SPECIAL PROCEEDINGS
REPROBRATE
Reprobate; Requisites before will proved
outside allowed in the Philippines; effects of
probate
(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 (Sec. 1,
Rule 77).
(2) When will allowed, and effect thereof. If it
appears at the hearing that the will should be
allowed in the Philippines, the court shall so allow
it, and a certificate of its allowance, signed by
the judge, and attested by the seal of the court, to
which shall be attached a copy of the will, shall be
filed and recorded by the clerk, and the will shall
have the same effect as if originally proved and
allowed in such court (Sec. 3, Rule 77).
Reprobate; Requisites before will proved
outside allowed in the Philippines; effects of
probate
(3) 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 (Sec. 4, Rule 77).
Reprobate; Requisites before will proved
outside allowed in the Philippines; effects of
probate
(4) Certificate of allowance attached to proved
will. To be recorded in the Office of Register of
Deeds. If the court is satisfied, upon proof taken
and filed, that the will was duly executed, and that
the testator at the time of its execution was of
sound and disposing mind, and not acting under
duress, menace, and undue influence, or fraud, a
certificate of its allowance, signed by the judge,
and attested by the seal of the court shall be
attached to the will and the will and certificate
filed and recorded by the clerk. Attested copies of
the will devising real estate and of certificate of
allowance thereof, shall be recorded in the register
of deeds of the province in which the lands
lie (Sec. 13, Rule 76).
Reprobate; Requisites before will proved
outside allowed in the Philippines; effects of
probate
(5) The general rule universally recognized is
that administration extends only to the assets of
the decedent found within the state or country
where it was granted, so that an administrator
appointed in one state or country has no power
over the property in another state or
country (Leon & Ghezzi vs. Manufacturers Life
Ins., 80 Phil. 495). When a person dies intestate
owning property in the country of his domicile as
well as in foreign country, administration shall be
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had in both countries. That which is granted in the
jurisdiction of the decedents domicile is termed
the principal administration, while any other
administration is termed ancillary administration.
The ancillary administration is proper whenever a
person dies leaving in a country other than that of
his domicile, property to be administered in the
nature of assets of the decedent, liable for his
individual debts or to be distributed among his
heirs (Johannes vs. Harvey, 43 Phil. 175).
LETTERS TESTAMENTARY
Letters testamentary is the appointment issued by
a probate court, after the will has been admitted
to probate, to the executor named in the will to
administer the estate of the deceased testator,
provided the executor named in the will is
competent, accepts the trust and gives a
bond (Sec. 4).
When and to whom letters of administration
granted
(1) No person is competent to serve as executor or
administrator who: (a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute
the duties of the trust by reason of drunkenness,
improvidence, or want of understanding or
integrity, or by reason of conviction of an offense
involving moral turpitude (Sec. 1).
When and to whom letters of administration
granted
(2) Executor of executor not to administer
estate. The executor of an executor shall not, as
such, administer the estate of the first
testator (Sec. 2).
(3) Married women may serve. A married woman
may serve as executrix or administratrix, and the
marriage of a single woman shall not affect her
authority so to serve under a previous
appointment (Sec. 3).
(4) Letters testamentary issued when will
allowed. When a will has been proved and allowed,
the court shall issue letters testamentary thereon
to the person named as executor therein, if he is
competent, accepts the trust, and gives bond as
required by these rules (Sec. 4).
When and to whom letters of administration
granted
(5) Where some coexecutors disqualified others
may act. When all of the executors named in a will
cannot act because of incompetency, refusal to
accept the trust, or failure to give bond, on the
part of one or more of them, letters testamentary
may issue to such of them as are competent,
accept and give bond, and they may perform the
duties and discharge the trust required by the
will (Sec. 5).
When and to whom letters of administration
granted
(6) 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:
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(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 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 (Sec. 6).
Order of preference
(1) Priority in selecting an administrator
(a) Surviving spouse, or next of kin, or both, or
person as such surviving spouse, or next of kin,
requests;
(b) One or more of the principal creditors if
such surviving spouse, or next of kin, or the
person selected, be incompetent or unwilling, or if
they neglect for 30 days after the death of the
decedent to apply for administration or to request
that administration be granted to some other
person, it may be granted to, if competent and
willing to serve;
(c) Such other person as the court may select.
