SPECIAL PROCEEDINGS SEC. 2. APPLICABILITY OF RULES OF CIVIL ACTIONS.
In the absence of special rules, the rules provided for in ordinary
1. DISTINCTION BETWEEN CIVIL ACTION AND SPECIAL
PROCEEDINGS
a. CIVIL ACTION
- action by which a party sues another for enforcement
or protection of a right, or prevention or redress of a
wrong.
- formal demand of one’s legal rights
- a party sues another – adverse party
- adversarial in nature, always based on cause of action
b. SPECIAL PROCEEDING
- remedy by which a party seeks to establish a status,
right or a particular fact.
- petition for a declaration of a status, right or fact
- usually involves just one party
2. NATURE OF SPECIAL PROCEEDINGS  -
- initially non-adversarial in nature;
- in the course of proceedings, there may be oppositors
ex. In Re: Petition for Appointment of Guardian Litem
GENERAL PROVISION
RULE 72
SUBJECT MATTER AND APPLICABILITY OF GENERAL
RULES
SEC. 1. SUBJECT MATTER OF SPECIAL PROCEEDINGS.
1) Rules 73-75 )
2) Rules 76-81 ) Settlement of Estate
3) Rules 82-86 ) Deceased Persons
4) Rules 87-90 )
5) A.M. No. 03-02-05-SC Guardianship of Minors
6) Rules 92-97 Guardianship of Incompetents
7) A.M. No. 02-06-02-SC Adoption and Custody of Minors
8) Rule 98 Trustees
9) Rule 101 Hospitalization of Insane Person
10) Rule 102 Habeas Corpus
11) Rule 103 Change of Name
12) Rule 104 Voluntary Dissolution of Corporations (Deemed
repealed by the Corporation Code, Title XIV, Secs. 117-122)
13) Rule 105 Judicial Approval of Voluntary Recognition of Minor
Natural Children
14) Rule 106 Constitution of Family Home (Deemed repealed by
the Family Code, Arts. 252-253)
15) Rule 107 Absentees
16) Rule 108 Cancellation or Correction of Entries
17) Rule 109 Appeals in Special Proceedings
- It is not meant to be exclusive list of what may be
considered as special proceedings.
Ex. Petition for liquidation of an insolvent corporation, such as
bank (so long as it not seek the enforcement or protection of a
right nor the prevention or redress of a wrong against a party)
SPECIAL PROCEEDINGS UNDER VARIOUS LAWS
1. Summary proceedings under the Family Code
2. Actions mentioned in the Family Courts Act of 1997 (RA 8369)
- declaration of absolute nullity of void marriages and
annulment of voidable marriages
- legal separation
- provisional orders on support, custody of minor
children and administration of common property
- violence against women and their children and
protection orders
3. Proceedings under: Child & Youth Welfare Code (PD 1083)
Child Abuse Act (RA 7610) Child Employment Act (RA 7658)
- declaration of status as abandoned, dependent or
neglected children
- voluntary or involuntary commitment of children
- suspension, termination or restoration of parental
authority
4.     Domestic and Inter-country adoption
5.     Petition for corporate rehabilitation
6.     Petition for writ of amparo
7.     Petition for writ of habeas data
8.     Arbitration
RULES IN CIVIL ACTIONS APPLICABLE TO SPECIAL
PROCEEDINGS
actions shall be, as far as practicable, applicable to special
proceedings.
1. Rule 17 governing dismissal of actions by plaintiff in civil
actions (Ventura vs. Ventura, Sept. 24, 1969)
2. Rules regarding:
- preparation, filing and service of applications, motions,
and other papers
- omnibus motions
- subpoena
- computation of time
- motion for new trial
- discovery
- trial before commissioners
procedure of appeal (Fernandez vs. Maravilla, 10
SCRA 589 [1964])
ex. The requirement that no suit shall be filed or maintained
between members of the same family unless it should
appear that earnest efforts toward a compromise have been
made, but the same have failed, does not apply to a special
proceeding
3. Rule 33 regarding judgment on demurrer to evidence (Matute
vs. CA, 26 SCRA 768 [1969])
RECENT JURISPRUDENCE
- In the absence of special provisions, rules in ordinary
actions may be applied in special proceedings as
much as possible and where doing so would not pose
an obstacle to said proceedings.
- Nowhere in the Rules of Court does it categorically say
that rules in ordinary actions are inapplicable or merely
suppletory to special proceedings.
- Provisions of the Rules of Court requiring a
certification of non-forum shopping for complaints and
initiatory pleadings, a written explanation for non-
personal service and filing, and the payment of filing
fees for money claims against an estate would not in
any way obstruct probate proceedings, thus, they are
applicable to special proceedings such as the
settlement of the estate of a deceased person.
(Sheker versus Estate of Alice Sheker, G.R. No.
157912 Dec 13, 2007)
A. SETTLEMENT OF ESTATE OF DECEASED PERSONS,
VENUE AND PROCESS
Art. 777, Civil Code rights to succession are transmitted from the
moment of death of the decedent.
- This is only from the substantive aspect.
- From the PROCEDURAL aspect, there are certain
procedures that must be observed before actual
transmission of the property, but rights of the
heirs retroact from the moment of death.
RECENT JURISPRUDENCE
- The right of respondents predecessors over the
subject property is more than sufficient to uphold
respondents right to possession over the same.
- Respondents right to the property was vested in her
along with her siblings from the moment of their fathers
death.
- As heir, respondent had the right to the possession of
the property, which is one of the attributes of
ownership.
- Such rights are enforced and protected from
encroachments made or attempted before the judicial
declaration since respondent acquired hereditary rights
even before judicial declaration in testate or intestate
proceedings.(Bunyi versus Factor. G.R. No. 172547,
June 30, 2009)
1. WHICH COURT HAS JURISDICTION
JURISDICTION OVER SETTLEMENT OF ESTATE
- MTC and RTC are both empowered to take
cognizance of estate proceedings.
- The determination of which court exercises jurisdiction
over matters of probate depends upon the GROSS
VALUE of the estate of the decedent.
 MTC exclusive jurisdiction: does not exceed P300,000 or
P400,000 if within Metro Manila
RTC exclusive jurisdiction: exceeds P300,000 or
P400,000 if within Metro Manila
- Rule 73, Sec. 1 is deemed amended by BP 129, as
amended by RA 7691 (Lim vs. CA, G.R. No. 124715,
January 24, 2000, 323 SCRA 102]),
- It is only probate proceedings that fall UNDER MTC;
all other SpecPro are triable within the exclusive
jurisdiction of the RTC.
KINDS OF SETTLEMENT BASED ON THE FORM OF
SETTLEMENT:
1. Extrajudicial settlement (Rule 74, Sec. 1)
2. Summary settlement of estates of small value (Rule 74, Sec. 2)
3. Judicial settlement through letters testamentary or letters of
administration with or without the will annexed (Rules 73, 75-90)
2. VENUE IN JUDICIAL SETTLEMENT OF ESTATES
RULE 73
VENUE AND PROCESS
SEC. 1. WHERE ESTATE OF DECEASED PERSONS
SETTLED.
1. If residing in Philippines at time of death, whether citizen or
not,
 court of PLACE OF RESIDENCE.
2. If residing in a foreign country
 court of ANY PLACE WHERE HE HAD ESTATE.
- Court first taking cognizance of settlement of estate of
a decedent shall exercise jurisdiction TO THE
EXCLUSION of all other courts.
o subject to preferential jurisdiction of court
where TESTATE proceedings are filed
(limited only in Philippine courts)
- Jurisdiction assumed by a court depending on
o place of residence of decedent, or
o location of estate shall NOT BE
CONTESTED in a suit or proceeding,
  except in an appeal from that court (venue may be
assailed only when the state proceedings are brought
up on appeal), or
  when want of jurisdiction appears in the record (by
plain reading)
ex. The will alleges that the decedent was a resident of
Makati City at the time of death, petition was filed in
Paranaque.
NOTES:
1. Term RESIDES refers to actual or physical residence, as
distinguished from legal residence or domicile.
2. There is a distinction between residence for purposes of
election laws and residence for purposes of fixing the venue
of actions.  settlement and distribution of the estate, such as
 In election cases, residence and domicile are treated as
synonymous terms, that is, the fixed permanent residence
to which when absent, one has the intention of returning.
 However, for purposes of fixing venue under the Rules
of Court, the residence of a person is his personal, actual
or physical habitation, or actual residence or place of
abode, which may not necessarily be his legal residence
or domicile provided he resides therein with continuity and
consistency.
 Hence, it is possible that a person may have his
residence in one place and domicile in another. (San Luis
vs. San Luis, G.R. No. 133743, February 6, 2007)
3. Sec. 1, Rule 73
 prescribing court where decedents estate shall be
settled
(a) place of residence or
(b) where his estate is located, relates to VENUE
and not jurisdiction.
4. Where two proceedings filed, one intestate, the other testate
illustrative cases on which courts should have jurisdiction:
ROBERTS VS. LEONIDAS (129 SCRA 33)
- intestate in CFI Manila Branch 20, testate (reprobate)
in CFI Manila, Branch 38.
Ruling: priority to second branch of same court (CFI Manila).
a. Probate of will MANDATORY-anomalous that estate
of person who died testate should be settled in intestate
proceedings.
b. Intestate case should be CONSOLIDATED with
testate proceeding
o Judge assigned to testate proceeding should
continue hearing the two cases.
URIARTE VS. CFI OF NEGROS OCC.  (33 SCRA 252)
- intestate in Negros court, testate in Manila court.
Ruling: priority to first court.
- Petitioner in Manila court should have submitted will
for probate to Negros court, either in separate special
proceeding or motion.
o Testate proceeding takes precedence over
intestate proceeding.
If in the course of intestate proceeding, it is found that decedent
left a will, proceeding for probate of will (filed in the first court)
should REPLACE intestate proceeding.
CUENCO VS. CA  (53 SCRA 360 [1973])
- intestate in Cebu court, testate in QC court.
Ruling: priority to second court.
- First court, upon learning that petition for probate has
been presented in another court, may DECLINE TO
TAKE COGNIZANCE of and HOLD IN ABEYANCE
petition before it, and instead DEFER to second court.
If the will is admitted to probate, it will definitely
DECLINE to take cognizance.
Explain difference between Uriarte and Cuenco rulings
- In Uriarte, there was showing that petitioner in
probate proceeding knew before filing of petition in
Manila that there was already intestate proceeding in
Negros.
3. EXTENT OF JURISDICTION OF PROBATE COURT
Probate court is of limited jurisdiction
- Probate court cannot adjudicate or determine title to
properties claimed to be a part of the estate and
equally claimed as belonging to outside parties.
The said court is primarily concerned with the administration,
liquidation, and distribution of the estate.
-It can only determine whether or not they should be
included in the inventory or list of properties to be
administered by the administrator.
- Probate court can only pass upon questions of title
provisionally  for the purpose of determining whether a
certain property should or should not be included in
the inventory.
- Parties have to resort to an ordinary action for final
determination of conflicting claims of title.
- Extends to matters incidental or collateral to the
determination of the status of each heir.
ROMERO V. CA
- Only the probate court can competently rule on
whether the properties are conjugal and form part of
the estate.
- It is only the probate court that can liquidate the
conjugal partnership and distribute the same to the
heirs, after the debts of the estate have been paid
HEIRS OF YPON V. RICAFORTE
- Did the trial court have the authority to determine
Magdaleno’s lawful heirs?
o NO. The rule that the determination of
decedent’s lawful heirs should be made in the
corresponding SpecPro precludes the TC, in
an ordinary action for cancellation of title and
reconveyance from granting the same.
JOAQUINO v. REYES
- Matters relating to filiation and heirship must be
ventilated in the proper probate court in a special
proceeding instituted precisely for the purpose of
determining such rights.
Jurisiction over questions of title to property
PACIOLES v. CHUATOCO-CHING
May a TC, acting as an intestate court, hear and pass upon questions of
ownership involving properties claimed to be part of the decedent’s estate?
- NO. The general rule is that the jurisdiction of the TC either as an
intestate or a probate court relates only tom matters having to do
with the settlement of the estate and probate of will of deceased
persons but does not extend to the determination of
question of ownership that arise during the proceedings.
The patent rationale for this rule is that such court exercises
special and limited jurisdiction
- Hence, respondents recourse is to file a separate action with a
court of general jurisdiction.
The TC cannot adjudicate title to properties claimed to be a part
of the estate but are claimed to belong third parties by title
adverse to that of the decedent and the estate, not by virtue of
any right of inheritance from the decedent.
GR: Separate civil action for quieting of title, where issue or
ownership of properties excluded from the inventory is finally
determined (Pobre vs. Gonong, 148 SCRA 553 [1987]).
XPN:
Where interested parties are all heirs and rights of third parties
are not impaired, probate court can decide question of ownership
(Coca vs. Pangilinan, 81 SCRA 278 [1987]).
- With consent of all the parties, without prejudice to
third persons (Trinidad vs. CA, 202 SCRA 106 [1991]).
SEC. 2. WHERE ESTATE SETTLED UPON DISSOLUTION OF
MARRIAGE
- A creditor cannot sue surviving spouse of a decedent
in an ordinary proceeding for collection of sum of
money chargeable against the conjugal property.
- Proper remedy file a claim in the settlement of estate
of the decedent.
Reason: upon death of one spouse, powers of
administration of surviving spouse ceases and is passed to
administrator appointed by probate court in the settlement
proceedings. (Alipio vs. CA, 341 SCRA 441 [2000])
Presumption of death for purposes of succession
Absence of death for 7 years, it being unknown WON the absentee lives, is
sufficient for the presumption of death to arise for all purposes EXCEPT FOR
SUCCESSION.
- An absentee of 10 years is necessary.
- If the absentee disappeared after the age of 75, absence of 5
years is enough.
- Absence of 4 years for:
1. Person who board a vessel lost or airplane missing;
2. Person in AFP who has taken part in war and missing
3. Person who has been in danger of death
4. POWERS AND DUTIES OF PROBATE COURT
- However, probate court has jurisdiction to (a)
determine heirs separate action for declaration of heirs
not proper (Solivio vs. CA, 182 SCRA 119 [1990]) and
(b) distribute estate
- In the exercise of probate jurisdiction. the court may
issue warrants and process necessary to compel the
attendance of witnesses or to carry into effect their
orders and judgments, and all other powers granted to
them by law (Rule 73, Sec. 3).
B. SUMMARY SETTLEMENT OF ESTATES
1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN
HEIRS, WHEN ALLOWED
RULE 74
SUMMARY SETTLEMENT OF ESTATES
SEC. 1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT
BETWEEN THE HEIRS
REQUISITES OF EXTRAJUDICIAL SETTLEMENT
1. Decedent dies intestate
2. No outstanding debts at time of settlement
- Presumed that decedent left no debts if no creditor
filed petition for letters of administration within 2
years after death of decedent.
