Carol Morales, Karen Umangay, Josiah Quising

Special Proceedings (Based on FESTIN 2015; Syllabus by Atty.
Stephen Valera)
CAROL MORALES, KAREN UMANGAY, JOSIAH QUISING
Can the probate court issue writs of

Contents execution? .................................................... 8
RULE 72 | Subject Matters and Applicability of Presumption of Death ................................... 8
General Rules .................................................. 4 Is Partition proper when there remains an
Special Proceeding ...................................... 4 issue as to the expenses chargeable to the
Are List of Subject Matter in Rule 72 estate? .......................................................... 8
Exclusive? ................................................... 4 RULE 74| Summary Settlement of Estates........ 9
Distinguished civil action from special Rule with respect to the estate left by the
proceeding ................................................... 4 decedent ....................................................... 9
Determination of legal heirs of the deceased 4 Affidavit of self adjudication ...................... 10
Exception to the Rule on the Need to Institute Presumption that the decedent left no debts 10
a Separate Proceeding for the Determination If the claimant is a minor or an incapacitated
of Heirship .................................................. 4
person ........................................................ 10
Liquidation Proceeding, is it Ordinary Action RULE 75| Production of Will; Allowance of
or Special Proceeding?................................. 4
Will Necessary............................................... 11
Proceeding before Shari’a Court against a A. Explain Probate or Allowance of Wills ... 11
Deceased, an ordinary action or Special
Proceeding................................................... 4 Concept and Extent of “Due Execution” ..... 11
Are Rules in Civil Action applicable in Formalities of a will ............................... 12
Special Proceeding ...................................... 4 B. Intrinsic Validity .................................... 12
RULE 73| Subject of Estate of Deceased Persons C. Doctrine of Estoppel in Probate
5 Proceedings ................................................... 12
A. Special Proceedings Relative to the D. Limited Jurisdiction................................ 12
Settlement of Estate of Deceased Persons. ....... 5
Principle of Exclusionary Rule ................... 13
Claims against the deceased; When .............. 5
E. Duty of a Custodian and Executor of a Will
Jurisdiction .................................................. 5 13
Venue .......................................................... 5 May MANDAMUS compel the production
Definition of “Resides”................................ 5 of the original will? ................................ 13
COMPARATIVE TABLE ON RULE 76 | Allowance or Disallowance of Will
JURISDICTION AND VENUE IN SPECIAL 14
PROCEEDINGS ......................................... 6 Who man Petition for the allowance of Will?
Possible consequences if a will is later .................................................................. 14
discovered in the course of intestate Who is a “person interested in the estate”? . 14
proceedings ................................................. 7
Probate of a Will ........................................ 14
What must be done if the notarial will is
Is probate subject to prescription?........... 14
contested ..................................................... 8
Petition for the allowance of the Will must
If Holographic Will is contested ............... 8
show: ......................................................... 14
1
Special Proceedings (Based on FESTIN 2015; Syllabus by Atty. Stephen Valera)
Do rules require proof that the foreign will Letters of Testamentary .......................... 17
has been probated in the foreign country? ...15 Letters of Administration........................ 17
Bar Question: What are the Jurisdictional Rule if some co-executors are disqualified.. 17
facts that must be alleged in a petition for
the allowance of the will? .......................15 Order of preference in granting letters of
administration under Section 6 if no executor
Nature of Probate Proceeding .....................15 is named in the will or the executor is
How may a lost will be probated? ...........15 incompetent, refuses the trust, or fails to give
Bar Question: What are the requisites in bond, or a person dies intestate: .................. 17
order that a lost or destroyed will may be Is the rule on order of preference absolute?
probated? ................................................15 .............................................................. 18
Bar Question: Sufficient to disallow a will Other instances when the court may set aside
on the ground of mistake. ........................15 the order of preference: .............................. 18
Bar Question: May an order denying the Scope or limit of administration.............. 18
probate of a will still be overturned after RULE 79 | Opposing Issuance of Letters
period to appeal therefrom has lapsed? Testamentary Petition and Contest for Letters of
Why? ......................................................15 Administration ............................................... 19
Who are entitled to notice of time and place of A. Who may file a Petition for Letters of
probate proceeding? ....................................15 Administration? ............................................. 19
RULE 77| Allowance of Will Proved Outside B. Who is an “interested party” in estate
the Philippines and Administration of Estate proceedings? .................................................. 19
Thereunder .....................................................16
“Any interested person” or “any person
A Will was probated in a Foreign Country. interested in the estate” .............................. 19
Must it be re-probated in the Philippines? ...16
Remedy given to a creditor or any interested
What must the proponent prove during a person to protect his interest in the estate .... 20
reprobate? ...................................................16
Right of the testator to appoint an executor
Effects of allowance of a Will .................16 over his property ........................................ 20
May a will executed by foreigners abroad C. Contents of a petition for letters of
be probated in the Philippines even if not administration: ............................................... 20
yet proved and allowed in the country of
execution? ..............................................16 D. Who may file an OPPOSITION to the
issuance of letters testamentary?..................... 20
Can our courts take judicial notice of foreign
laws? ..........................................................16 Grounds for opposition of a Petition for
administration: ........................................... 20
What is the duty of the petitioner in a probate
proceeding? ................................................16 RULE 80 | Special Administrator ................... 21
RULE 78| Letters Testamentary and of A. Special Administrator ............................. 21