Opposition to issuance of letters
testamentary; simultaneous filing of 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 executors, or
any of them, and the court, after hearing upon
notice, shall pass upon the sufficiency of such
grounds. A petition may, at the same time, be filed
for letters of administration with the will
annexed (Sec. 1, Rule 79).
Powers and duties of Executors and
Administrators; restrictions on the powers
(Rule 84)
(1) An executor is the person nominated by a
testator to carry out the directions and requests in
his will and to dispose of his property according to
his testamentary provisions after his death (21
Am. Jur. 369).
(2) An administrator is person appointed by the
court, in accordance with the governing statute, to
administer and settle intestate estate and such
testate estate as no competent executor was
designated by the testator.
Powers and duties of Executors and
Administrators; restrictions on the powers
(Rule 84)
(3) Executor or administrator to have access to
partnership books and property. How right
enforced. The executor or administrator of the
estate of a deceased partner shall at all times
have access to, and may examine and take copies
SPECIAL PROCEEDINGS
of, books and papers relating to the partnership
business, and may 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. (Sec. 1, Rule 84).
Powers and duties of Executors and
Administrators; restrictions on the powers
(Rule 84)
(4) 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 (Sec.
2, Rule 84).
(5) 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 (Sec. 3,
Rule 84).
Powers and duties of Executors and
Administrators; restrictions on the powers
(Rule 84)
(6) An administrator of an intestate cannot
exercise the right of legal redemption over a
portion of the property owned in common sold by
one of the other co-owners since this is not within
the powers of administration (Caro vs. CA, 113
SCRA 10). Where the estate of a deceased person
is already the subject of a testate or intestate
proceeding, the administrator cannot enter into
any transaction involving it without any prior
approval of the Court (Estate of Olave vs. Reyes,
123 SCRA 767).
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 (Sec. 1,
Rule 80).
Grounds for removal of administrator
(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 within such time as the court
directs. Proceedings for the issuance of letters
testamentary or of administration under the will
shall be as hereinbefore provided (Sec. 1, Rule 82).
Grounds for removal of administrator
(2) Court may remove or accept resignation of
executor or administrator. Proceedings upon
death, resignation, or removal. If an executor or
administrator neglects to render his account and
SPECIAL PROCEEDINGS
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 unsuitable to
discharge the trust, the court may remove him, or,
in its discretion, may permit him to resign. When
an executor or administrator dies, resigns, or is
removed the remaining executor or administrator
may administer the trust alone, unless the court
grants letters to someone to act with him. If there
is no remaining executor or administrator,
administration may be granted to any suitable
person (Sec. 2, Rule 82).
CLAIMS AGAINST THE ESTATE
Administration is for the purpose of liquidation of
the estate and distribution of the residue among
the heirs and legatees. Liquidation means the
determination of all the assets of the estate and
payment of all debts and expenses.
The purpose of presentation of claims against
decedents of the estate in the probate court is to
protect the estate of deceased persons. That way,
the executor or administrator will be able to
examine each claim and determine whether it is a
proper one which should be allowed.
Time within which claims shall be filed; exceptions
In the notice provided in the preceding section, the
court shall state the time for the filing of claims
against the estate, which shall not be more than
twelve (12) nor less than six (6) months after the
date of the first publication of the notice. However,
at any time before an order of distribution is
entered, on application of a creditor who has failed
to file his claim within the time 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 (Sec. 2).
Statute of Non-claims
The rule requires certain creditors of a deceased
person to present their claims for examination and
allowance within a specified period, the purpose
thereof being to settle the estate with dispatch, so
that the residue may be delivered to the persons
entitled thereto without their being afterwards
called upon to respond in actions for claims,
which, under the ordinary statute of limitations,
have not yet prescribed (Santos vs. Manarang, 27
Phil. 213).
Claim of Executor or administrator vs 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 (Sec. 8).
Payment of Debts (Rule 88)
If there are sufficient properties, the debts shall be
paid, thus:
SPECIAL PROCEEDINGS
(a) All debts shall be paid in full within
the time limited for the purpose (Sec. 1);
(b) If the testator makes provision by his
will, or designates the estate to be
appropriated for the payment of debts they
shall be paid according to the provisions of
the will, which must be respected (Sec. 2);
Payment of Debts (Rule 88)
(c) If the estate designated in the will is not
sufficient, such part of the estate as is not
disposed of by will shall be appropriated for the
purpose (Sec. 2);
(d) The personal estate not disposed of by will
shall be first chargeable with payment of debts
and expenses (Sec. 3);
(e) If the personal estate is not sufficient, or its
sale would be detrimental to the participants of
the estate, the real estate not disposed of by will
shall be sold or encumbered for that purpose (Sec.