3. Heirs all of legal age or minors represented by judicial
guardians or legal representatives
4. Settlement made in public instrument duly filed with
Register of Deeds
5. Publication in newspaper of general circulation in the
province once a week for 3 consecutive weeks
6. Bond equivalent to value of personal property posted with
Register of Deeds
- Bond required only when personality is involved in
the extrajudicial settlement. Real estate is subject
to lien in favor of creditors, heirs or other persons
for 2 years from distribution of estate,
notwithstanding any transfers of real estate that
may have been made (Sec. 4, Rule 74).
RATIONALE for Sec. 1, Rule 74 when person dies without having
obligations to be paid, his heirs are not bound to submit property
for judicial administration, which is always long and costly (Utulo
vs. Pasion, 66 Phil. 302).
- IF HEIRS DISAGREE
o ordinary action for partition.
- IF ONLY ONE HEIR
o affidavit of self-adjudication.
Can the heirs enter into oral partition? YES. Nothing in Section 1,
74 states that it must be written.
§ FILING OF EXTRAJUDICIAL SETTLEMENT WITH REGISTER
OF DEEDS REQUIRED whether by public instrument, affidavit,
stipulation in pending action for partition.
- Lack of registration of extrajudicial settlement does not
affect its validity when there are no creditors or rights
of creditors are not involved (Vda. de Reyes vs. CA,
199 SCRA 646 (1991).
- Registration notifies 3rd parties who wish to acquire the
property subject to an encumbrance of 2 years,
counted from the date of distribution of the estate to
the heirs.
DESPITE ITS PUBLICATION, extrajudicial settlement NOT
BINDING on any person who has not participated therein or who
had no notice thereof (Sec. 1, last par., Rule 74; Sampilo vs. CA,
101 Phil. 71 [1958]).
EXTRAJUDICIAL SETTLEMENT ON WHOM BINDING
- The procedure outlined in Section 1 of Rule 74 is an ex
parte proceeding.
- The rule plainly states, however, that persons who do
not participate or had no notice of an extrajudicial
settlement will not be bound thereby.
- The publication of the settlement does not constitute
constructive notice to the heirs who had no knowledge
or did not take part in it because the same was notice
after the fact of execution. (Cua vs. Vargas, G.R. No.
156536, October 31, 2006)
- The requirement of publication is geared for the
protection of creditors and was never intended to
deprive heirs of their lawful participation in the
decedents estate. (Spouses Tiro vs. Heirs of Cuyos,
G.R. No. 161220, July 30, 2008)
2. TWO-YEAR PRESCRIPTIVE PERIOD
- Action to annul deed of extrajudicial settlement Sec. 4,
Rule 74 provides a two year prescriptive period (1) to
persons who participated or taken part or had notice of
the extrajudicial partition, and (2) when the provisions
of Sec. 1 of Rule 74 have been strictly complied with
that all persons or heirs of the decedent have taken
part in the extrajudicial settlement or are represented
by themselves or through guardians (Pedrosa vs. CA,
353 SCRA 620 [2001]).
3. AFFIDAVIT OF SELF -ADJUDICATION BY SOLE HEIR
- Adjudication by an heir of the decedents entire estate
to himself by means of an affidavit is allowed only if he
is the sole heir to the estate (Delgado vda. de De la
Rosa vs. Heirs of Marciana Rustia vda. de Damian,
480 SCRA 334 [2006]).
- Respondent, believing rightly or wrongly that she was
the sole heir to Portugal s estate, executed on
February 15, 1988 the questioned Affidavit of
Adjudication under the second sentence of Rule 74,
Section 1 of the Revised Rules of Court.
- Said rule is an exception to the general rule that
when a person dies leaving a property, it should be
judicially administered and the competent court should
appoint a qualified administrator, in the order
established in Sec. 6, Rule 78 in case the deceased
 left no will, or in case he did, he failed to name an
executor therein. (Portugal vs. Portugal-
Beltran, G.R.No. 155555, August 16, 2005)
- Since Josefa Delgado had heirs other than Guillermo
Rustia, Guillermo could not have validly adjudicated
Josefas estate all to himself.
- Rule 74, Section 1 of the Rules of Court is clear.
Adjudication by an heir of the decedents entire estate
to himself by means of an affidavit is allowed only if he
is the sole heir to the estate. (In the Matter of the
Intestate Estate of Delgado, G.R. No. 155733, January
27, 2006
4. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE, WHEN
AL LOWED
Distinction between extrajudicial settlement (ES) and summary
settlement of estates of small value (SS):
ES SS
no court intervention judicial adjudication
although summary
value of estate immaterial applies only where gross
value not more than
P10,000.00
allowed only in intestate both testate and
succession intestate
no outstanding debts of even if there are debts
estate at time of settlement
5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRAJUDICIAL
SETTLEMENT OF ESTATE
- The remedy of an heir who did not participate in, or
had no knowledge of, the extrajudicial partition is to file
an action for reconveyance.
- Section 4 provides for 3 instances when an heir may
be compelled to settle the decedent’s estate in court:
1. Undue deprivation of lawful participation on the
estate on the part of an heir or other interested
person;
2. There exists debts against the estate; or
3. Undue deprivation of lawful participation payable
in money on the part of an heir or other interested
person.
NERI v. HEIRS OF UY
Was the extra judicial settlement of estate with absolute deed of
sale valid?
- NO, all the heirs if Anunciation should have
participated. Considering that Eutropia and Victoria
were admittedly excluded and that then minors Rosa
and Douglas were not properly represented therein,
the settlement was not valid and binding upon them
and consequently, a total nullity.
PRESCRIPTIVE PERIOD FOR NON-PARTICIPANTS  formalities prescribed by law.
- 10 years, because an action for reconveyance based
on implied or constructive trust, being an obligation
created by law, prescribes in 10 years (Art. 1144, par.
2, Civil Code)
- The period starts from issuance of title over the
property (Marquez vs. CA, 300 SCRA 653 [1998]).
Constructive trusts under Art. 1456 are established to
prevent unjust enrichment.
o In Marquez, husband executed affidavit of
self-adjudication without including the
children
- The ruling in Gerona vs. De Guzman, 11 SCRA 153
(1964), cited in Pedrosa vs. CA,, that prescriptive
period for non-participants is 4 years from discovery of
fraud, i.e., when deed was filed with Register of Deeds
and new title issued, is not applicable, because the
same was based on the old Code of Civil Procedure
(Sec. 43, which governed prescription).
- The Gerona doctrine was abandoned in Amerol vs.
Bagumbaran, 154 SCRA 396 (1987) and reiterated
in Caro vs. CA, 180 SCRA 401 (1989) and Marquez
vs. CA.
EXCEPTION to prescription of actions when plaintiff, the legal
owner, and not the defendant registered owner, is in possession
of the land to be reconveyed.
- Said action, when based on fraud,
is imprescriptible as long as the land has not passed to
an innocent purchaser for value (Heirs of Saludares
vs. CA, 420 SCRA 54).
BAUTISTA v. BAUTISTA
The other heirs excluded Teofilo when they executed the Deed of
Extra Judicial Partition.
Has Teofilo’s right to nullify the Deed of Extra Judicial
Partition already prescribed?
- NO, since the deed is invalid, it transmitted no rights to
Teofilo’s co heirs.
MACABABBAD v. MASIRAG
The document purportedly bore the respondent’s signatures,
making them appear to have participated in the execution of the
document when they did not.
- The document ostensibly conveyed the subject
property yo Macababbad.
Does the issuance of certificates of titles in the name
of the petitioners convert the action to one of
reconveyance of titled land which prescribes in 10
years?
NO, the action remains imprescriptible.
“The action or defense for the declaration of the inexistence of a
contract does not prescribe.” Article 1410, NCC
“Those which are absolutely simulated or fictitious.” Article 1409,
NCC
C. PRODUCTION AND PROBATE OF WILL
RULE 75
PRODUCTION OF WILL;
ALLOWANCE OF WILL NECESSARY
Kinds of wills
1. Notarial will, which must be acknowledged before a
notary public by a testator and the attesting witness
2. Holographic will, entirely written, dated and signed by
the testator.
Interpretation of wills
When an uncertainty arises on the face of the will, the testator’s
intention is to be ascertained from the words of the will.
1. ALLOWANCE OF WILL IS CONCLUSIVE AS TO ITS DUE
EXECUTION.
- Art. 783, Civil Code defines a will as: an act whereby a
person is permitted with the formalities prescribed by
law to control to a certain degree the disposition of his
estate to take effect after his death.
- Petitioner should realize that the allowance of her
husbands will is conclusive only as to its due
execution. 
- The authority of the probate court is limited to
ascertaining whether the testator, being of sound mind,
freely executed the will in accordance with the
- Thus, petitioners claim of title to the properties forming
part of her husbands estate should be settled in an
ordinary action before the regular courts. (Nittscher vs.
Nittscher, G.R. No. 160530, November 20, 2007)
2. PROBATE OF WILL (SPECIAL PROCEEDING TO
ESTABLISH THE VALIDITY OF A WILL) IS MANDATORY.
a. The law enjoins probate of the will and public policy requires it.
Unless will is probated and notice given to the whole world, right
of a person to dispose of his property by will may be rendered
nugatory (Maninang vs. CA, 114 SCRA 478 [1982]).
- The Deed of Donation which is one of mortis causa,
not having followed the formalities of a will, is void and
transmitted no right to petitionersmother. But even
assuming that the formalities were observed, since it
was not probated, no right to Lot Nos. 674 and
676 was transmitted to Maria. (Aluad vs. Aluad, G.R.
No. 176943, October 17, 2008
b. In intestate succession, no valid partition among heirs until after
will has been probated (Ralla vs. Judge Untalan, 172 SCRA 858
[1989]).
c. Presentation of will cannot be dispensed with on the ground of
ESTOPPEL because public policy requires that a will should be
probated (Fernandez vs. Dimaguiba, 21 SCRA 428 [1967]).
3. NATURE OF PROBATE PROCEEDING
PROBATE COURT DOES NOT LOOK INTO INTRINSIC
VALIDITY
GR: Probate courts authority is limited only to extrinsic validity of
the will, i.e.:
a. due execution voluntariness
b. testators testamentary capacity sound mind
c. compliance with formal requisites or solemnities
1. Intrinsic validity of the will normally come after court declares
that will has been duly authenticated.
2. Court at this stage of the proceedings is not called upon to
rule on intrinsic validity or legality of the provisions of the will
(Nuguid vs. Nuguid, 17 SCRA 449 [1966]; Maninang vs. CA,
supra).
XPNs:
1. In exceptional instances, courts not powerless to pass upon
certain provisions of will which it may declare invalid even as
it upholds extrinsic validity of will (Ajero vs. Ca, 236 SCRA
488 [1994]).
2. Probate court may only disregard passing on extrinsic
validity of will where intrinsic validity apparent on face of will
(Maninang vs. CA, supra)
3. Probate of will might become idle ceremony if on its face it
appears intrinsically void.
4. In Nuguid, court ruled that will was intrinsically invalid as it
completely preterited parents of the testator.
a. Preterition annuls institution of heirs
b. Disinheritance annuls institution of heirs as to portion of
estate which disinherited heirs have been illegally
deprived
Effect of probate
For a will to take effect it has to be probated, approved and allowed by the court
in the proper testamentary proceedings.
- Once allowed the principle of res judicata applies, which means
that the testator was of sound mind at the time when he executed
the will and was not acting under duress, menace, fraud or undue
influence.
Duties of custodian
A person who receives the will with knowledge, or under such circumstances
that he ought to have known that he was receiving custody of the will.
- The custodianship creates bailor-bailee relationship between the
testator and custodian, the latter as the bailee.
- He must preserve and keep the will safely for the benefit of the
testator until the latter’s death.
Duties of an executor
He is given 20 days from knowledge of death to present the will to the court. He
is given the same period to signify to the court in writing the acceptance or
refusal of the trust.
2. WHO MAY PETITION FOR PROBATE; PERSONS ENTITLED TO
NOTICE
RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
SEC. 1. WHO MAY PETITION FOR ALLOWANCE OF WILL.
WHO:
1. Executor
2. Legatee need not be a relative of decedent
3. Devisee need not be a relative of decedent
4. Other interested person -heir; creditor
5. Testator during his lifetime
WHEN:
- at any time after death of testator not subject to bar by statute
of limitations and does not prescribe, since it is required by
public policy.
WHERE:   4.     Mailed service at least 20 days before hearing
- court having jurisdiction
WHAT: petition to have will allowed whether:
- will in possession of petitioner or not
- will lost
- will destroyed
JURISDICTION HOW ACQUIRED
a. Attaching of mere copy of will sufficient annexing of
original of will to the petition is not jurisdictional
requirement.
b. Delivery of will sufficient even if no petition filed under
Sec. 3, Rule 76
- when a will is delivered to the court,court could motu
proprio take steps to fix time and place for proving the
will, issue corresponding notices.
Only known heirs, legatees and devisees entitled to personal
notice
- Rule 76, Sec. 4. Heirs, devisees, legatees and executor to be
notified by mail or personally.
Contesting a will
A person may contest allowance of a will, in which case, the grounds must be
stated in a written opposition.
- He must have an interest in the estate, or in the will, or in the
property to be affected by it either as executor or as a claimant of
the estate.
D. ALLOWANCE OR DISALLLOWANCE OF WILL
CONTENTS OF PETITION FOR ALLOWANCE OF WILL
- Rule 76, Sec. 2. Contents of petition.
a. Jurisdictional facts:
1. that a person has died leaving a will; and
2. the testator at the time of death is a resident
within the territorial jurisdiction of the court; or
3. the testator is a non-resident at the time of death
but left property within the territorial jurisdiction of
the court
b. names, ages and residences of the heirs, legatees and
devisees of the testator or decedent
c. probable value and character of the property of the
estate
d. name of the person for whom letters are prayed
e. if the will has not been delivered to the court, the name
of the person having custody thereof
Rule 76, Sec. 3. Court to appoint time for proving the will. Notice thereof to be
published.
NOTICE AND HEARING; PUBLICATION
1. After will delivered to, or petition for allowance of will
filed in court having jurisdiction, court
a. shall fix time and place for proving will when all
concerned may appear to contest allowance thereof.
b. cause notice of such time and place to be PUBLISHED
3 weeks successively in newspaper of general
circulation in the province.
2. NO NEWSPAPER PUBLICATION where petition for
probate filed by TESTATOR himself.
PROBATE OF WILL IS IN REM
- Notice by publication as prerequisite to allowance of will is
CONSTRUCTIVE NOTICE to the whole world.
- When probate is granted, the judgment is binding upon
everybody, even against the state.
Probate JURISDICTIONAL
- Without publication of petition, proceedings for settlement of
estate is VOID and should be ANNULLED.
- Rule 76, Sec. 5. Proof of hearing. What sufficient in absence of contest.
Notice of time and place of hearing should be addressed to:
a. designated or known heirs, legatees and devisees
b. person named as executor (if he is not petitioner)
c. person named as co-executor not petitioning
1.     residing in the Philippines
2.     at their places of residence, if known
3.     Personal service at least 10 days before hearing
5.   IF TESTATOR asks for allowance of his own will
notice shall be sent only to his COMPULSORY HEIRS.
