTIES OF
SPECIAL ADMINISTRATOR
4. Possession and charge of the goods,
chattels, rights, oredits, and estate of the
deceased;
2. Preserve the same;
3, Commence and maintain suit for the
estate:
4, Sell ONLY:
2. Perishable property; and
b. Other property ordered sold by the
court,
5. Pay debls ONLY as may be ordered by
the court
‘The special administrator has also the duty to
submit an inventory and to render an
accounting of his administration as required by
the terms of his bond (See 4, Rule 81).
SECTION 3. WHEN POWERS OF SPECIAL
ADMINISTRATOR CEASE. TRANSFER OF
EFFECTS. PENDING SUITS
When does the power of a special
administrator cease?
After the questions causing the delay are
resolved and letlers are granted to regular
executor or administrator.
[san appointment of a special
administrator appealable?
NO, as expressly provided for in See. 4, Rule
109,
HOWEVER, appointment of @ REGULAR
ADMINISTRATOR is appealabie because itis
a final order
Note: it is possible for the executor or
administiator whose appointment is
68
SPECIAL PROCEEDINGS
challenged by appeal to be appointed also as
the special administrator pending such appeal.
‘There is no harm in appointing the same
person as special administrator because there
is a vast difference between the powers and
duties of the two positions.
While 2 special administrator may commence
‘and maintain suits under Sec. 2, he cannot be
sued by a creditor for the payment of the debts
of the deceased (De Gala vs. Gonzales, et al,
53 Phil 704). Such suit must await the
appointment of regular administrator.
terra ass
Cees
SECTION 4. BOND TO BE GIVEN BEFORE
ISSUANCE OF LETTERS. AMOUNT.
CONDITIONS.
When filed:
Before an executor or administrator enters
upon the execution of his trust
Amount: To be fixed by the court
Conditions of the Bond:
i. Make within 3 MONTHS a true and
complete INVENTORY of the property of
the deceased which came to his
knowledge and possession;
2. ADMINISTER the estate’ and pay and
discharge all debts, legacies and charges,
Including dividends declared by the court
from the proceeds
3, Render a true and just ACCOUNT within
ONE YEAR and when required by the
court
4. PERFORM all orders of the court
Amini pone
Gareitons %
a
the. plebate eal Tetans.
asi the bah arpa
Feb, aso Sirciy ¥8
Yanuay 3 1984).
SECTION, BOND. OF EXECUTOR:
DIRECTED IN WILL WHENSURTHER;BOND
REQUIRED, EE ee
Even it the tela hae dregt Siri win tat
his executor Serve tno sa"BUd, the courtSan Beda College of Lav
2011 CENTRALIZED BAR OPERATIONS
may stil require him to file a bond conditioned.
conly to pay the debts of the testator.
SECTION 3. BONDS OF JOINT
EXECUTORS AND ADMINISTRATORS
SECTION 4. BOND OF SPECIAL
ADMINISTRATOR
Conditions of the Bonds:
1. Make and return a true inventory;
2. Render accounting when required by
court; and
3. Deliver the estate to the person appointed
executor or administrator or other
authorized persons.
The bond is effective as long as the court has
Jurisdiction over the proceedings,
Riera ave hd
CUA Ue ALTA eo
AND REMOVAL OF EXECUTORS AND.
COURSES
SECTION 1, ADMINISTRATION REVOKED
IF WILL DISCOVERED. PROCEEDINGS
THEREUPON
When letters revoked and powers cease
When the decedent's will is allowed and
proved by the court after the issuance of
letters of administration
Duty of Administrator upon revecation of
the letters,
4. Sumrender the letters to the court; and
2, Render his account within such time as
the court may direct.
Whether the intestate proceeding already
commenced should be discontinued and a
ew proceeding under a separate number and
tile should be constituted is entirely a matter
of form and lies within the sound discretion of
the court (Reynosa vs. Santiago, L-3039,
December 29, 1949),
Note: The discovery of a will does NOT ipso
facto nullify the letters of administration
ready issued untit the will hac beers proved
and allowed pursuant to Rule 82. Sec. 1 (Oe
Paneno vs. Arunzanso, GR No. L-27657.