3);
Payment of Debts (Rule 88)
(f) Any deficiency shall be met by contributions
from devisees, legatees and heirs who have
entered into possession of portions of the estate
before debts and expenses have been paid (Sec.
6);
(g) The executor or administrator shall retain
sufficient estate to pay contingent claims when
the same becomes absolute (Sec. 4).
Payment of Debts (Rule 88)
If the estate is insolvent, the debts shall be paid in
the following manner:
(a) The executor or administrator shall pay the
debts in accordance with the preference of credits
established by the Civil Code (Sec. 7);
(b) No creditor of any one class shall receive
any payment until those of the preceding class are
paid (Sec. 8);
Payment of Debts (Rule 88)
If the estate is insolvent, the debts shall be paid in
the following manner: (c) If there are no assets
sufficient to pay the credits of any one class of
creditors, each creditor within such class shall be
paid a dividend in proportion to his claim (Sec. 8);
(d) Where the deceased was a nonresident, his
estate in the Philippines shall be disposed of in
such a way that creditors in the Philippines and
elsewhere may receive an equal share in
proportion to their respective credits (Sec. 9);
Payment of Debts (Rule 88)
If the estate is insolvent, the debts shall be paid in
the following manner:
(e) Claims duly proved against the estate of an
insolvent resident of the Philippines, the executor
or administrator, having had the opportunity to
contest such claims, shall e included in the
certified list of claims proved against the
deceased. The owner of such claims shall be
entitled to a just distribution of the estate in
accordance with the preceding rules if the
property of such deceased person in another
country is likewise equally apportioned to the
creditors residing in the Philippines and other
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creditors, according to their respective
claims (Sec. 10);
Payment of Debts (Rule 88)
If the estate is insolvent, the debts shall be paid in
the following manner:
(f) Any deficiency shall be met by contributions
from devisees, legatees and heirs who have
entered into possession of portions of the estate
before debts and expenses have been paid (Sec.
6);
(g) The executor or administrator shall retain
sufficient estate to pay contingent claims when
the same becomes absolute (Sec. 4).
Payment of Debts (Rule 88)
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 nor so that the whole period
allowed to the original executor or administrator
shall exceed two (2) years (Sec. 15).
Payment of Debts (Rule 88)
Applicable provisions under the Civil Code:
Art. 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;
Payment of Debts (Rule 88)
Applicable provisions under the Civil Code:
Art. 2241. With reference to specific movable
property of the debtor, the following claims or
liens shall be preferred:
(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;
SPECIAL PROCEEDINGS
(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;
Payment of Debts (Rule 88)
Applicable provisions under the Civil Code:
Art. 2241. With reference to specific movable
property of the debtor, the following claims
or liens shall be preferred:
(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.
Payment of Debts (Rule 88)
Applicable provisions under the Civil Code:
Art. 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;
SPECIAL PROCEEDINGS
(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.
Payment of Debts (Rule 88)
Applicable provisions under the Civil Code:
Art. 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.
Art. 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;
Payment of Debts (Rule 88)
Applicable provisions under the Civil Code:
Art. 2244. With reference to other property, real
and personal, of the debtor, the following claims or
credits shall be preferred in the order named:
(7) Fines and civil indemnification arising from a
criminal offense;
(8) Legal expenses, and expenses incurred in the
administration of the insolvents 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;
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(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.
Payment of Debts (Rule 88)
Applicable provisions under the Civil Code:
Art. 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.
CHAPTER 3
ORDER OF PREFERENCE OF CREDITS
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Payment of Debts (Rule 88)
Applicable provisions under the Civil Code:
Art. 2251. Those credits which do not enjoy any
preference with respect to specific property, and
those which enjoy preference, as to the amount
not paid, shall be satisfied according to the
following rules:
(1) In the order established in article 2244;
(2) Common credits referred to in article 2245
shall be paid pro rata regardless of dates.
ACTIONS BY & AGAINST EXEC
No action upon a claim for the recovery of money
or debts or interest thereon shall be commenced
against the executor or administrator (Sec. 1).
Actions that may be brought against
executors and administrators
(1) An action 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 the
executor or administrator (Sec. 1).