NOTICE TO DESIGNATED HEIRS, LEGATEES AND
DEVISEES JURISDICTIONAL
- when they are known AND their places of residence
are known (De Arranz vs. Galing, 161 SCRA 628).
Notice is required to be personally given to known heirs,
legatees, and devisees of the testator. [Sec. 4, Rule 76,
Rules of Court].
ALABAN v. CA
A perusal of the will shows that respondent was instituted as the
sole heir of the decedent.
- Petitioners, as nephews and nieces of the decedent,
are neither compulsory nor testate heirs who are
entitled to be notified of the probate proceedings under
the Rules.
- Respondent had no legal obligation to mention
petitioners in the petition for probate, or to personally
notify them of the same.  -
- It is the PUBLICATION of such notice that brings in the
whole as a party in the case and vests the court with
jurisdiction to hear and decide it. (Alaban vs. CA, G.R.
No. 156021, September 23, 2005).
EVIDENCE INTRODUCED AT PROBATE OF WILL
1. Publication
2. Notice of hearing served on known heirs, legatees, devisees,
etc. if places of residence known
3. Testimony of subscribing witnesses
a. Uncontested one witness sufficient
b. Contested all subscribing witnesses and notary (wills
executed under Civil Code) other witnesses (under
certain conditions)
4. Holographic will
a. Uncontested at least one witness who knows
handwriting and signature of testator; expert testimony
(in the absence of competent witness)
b. Contested at least 3 witnesses who know handwriting
of testator; expert testimony (in the absence of
competent witness)
5. Holographic will testator himself as petitioner
a. Contested contestant has burden of disproving
genuineness and due execution
b. Uncontested testator must affirm that will and
signature are in his own handwriting
SUBSTANTIAL COMPLIANCE RULE
- If will executed in substantial compliance with
formalities of law, and possibility of bad faith obviated it
should be admitted to probate (De Jesus vs. De Jesus,
134 SCRA 245).
Notice of time and place of hearing should be addressed to:
a. designated or known heirs, legatees and devisees
b. person named as executor (if he is not petitioner)
c. person named as co-executor not petitioning
1.     residing in the Philippines
2.     at their places of residence, if known
3.     Personal service at least 10 days before hearing
4.     Mailed service at least 20 days before hearing
5.   IF TESTATOR asks for allowance of his own will
notice shall be sent only to his COMPULSORY HEIRS.
NOTICE TO DESIGNATED HEIRS, LEGATEES AND
DEVISEES JURISDICTIONAL
- when they are known AND their places of residence
are known (De Arranz vs. Galing, 161 SCRA 628).
Notice is required to be personally given to known heirs,
legatees, and devisees of the testator. [Sec. 4, Rule 76,
Rules of Court].
ALABAN v. CA
A perusal of the will shows that respondent was instituted as the
sole heir of the decedent.
- Petitioners, as nephews and nieces of the decedent,
are neither compulsory nor testate heirs who are
entitled to be notified of the probate proceedings under
the Rules.
- Respondent had no legal obligation to mention
petitioners in the petition for probate, or to personally
notify them of the same. 
- It is the PUBLICATION of such notice that brings in the
whole as a party in the case and vests the court with
jurisdiction to hear and decide it. (Alaban vs. CA, G.R.
No. 156021, September 23, 2005).
2. GROUNDS FOR DISALLOWING WILL
Rule 76, Sec. 9. Grounds for disallowing will.
1. Legal formalities
- not executed and attested as required by law
2. Testamentary capacity
- testator insane or otherwise mentally incapable to
make will at time of execution
3. Due execution
- executed under duress, or the influence of fear, or
threats
- procured by undue and improper pressure and
influence on the part of the beneficiary, or some other
person, for his benefit.
signature of testator procured by fraud or trick and he
did not intend that the instrument be his will at time of
fixing his signature
- testator acted by mistake or did not intend that
instrument be signed or should be his will at the time
of affixing his signature (Art. 389, Civil Code)
GROUNDS FOR DISALLOWANCE OF WILL EXCLUSIVE
- Lists in Sec. 9, Rule 76 and Art. 389 are EXCLUSIVE
NO OTHER GROUND can serve to disallow a will.
Ex:
1. If testator fails to sign and date some dispositions in
holographic will, it affects only the validity of the
dispositions, but not the whole will.
2. If unauthenticated alterations, cancellations or
insertions are made on the DATE of will of on testators
SIGNATURE (Ajero vs. CA, supra).
SEPARATE WILLS MAY BE PROBATED JOINTLY (Vda. de
Perez vs. Tolete, 232 SCRA 722 [1994]).
3. REPROBATE; REQUISITES BEFORE WILL PROVED OUTSIDE
ALLOWED IN THE PHILIPPINES; EFFECTS OF PROBATE
RULE 77
ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES
AND ADMINISTRATION OF ESTATE THEREUNDER
SEC. 1. WILL PROVED OUTSIDE OF THE PHILIPPINES MAY
BE ALLOWED HERE.
 EVIDENCE NECESSARY FOR REPROBATE OF WILL
or will probated outside the Philippines:
1. due execution of will in accordance with foreign
laws
2. testator has domicile in foreign country and not
Philippines
3. will has been admitted to probate in such country
4. fact that foreign court is a probate court
5. law of the foreign country on procedure and
allowance of wills (Vda. de Perez vs. Tolete,
supra)
REPROBATE OF WILL
- While foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to take
judicial notice of them;
- however, petitioner, as ancillary administrator of
Audreys estate, was duty-bound to introduce in
evidence the pertinent law of the State of Maryland.
(Ancheta vs. Guersey-Dalaygon, G.R. No. 139868,
June 8, 2006)
A petition for allowance of a will that is already admitted in
probate in a foreign country should be accompanied by an
authenticated decree of the will and an authenticated decree of
the allowance.
PUBLICATION AND NOTICE REQUIRED
- Compliance with Secs. 3 and 4 of Rule 76, re
publication and notice by mail or personally to known
heirs, legatees and devisees of testator resident in the
Philippines and to executor, if he is not the petitioner,
required also in wills for reprobate (Vda. de Perez vs.
Tolete).
EFFECT OF PROBATE
- When the will is allowed, it shall have the same
effect as if originally proved and allowed in such court
(Rule 77, Sec. 3).
- The letters testamentary or of administration granted
shall extend to all of the estate of the testator in the
Philippines. After payment of just debts and expenses
of administration, the estate shall be disposed of
according to such will, so far as such will may operate
upon it (Rule 77, Sec. 4).
E. LETTERS TESTAMENTARY AND OF ADMINISTRATION
 executor who was not able to settle the estate of the
RULE 78 first decedent during his lifetime
LETTERS TESTAMENTARY AND OF ADMINISTRATION,
WHEN AND TO WHOM ISSUED SEC. 3. MARRIED WOMEN MAY SERVE
 Married women may serve as executrix or administratix
SEC. 1. WHO ARE INCOMPETENT TO SERVE AS  Marriage of a single woman shall not affect her
EXECUTORS OR ADMINISTRATORS authority to serve under a previous appointment
 EXECUTOR person named in the will to administer
decedents estate to carry out provisions thereof SEC.4 LETTERS TESTAMENTARY ISSUED WHEN WILL
 ADMINISTRATOR person appointed by the court to ALLOWED 
administer the estate where no executor is named or  When the will is proved and allowed, the court shall
the executors named are incompetent, refuses the issue LETTERS TESTAMENTARY thereon to the
trust or fails to give a bond person named as EXECUTOR therein, if he is -
 Administrator need not be an heir can be a stranger to a. competent
the deceased, such as a creditor. b. accepts the trust and
 They occupy a position of trust and confidence; c. gives bond
therefore they are required to exercise reasonable
diligence and act in good faith in the performance of SEC. 5. WHEN SOME COEXECUTORS DISQUALIFIED OTHERS MAY
that trust ACT
Executor Administrator  On the part of one of them, such letters may be issued to such that
Nominated by the testator The will did not appoint an are competent, accept and give bond and they may perform the
executor duties and discharge the trust required by the will
Executor appointed is
incompetent, refused or SEC, 6.
failed to give a bond 1. WHEN AND TO WHOM LETTERS OF ADMINISTRATION GRANTED
The will was disallowed
The deceased died intestate WHEN ADMINISTRATION GRANTED
1. No executor named in will letters of administration
2. Executor/s (is/are): with will annexed
a. incompetent, minor,
non-resident, unfit
b. refuse the trust
Executor required to present No requirement c. fail to give bond
the will to court within 20 3. Person dies intestate letters of administration
days from death or 4. Will void and not allowed
knowledge of appointment
2. ORDER OF PREFERENCE

Testator may direct that Always required to execute a ORDER OF PREFERENCE IN APPOINTMENT OF
executor serve without or bond ADMINISTRATOR (Rule 78, Sec. 6)
individual bond conditioned 1. surviving spouse partner in conjugal partnership and heir
to pay conditioned to pay of deceased
testator’s debt; 2. next of kin
The court may require for a 3. Persons required by the surviving spouse or next of kin
bond 4. Principal creditors
5. Other persons selected by the court

SUPEREME COURT HAS SANCTIONED THE APPOINTMENT

If testator provides for Amount of compensation is
compensation; fixed by Rule 85, Section 7
Unless executor renounces
by a written instrument
GROUNDS FOR INCOMPETENCE
1.     Minority – no legal capacity to enter into contracts on their
own
2.     Non-residence – courts will find difficulty in appointing
administrators who are not personally subject to their jurisdiction
3.     Unfitness
a. drunkenness – such that would impair a person’s sound
judgment and reason
b. incompetence -
c. want of understanding
d. want of integrity
e. conviction of offense involving moral turpitude (anything
done contrary to justice, honesty, good morals)
 Courts may refuse to appoint a person as executor or
administrator on ground of UNSUITABLENESS
adverse interest or hostile to those immediately
interested in the estate (Lim vs. Diaz-Maillares, 18
SCRA 371 [1966]).
 Failure to file an income tax return is not a crime
involving moral turpitude because the mere omission is
already a violation regardless of the fraudulent intent
or willfulness of the individual. (Republic vs. Marcos,
G.R. No. 130371, August 4, 2009)
SEC. 2. EXECUTOR OF EXECUTOR NOT TO ADMINISTER
ESTATE
 When the testator dies, his executor cannot administer
the estate of the first testator
 Administrator de bonisnon – the court may appoint
such as the new administrator after the death of an
OF MORE THAN ONE ADMINISTRATOR – for the benefit of the
state and those interested therein
1. To have the benefits of their judgment and
perhaps at all times to have different interests
represented
2. Where justice and equity demand that opposing
parties or factions be represented in the
management of the estate of the deceased
3. Where the estate is large, or, from any cause, an
intricate and perplexing one to settle
4. To have all interested persons satisfied and the
representatives to work in harmony for the best
interest of the estate
5. When a person entitled to the administration of an
estate desires to have another competent person
associated with him in the office
MEANING OF NEXT OF KIN
 On the matter of appointment of administrator of the
estate of the deceased, the surviving spouse is
preferred over the next of kin of the decedent.
 When the law speaks of next of kin, the reference is to
those who are entitled, under the statute of distribution,
to the decedents property; one whose relationship is
such that he is entitled to share in the estate  as
distributed, or, in short, an heir.
 In resolving, therefore, the issue of whether an
applicant for letters of administration is a next of kin or
an heir of the decedent, the probate court perforce has
to determine and pass upon the issue of filiation.
 A separate action will only result in a multiplicity of
suits. (Angeles vs. Maglaya, G.R. No. 153798,
September 2, 2005)
1.     person requested by spouse or next of kin
2.     principal creditors
a. if spouse or next of kin is incompetent or unwilling or
 b. neglects for 30 days after death of decedent to apply
for administration, or to request that administration be
granted to some other person
3. other person selected by court if no creditor competent or
willing
 The order of preference in the appointment of a regular
administrator as provided in the afore-quoted provision
does not apply to the selection of a special
administrator. T
 he preference under Section 6, Rule 78 of the Rules of
Court for the next of kin refers to the appointment of a
regular administrator, and not of a special
administrator, as the appointment of the latter lies
entirely in the discretion of the court, and is not
appealable.  4. POWERS  AND DUTIES OF EXECUTORS AND
 Not being appealable, the only remedy against the
appointment of a special administrator is Certiorari
under Rule 65 of the Rules of Court. (Tan vs. Gedorio,
Jr., G.R. No. 166520, March 14, 2008)
COURT MAY REJECT ORDER OF PREFERENCE
 While surviving spouse is entitled to preference in the
appointment, circumstances might warrant his
rejection and appointment of someone else, at the
discretion of the court.
INTEREST IN ESTATE AS PRINCIPAL CONSIDERATION
 In the appointment of an administrator, the principal
consideration is the interest in the estate of the one to
be appointed.
 Those who will reap benefit of a wise, speedy and
economical administration or will suffer consequences
of waste, improvidence or mismanagement have the
HIGHEST INTEREST and MOST INFLUENTIAL
MOTIVE to administer estate correctly (Gonzales vs.
Aguinaldo, 190 SCRA 112 [1990]).
 The order of preference does not rule out the
appointment of co-administrators, especially in cases
where justice and equity demand that opposing parties
or factions be represented in the management of the
estate.
3. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY;
SIMULTANEOUS FILING OF PETITION FOR ADMINISTRATION
RULE 79
OPPOSING ISSUANCE OF LETTERS TESTAMENTARY.
PETITION AND CONTEST FOR LETTERS OF
ADMINISTRATION
 LETTERS TESTAMENTARY  the entire estate
o issued to executor
 LETTERS OF ADMINISTRATION WITH WILL
ANNEXED
o issued to administrator when there is no
executor named in will, or executor is
incompetent, refuses trust or fails to give
bond.
 LETTERS OF ADMINISTRATION  
o issued to administrator in intestate
proceedings.
SEC. 1. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY.
SIMULTANEOUS PETITION FOR ADMINISTRATION
 Any person interested in a will may oppose in writing
the issuance of letters testamentary to persons named
as executors, and at the same time file petition for
letters of administration with will annexed.
Meaning of INTERESTED PERSON  Dies intestate
 one who would be benefited by the estate (heir),
 or one who has a claim against the estate (creditor).
 Interest must be MATERIAL and DIRECT, not merely
indirect or contingent (Sagunsin vs. Lindayag, 6 SCRA
874).
 An interested person has been defined as one who
would be benefited by the estate, such as an heir,
or one who has a claim against the estate, such as a
creditor.
 The interest must be material and direct, and not
merely indirect or contingent (San Luis vs. San Luis,
G.R. No. 133743, February 6, 2007)
Where the right of the person filing a petition for the issuance of
letters of administration is dependent on a fact which has not
been established or worse, can no longer be established,
 such contingent interest does not make her an
interested party. (Tayag ve. Tayag-Gallor, G.R. No.