Aug. 36. 198:
SECTION 2. COURT MAY REMOVE OR
ACCEPT RESIGNATION OF EXECUTOR OR
ADMINISTRATOR. PROCEEDINGS UPON
DEATH, RESIGNATION OR REMOVAL
Grounds for Removal of Executor or
Administrator
1, Neglect to render accounts (within 1 year
and when required by the cour),
2. Neglect to settie estate according to these
rules;
3. Neglect to perform an order or judgment of
the court or a duty expressly provided by
these rules;
4, Absconding; or
5. Insanity or incapability or unsuitability 10
discharge the trust
Other Valid Grounds For Removal Of An
Administrator:
1. Adverse interest of an administrator to that
of the state (Garcia v. Vasquez, 32 SCRA
490).
2. Physical’ inability ana consequent
unsuitability to manage the estate (De
Borja v. Tan, 93 Phil 167).
False representation by an administrator in
securing his appointment (Cabarrublas v.
Dizon, 76 Phi 209),
The Order of Removal is APPEALABLE
(Borromee v, Borromeo, 97 Phit, 548).
Note: Grouncs are NOT exclusive.
The position of the administrator is one of
jence and when the court finds that the
administrator's not entitled to. such
confidence, It is justified in withdrawing the
appointment and giving ne valid efficacy
thereto (Cobarubias vs. Dizon, 1-226,
February 26, 1946)
‘Dogroe of is
eee ee a
fens@pable diligence anise in entralgaee
famigie rotormance ofa ust ee
section a acis eee iON,
Lawful dete: of an administrator or: @kdoutor
before the levscation; resignation, or refnoval
are valid
169_ REMEDIAL LAW
SPECIAL PROCEEDINGS
‘SECTION 4. POWERS OF NEW EXECUTOR
OR ADMINISTRATOR. RENEWAL OF
LICENSE TO SELL REAL ESTATE
Power of the New
Administrator
1, Collect and seitle the estate not
administered;
2. Prosecute or defend actions commenced
by or against the former executor or
‘administrator; and
Have execution on judgments recovered in
the name of former executor or
‘administrator.
Executor or
Authority to sell previously given to the former
executor or administrator may be renewed
without notice or hearing,
eere nner anee
acct aaa ed
SECTION 1. INVENTORY AND APPRAISAL
TO BE RETURNED WITHIN THREE
MONTHS
Inventory and appraisal must be made within 3
MONTHS from the grant of letters
testamentary or of administration,
The three-month period is not mandatory.
The fact that an inventory was fed after the
three-month period would not deprive the
Probate court of jurisdiction to approve it.
However, an administrator's unexplained
dolay in fling the inventory may be a ground
for his removal (Sebial vs. Sebial, L-23419,
June 27. 1975)
Approval of en inventory is not a conclusive
determination of what assets constituted the
decedent's estate and of the valuation thereof
‘Such determination is only provisional and a
rina Facie finding of the issue of ownership,
Property claimes by third parsons may be
included in the inventory as part of the assets
Of the estate and the probate court may order
such inclusion, but such order of the probate
court is only a prima facie determination and
does not preclude the claimants from
‘maintaining an ordinary civil action for the
determination of tile (Vala, De Paz v. Vda, Do
Madtrigat, 100 Pht 1085}.
170
SECTION 2. CERTAIN ARTICLES NOT TO
BE INVENTORIED
1. Wearing apparel of the surviving spouse
and minor children;
2. Marriage bed and bedding:
3. Provisions and other articles as will
necessarily be consumed in the
subsistence of the family of the deceased.
‘SECTION 3. ALLOWANCE TO WIDOW AND
FAMILY
Allowance fefers to the monetary advances
Which are subject to collation and are likewise
deductible from their share in the estate of the
decedent.
Persons entitled to allowance during
proceedings
1. Legitimate surviving spouse (Nepomuceno
vs. CA, L-62952, October 9, 1985); and
2. Children of the decedent.
Note: According to Art. 188 of the Civil
Code, the chiliren need not be minors or
incapactated to be entitled to allowance
(Santero vs. CFI of Cavite, GR No. 61700-03,
‘Sept. 24, 1987).
Grandchildren are NOT entitled to allowance
under Rule 83 (Rulz vs. CA, G.R. No. 118671,
January 29, 7986).
When liabilities exceed the assets of the
estate. his widow and children are not entitled
to support pending the liquidation of the
intestate estate, on the ground that such
support, having the character of an advance
payment, to be deducted from the respective
share of each heir during distribution (Wagner
vs. Moor, L-25842, March 18, 1927)
ies SEE a
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Feiienes
SECTION | 1. {| EXEGE
ADMINISTRATOR" 70)
PARTNERSHIP BOOKS "At
HOW RIGHT ENFORCED
secrion’, ie PEON ck
ADMINISTRATOR, 70. KEEP! / BUIEDINGS
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