Actions that may be brought against
executors and administrators
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(2) Whenever a party to a pending action dies,
and the claim is not thereby extinguished, it shall
be the duty of his counsel to inform the court
within thirty (30) days after such death of the fact
thereof, and to give the name and address of his
legal representative or representatives. Failure of
counsel to comply with this duty shall be a ground
for disciplinary action. The heirs of the deceased
may be allowed to be substituted for the
deceased, without requiring the appointment of an
executor or administrator and the court may
appoint a guardian ad litem for the minor heirs.
Actions that may be brought against
executors and administrators
The court shall forthwith order said legal
representative or representatives to appear and be
substituted within a period of thirty (30) days from
notice. If no legal representative is named by the
counsel for the deceased party, or if the one so
named shall fail to appear within the specified
period, the court may order the opposing party,
within a specified time, to procure the
appointment of an executor or administrator for
the estate of the deceased and the latter shall
immediately appear for and on behalf of the
deceased. The court charges in procuring such
appointment, if defrayed by the opposing party,
may be recovered as costs (Sec. 16, Rule 3).
Actions that may be brought against
executors and administrators
(3) When the action is for recovery of money
arising from contract, express or implied, and the
defendant dies before entry of final judgment in
the court in which the action was pending at the
time of such death, it shall not be dismissed but
shall instead be allowed to continue until entry of
final judgment. A favorable judgment obtained by
the plaintiff therein shall be enforced in the
manner especially provided in these Rules for
prosecuting claims against the estate of a
deceased person (Sec. 20, Rule 3).
Requisites before creditor may bring an
action for recovery of property fraudulently
conveyed by the deceased
(a) There is a deficiency of assets in the hands
of an executor or administrator for the payment of
debts and expenses of administration;
(b) The deceased in his lifetime had made or
attempted to make a fraudulent conveyance of his
real or personal property, or a right or interest
therein, or a debt or credit, with intent to defraud
his creditors or to avoid any right, debt or duty; or
had so conveyed such property, right, debt, or
credit that by law the conveyance would be void
as against his creditors;
(c) The subject of the attempted conveyance
would be liable to attachment by any of them in
his lifetime;
Requisites before creditor may bring an
action for recovery of property fraudulently
conveyed by the deceased
(d) The executor or administrator has shown to
have no desire to file the action or failed to
institute the same within a reasonable time;
(e) Leave is granted by the court to the creditor
to file the action;
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(f) A bond is filed by the creditor as prescribed
in the Rules;
(g) The action by the creditor is in the name of
the executor or administrator (Sec. 10).
DISTRIBUTION & PARTITION
Before there could be a distribution of the estate,
the following two stages must be followed:
(a) Payment of obligations (liquidation of estate)
under the Rules, the distribution of a decedents
assets may only be ordered under any of the
following three circumstances: (1) when the
inheritance tax, among other is paid; (2) when a
sufficient bond is given to meet the payment of
the inheritance tax and all other obligations; and
(3) when the payment of the said tax and all other
obligations has been provided for; and
(b) Declaration of heirs there must first be
declaration of heirs to determine to whom the
residue of the estate should e distributed. A
separate action for the declaration of heirs is not
proper. And likewise after, not before the
declaration of heirs is made may the residue be
distributed and delivered to the heirs.
(2) The settlement of a decedents estate is a
proceeding in rem which is binding against the
whole world. All persons having interest in the
subject matter involved, whether they were
notified or not, are equally bound.
Liquidation
Sec. 1. When order for distribution of residue
made. When the debts, funeral charges, and
expenses of administration, the allowance to the
widow, and inheritance tax, if any, chargeable to
the estate in accordance with law, have been paid,
the court, on the application of the executor or
administrator, or of a person interested in the
estate, and after hearing upon notice, shall assign
the residue of the estate to the persons entitled to
the same, naming them and the proportions, or
parts, to which each is entitled, and such person
may demand and recover their respective shares
from the executor or administrator, or any other
person having the same in his possession.
Liquidation
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.
No distribution shall be allowed until the
payment of the obligations above mentioned has
been made or provided for, unless the
distributees, or any of them, give a bond, in a sum
to be fixed by the court, conditioned for the
payment of said obligations within such time as
the court directs.
Liquidation
Sec. 2. Questions as to advancement to be
determined. Questions as to advancement made,
or alleged to have been made, by the deceased to
any heir may be heard and determined by the
court having jurisdiction of the estate proceedings;
and the final order of the court thereon shall be
SPECIAL PROCEEDINGS
binding on the person raising the questions and on
the heir.