174680, March 24, 2008)
PUBLICATION AND NOTICE REQUIRED (Sec. 3, Rule 79)
 Publication and notice of hearing (per Sec. 3, Rule 76)
jurisdictional.
 Also, notice to known heirs and creditors of the
decedent, and to any other person believed to have an
interest in the estate(per Sec. 4 & 5, Rule 76)
 if names and addresses are known (De Arranz vs.
Galing).
ADMINISTRATORS ;  RESTRICTIONS  ON THEIR POWERS
POWERS:
a. Possess and manage estate of the deceased to pay debts
and expenses of administration. (Rule 84, Sec. 2)
b. (Executor or administrator of estate of a deceased partner)
Have access to, examine and take copies of, books and
papers relating to the partnership business, and examine and
make invoices of the property belonging to such partnership
(Ibid., Sec. 1).
c. With the approval of the court, to compound or compromise
with a debtor of the deceased (Rule 87, Sec. 4)
DUTIES
a. Maintain the estate in tenantable repair, and.
b. Deliver the same to the heirs or devisees when directed by
the court. (Rule 84, Sec. 3)
The administrator may only deliver properties of the estate to the
heirs after payment of the debts, funeral charges and other
expenses against the estate,
 except when authorized by the court (Silverio, Jr. vs.
Court of Appeals, G.R. No. 178933, September 16,
2009)
5. APPOINTMENT OF SPECIAL ADMINISTRATOR
RULE 80
SPECIAL ADMINISTRATOR
SEC. 1 APPOINTMENT OF SPECIAL ADMINISTRATOR
Special Administrator – officer of the court who is subject to its
supervision and control, expected to work for the best interest of
 Appointment of such is justified only when there is
delay in granting letters testamentary or administration
by any cause
 Principal object of a temporary administrator is to
preserve the estate until it can pass to the hands of a
person fully authorized to administer it for the benefit of
creditors and heirs
The appointment of such is within the court’s discretion
but such discretion must be exercised with reason
guided by equity, justice and legal principles
Regular Administrator Special Administrator
The court’s order of Interlocutory therefore not
appointment may be appealable.
appealed Special civil action for
certiorari – GADALEJ
To pay and discharge all the Not empowered to pay the
debts of the estate estate’s debts
Delay in granting of letters
Fails to appoint an executor testamentary or
Will was disallowed administration
When E/A is a claimant
against the estate
WHEN IS SPECIAL ADMINISTRATOR APPOINTED
1. When there is delay in granting letters testamentary or of
administration by any
 cause - including appeal from allowance or disallowance of
will
 court may appoint special administrator to take possession
and charge of the estate of the decease
 until
a. questions causing delay decided or
b. executors or administrators appointed
2. When the executor or administrator is a claimant against the
estate he represents
 In this case, the special administrator administers only the
portion over which there is a claim
The appointment of a special administrator is justified only when
 there is delay in granting letters testamentary (in
case the decedent leaves behind a will) or
administrative (in the event that the decedent leaves
behind no will, as in the Petition at bar) occasioned by
any cause.
 The principal object of the appointment of a temporary
administrator is to preserve the estate until it can pass
into the hands of a person fully authorized to
administer it for the benefit of creditors and heirs. (Tan
vs. Gedorio, Jr., G.R. No. 166520, March 14, 2008)
SEC. 2. POWERS AND DUTIES OF SPECIAL
ADMINISTRATOR
1. Possession and charge of the decedent’s estate
2. Preservation of the decedent’s estate
3. Commencement and maintenance of suits as
administrator
4. Sale only of perishable and other property in
accordance with the court’s order
5. Payment of the decedent’s debts if ordered by the court
6. Prepare and return a true inventory of the decedent’s
estate that may come into his possession or knowledge
7. Render and accounting of the decedent’s estate he
received
8. Deliver the decedent’s estate to the person appointed
as executor or administrator or such other person
authorized to receive them
SEC. 3. WHEN POWERS OF SPECIAL ADMINISTRATOR
CEASE. TRANSFER OF EFFECTS. PENDING SUITS
 Courts may appoint or remove special administrators
based on grounds other than those enumerated in the
Rules, at their discretion.
 As long as exercised without grave abuse, higher
courts will not interfere
 Thus even if a special administrator had already been
appointed, once he court finds the appointee no longer
entitled to its confidence, it is justified in withdrawing the
appointment and giving no valid effect thereto
 Special administrator is a court officer of the court –
subject to its supervision and control and who is
expected to work for the best interest of the entire
estate
 proceedings.
PUBLICATION AND NOTICE REQUIRED
 Even in the appointment of a special administrator,
same jurisdictional requirements under Sec. 3, Rule
79.
ORDER APPOINTING SPECIAL ADMINISTRATOR NOT
APPEALABLE
 Order appointing special administrator interlocutory in
nature and mere incident in the judicial proceedings,
hence not appealable (Samson vs. Samson, 102 Phil.
735)
RULE 81
BOND OF EXECUTORS AND ADMINISTRATORS
SEC. 1. BOND TO BE GIVEN ISSUANCE OF LETTERS
 To make and return to the court within 3 months a true and
complete inventory OF ALL GOODS which shall come to his
possession or knowledge or to the possession of any other person
 Administer according to these rules and according to the will of the
testator
 To render true and just account o his administration to the court
within 1 year
 To perform all orders of the court by him to be performed
 The bond required by aw is for the benefit of theirs, creditors and
the estate: it answers for the administrator or the executor’s failure
to fulfill any of the conditions of the bond
SEC. 2. BOND OF EXECUTOR WHERE DIRECTED IN WILL
 GR: An executor is required to give a bond conditioned on one’s
performance of the obligations enumerated
 XPN: a provision in the decedent’s will exempting the named
executor from giving a bond. The Court may nevertheless require
the executor to give a bond on the condition that the executor shall
pay the decedent’s debts
SEC. 4. BOND OF A SPECIAL ADMINISTRATOR
Conditions for the special administrator’s bond cover only the following matters:
 Make and return true inventory which come to his possession or
knowledge
 Truly account for the decedent’s estate
 Deliver the same to the person appointed executor or administrator
6. GROUNDS FOR REMOVAL OF ADMINISTRATOR
RULE 82
REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION,
AND REMOVAL OF EXECUTORS AND ADMINISTRATORS
SEC. 1. ADMINISTRATION REVOKED IF WILL DISCOVERED.
PROCEEDINGS THEREON.
Two Instances when the court may revoke letters of
administration that have already been granted:
 When the decedent’s will is discovered and admitted to
probate
 When letters of administration are illegally issued or
issued without jurisidction
1. If after letters of administration have been granted as if
decedent died intestate, his will is PROVED AND ALLOWED by
the court,
2. letters of administration shall be REVOKED and all powers
thereunder cease.
3. Administrator shall forthwith
a. surrender letters to the court and
b. render his account within such time as the court directs
4. Proceedings for issuance of letters testamentary or of
administration will follow.
Sec. 1, Rule 82 was followed in Uriarte vs. CFI of Negros
Occidental:
1. If in the course of intestate proceedings, it is found out that
decedent left a last will,
2. probate proceedings should REPLACE intestate proceedings
3. even if at that stage an administrator had already been
appointed.
4. Administrator is required to
a. render final account
b. turn over estate in his possession to executor subsequently
appointed
5. Without prejudice that proceeding shall continue as intestacy
should alleged will be rejected or disapproved.
 Probate of the will is mandatory (Sec. 1, Rule 75) and
therefore takes precedence over intestate
SEC. 2. COURT MAY REMOVE OR ACCEPT RESIGNATION OF
EXECUTOR OR ADMINISTRATOR. PROCEEDINGS UPON DEATH,
RESIGNATION, OR REMOVAL.
 Concerning complaints against the general
competence of the administrator, the proper remedy
is to seek the removal of the administrator in
accordance with Section 2, Rule 82.
 While the provision is silent as to who may seek with
the court the removal of the administrator, a creditor,
even a contingent one, would have the personality to
seek such relief.
 After all, the interest of the creditor in the estate relates
to the preservation of sufficient assets to answer for
the debt, and the general competence or good faith of
the administrator is necessary to fulfill such purpose.
(Hilado vs. Court of Appeals, G.R. No. 164108, May 8,
2009)
AN ADMINISTRATOR MAY BE REMOVED OR RESIGN ON
THE FOLLOWING GROUNDS: (NOT EXCLUSIVE)
 Neglect to render one’s account and settle the estate
according to law
 Neglect to perform an order or judgment of the court, or
a duty expressly provided by the Rules of Court
 Abscond
 Becomes insane or otherwise incapable or unsuitable
to discharge the trust
 A Court is justified to remove an administrator if it loses
confidence in him
BASIS OF THE SUPREME COURT TO REMOVE AN
ADMINISTRATOR:
 An administrator who disbursed funds of the estate
without judicial approval
 False representation by an administrator in securing his
appointment
 An administrator who holds an interest adverse to that
of the estate or by his conduct showing his unfitness to
discharge the trust
 An administrator who has the physical inability and
consequent unsuitability to manage the estate
WHAT TO DO WITH PROCEEDINGS DISCRETIONARY WITH
COURT
 Whether intestate proceedings already commenced
should be discontinued and a new proceeding under a
separate number and title should be constituted
entirely a MATTER OF FORM and lies within SOUND
DISCRETION of court.
 Does not prejudice substantial rights of heirs and
creditors (Intestate Estate of Wolfson, 45 SCRA 381).
WHO MAY ASK FOR THE REMOVAL OF AN
ADMINISTRATOR?
 Creditor: the interest of the creditor relates to the
preservation of asset to answer for the debt; the
competence or good faith of administrator is necessary
to fulfill such purpose
STEPS FOR RESIGNATION:
 The administrator submits a resignation letter to the
court
 The administrator prepares an inventory of the
properties in his possession
SEC. 3. ACTS BEFORE REVOCATION, RESIGNATION, OR
REMOVAL TO BE VALID.
 Effect of revocation, resignation or removal of
executor or administrator on his previous acts lawful
acts shall have same validity as if no revocation,
resignation or removal.
SEC. 4. POWERS OF NEW EXECUTOR OR ADMINISTRATOR.
RENEWAL OF LICENSE TO SELL REAL ESTATE
The new administrator or executor is given the following
powers:
 To collect and settle the estate not administered that
the former executor or administrator had
 To prosecute or defend the actions commenced by or
against the former executor or administrator
 To execute on judgments recovered in the name of
such former executor or administrator
RULE 83
INVENTORY AND APPRAISAL. PROVISION FOR SUPPORT
OF FAMILY
SEC. 1. INVENTORY AND APPRAISAL TO BE RETURNED
WITHIN 3 MONTHS
 Obligates the administrator or executor to submit a true
inventory and appraisal of all real and personal
properties of the decedent’s estate within 3 months
from appointment
 The purpose of inventory is to aid the court in revising
the accounts and determining the liabilities of the
executor or administrator and in making final and
equitable distribution (partition) of the estate
 The 3 months is not mandatory
SEC. 3. ALLOWANCE TO WIDOW AND FAMILY
 The widow and the minor or incapacitate persons are
entitled to receive and allowance while the estate is
being settled
 In the nature of advance payments of their share in the
estate - it shall be deducted from their respective
shares
 Allowance must still be granted even if the decedent’s
liabilities exceed the value of the estate since the
allowance actually shared already refers to the
surviving spouse’s share in the conjugal partnership
 Allowance may be denied when the decedent’s
liabilities exceed the estate’s value when the surviving
spouse did not contribute any property to the
marriage
RULE 84
GENERAL POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS
POWERS:
1) Possess and manage estate of deceased to pay debts
and expenses of administration
2) E/A of estate of a deceased partner
- Have access to, examine, and take copies of
books and papers relating to the partnership
business and examin and make invoices of the
property belonging to such partnership
3) With the approval of the court, to compound or
compromise with a debtor (Rule 87)
DUTIES:
1) Maintain the estate in tenantable repair
2) Deliver same to heirs or devisees when directed by the
court
Sec. 1 – Executor or administrator to have access to
partnership books and property. How right enforced –
Special powers granted the executor or administrator when the
estate involved belongs to a partner.
- Contemplates that the decedent during his lifetime was
a MEMBER of a partnership
Safeguards to protect that deceased partner’s interest in the
partnership:
1) At all times have access to and may examine and take
copies of books and papers relating to the partnership
business
2) May examine and make invoices of the property
belonging to the property
Surviving partner/ partners have the following corresponding
obligations:
1) Exhibit to the executor or administrator, on the latter’s
request, all books, papers and property in the partner’s
hands
2) Freely permit the exercise of rights and exhibit the
books, papers and property as may be ordered by court
on written application of E/A
Empowers court to penalize a partner for contempt if he fails to
follow the court’s orders
Sec. 3. – Executor or administrator to retain whole estate to
pay debts, and to administer estate not willed.
The right of an E/A to the possession and management of
real/personal prop of deceased – NOT ABSOLUTE
 Can only be exercised “so long as It necessary for the
payment of the debts and expenses of administration”
E/A GRANTED ONLY POWERS OF ADMINISTRATION
 Appoints to facilitate the liquidation and distribution of the
decedent’s estate.
 Their powers are circumscribed by the purpose of their
appointment: to manage the decedent’s estate.
 They may only perform all acts of administration EVEN
WITHOUT COURT ORDER
 Cannot perform acts of ownership
Ex.
1) Maintain in tenantable repair the houses and other
structures belong to the estate and deliver same to
heirs and devisees
2) Possess and manage the decedent’s real and
personally properties as may be necessary for the
payment of debts and expenses of administration
COURT INTERVENTION IS REQUIRED – E/A ENTERING
LEASE AGREEMENT OVER ESTATE OF DECEDENT
 Entering into a lease contract is merely an act of
administration for which no court order is required to render it
valid
 Rule applies even if lease agreement exceeds one year
 Provision requiring agents to secure an SPA before enter
into lease contracts exceeding 1yr – NOT APPLICABLE to
E/A
NOTE: Administrator cannot be considered as court’s agent. The
administrator represents the court as well as the heirs and
creditors of the estate, but agent only answerable to one’s
principal.
COURT ORDER WHEN REQUIRED
 If the lease will be registered in the Registry of Property Art.
1647 of the NCC
RULE 85
ACCOUNTABILITY AND COMPENSATION OF EXECUTORS
AND ADMINISTRATORS
Sec. 1. – Executor and administrator chargeable with all
estate and income
EXECUTOR ACCOUNTABLE FOR THE WHOLE ESTATE OF
THE DECEDENT
- Which has come to his possession at the value of the
appraisement
 While E/A has duty to prepare a complete and true inventory
of the decedent’s estate which come to his possession and
knowledge, Section 1 only refers to those which COME TO
HIS POSSESSION. Otherwise stated, an E/A is not
accountable for property that although it comes to his
knowledge, does not come to his possession.