Administration, When and To Whom Issued ...17 B. Regular Administrator v. Special
Who may administer the estate: ..................17 Administrator................................................. 21
Who are incompetent to serve as executors or C. Special Co-Administrators...................... 21

administrators? ...........................................17 D. REMEDY .............................................. 21
2
Rule 81| Bonds of Executors and Administrators

22
A. Conditions of a Bond ..............................22
B. Purpose of a bond ...................................22
3
RULE 72 | Subject Matters and The Declaration of Heirship can be made in a

special proceeding because the petitioner here are
Applicability of General Rules seeking the establishment of status or right.
Special Proceeding Exception to the Rule on the Need to Institute
It is an application to establish the status or right a Separate Proceeding for the Determination
of a party or a particular fact or any for remedy of Heirship
other than an ordinary suit in a court of justice. The institution of separate proceeding may be
dispensed with for the sake of practicality, as
Are List of Subject Matter in Rule 72 when the parties in the civil case had voluntarily
Exclusive?
submitted the issue to the trial court and already
No. Any petition which has for its main purpose
presented their evidence regarding the issue of
the establishment of status or right or a particular
heirship, and the RTC had consequently rendered
fact may be included as special proceeding.
judgment thereon, or when special proceeding
(Example: Declaration of nullity of Marriage; it
had been instituted but had been finally closed
seeks to establish a status, a right or a particular
and terminated, hence cannot be re-opened.
fact.)
Liquidation Proceeding, is it Ordinary Action
Distinguished civil action from special
or Special Proceeding?
proceeding
It should be classified as Special Proceeding.
1. Spec Pro under the same rule provides
Such petition does not seek the enforcement or
that it is a remedy by which a party seeks
protection of rights, it does not pray for
to establish a status, a right or a particular
affirmative relief for an injury arising form a
fact. Civil Action is one by which a party
party’s wrongful act.
sues another for the enforcement or
protection of a right, or the prevention or Proceeding before Shari’a Court against a
redress of a wrong. Deceased, an ordinary action or Special
2. Unlike actions, Spec Pro is generally Proceeding
commenced by application, petition or The settlement of estate is deemed a special
special form of pleading as may be proceeding.
provided for by a particular rule or law.
MONTANER vs SHARI’A COURT
3. In Spec Pro, it does not pray for
The Court reiterates that the proceedings
affirmative relief for injury arising from before the court a quo are for the issuance of
a party’s wrongful act or omission nor letters of administration, settlement and
state a cause of action that can be distribution of the estate of the deceased, which
enforced against any person. is a special proceeding. Sec (3) ofthe ROC
defines a special proceeding as “a remedy by
MONTANER et al vs SHARI’A DISTRICT which a party seeks to establish a status, a right,
COURT or a particular fact.” This Court has applied the
Unlike a civil action which has definite adverse Rules, particularly the rules on special
parties, a special proceeding has no definite proceedings for the settlement of the estate of
adverse party. a deceased Muslim.
Determination of legal heirs of the deceased
Jurisprudence dictates that the determination of Are Rules in Civil Action applicable in Special
legal heirs must be made in a proper special Proceeding
proceeding not in an ordinary suit for recovery of
ownership ad possession of property.
4
Yes, in absence of special provisions, the rules RULE 73| Subject of Estate of
provided for in ordinary actions hall be, as far as
practicable, applicable in Special Proceeding. Deceased Persons
HILADO vs COURT OF APPEALS A. Special Proceedings Relative to the
Notwithstanding Sec 2 of Rule 72, Intervention Settlement of Estate of Deceased Persons.
as set forth under Rule 19 does not extend to • Testate or intestate
creditors of a decedent whose credit is based on • Probate of the will is MANDARY
contingent claim.
• The institute of intestate proceeding in
another place may not proceed while the
probate of a purported will of the
deceased is pending in another place.
ALAN SHEKER vs. ESTATE OF ALICE
SHEKER Claims against the deceased; When
Provisions of the Rules of Court requiring • Must be filed DURING the settlement
certificate of non-forum shopping for proceedings (Rules 73-90)
complaints and initiatory pleadings, a written
explanation for non-personal service ad filing, Jurisdiction
and the payment of filing fees for money - depends on the gross value of the estate
claims against an estate would not in any way
obstruct probate proceedings such as the Metro-Manila
settlement of the estate of a deceased person as
in the present case. • MTC: < PHP 400,000
• RTC: above PHP400,000
Non-Metro Manila
• MTC: <PHP 300,000