Liquidation
Sec. 3. By whom expenses of partition paid. If at
the time of the distribution the executor or
administrator has retained sufficient effects in his
hands which may lawfully be applied for the
expenses of partition of the properties distributed,
such expenses of partition may be paid by such
executor or administrator when it appears
equitable to the court and not inconsistent with
the intention of the testator; otherwise, they shall
be paid by the parties in proportion to their
respective shares or interest in the premises, and
the apportionment shall be settled and allowed by
the court, and, if any person interested in the
partition does not pay his proportion or share, the
court may issue an execution in the name of the
executor or administrator against the party not
paying for the sum assessed.
Liquidation
Project of Partition
(1) Project of partition is a document prepared
by the executor or administrator setting forth the
manner in which the estate of the deceased is to
be distributed among the heirs. If the estate is a
testate estate, the project of partition must
conform to the terms of the will; if intestate, the
project of partition must be in accordance with the
provisions of the Civil Code (Camia de Reyes vs.
Reyes de Ilano, 63 Phil. 629).
Remedy of an heir entitled to residue but not
given his share
(1) 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 (Sec. 1).
(2) The better practice for the heir who has not
received his share is to demand his share through
a proper motion in the same probate or
administration proceedings, or for reopening of the
probate or administrative proceedings if it had
already been closed, and not through an
independent action, which would be tried by
another court or judge (Ramos vs. Octuzar, 89
Phil. 730).
Remedy of an heir entitled to residue but not
given his share
(3) It has been held that an order which
determines the distributive share of the heirs of a
deceased person is appealable. If not appealed
within the reglementary period, it becomes
final (Imperial vs. Muoz, 58 SCRA).
(4) The Court allowed the continuation of a
separate action to annul the project of partition by
a preterited heir, since the estate proceedings
have been closed and terminated for over three
years (Guilas vs. Judge of the CFI of Pampanga, 43
SCRA 117), and on the ground of lesion, preterition
and fraud (Solivio vs. CA, 99 Phil. 1069).
Instances when probate court may issue writ
of execution
SPECIAL PROCEEDINGS
(1) The only instances when the probate court
may issue a writ of execution are as follows:
(a) To satisfy the contributive shares of
devisees, legatees and heirs in possession of the
decedents assets (Sec. 6, Rule 88);
(b) To enforce payment of expenses of
partition (Sec. 3, Rule 90); and
(c) To satisfy the costs when a person is cited
for examination in probate proceedings (Sec. 13,
Rule 132).
GUARDIANS & GUARDIANSHIP
Trustees (Rule 98)
Distinguished from executor/administrator
Conditions of the Bond
(1) A trustee appointed by the court is required
to furnish a bond and the terms of the trust or a
statute may provide that a trustee appointed by a
court shall be required to furnish a bond in order to
qualify him to administer the trust (54 Am. Jur.
425).
Trustees (Rule 98)
Distinguished from executor/administrator
Conditions of the Bond
However, 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
or when all persons beneficially interested in the
trust, being of full age, request the exemption.
Such exemption may be cancelled by the court at
any time, and the trustee required to forthwith file
a bond (Sec. 5). If the trustee fails to furnish a
bond as required by the court, he fails to qualify as
such. Nonetheless the trust is not defeated by
such a failure to give bond.
Trustees (Rule 98)
The following conditions shall be deemed to be a
part of the bond whether written therein or not:
(a) 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;
(b) 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;
The following conditions shall be deemed to be a
part of the bond whether written therein or not:
(c) 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 of the
management and disposition thereof, and will
render such other accounts as the court may
order;
(d) That at the expiration of his trust he will settle
his accounts 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 thereto.
SPECIAL PROCEEDINGS
Requisites for the removal and resignation of
a trustee
(1) after due notice to the trustee and hearing, if
it appears essential in the interests of the
petitioners. The court may also, after due notice to
all persons interested, remove a trustee who is
insane or otherwise incapable of discharging his
trust or evidently unsuitable therefor. A trustee,
whether appointed by the court or under a written
instrument, may resign his trust if it appears to the
court proper to allow such resignation (Sec. 8).
Grounds for removal and resignation of a
trustee
(2) A trustee whose acts or omissions are such
as to show a want of reasonable fidelity will be
removed by the court and where trust funds are to
be invested by the trustee, neglect to invest
constitutes of itself a breach of trust, and is a
ground for removal (Gisborn vs. CAvende, 114 US
464).