 XPN: if the E/A gains knowledge respecting the deceased’s
estate, he may be held accountable if he fails to recover
possession of the same thru his fault or negligence
EXPENSES AND FEES ALLOWED THE EXECUTOR OR
ADMINISTRATOR
To entitle E/A to additional compensation:
1) The estate must be large
2) Settlement must be extraordinarily difficult
3) High degree of capacity demonstrated by him
 Discretion of probate court
Expenses of administration of the estate of the decedent:
 Only allowed the necessary expenses in the care,
management and settlement of the estate.
 Entitle to possess and manage the decedent;s real and
personal estate as long as it is necessary for the payment of
the debts and expenses of administration
 Accountable for the whole of the decedent’s estate which
has come into his possession with all the interest, profit, and
income thereof
Sec. 8 – When E/A to render account
1) E/A shall render an account of his administration within
1 year from the time of receiving letters testamentary or
administration
 UNLESS, the court otherwise directs because of extensions
of time for presenting claims against/ paying debts of the
estate/ disposing of estate
2) Render such further accounts as the court may require until
the estate is wholly settled
 An executor should account for all his receipts and
disbursements since his last accounting.
Sec. 10 – Account to be settled on notice
INSTANCES WHEN NOTICE HAS TO BE GIVEN TO
INTERESTED PARTIES
1) Rule 85, Sec. 10:
- Time and place of examining and allowing the account
of the E/A
2) Rule 89, Sec. 7(b):
- Petition to authorize E/A to sell personal estate/ sell,
mortgage, encumber real estates
3) Rule 90, Sec. 1:
- Hearing for the application for an order for distribution
of the estate residue
RULE 86
CLAIMS AGAINST ESTATE
Sec. 1 – Notice to creditors to be issued by the court.
 Notice to creditors immediately after granting letters
testamentary or administration, court shall issue NOTICE
1) requiring all persons having MONEY CLAIMS against
the estate
2) to FILE them in the office of the Clerk of Court
A claim against ta decedent’s estate – NO NEED
PARTICULAR FORM
 Sufficient states the character and amount of the claim,
enables the representative to provide for its payment and
serves to bar all other claims by reason of its particularity of
designation.
PURPOSE: to protect the estate of deceased persons, E/A
examine each claim and determine its propriety
TYPE OF CLAIMS THAT MAY BE FILED:
 Only MONEY CLAIMS against the decedent are allowed
under Rule 86
 NOT ALL MONEY CLAIMS
- Only those contracted before the decedent’s death
- Debts or demands against the decedent as might have
been enforced against him in his lifetime by personal
actions for the recovery of money – and only money
judgement could have been rendered
After decedent’s death
 Allowed as expenses of administration NOT as money
claims
 Collected from E/A personally or by motion in
testate/intestated proceedings
Claims for taxes – assessed before/ after the death of the
deceased
 Collected from the heirs even after the distribution of the
properties of the decedent
 Exempted from statute of non-claims
 Heirs liable in proportion to inheritance
Creditor of conjugal partnership
 REMEDY: File claim against estate of the decedent.
 After death of spouses
- No complaint for collection of indebtedness chargeable
against the conjugal partnership (CP) can be brought
against the surviving spouse (SS)
REMEDY: Claim must be made in proceedings for liquidation and
settlement of the conjugal property
 Reason: Upon death of one spouse, the powers of
administration of the SS cease – passed to administrator
 SS – not a de facto administrator – conveyances made by
him belonging to CP prior to liquidation are VOID.
WRIT OF EXECUTION – IMPROPER REMEDY
 Ordinary procedure to settle claims of indebtedness against
the estate – claimant to present claim before probate court
 Legal basis: Fact that the settlement proceedings, properties
belonging to estate are in CUSTODIA LEGIS
TIME WITHIN WHICH CLAIMS SHALL BE FILED
STATUTE OF NON-CLAIMS (SNC)
 Period fixed for the filing of claims against the estate.
a) Not more than 12 months
b) Not less than 6 months
Reckoning point: From date of 1st publication of notice
NOTE: Such period once fixed by the court is MANDATORY it
cannot be shortened. ex. Period fixed within 6 months
EXCEPTIONS: NEW PERIOD ALLOWED
- Allowed any time before order of distribution is
entered
- Within the discretion of the court
- Must be equitable
- At the time motion to direct payment was filed no
order of distribution was issued yet.
 Court may for good cause shown and on such terms
as are just allow such claim to be filed within a period
- NOT EXCEEDING 1 MONTH.
Reckoning point: 1 month does not commence from
expiration of the original period for filing claims. It begins
from the date of the order of the court allowing said filing 
Ruling: Spirit of our probate law is speedy settlement of the
estate of deceased persons for the benefit of creditors and those
entitled to the residue by way of inheritance or legacy after the
debts and expenses of administration have been paid.
SNC SUPERSEDES STATUTE OF LIMITATIONS (SOL)
 even if claim has not yet prescribed, it may be barred by
SNC.
In short: SNC shortens the statute of limitations
 Before creditor may go against estate – both w/in SOL and
SNC
 SOL and SNC – must both concur before collecting
2 EXCEPTIONS TO SNC:
1) Creditor may apply with the court for new period NOT
exceeding 1 month from order allowing same for just
cause
2) Creditor may set up his claim as a counterclaim in an
action filed by the E/A (Sec. 5 Rule 86)
Ex. Claim filed 2 days after the period fixed by the order of the
probate court may still prosper – administrator estopped and
laches had already set in considering issue of timeliness of the
claim was made after seven years.
Sec. 3 – Publication of notice to creditors
 Immediately after notice to creditors is issued, executor or
administrator shall cause
1) publication of said notice 3 weeks successively in
newspaper of general circulation in the province, an
2) posting for the same period in
a) 4 public places in the province an
b) 2 public places in the municipality where decedent
last resided
Publication of notice to creditors – CONSTRUCTIVE NOTICE
TO THE WHOLE WORLD
 Hence, creditor cannot be permitted to file his claim beyond
the period fixed in the notice on the ground that he had no
knowledge of the administration proceedings
Sec. 4 – Filing of copy of printed notice
 Copy of printed notice filed in court w/in 10 days after
publication and posting.
 Affidavit of the published notice must also be submitted.
Sec. 5 – Claims that must be filed under the notice
1) Claims for money  against the decedent arising from
contract, express or implied, whether due, not due or
contingent
2) Claims for funeral expenses  and  expenses for last
sickness of decedent
3) Judgment for money against decedent
a) The judgment must be presented as a claim against the
estate where the judgment debtor dies before levy on
execution of his properties
b) When the action is for recovery of money arising from
contract, and defendant dies before entry of final
judgment, it shall not be dismissed but shall be
allowed to continue until entry of final judgment. A
favorable judgment obtained by plaintiff shall be
enforced under Rule 86
MONEY CLAIMS AGAINST A DECEASED DEBTOR
1) Expressly allows the prosecution of money claims
arising from a contract against the estate of a deceased
debtor.
- Those claims are not actually extinguished.
- What is extinguished is only the obligees action or
suit filed before the court, which is not then acting as a
probate court.
Ex. In the present case, whatever monetary liabilities or obligations
Santos had under his contracts with respondent were not
intransmissible by their nature, by stipulation, or by provision of law.
- Hence, his death did not result in the extinguishment of those
obligations or liabilities, which merely passed on to his estate.
Death is not a defense that he or his estate can set up to wipe
out the obligations under the performance bond.  by the administrator is NOT A MATTER OF RIGHT
2) Respondents monetary claim shall be governed by Section
20, Rule 3 in relation to Section 5, Rule 86 of the Rules of
Court.
- Thus, said money claims must be filed against the
estate of petitioner Melencio Gabriel.  Sec. 6 – Solidary obligation of decedent
- Must be filed within the time limited in the notice,
otherwise they are BARRED FOREVER.
- XPN: may be set forth as COUNTERCLAIMS in any
action executor or administrator may bring against the
claimants.
RATIONALE:
1) to protect the estate of the deceased by informing the E/A of
the claims against it, thus enabling him to examine each
claim and to determine whether it is a proper one which
should be allowed;
2) speedy settlement of affairs of deceased; and
3) early delivery of property to distributes, legatees, or heirs
A money claim against an estate is more akin to a motion for
creditors' claims to be recognized and taken into consideration
in the proper disposition of the properties of the estate.
 A money claim is only an incidental matter in the main
action for the settlement of the decedent's estate; more so if
the claim is contingent since the claimant cannot even
institute a separate action for a mere contingent claim.
 Hence, herein petitioner's contingent money claim, not being
an initiatory pleading, does not require a certification against
non-forum shopping.
TO REITERATE:
- Only MONEY CLAIMS may be presented in the testate
or intestate proceedings.
 NOT ALL MONEY CLAIMS but only those arising upon a
liability contracted by decedent before his death.
 Claims arising after his death cannot be presented EXCEPT
funeral expenses/ expenses for last sickness
NOTE: Claims arising after decedents death may be allowed
as expenses of administration.
 Ordinary action for collection not allowed
CONTINGENT CLAIMS
 Liabilities depend on some future event that may or may not
happen (uncertain)
 Awaits the final outcome of action and only said final result
can cause its termination
Ex. 4th party complaint is contingent in nature – claim depends on
possibility of Metrobank would be adjudged liable, a future event.
Distinguished from absolute claim
- Subject to no contingency and may be proved and
allowed as a debt by the committee or claims
IMPLIED CONTRACT
 Those arising from quasi-contracts, such as return of goods
received by mistake
CLAIMS WHICH SURVIVE DEATH OF ACCUSED
 Claim for civil liability survives notwithstanding death of
accused if the same may also be based on a source of
obligation other than delict (contract, law, quasi-contract,
quasi-delict)
Separate civil action may be enforced either against:
A) Estate of accused (contract)
B) Executor/ administrator (law, quasi-contract, quasi-
delict)
 Civil actions for tort or quasi-delict do not fall within the
class of claims to be filed under the notice to creditors
required under Rule 86.
- These actions, being civil, survive the death of the
decedent and may be commenced against the
administrator pursuant to Section 1, Rule 87
EXECUTION OF FINAL JUDGMENT NOT PROPER REMEDY
BUT FILING OF CLAIM
 When judgment in a civil case has become final and
executory, execution not proper remedy to enforce payment;
claimant should PRESENT CLAIM before probate court
- Mandamus not available immediate payment of claim
- Ordinary action for collection not allowed 
- Judgment appealable (Sec. 13) judgment of the court
approving or disapproving a claim is APPEALABLE as
in ordinary actions
 Decedent is a debtor in either solidary/ joint obligation
 SOLIDARY – creditor mandated to file a claim against
decedent as if he were the ONLY debtor
 JOINT – claim limited to the portion owed by decedent
 Nothing herein prevents a creditor from proceeding against
surviving solidary debtors
Sec. 7 – Mortgage debt due from estate
OPTIONS AVAILABLE TO SECURED CREDITOR
1) Waive the mortgage and prosecute his claim against the
estate as an ordinary claim
2) Foreclose his mortgage or realize upon his security by action
in court
3) Rely solely on his mortgage and foreclose the same at any
time before barred by prescription – cannot file claim for
deficiency
Sec. 8 – Claim of E/A against the estate
1) If the E/A has a claim against the estate he represents,
2) he shall give notice thereof, in writing, to the court
3) the court shall appoint a special administrator, and
4) the special administrator 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 the estate
From an estate proceeding perspective,
- the Special Administrators commission is no less a
claim against the estate than a claim that third parties
may make.
- The ruling on the extent of the Special Administrators
commission effectively, a claim by the special
administrator against the estate is the lower courts last
word on the matter and one that is appealable.
Sec. 9 – How to file claim; Contents thereof. Notice to E/A
PROCEDURE:
1) Claim must be delivered with the necessary vouchers to the
clerk of court
2) Copy must be served on the E/A
3) If claim: FOUNDED ON INSTRUMENT – must be attached
to the claim and filed therewith
4) If claim: DUE – affidavit supporting such claim must be filed
which shall state
a) Amount justly due
b) No payments have been made thereon which are not
credited
c) There are no offsets to the same
5) Claim is NOT DUE or is contingent – affidavits stating its
particulars
6) When a person other than a claimant makes the affidavit,
the reasons why it is not made by the claimant must be
stated.
NOTE: Voucher – affidavit to be submitted by claimant
- Original need not be filed – copy of written document
Sec. 10 – Answer of E/A
 Within 15 days after service of a copy of the claim but the
court in its discretion extend the time for filing of the answer
– specifically admitting or denying claim
Sec. 11 – Disposition of admitted claim
 E/A admits entirely a claim, it shall be submitted to the clerk
of court which may be approved w/o hearing.
In the court’s discretion, before it approves claim, it may
order known heirs, legatees and devisees be notified.
- If oppose may file an answer within 15 days
- If court allows claim: may grant less but not more than
amount stated in claim
Sec. 12. Trial of contested claim
The obligation of the clerk of court to set the claim for trial arises
upon the happening of either:
1) Filing of an answr to the claim
2) Expiration of the time for such filing
 Notice shall be sent to both parties as to the setting of the
claim for trial. Court may refer to commissioner.
RULE 87
ACTIONS BY AND AGAINST EXECUTORS AND
ADMINISTRATORS
Sec. 1. Actions which may and which may not be brought
against executor or administrator.
Sec. 2. Executor or administrator may bring or defend
actions which survive
MONEY CLAIMS FILED AGAINST ESTATE – NOT AGAINST
E/A
 ALLOWED actions which survive decedents death – against
E/A
 “Claims”- debts/ demands of a pecuniary nature
a) Actions to recover real or personal property or interest
thereon, or to
b) Enforce a lien thereon
Civil Case No. 2570 is an action for quieting of title with
damages whichis an action involving real property.
- It is an action that survivespursuant to Section 1, Rule
87 as the claim is not extinguished by the death of a
party.
Civil Case No. 3488, which is an action for the recovery of a
personal property, a motor vehicle, is an action
that survives pursuant to Section 1, Rule 87 of the Rules of Court.
- As such, it is not extinguished by the death of a party.
c) Actions to recover damages for an injury to person or
property, real or personal
- Executor or administrator may sue upon any cause of
action which accrued to the decedent during his lifetime
- Any action affecting the property rights of a deceased
which may be brought by or against him if he were
alive, may be instituted and prosecuted by or against
the administrator, unless by its very nature, it cannot
survive, because death extinguishes such right.
Sec. 3. Heir (and devisee) may not sue E/A to recover title or
possession or for damages to property until share assigned
Before distribution is made or before any residue
- known heirs and devisees have NO CAUSE OF
ACTION against the administrator for recovery of
property left by the deceased
WHEN HEIRS MAY FILE ACTION IN COURT
GR: heirs have no legal standing to sue for recovery or protection
of property rights of the deceased.
XPNS:
1) Pending the filing of administration proceedings under
Art.777, rights to succession are transmitted from the
moment of death of the decedent.
2) Administration proceedings have already been commenced
but administrator has not yet been appointed.
3) Executor or administrator is unwilling or refuses to bring suit.