• RTC: above PHP 300,000
Venue
GR: Residence of the decedent at the time of his
death
EXN: If non-resident at the time of his death, then
that venue lies in any province in which he had
estate
Definition of “Resides”
“Resides” should be viewed as the personal,
actual, or physical habitation of a person, the
actual residence of place of abode; not legal
residence or domicile.
- simply requires bodily presence as an
inhabitant in a given place
- No particular length of time is required
but the residence must be more than
temporary.
5
COMPARATIVE TABLE ON of the city or prvince

JURISDICTION AND VENUE IN SPECIAL where the adoptee
PROCEEDINGS resides (Sec.19)
Kind of SpecPro Jurisdiction and b. Inter-Country Family Court having
Venue Adoption Act jurisdiction over the
Settlement of Estate RTC/MTC (depending place where the child
(Rule 73) on the gross value of resides or may be
the estate of the found (filed by a
province where the foreign national or
deceased last resided. Filipino citizen
permanently residing
Non-resident: venue abroad)
lies at any province in
which he had an estate. It may be filed directly
Escheat (Rule 91) RTC of province where with the Inter-Country
the deceased last Adoption Board.
resided Habeas Corpus RTC where the person
is detailed (SC, CA
Non-resident: venue a. Illegal have concurrent
lies at any province in confinement/detenti jurisdiction)
which he had an estate. on (Rule 102) NOTE: The writ of
Guardianship Family Court of habeas corpus shall be
province or city where enforceable only
a. Minors (AM No. the minor actually within its judicial
03-02-05-SC) resides. region.
b. Custody of minors Family Courts have
Non-resident: venue (AM No. 03-04-04- exclusive jurisdiction
lies at any province or SC)
city where his property The petition may be
or any part thereof is filed with the SC, CA,
situated. or any of its members,
b. Incompetent RTC of province where and if so granted, the
persons (not minors) the incompetent person writ shall be
(Rules 92-97) last resided enforceable anywhere
in the PH.
Non-resident: venue Amparo (AM 07-9- SC CA, and
lies at any province or 12-SC) Sandiganbayan, RTC
city where his property
or any part thereof is IF with RTC: the place
situated. where the threat, act, or
Adoption Family court of omission was
a. Domestic province or city where committed or an of its
Adoption Act prospective adoptive elements occurred
parents reside (Sec.3)
Habeas Data (AM SC, CA,
IF petition is for No. 08-1-16-SC) Sandiganbayan when
RESCISSION of the action concerns
adoption of the public data or files of
Adoptee – Family court government offices.
6
Possible consequences if a will is later