Extent of authority of trustee
(1) A trustee appointed by the RTC shall have
the same rights, powers, and duties as if he had
been appointed by the testator. No person
succeeding to a trust as executor or administrator
of a former trustee shall be required to accept
such trust (Sec. 2).
Extent of authority of trustee
(2) Such new trustee shall have and exercise
the same powers, rights, and duties as if he had
been originally appointed, and the 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; and 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 estate in the new trustee, either alone or
jointly with the others (Sec. 3).
ESCHEAT
Escheat is a proceeding whereby the real and
personal property of a deceased person in the
Philippines, become the property of the state upon
his death, without leaving any will or legal
heirs (21 CJS, Sec. 1, p. 848).
When to file
When a person dies intestate, seized of real or
personal property in the Philippines, leaving no
heir or person by law entitled to the same, the
Solicitor General or his representative in behalf of
the Republic of the Philippines, may file a petition
in the Regional Trial Court of the province where
the deceased last resided or in which he had
estate, if he resided out of the Philippines,
Requisites for filing of petition
(1) In order that a proceeding for escheat may
prosper, the following requisites must be present:
(a) That a person died intestate;
(b) That he left no heirs or person by law
entitled to the same; and
(c) That the deceased left properties
(City of Manila vs. Archbishop of Manila, 36 Phil. 815).
SPECIAL PROCEEDINGS
Remedy of respondent against petition; period for
filing a claim
(1) When a petition for escheat does not state
facts which entitle the petitioner to the remedy
prayed for, and even admitting them
hypothetically, it is clear that there is no ground
for the court to proceed to the inquisition provided
by law, an interested party should not be
disallowed from filing a motion to dismiss the
petition which is untenable from all standpoints.
And when the motion to dismiss is entertained
upon this ground, the 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.,
65 Phil. 443).
Remedy of respondent vs petition; period for
filing a claim
(2) While the Rules do not in fact authorize the
filing of a motion to dismiss the petition presented
for that purpose, and the Rules permitting the
interposition of a motion to dismiss to the
complaint and answer, respectively, are not
applicable to special proceedings, nevertheless,
there is no reason of a procedural nature which
prevents the filing of a motion to dismiss based
upon any of the grounds provided for by law for a
motion to dismiss the complaint. In such a case,
the motion to dismiss plays the role of a demurrer
and the court should resolve the legal questions
raised therein (Municipal Council of San Pedro,
Laguna vs. Colegio de San Jose, 65 Phil. 318).
GUARDIANSHIP
Guardianship is the power of protective authority
given by law and imposed on an individual who is
free and in the enjoyment of his rights, over one
whose weakness on account of his age or other
infirmity renders him unable to protect
himself (Cyclopedic Law Dictionary, 908). It
involves the taking of possession of an
management of, the estate of another unable to
act for himself.
A guardian is a person lawfully invested with
power and charged with the duty of taking care of
a person who for some peculiarity or status or
defect of age, understanding or self-control is
considered incapable of administering his own
affairs (Blacks Law Dictionary, Fifth Edition).
Kinds of guardians:
(a) According to scope or extent
a) Guardian of the person one who has been
lawfully invested with the care of the person of
minor whose father is dead. His authority is
derived out of that of the parent;
b) Guardian of the property that appointed
by the court to have the management of the
estate of a minor or incompetent person;
c) General guardians those appointed by the
court to have the care and custody of the person
and of all the property of the ward.
Kinds of guardians:
(b) According to constitution
1) Legal those deemed as guardians without
need of a court appointment (Art. 225, Family
Court);
SPECIAL PROCEEDINGS
2) Guardian ad litem those appointed by
courts of justice to prosecute or defend a minor,
insane or person declared to be incompetent, in an
action in court; and
3) Judicial those who are appointed by the
court in pursuance to law, as guardian for insane
persons, prodigals, minor heirs or deceased was
veterans and other incompetent persons.
General powers and duties of guardians
(Rule 96)
(a) To have care and custody over the person of
his ward, and/or the management of his
estate (Sec. 1);
(b) To pay the just debts of his ward out of the
latters estate (Sec. 2);
(c) To bring or defend suits in behalf of the ward,
and, with the approval of the court, compound for
debts due the ward and give discharges to the
debtor (Sec.3);
(d) To manage the estate frugally and without
waste, and apply the income and profits to the
comfortable and suitable maintenance of the ward
and his family (Sec. 4);
General powers and duties of guardians
(Rule 96)
(e) To sell or encumber the real estate of the
ward upon being authorized to do so (Sec. 4);
(f) To join in an assent to a partition of real or
personal estate held by the ward jointly or in
common with others (Sec. 5).