4) Administrator is alleged to have participated in the act
complained of and he is made a party defendant.
SUIT MAY ONLY PROSPER AGAINS E/A
1) There is an order of the court assigning the property to such
heir
2) The time allowed for the payment of a debt has expired.
 In short: Partition and delivery must preced suit filed by heir
Rationale: E/A takes possession of property left by decedent –
purpose is paying debts, however, debt is still undetermined/
unpaid so no cause of action yet
Sec. 6 – Proceedings when property concealed, embezzled or
fraudulently conveyed (CEC)
2 SITUATIONS:
1) When the E/A, heir, legatee, creditor or other individual
interested in the estate of the deceased complains to the
court having jurisdiction of the estate is suspected of
having CEC any of the money, goods, etc.
2) When such person has in his possession or has
knowledge of any deed, conveyance, bond, contract or
other writing, which contains evid of or tends or discloses the
right, title, interest or claim of deceased AKA withholds
information
 This section only provides proceeding for EXAMINING
persons suspected – not authorized to enforce delivery
Sec. 8. Embezzlement before letters issued.
DOUBLE VALUE RULE
 If before grant of letters testamentary or of administration, a
person embezzles or alienates money or property of the
deceased liable to an action in favor of E/A for DOUBLE
THE VALUE of the property sold, embezzled or alienated.
Sec. 9. Property fraudulently conveyed by deceased may be
recovered. When E/A must bring action
WHEN E/A MAY COMMENCE ACTION FOR RECOVERY OF
PROPERTY
1) The deceased in his lifetime converted real/personal
property
2) Such conveyance was
a) With intent to defraud
b) Made to avoid any right, debt, duty
c) Subject of attempted conveyance would be liable to
attachment by any of them in his lifetime
3) There is deficiency of assets in the hands of an E/A for
payment of debts and expenses of admin
NOTE: E/A not bound to commence the action, UNLESS
creditors apply to the court and that they shall pay such part of the
costs and expenses or give security therefor to E/A
Sec. 10. When creditor may bring action. Lien for costs.
REQUISITES BEFORE CREDITOR MAY BRING AN ACTION
FOR RECOVERY OF PROPERTY FRAUDULENTLY
CONVEYED BY THE DECEASED
1) Deficiency of assets
2) Deceased in his lifetime had made or attempted such a
conveyance (with intent to defraud creditors or to avoid any
right, debt or duty) as stated in Sec. 9, and
3) E/A has not commenced the action provided in Sec. 9
- (entitled property fraudulently conveyed by the
deceased may be recovered. When executor or
administrator must bring action)
4) Any creditor of the estate may, with the permission of the
court, commence and prosecute to final judgment, in the
name of the E/A, a like action for the recovery of the subject
of the conveyance or attempted reconveyance for the benefit
of the creditors.
a) Creditor should file a BOND executed to the executor or
administrator, in an amount approved by the judge,
conditioned to indemnify the executor or administrator
against the costs and expenses incurred by reason of
such action.
b) Creditor shall have a LIEN upon any judgment
recovered by him for reasonable costs and expenses à
When conveyance or attempted conveyance made by
deceased in his lifetime in favor ofthe executor or
administrator, action shall be in the name of all the
creditors and permission of the court and filing of
bond not necessary
RULE 88
PAYMENT OF THE DEBTS OF THE ESTATE
Sec. 1. – Debts paid in full if estate sufficient
Before the E/A may pay the money claims against the estate:
REQUISITES:
1) Hearing is conducted
2) Amounts of such claims are ascertained
3) There are sufficient assets to pay the debt
 The provisions in a will for payment of specific debt – NOT
DISPENSE with requirement that CLAIM SHOULD BE
FILED AGAINST ESTATE
ORDER OF PREFERENCE FOR PAYMENT OF DEBTS OF
ESTATE:
1) Portion of property designated in the wil
2) Personal property
3) Real property
IN CASE OF DEFICIENCY AFTER EXHAUSTION OF ESTATE
 It shall be satisfied from contribution of devisees, legatees or
heir in possession of portions of estate
Sec. 7. – Order of payment if estate insolvent
 follow preference of credits under Arts. 1059, 2239-2251 of
Civil Code
XPNS: Instances when realty can be charged first
1) PP insufficient
2) PP sale detrimental
3) PP sale injure business interests
4) Not made sufficient provision for payment of debts
5) Decedent in his lifetime, was under contract to deed RP to
beneficiary
6) Decedent in his lifetime, held RP in trust for another
** PP – personal property; RP – real property
BEFORE XPNS APPLY:
1) E/A makes application in court
2) Written notice is given to persons interested
3) Hearing by the court
WRIT OF EXECUTION MAY ISSUE
 Only where devisees, legatees or heirs have entered into
possession of respective portions PRIOR to settlement/
payment of debt and LATER ascertained debts to be paid
LEGACY IS NOT A DEBT
 According to Sec. 6, legacy is NOT A DEBT, legatees are
among those against whom execution is authorized to be
issued.
NOTE: Only after debts paid = residue shall be given to heirs and
those entitled by way of inheritance/ legacy
Sec. 5 – How contingent claim becoming absolute in 2 years
allowed and paid. Action against distributes later.
REQUISITES:
1) The contingent claim is duly filed within the 2 year period
allowed for the creditors to present claims
2) Court satisfied that claim is valid
3) Claim has become absolute
Contingent claims which mature after the 2-year period for filing
claims – the assets retained in the hands of the E/A not
exhausted in the payment of the claims, shall be distributed by
order of the court to the persons entitled to the same.
Sec. 6. Court to fix contributive shares where devisees,
legatees or heirs have been in possession.
1) Where devisees, legatees or heirs have entered into
possession  or the estate before debts and expenses settled
and paid, and
2) have become liable to contribute for payment of such debts
and expenses,
3) Court may, after hearing, order settlement of their several
liabilities and order how much and in what manner each
person shall contribute and may issue  execution as
circumstances require.
NOTE: This provision clearly authorizes execution to enforce
payment of the debts of the estate. 
- Legacy is not a debt of the estate
- legatees are among those against whom execution is
authorized to be issued
Compare to: Rule 88, Secs. 15 & 16 Rule 89, Secs. 1-5, 7 (a)
referring to payment of debts and/or legacies
As ruled in Pastor, ordered payment of legacy violative of rule
requiring prior liquidation of estate (determination of assets of
estate and payment of debts and expenses)
 before apportionment and distributed of residue among
heirs; legatees and devisees.
CORRECT RULE: Sec. 1 of Rule 90 does not include
legacies as among those that should be paid before order of
distribution
 only debts, funeral charges, expenses of administration,
allowance to widow and inheritance tax.
After debts and expenses of administration paid,
 residue given to heirs and those entitled by way of
inheritance or legacy 
 - Purpose of administration distribution of residue
among heirs and legatees after payment of debts and
expenses
Writ of execution not proper procedure for payment of debts and
expenses of administration
Upon motion of the administrator with notice to all heirs,
legatees and devisees residing in the Philippines,
 court shall order sale of personal property or sale or
mortgage of real property of the deceased to pay debts and
expenses of administration out of the proceeds of the sale or
mortgage.
XPN:
 where devisees, legatees or heirs have entered into
possession of their respective portions in the estate prior
to settlement and payment of debts and expenses
Sec. 8 – Dividends to be paid in proportion to claims
 Contemplates situation where there are several creditors
entitled to pay all of them. In such case, proceeds shall be
prorated among the creditors of the same preference.
Sec. 12 – Orders relating to payment of debts where appeal is
taken.
COURSES OF ACTION:
1) Suspend the order of the payment of the debts
2) Order the distribution among the creditor whose claims
are definitely allowed, leaving in the hands of the E/A
sufficient assets to pay the claim disputed and
appealed.
Sec. 13 – When subsequent distribution of assets ordered.
The court is not precluded from making a single order of
distribution of the estate. Can make further orders for the
distribution of the estate:
1) If the whole of the debts is not paid on the 1st distribution
2) If whole assets are not distributed
3) If other assets afterwards come to the hands of the E/A
Sec. 15 & 16. TIME FOR PAYING DEBTS 
1) E/A allowed to pay debts (and legacies) for a period not
more than 1 year.
2) Extendible (on application of E/A and after notice and
hearing) not exceeding 6 months for a single extension.
3) Whole period allowed to original E/A shall not exceed 2
years.
4) Successor of dead executor/administrator may have time
extended on notice not exceeding 6 months at a time
and not exceeding 6 months beyond the time allowed to
original executor/administrator.
RULE 89
SALES, MORTGAGES AND OTHER ENCUMBRANCES OF
PROPERTY OF DECEDENT
Sec. 1 – Order of sale of personalty
 E/A is prohibited from selling personal property of the
decedent w/o court order even if the heirs and other persons
interested have consented.
Sec. 2 – When court may authorized sale, mortgage, or other
encumbrance of realty to pay debts and legacies through
personalty not exhausted
The court on application, may authorize the E/A to sell mortgage,
or otherwise encumber the decedent’s real estate, instead of
personal property, in order to pay debts, expenses and legacies.
CONDITION:
1) Application of E/A
2) Written notice to heirs, devisees, legacies
3) Beneficial to their interest
NOTE: Not constrained to sell whole property or none
INSTANCES WHOLE PROPERTY, sold, mortgaged,
encumbered:
1) If the SME of a part will injure those interested in the
remainder
2) If it is necessary under the circumstances
Sec. 3 – Persons interested may prevent sale, etc. by giving a
bond
CONDITIONS:
1) Payment of debts/ expenses of administration and legacies
2) Security of creditors, E/A
Sec. 4 – When court may authorize sale of estate as
beneficial to interested persons. Disposal of proceeds.
PRIMARY CONSIDERATION: Interest & benefit to the heirs,
devisees, legatees and other interested persons
Sec. 8 – When court may authorize conveyance of realty
which deceased contracted to convey. Notice. Effect of deed.
 The provision presupposes that the contract entered into by
the deceased during his lifetime is valid and binding. There
should be no controversy involving real property or interest
therein.
Sec. 9 When court may authorize conveyance of lands which
deceased held in trust.
 Necessary that notice be given to all persons interested in
the estate prior to the authorization to deed the property held
in trust by the decedent to the person entitled to the same.
 Fact that creditors will be affected – not prevent conveyance
since property does not form part of the estate.
RULE 90
DISTRIBUTION AND PARTITION OF ESTATE
SEC. 1. WHEN ORDER FOR DISTRIBUTION OF RESIDUE
MADE
General rule:
- distribution of the residue to persons entitled thereto
after notice and hearing and after payment of
o debts
o funeral charges
o expenses of administration 
o allowance to widow
o  inheritance tax
OR
- distribution before payment of obligations provided
distributees give BOND conditioned for payment thereof
within such time as court directs.
After the foregoing payments are made, the residue may be
distributed to those entitled thereto (heirs, etc.)
However, what the court is enjoined from doing is the distribution
of the residue of the estate before its obligations are first paid,
- but the court is not enjoined from making the
declaration of heirs prior to the satisfaction of these
obligations.
Effect of Final Decree of Distribution
- it vests the title to the land of the estate in the
distributees.
- If the decree is erroneous, it should be corrected by
opportune appeal,
o for once it becomes final, its binding effect is
like any other judgment in rem, unless
properly set aside for lack of jurisdiction or
fraud.
- The only instance where a party interested in a probate
proceeding may have a final liquidation set aside is
when he is left out by reason of circumstances beyond
his control or thru mistake or inadvertence not
imputable to negligence.
1. LIQUIDATION
REQUISITES BEFORE DISTRIBUTION OF ESTATE
1. Liquidation
- determination of all assets of the estate and payment of
all debts and expenses
2. Declaration of heirs to determine to whom residue of the
estate should be distributed.
- Separate action for declaration of heirs not proper.
The Regional Trial Court in the instant case, acting in its general
jurisdiction, is devoid of authority to render an adjudication and
resolve the issue of advancement of the real property in favor of
herein petitioner Natcher,
- inasmuch as Civil Case No. 71075 for reconveyance
and annulment of title with damages is not, to our mind,
the proper vehicle to thresh out said question.
The net estate of the decedent must be ascertained,
- by deducting all payable obligations and charges from
the value of the property owned by the deceased at the
time of his death;
- then, all donations subject to collation would be added
to it
With the partible estate thus determined,
- the legitime of the compulsory heir or heirs can be
established;
- and only then can it be ascertained whether or not a
donation had prejudiced the legitimes. (Heirs of Doronio
versus Heirs of Doronio, G.R. No. 169454, December
27, 2007)
2. PROJECT OF PARTITION
WHEN PROBATE COURT LOSES JURISDICTION
Project of partition  307):
- Towards the end of the proceedings in a settlement of
estate petition, a project of partition is usually prepared
and presented to the court.
- The project of partition is a proposal for distribution
of the hereditary estimates and determines the
persons entitled thereto (Moran, Comments on the
Rules of Court, 1997 ed., Vol. 3, pp. 688-689)
- Finality of approval of project of partition by itself does
NOT TERMINATE probate proceeding (Timbol vs.
Cano, 1 SCRA 1271).
Probate court loses jurisdiction of an estate under administration
- only AFTER payment of all debts and remaining
estate DELIVERED to heirs entitled to receive the
same (Guilas vs. Judge of CFI of Pampanga, 43 SCRA
111
A judicial partition is not final and conclusive and does not
prevent the heir from bringing an action to obtain his share,
provided the prescriptive period has not closed (Mari vs. Bonilla,
83 SCRA 1137).
The RTC of Makati, acting as a special commercial court,
- has no jurisdiction to settle, partition, and distribute
the estate of a deceased.
A probate court has the power to enforce an accounting as a
necessary means to its authority to determine the properties
included in the inventory of the estate to be administered, divided
up, and distributed.
- Beyond this, the determination of title or ownership over
the subject shares (whether belonging to Anastacia or
Oscar) may be conclusively settled by the probate court
as a question of collation or advancement. (Reyes vs.
RTC Makati, Branch 142, G.R. No. 165744, August 11,
2008)
Partial distribution of the estate should not have been
allowed.
- There was no determination on sufficiency of assets or
absence of any outstanding obligations of the estate of
the late Raymond Triviere made by the RTC in this
case. In fact, there is a pending claim by LCN against
the estate, and the amount thereof exceeds the value of
the entire estate. (Quasha Ancheta Pena and Nolasco
Law Office vs. LCN Construction Corp., G.R. No.
174873, August 26, 2008)
Although the right of an heir over the property of the decedent is
inchoate as long as the estate has not been fully settled and
partitioned,
- the law allows a co-owner to exercise rights of
ownership over such inchoate right.
Once an action for the settlement of an estate is filed with the
court, the properties included therein are under the control of the
intestate court.