If with RTC: discovered in the course of intestate
1. Petitioner’s proceedings
residence
2. Respondent’s 1. Sound discretion of the court – whether
residence the intestate proceedings already
3. place where commenced should be discontinued and
data or a new proceeding under a separate
information is number and title should be constituted1
gathered,
collected, or
2. Consolidated – the intestate case should
stored, at the
option of the be consolidated with the testate and the
petitioner judge assigned to the testate proceeding
Change of Name RTC of petitioner’s should continue hearing the two cases2
(Rule 103) residence
Absentees (Rule RTC where absentee 3. Replace – proceedings for the probate of
107) resided before he the will should replace the intestate
disappeared proceedings even if an administrator had
Cancellation or RTC of the province already been appointed.
Correction of where the o the administrator would be
Entries (Rule 108) corresponding Local required to render a final accout
Civil Registrar of place and turn over the estate in his
is located possession to the executor
Clerical Error Act 1. Local Civil subsequently appointed
(RA 9048) Registry office
o without prejudice that the
of the
proceeding shall continue as an
city/municipali
ty where the intestacy3
record being
sought to be NOTE: the mere discovery of a
corrected or document purporting to be the last will
changed is and testament after appointment of an
kept administrator and assumption that the
2. Local civil decedent died intestate does NOT, ipso
registrar of the facto nullify the letters of administration
palce where already issued or even authorize their
the interested revocation UNTIL the will has been
party is
proved and allowed.
presently
residing or
domiciled
3. Philippine
Consulates
1 3
85 Phil. 268 33 SCRA 252
2
129 SCRA 33
7
What must be done if the notarial will is Presumption of Death

contested Civil Code Provisions:
o All subscribing witnesses (not insane),
must be produced and examined and Art. 390. After an absence of seven years, it
death, absence, or insanity of any of them being unknown whether or not the absentee still
must be satisfactorily shown to the court. lives, he shall be presumed dead for all purposes,
o If all/some are present in the Philippines except for those of succession.
but outside the province where the will The absentee shall not be presumed dead for the
was filed, then their deposition must be purpose of opening his succession till after an
taken. absence of ten years. If he disappeared after the
NOTE: A testament may NOT be allowed just age of seventy-five years, an absence of five years
because the attesting witnesses declare against its shall be sufficient in order that his succession
due execution (or do not remember or are may be opened. (n)
otherwise doubtful of credibility); neither does it Art. 391. The following shall be presumed dead
have to be necessarily allowed just because all for all purposes, including the division of the
attesting witnesses declare in favor of its estate among the heirs:
legalization. What is decisive is that the court is
convinced (1) A person on board a vessel lost
during a sea voyage, or an
If Holographic Will is contested aeroplane which is missing, who
- three witnesses should declare that the has not been heard of for four
will was in the handwriting of the years since the loss of the vessel
deceased or aeroplane;
- in the absence of competent witnesses, (2) A person in the armed forces
expert testimony may be resorted. who has taken part in war, and
Can the probate court issue writs of execution? has been missing for four years;
GR: No, because its orders usually refer to the (3) A person who has been in danger
adjudication of claims against the estate which of death under other
the executor or administrator may satisfy without circumstances and his existence
the need of executor processes. has not been known for four
years. (n)
XPN:
Art. 392. If the absentee appears, or without
1. To satisfy the contributive shares of the appearing his existence is proved, he shall
devisees, legatees, and heirs on recover his property in the condition in which it
possession of the decedent’s assets (Rule may be found, and the price of any property that
88, Sec. 6) may have been alienated or the property acquired
2. To enforce payment of the expenses of therewith; but he cannot claim either fruits or
partition (Rule 90, Sec.3) rents.
3. To satisfy the cost when a person is cited
for examination in probate proceedings Is Partition proper when there remains an
(Rule 142, Sec. 13) issue as to the expenses chargeable to the estate?
No. The heirs have to submit the estate to
settlement because the determination of the
expenses cannot be done in an action for partition.
8
NOTE: In an estate settlement proceeding, there RULE 74| Summary Settlement