Conditions of the bond of the guardian
(a) To file with the court complete inventory of
the estate of the ward within 3 months;
(b) To faithfully execute the duties of his trust to
manage and dispose of the estate according to the
Rules for the best interests of the ward, and to
provide for the proper use, custody, and education
of the ward;
(c) To render a true account of all the estate,
and of the management and disposition of the
same;
Conditions of the bond of the guardian
(d) To settle his accounts with the court and
deliver over all the estate remaining in his hands
to the person entitled thereto;
(e) To perform all orders of the court by him to
be performed (Sec. 1; Sec. 14, AM 03-02-05-SC).
Rule on Guardianship over Minors (AM 03-02-
05-SC)
(1) The father and mother shall jointly exercise
legal guardianship over the person and property of
their unemancipated common child without the
necessity of a court appointment. The Rule shall
be suppletory to the provisions of the Family Code
on guardianship (Sec. 1).
(2) On grounds authorized by law, any relative
or other person on behalf of a minor, or the minor
himself if 14 years of age or over, may petition the
Family Court for the appointment of a general
guardian over the person or property, or both, of
such minor. The petition may also be filed by the
Secretary of DSWD and of the DOH in the case of
an insane minor who needs to be
hospitalized (Sec. 1).
Rule on Guardianship over Minors (AM 03-02-
05-SC)
Grounds of petition (Sec. 4):
(a) Death, continued absence, or
incapacity of his parents;
SPECIAL PROCEEDINGS

(b) Suspension, deprivation or (b) The oldest brother or sister of the

termination of parental authority; minor over 21 years of age, unless unfit or
(c) Remarriage of his surviving disqualified;
parent, if the latter is found (c) The actual custodian of the minor
unsuitable to exercise parental over 21 years of age, unless unfit or
authority; or disqualified; and
(d) When the best interest of the (d) Any other person, who in the sound
minor so require. discretion of the court, would serve the
Rule on Guardianship over Minors (AM 03-02- best interests of the minor.
05-SC)
Qualifications of guardians (Sec. 4); Rule on Guardianship over Minors (AM 03-02-
(a) Moral character; 05-SC)
(b) Physical, mental and Factors to consider in determining custody:
psychological condition; (a) Any extrajudicial agreement which the
(c) Financial status; parties may have bound themselves to comply
(d) Relationship of trust with the with respecting the rights of the minor to maintain
minor; direct contact with the non-custodial parent on a
(e) Availability to exercise the regular basis, except when there is an existing
powers and duties of a guardian for threat or danger of physical, mental, sexual or
the full period of the guardianship; emotional violence which endangers the safety
(f) Lack of conflict of interest with and best interests of the minor;
the minor; and Rule on Guardianship over Minors (AM 03-02-
(g) Ability to manage the property 05-SC)
of the minor. Factors to consider in determining custody:
Rule on Guardianship over Minors (AM 03-02- (b) The desire and ability of one parent to foster
05-SC) an open and loving relationship between the minor
Order of preference in the appointment of and the other parent;
guardian or the person and/or property of (c) The health, safety and welfare of the minor;
minor (Sec. 6): (d) Any history of child or spousal abuse by the
(a) The surviving grandparent and in person seeking custody or who has had any filial
case several grandparents survive, the relationship with the minor, including anyone
court shall select any of them taking into courting the parent;
account all relevant considerations; Rule on Guardianship over Minors (AM 03-02-
05-SC)
Factors to consider in determining custody:
SPECIAL PROCEEDINGS

(e) The nature and frequency of contact with Factors to consider in determining custody:
both parents; (i) The preference of the minor over 7 years of
(f) Habitual use of alcohol, dangerous drugs or age and of sufficient discernment, unless the
regulated substances; parent chosen is unfit (Sec. 14, AM No. 03-04-04-
(g) Marital misconduct; SC).
(h) The most suitable physical, emotional, The court shall order a social worker to conduct a
spiritual, psychological and educational case study of the minor and all the prospective
environment for the holistic development and guardians and submit his report and
growth of the minor; and recommendation to the court for its guidance
Rule on Guardianship over Minors (AM 03-02- before the scheduled hearing.
05-SC)