- And not even the administrator may take possession of
any property that is part of the estate without the prior
authority of the Court. (Silverio, Jr. vs. Court of Appeals,
G.R. No. 178933, September 16, 2009)
3. REMEDY OF HEIR ENTITLED TO RESIDUE BUT NOT
GIVEN HIS SHARE
TO DEMAND HIS SHARE THROUGH
a. a proper motion in the same probate or administration
proceedings,
OR
b. motion to reopen if it had already been closed,
- and not through an independent action which would
be tried by another court or judge which might reverse
a decision or order of the probate court already final
and executed and reshuffle properties long ago
distributed and disposed of (Guilas vs. Judge of CFI
of Pampanga, infra).
Four cases illustrate the proper remedy:
- Vda de Lopez vs. Lopez,
- Divinagracia vs.
- Rovira, Guillas vs. Judge of CFI of Pampanga and
- Heirs of Jesus Fran vs. Salas.
Lopez (35 SCRA 81 ) compared to Divinagracia (72 SCRA
- Both involved the issue of the reglementary period
within which NON-PARTIES to the partition, heir,
devisee or any person interested in the estate, can
reopen the case.
- Conclusion if proceeding already closed, motion to
reopen may be filed by a nonparty deprived of his lawful
participation, as long as it is within 30 days (now 15
days) or before order closing the proceedings becomes
final.
Guilas (43 SCRA 111) compared to Fran (210 SCRA 303):
- Both involved PARTIES who have not received their
shares.
- Conclusion parties to partition agreement who have not
received their shares can file a motion for execution
within 5 YEARS. But if other grounds such as forgery of
will are raised, final judgment cannot be attacked
except through a separate action.
- The validity of a final judgment can be assailed through
a petition for relief under Rule 38, annulment of
judgment under Rule 47, and petition for certiorari
under Rule 65, assuming the judgment is void for want
of jurisdiction.
REMEDY OF PRETERITED HEIR
- The intestate proceedings, although closed and
terminated, can still be opened within the prescriptive
period upon petition by the preterited heir (Solivio vs.
CA, 182 SCRA 1199)
- Prescriptive period 10 years. Action upon an obligation
created by law must be brought within 10 years from
the time the right of action accrues (Art. 1144, Civil
Code).
Where judgment has become final, what is the remedy for
inclusion of a party-heir?
- After the decision became final and executory, the trial
judge lost jurisdiction over the case. Any modification
that he would make, i.e., the inclusion of Mary Lyon
Martin would be in excess of his authority.
- The remedy of Mary is to file an INDEPENDENT SUIT
against the parties and all other heirs for her share in
the subject property, in order that all the parties in
interest can prove their respective claims (Nunal vs.
CA, 221 SCRA 26 [1991]).
4. INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT
OF EXECUTION
As a general rule,
- a probate court cannot issue a writ of execution.
Exceptions:
1. To satisfy the distributive shares of devisees, legatees and
heirs in possession of the decedents assets
2. To enforce payment of the expenses of partition
3. To satisfy the costs when a person is cited for examination
in probate proceedings
Questions as to advancement to be determined (Sec. 2)
 - May be heard or determined by the court having - (Rule 81, Sec. 1 [c]; Rule 85, Sec. 8) Actions by or
jurisdiction of the state proceedings; and the final order against executor or administrator (Rule 87)
of the court thereon shall be binding on the person
raising the questions and on the heir. IV. CLAIMS AGAINST ESTATE

By whom expenses of partition paid (Sec. 3) - Notice of filing of claims time for filing not more than 12
- If at the time of distribution the executor or administrator mos. nor less than 6 mos. from first publication (Rule
has retained sufficient effects in his hands which may 86, Secs. 1 & 2)
lawfully be applied for the expenses of partition of the - Publication of notice for 3 consecutive weeks and
properties distributed, posting (Rule 86, Secs. 3 & 4)
o such expenses of partition may be paid by - Filing of claim and answer thereto (Rule 86, Secs. 9 &
such executor or administrator when it 10)
appears equitable to the court and not - Trial of contested claim (Rule 86, Sec. 12)
inconsistent with the intention of the testator; - Judgment approving or disapproving claim (Rule 86,
o otherwise, they shall be paid by the parties Sec. 13)
in proportion to their respective shares or
interest in the premises, and the V. PAYMENT OF DEBTS OF ESTATE
apportionment shall be settled and allowed
by the court, and, - Debts paid in full if estate sufficient (Rule 88, Sec. 1)
- if any person interested in the partition does not pay his - Order of payment if estate insolvent (Rule 88, Sec. 7)
proportion or share, - Order for payment of debts (Rule 88, Sec. 11)
o the court may issue an execution in the name - Time for payment not to exceed 1 year, extendible for 1
of the executor or administrator against the more year (Rule 88, Sec. 15)
party not paying the sum assessed. - Sales, mortgages and other encumbrances of property
of decedent for paying debts. etc. (Rule 89)
SEVEN STAGES IN SETTLEMENT OF ESTATE
1.     Petition VI. DISTRIBUTION AND PARTITION OF ESTATE
2.     Hearing
3.     Court Order Rule 90
4.     Claims Against Estate - Approval of final accounting and project of partition
5.     Payment of Debts of Estate - Actual distribution or delivery to heirs of their respective
6.     Distribution and Partition of Estate shares
7.     Closing
VII. CLOSING
SETTLEMENT OF ESTATE STAGES
- Order declaring proceedings closed and terminated
I. PETITION
Testate Intestate I. TRUSTEES
Filing of petition for Filing of petition for issuance of
RULE 98
allowance of will by letters of administration person
TRUSTEES
executor, devisee, legatee, (Rule 79, Sec. 2)
other interested person
SEC. 1. WHEN TRUSTEE APPOINTED
(Rule 76, Secs. 1 & 2)
1. A trustee necessary to carry into effect the provisions of a
ORDER SETTING PETITION FOR HEARING
a. Will
b. Written instrument
a. Notice of hearing
1. Publication of notice for three consecutive weeks (Rule 76,
2. shall be appointed by the RTC in which the will is allowed, or
Sec. 3)
2. Notice by mail or personally to designated or known heirs,
3. RTC of the province in which the property or some portion
legatees, devisees, executor (Rule 76, Sec. 4); known heirs,
thereof affected by the trust is situated
creditors, other interested persons (Rule 79, Sec. 3)
Section 1 determined the venue where a petition for appointment
II. HEARING
of a trustee should be filed.
- However, petition may also be filed in the settlement
- Proof of notice of hearing (Rule 76, Sec. 5) (Rule 79,
proceedings of the decedent’s estate if the decedent
Sec. 5)
willed that certain properties should be placed in first.
Evidence for petitioner
TRUST DEFINED
1. Death of decedent
- A trust is a confidence reposed in one person, called
2. Residence at time of death
the trustee, for the benefit of another called the cestui
que trust, with respect to property held by the former for
Testimony/ies of subscribing Decedent left no will or there the benefit of the latter.
witness/es (Rule 76 Secs. 5 & is no competent and willing
11) executor (Rule 79, Sec. 5) Exercise of sound judgment by the court in the appointment
Proof when testator is Petitioner is qualified for of a trustee
petitioner (Rule 76, Sec. 12) appointment (Rule 78, Secs. - Although the will does not name a trustee, the probate
1 & 6) court exercises sound judgment in appointing a trustee
to carry into effect the provisions of the will where a
Evidence for Oppositor trust is actually created by the will by the provision that
- File grounds for contest (Rule 76, Sec. 10) certain of the property shall be kept together
undisposed during a fixed period and for a stated
III. COURT ORDER purpose (Lorenzo v. Posadas, 64 Phil. 353).
- Order or decision allowing will or admitting it to probate ACQUIRING THE TRUST BY PRESCRIPTION
- Certificate of allowance attached to prove will (Rule 76, - A trustee may acquire the trust estate by prescription
Sec. 13) provided there is a repudiation of the trust, such
- Order for issuance of letters testamentary (Rule 78, repudiation being open, clear and unequivocal, known
Sec. 4) to the cestui qui trust (Salinas vs. Tuazon, 55 Phil. 729).
- Order for issuance of letters of administration - § Rule 98 applies only to express trust, one which is
- (Rule 79, Sec. 5) Issuance of letters by clerk of court created by will or written instrument, and not to an
Oath of executor or administrator Filing of executor or implied trust, which is deducible from the nature of the
administrator's bond transaction as a matter of intent, or which are
- (Rule 81, Sec. 1) Filing of inventory within 3 mos. superinduced on the transaction by operation of law as
- (Rule 81, Sec. 1[a]) Accounting within 1 year
 matters of equity, independent of the particular intention
of the parties (OLao vs Co Co Chit, 220 SCRA 656). 2. When all
persons
1. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR beneficially
- A trustee, like an executor or administrator, holds an interested in the
office of trust, particularly when the trustee acts as such trust, being of full
under judicial authority. age, request the
- Distinction: exemption.
(1) duties of executors or administrators Termination Upon payment of the Upon turning over
are fixed and/or limited by law while those of the debts of the estate the property to the
trustee of an express trust are usually governed by and distribution of beneficiary after
the intention of the trustor or the parties, if established the property to heirs the trust has
by contract; expired
(2) duties of trustees may cover a wider range than Obligation to Required No obligation to
those of executors or administrators of the estate of Pay Debts pay
deceased persons. (Araneta vs. Perez, G.R. Nos. L-
16185-86, May 31, 1962). SEC 2. APPOINTMENT AND POWERS OF TRUSTEES UNDER
WILL. EXECUTOR OF FORMER TRUSTEE NEED NOT
E/A T ADMINISTER TRUST.
Accounts Only at such times Must be filed - If a testator has omitted in his will to appoint a trustee in the
as may be required annually and must Philippines, and if such appointment is necessary to carry
by the court. be under oath. into effect the provisions of the will,
o the proper Court of First Instance may, after
Only the initial and notice to all persons interested, appoint a
final accounts are trustee who shall have the same rights, powers,
required to be made and duties, and in whom the estate shall vest, as
if he had been appointed by the testator.
under oath.
- No person succeeding to a trust as executor or
Where to File MTC or RTC, Will: RTC w/c administrator of a former trustee shall be required to accept
depending on the admitted the will such trust.
gross value of the to probate
estate. SEC 3. APPOINTMENT AND POWERS OF NEW TRUSTEE UNDER
Written WRITTEN INSTRUMENT.
Instrument: RTC - When a trustee under a written instrument declines,
of the province resigns, dies or removed before the objects of the trust are
where the accomplished, and no adequate provision is made in such
property is instrument for supplying the vacancy,
situated. o the proper Court of First Instance may, after due
Acts of Admin Upon application to On petition and notice to all persons interested, appoint a new
the court with written after due notice trustee to act alone or jointly with the others, as
notice to the heirs, and hearing, the the case may be.
the executor may court may order - Such new trustee shall have and exercise the same
powers, right, and duties as if he had been originally
sell, encumber, or the sale or
appointed, and the trust estate shall vest in him in like
mortgage the encumbrance of manner as it had vested or would have vested, in the
property if it is: the property held trustee in whose place he is substituted and
in trust if it is o the court may order such conveyance to be
1) necessary for the necessary or made by the former trustee or his
purpose of paying expedient. representatives, or by the other remaining
a) debts trustees, as may be necessary or proper to vest
b) expenses of The proceeds the trust estate in the new trustee, either or
admin shall be re- jointly with the others.
c) legacies invested or
applied in such a SEC 4. PROCEEDINGS WHERE TRUSTEE APPOINTED ABROAD.
or manner as will - When land in the Philippines is held in trust for persons
best effect the resident here by a trustee who derives his authority from
2) for the objects of the without the Philippines, such trustee shall,
preservation of the trust. o on petition filed in the Court of First Instance of
property the province where the land is situated,
o and after due notice to all persons interested,
or - be ordered to apply to the court for appointment as
trustee;
- and upon his neglect or refusal to comply with such order,
3) beneficial to the
o the court shall declare such trust vacant, and
heirs, legatees, or
shall appoint a new trustee in whom the trust
devisees.
estate shall vest in like manner as if he had been
Order of Sale No time limit No time limit originally appointed by such court.
When For settlement of the To carry into
Appointment decedent’s estate effect the 2. CONDITIONS OF THE BOND (SEC 5)
is Made provisions of a will - The trustee must file a bond in an amount fixed by the
or a written court payable to the Government of the Philippines.
instrument. Failure to do so shall be considered as declining or
Bond E or A is not GR: T must file a resigning the trust.
exempted from filing bond. - Conditions of the bond (SEC. 6):
a bond even if the 1. Make and return to the court a true inventory of
will provides for Failure to file shall all real and personal estate that at the time of
exemption. be deemed as the inventory shall have come to his possession
refusal or or knowledge
Where the will resignation from 2. Manage and dispose of all such estate
exempts E from the trust. according to law and the will of the testator or
filing, a bond shall provisions of the instrument or order under
nevertheless be filed XPNs: which he was appointed
conditioned on the 1. Trustee under 3. Render a true account of the property in his
payment of the a will may be hands
decedent’s debts exempted when 4. At the expiration of the trust, settle his accounts
testator has in court and pay over deliver all the estate
directed or remaining in his hands, or due from him on
requested
 such settlement, to the person or persons
entitled thereto
But when the trustee is appointed as a successor to a prior
trustee,
- the court may dispense with the making and return of
an inventory, if one has already been filed, and in such
case the condition of the bond shall be deemed to be
altered accordingly.
3. GROUNDS FOR REMOVAL AND RESIGNATION OF A
TRUSTEE
The court may remove a trustee on the following grounds:
1. The removal appears essential in the interest of the
petitioners
2, The trustee is insane
3. The trustee is otherwise incapable of discharging the trust
or is evidently unsuitable to act as one
- A trustee, whether appointed by the court or under a
written instrument, may resign  his trust if it appears to
the court proper so allow such resignation
4. EXTENT OF AUTHORITY OF TRUSTEE
a. The powers of a trustee appointed by a Philippine court
cannot extend beyond the confines of the territory of the
Republic of the Philippines. This is based on the principle that
his authority cannot extend beyond the jurisdiction of the
country under whose courts he was appointed.
b. In the execution of trusts, the trustee is bound to comply
with the directions contained in the trust instrument defining
the extent and limits of his authority, and the nature of his
power and duties.
J. ESCHEAT
RULE 91
ESCHEAT
ESCHEAT DEFINED
- Escheat is a proceeding whereby the real and personal
property of a deceased person in the Philippines, who
died without leaving any will or legal heirs, become the
property of the state upon his death.
NATURE OF ESCHEAT PROCEEDINGS
- rests on the principle of ultimate ownership by the state
of all property within its jurisdiction.
PARTIES IN ESCHEAT PROCEEDINGS
- An escheat proceeding is initiated by the government
through the Solicitor General.
- All interested parties, especially the actual occupants
and adjacent lot owners shall be personally notified of
the proceeding and given opportunity to present their
valid claims;
o otherwise, it will be reverted to the state.
1.     When to file
2.     Requisites for filing of petition
REQUISITES FOR FILING PETITION FOR ESCHEAT
1.     person died intestate
2.     he left properties in the Philippines
3.     he left no heirs or persons entitled to the same.
THREE KINDS OF ESCHEAT
1. Sec. 1, Rule 9i – a petition may be filed when a person
dies intestate, with real properties w/in the PH, leaving
no heir entitled to the same
2. Sec. 5, Rule 91 – a petition for reversion of property
alienated in violation of the Constitution or statute
3. Under Act. 3936 – unclaimed balances in banks is also
subject of escheat proceedings
WHERE TO FILE
- Regional Trial Court of the place where the deceased
was resident, or
- in which he had estate, if he was a nonresident.
PARTIES IN A PETITION FOR ESCHEAT
- Escheat proceeding must be initiated by the Solicitor
General.
- All interested parties, especially the actual occupant
and the adjacent lot owners shall be personally notified
of the proceedings and given the opportunity to present
their valid claims, otherwise the property will be
reverted to the State (Tan vs. City of Davao, G.R. No.
L-44347, September 26, 1988).
WHO MAY OPPOSE
- Any person alleged to have direct right or interest in the
property sought to be escheated.
- Likewise, an interested and necessary party may
properly oppose the petition with the court w/in the
period provided for under Sec. 4.
NOTE: ESCHEAT PROCEEDINGS CANNOT BE CONVERTED
INTO SETTLEMENT OF ESTATE
NOTICE AND PUBLICATION (Sec. 2, Rule 91)
1. Date of hearing not more than 6 months after entry of
order.
2. Publication of order at least once a week for 6 consecutive
weeks in newspaper of general circulation in the province.
PUBLICATION JURISDICTIONAL
- Publication of the notice of hearing is a jurisdictional
requisite,
- non-compliance with which affects the validity of the
proceedings (Divino v. Hilario, 62 Phil. 926).
JUDGMENT IN ESCHEAT PROCEEDINGS
- when rendered by a court of competent jurisdiction, it is
conclusive against all persons with actual or
constructive notice
- but not against those who are not parties or privies.
- However, before the court may render judgment, it must
first be satisfactorily proved in an open court that:
O Order has been published as directed; and
O The person died intestate with real or
personal property in the PH, leaving no heir
entitle to the same.
- The court shall order payment of just debts and
changes, thereafter adjust the estate escheated in favor
of the state.
WHEN PROCEEDINGS WILL NOT PROSPER
- In Municipal Council of San Pedro vs Colegio de
San Jose, it has been held that Rule 91 does not cover
properties taken from enemy nationals as a result of the
WWII and required to be transferred to PH by the US.
- The properties belong to the PH Gov’t, not because of
escheat, but on the strength of the transfer authorized
by PH Prop. Act of 1946.
WAIVER OF RIGHT OF ESCHEAT
- May be waived, expressly or impliedly.
ESCHEAT v REVERSION
- Have the same effect, but different procedures
ESCHEAT OF UNCLAIMED BALANCES
- Unclaimed balances which include credits or deposits
of money, bullion, security or other evidence of
indebtedness of any kind, and interest thereon with
banks in favor of any person unheard from for a period
of ten (10) years of more, together with the interest and
proceeds thereof shall be deposited with the Insular
Government of the Philippines as the Philippine
Legislature may direct (Act No. 3936, Unclaimed
Balances Act, Sec. 1)
Action to recover unclaimed balances shall
- be commenced by the Solicitor General in an action for
escheat
- in the name of the People of the Philippines
- in the Regional Trial Court of the province where the
bank is located,
- in which shall be joined as parties the bank and such
creditors or depositors.
- All or any member of such creditors or depositors or
banks, may be included in one action. (Id., Sec. 3;
Republic vs. Court of First Instance of Manila and Pres..
Roxas Rural Bank, Inc., G.R. No. L-30381, August 30,
1988)
3. REMEDY OF RESPONDENT AGAINST PETITION; PERIOD
FOR FILING A CLAIM
REMEDY OF RESPONDENT AGAINST ESCHEAT PETITION - If the market value of the property or the annual income
- Motion to dismiss for failure to state a cause of action. of the child exceeds P50,000.00, the parent concerned
where petition for escheat does not state facts which shall furnish a bond in such amount as the court may
entitle petitioner to the remedy prayed for (Go Poco determine, but in no case less than 10% of the value of
Grocery vs. Pacific Biscuit Co., 65 Phil. 443; Rep. vs, such property or annual income, to guarantee the
PNB, G.R. No. L-16016, Dec. 30, 1961); or performance of the obligations prescribed for general
- other grounds for dismissal under the rules (Municipal guardians. ( Sec. 16, RGM)
Council of San Pedro, Laguna vs. Colegio de San Jose,
65 Phil. 318). VENUE
- RTC have jurisdiction over guardianship proceedings.
FILING OF CLAIM TO ESTATE (Sec. 4, Rule 91)
1. Devisee, legatee, widow, widower or other person entitled Where the ward is a resident, RTC in the province where such
to such estate who appears and files claim thereto within 5 ward resides.
years from date of judgment (Note: 5-year period is
prescribed to encourage would-be claimants to be punctilious If resides in a foreign country, RTC of the province where the
in asserting their claims, otherwise they may lose them property is situated.
forever in a final judgment.)
SEC.2 MEANING OF WORD "INCOMPETENT." 
2. Such claimant shall have possession and title thereto or - Under this rule, the word "incompetent" includes
o persons suffering the penalty of civil
3. If sold, municipality or city accountable to him for proceeds, interdiction or
after deducting reasonable charges of care of estate. o who are hospitalized lepers,
o prodigals,
- Claim not made within said time barred forever. o deaf and dumb who are unable to read and
write,
RULES 92-97 o those who are of unsound mind, even though
they have lucid intervals, and
K. GUARDIANSHIP o persons not being of unsound mind, but by
reason of age, disease, weak mind, and other
- Guardianship a trust relation in which one person acts
similar causes, cannot, without outside aid,
for another whom the law regards as incapable of
take care of themselves and manage their
managing his own affairs. The person who acts is
property, becoming thereby an easy prey for
called the guardian and the incompetent is called the
deceit and exploitation.
ward.
SEC. 3. TRANSFER OF VENUE.
BASIS OF GUARDIANSHIP (Parens Patriae)
- The court taking cognizance of a guardianship
- Where minors are involved, the State acts as parens
proceeding, may transfer the same to the court of
patriae.
another province or municipality wherein the ward
- It is the duty of protecting the rights of persons or
has acquired real property, if he has transferred thereto
individuals who because of age or incapability are in an
his bona-fide residence, and the latter court shall have
unfavorable position vis-à-vis other parties.
full jurisdiction to continue the proceedings, without
requiring payment of additional court fees.
PURPOSE OF GUARDIANSHIP
- Safeguard the rights and interests of minors and
BONDS OF GUARDIANS
incompetent persons Courts should be vigilant to see
that the rights of such persons are properly protected.
CONDITIONS OF THE BOND OF THE GUARDIAN
- Within 3 months after the issuance of letters of
Guardian a person in whom the law has entrusted the custody
guardianship make inventory of all the property;
and control of the person or estate or both of an infant, insane, or
- faithfully execute the duties of the trust;
other person incapable of managing his own affairs.
- render a true and just account of all the property of the
ward; and
KINDS OF GUARDIANS
- perform all orders of the court (Sec. 1, Rule 94)
(1) Legal Guardian 
APPOINTMENT OF GUARDIANS
- such by provision of law without the need for judicial
appointment, as in the case of the parents over the
WHO MAY PETITION FOR APPOINTMENT OF GUARDIAN OF
persons of their minor children, or in his absence the
INCOMPETENT?
mother, with respect to the property of the minor
- (Sec. 1, Rule 93)
children not exceeding P50,000 in value;
- Relative, friend, or other person on behalf of
incompetent who has no parent or lawful guardian, for
(2) Guardian ad litem,
the appointment of a general guardian for the person or
- who is a competent person appointed by the court for
estate or both of such incompetent.
purposes of a particular action or proceeding involving
a minor;
WHO MAY PETITION FOR APPOINTMENT OF GUARDIAN OF
MINOR? 
(3) the Judicial guardian,
- (Sec. 2, RGM)
- or a person appointed by the court for the person
and/or property of the ward to represent the latter in
1.     Relative or other person on behalf of the minor
all civil acts and litigation .
2.     Minor himself if 14 years of age or over for the
PARENTS AS GUARDIANS
appointment of a general guardian over the person or property,
- When the property of the child under parental authority
or both, of such minor.
is worth P2,000.00 or less, the father or the mother,
without the necessity of court appointment, shall be his
- The petition may also be filed by the Secretary of Social
legal guardian.
Welfare and Development and Secretary of Health in
- When the property of the child is worth more than
the case of an insane minor person who needs to be
P2,000.00, the father or the mother shall be considered
hospitalized.
guardian of the childs property, with the duties and
obligations of guardians under these Rules, and shall
JURISDICTIONAL FACTS (Sec. 2, Rule 93)
file the petition required by Section 2 hereof.
1. incompetency of person for whom guardianship is sought;
- For good reasons, the court may, however, appoint
2. domiciled in the PH
another suitable person.(Sec. 7, Rule 93)
NOTICE OF APPLICATION AND HEARING (Sec. 3)
BOND OF PARENTS AS GUARDIANS OF PROPERTY OF
- NO PUBLICATION REQUIRED
MINOR.
Notice of hearing of the petition shall be served on
1. persons mentioned in the petition residing in the
Philippines;
2. incompetent himself
* minor if 14 years of age or over (Sec. 8, RGM)
NOTICE IS JURISDICTIONAL
- Service of notice upon the minor if 14 years of age or
over or upon the incompetent is jurisdictional.
o Without such notice, the court acquired no
jurisdiction to appoint a guardian (Nery vs.
Lorenzo, 44 SCRA 431 [1972]).
- The rules do not necessitate that creditors of the minor
or incompetent be likewise identified and notified.
- The reason is simple: because their presence is not
essential to the proceedings for appointment of a
guardian.
o They will only insist that the supposed minor
or incompetent is actually capacitated to
enter into contracts, so as to preserve the
validity of said contracts and keep the
supposed minor or incompetent obligated to
comply
SELLING & ENCUMBERING PROPERTY OF THE WARD
- Not necessary for a grant of authority to the guardians
to sell the estate of the ward to state that the income is
“insufficient to maintain the ward and his family or to
maintain or educate the ward when a minor.”
- It is enough that “it appears to the satisfaction of the
court that it is for the benefit of the ward that his real
estate or some part should be sold, and the proceeds
put out at interest, or invested in some productive
security.”
GENERAL POWERS AND DUTIES OF GUARDIANS
- Guardian’s duty to manage the estate and attend to the
comfort and suitable maintenance of the ward
A guardian has the following main duties:
- Care and custody of the person of the ward; and
- Management of his estate; or
- Management of his estate only.
The guardian of the estate of a non-resident shall have the
management of his estate within the PH, and no other court than
that in which such guardian was appointed shall have such
jurisdiction over the guardianship.
To summarize, a guardian has the ff. powers and duties:
- Care and custody of the person of the ward, the
management of his estate, or both
- Payment of the ward’s just debts out of his personal
estate and the income of his real estate, if sufficient;
- Settle accounts, collect debts, and appear in actions of
the ward;
- Manage the estate frugally and apply proceeds to the
ward’s maintenance;
- Join in partition proceedings after hearing;
- Render to the court an inventory w/in 3 months after his
appointment and annually after such appointment,
which must be under oath; and
- Render account to the court after one year from his
appointment and as often thereafter as may be
required.
TERMINATION OF GUARDIANSHIP
- The guardian becomes insane or otherwise incapable
of discharging his trust or unsuitable therefor;
- The guardian has wasted or mismanaged the estate; or
- The guardian failed for 30 days after it is due to render
an account or make a return.
SEC 3. OTHER TERMINATION OF GUARDIANSHIP.
- The marriage or voluntary emancipation of a minor
ward terminates the guardianship of the peson of the
ward, and shall enable the minor to administer his
property as though he were of age,
o but he cannot borrow the money or alienate
or encumber real property without the
consent of his father or mother, or guardian.
o He can sue and be sued in court only with the
assistance of his father, mother or guardian.
- The guardian of any person may be discharged by the
court when it appears, upon the application of the ward
or otherwise, that the guardianship is no longer
necessary.
RULE ON GUARDIANSHIP OVER MINORS
GOVERNING RULE ON GUARDIANSHIP OF MINORS
- Guardianship of minors as distinguished from
incompetents other than minority is now governed by
the RULE ON GUARDIANSHIP OF MINORS (A.M. No.
003-03-05-SC).
Sections 1 and 27 of the RGM make it clear that it shall apply
only to petitions for guardianship over the person, property, or
both, of a minor.
- Petitions for guardianship of incompetents who are not
minors shall continue to be governed by Rules 92-97
and heard and tried by regular Regional Trial Courts.
- Rules 92-97 may therefore be deemed modified by the
RGM.
WHO MAY FILE:
1.     Relative or other person on behalf of the minor
2.     Minor himself if 14 years of age or over for the
appointment of a general guardian over the person or property,
or both, of such minor
3. Sec. of Social Welfare and Dev’t and Sec. of Health, in case
of an insane minor.
QUALIFICATIONS OF GUARDIANS
- Moral character;
- Physical and mental, and psychological condition;
- Financial status;
- Relationship of trust with the minor;
- Availability to exercise the powers and duties of a
guardian for the full period of the guardianship;
- Lack of conflict of interest with the minor; and
- Ability to manage the property of the minor.
NOTE: Non-resident guardians not to be appointed
ORDER OF PREFERENCE IN APPOINTMENT OF GUARDIAN
SEC. 6. Who may be appointed guardian of the person or
property, or both, of a minor. – In default of parents or a court-
appointed guardian,
- the court may appoint a guardian of the person or
property, or both, of a minor, observing as far as
practicable, the following order of preference: c
(a) the surviving grandparent and In case several
grandparents survive, the court shall select any of them taking
Into account all relevant considerations;
(b) the oldest brother or sister of the minor over twenty-one
years of age, unless unfit or disqualified;
(c) the actual custodian of the minor over twenty-one years
of age, unless unfit or disqualified; and 
cralaw
(d) any other person, who in the sound discretion of the
court, would serve the best interests of the minor.
NOTICE OF HEARING
Must be served on the ff:
- Persons mentioned in the petition residing in the
PH; and
- Minor if he is 14 years of age or over.
Where the minor is at least 14 years old, service upon such
minor is jurisdictional, w/o which the court does not acquire
jurisdiction over the petition.
OPPOSITION TO PETITION
SEC. 10. Opposition to petition.
- Any interested person may contest the petition by
filing a written opposition based on such grounds as
o the majority of the minor or
o the unsuitability of the person for
whom letters are prayed, and
 - pray that the petition be denied, or that letters of
guardianship issue to himself, or to any suitable
person named in the opposition. cra

NOTE: At the discretion of the court, hearing may be closed to

public and records of the case shall not be released without its
approval.

GROUND FOR TERMINATION OF GUARDIANSHIP

- the ward has come of age (turns 18); or
- the ward has died.