is a proper procedure for the accounting of all
expenses for which the estate must answer. If of Estates
there is any consolation at all to petitioner, the
Rule with respect to the estate left by the
heirs or distributees of the properties may take
decedent
possession thereof even before the settlement of GR: When a person dies leaving property, the
accounts, as long as they first file a bond same should be judicially administered and the
conditioned on the payment of the estate’s competent court should appoint a qualified
obligations. administrator (in the order established in Section
QUIAZON v. BELEN 6 Rule 76, in case the deceased eft no will, or in
Under Section 1, Rule 73, the petition for case he had left one, should he fail to name an
letters of administration of the estate of a executor therein)
decedent should be filed in the RTC of the
province where the decedent resides at the time XPN:
of his death. 1.Extrajudicial Settlement (Sec. 1)
Requisites:
“Residence” in the contest of venue provisions, a. The decedent died intestate
means nothing more than a person’s actual b. The estate has no outstanding debts at
residence or place of abode, provided he the time of the settlement
resides therein with continuity and c. The the heirs are all of legal age, or the
consistency. minors are represented by their judicial guardians
or legal representatives
d. The settlement is made in a public
SALUDO, JR. v. AMERICAN EXPRESS
Residence rather than domicile is the instrument or by stipulation in a pending action
significant factor in determining venue. for partition or affidavit filed with the register of
deed
e. The fact of extrajudicial settlement
shall be published in a newspaper of general
circulation once a week for 3 consecutive weeks
in the province
f. In case of personal property, a bond
equivalent to the value of the personal property
posted with the Register of Deeds is required.
-
2. Summary settlement of estates of small
value (Sec. 2)
-summary proceeding for the settlement of the
estate of a deceased person whether he died
testate or intestate if the gross value of his estate
is P10,000 without need of an appointment of an
administrator or executor
-Whenever the gross value of the estate of a
deceased person does not exceed P10,000, and
that fact is made to appear to the RTC having
jurisdiction of the estate by the petition of an
interested person and upon hearing, which shall
9
be held not less than 1 month nor more than 3 oath by the parties concerned and conditioned
months from the date of the last publication of a upon the payment of any just claim that may be
notice which shall be published once a week for filed under Section 4 of this rule.
3 consecutive weeks in a newspaper of general
Presumption that the decedent left no debts
circulation ion the province, and after such other
The presumption arises if no creditor files a
notice to interested persons as the court may
petition for letters of administration within 2
direct, the court may proceed summarily to settle
years after the death of the decedent.
the estate.
The provisions of Section 4 of Rule 74 barring
EXTRAJUDICIAL SUMMARY
distribute or heirs from objecting to an
SETTLEMENT SETTLEMENT
1. Does not require Requires summary extrajudicial partition after the expiration of
court intervention adjudication. two years from such extrajudicial partition, is
applicable only to:
2. The value of the Applicable where the 1. persons who have participated or taken part or
estate is immaterial. gross estate is
had notice of the extrajudicial partition; and
P10,000. The amount
is jurisdictional 2. when the provisions of Section 1 of Rule 74,
have been strictly complied with.
3. Allowed only in Allowed in both
intestate succession. testate and intestate NOTE: The publication of the settlement does
estates. not constitute constructive notice to the heirs who
had no knowledge or did not take part in it
4. Proper when there Available even if because the same was notice after the fact of
are no outstanding there are no debts. execution. The requirement of publication is
debts of the estate at geared for the protection of creditors and was
the time of the
never intended to deprive heirs of their lawful
settlement
participation in the decedent’s estate.
Instituted by any
5. Instituted by interested party and If the claimant is a minor or an incapacitated
agreement of all heirs. even by a creditor of person
the estate, without the He may present his claim within one year after
consent of all heirs. such disability is removed.
RULE 74, Section 1: A petition for issuance of
Affidavit of self adjudication letters of administration may be converted
An affidavit to be executed by the sole heir of a
into an action for judicial partition
deceased person in adjudicating to himself the
entire estate left by the decedent. It is filed with When the more expeditious remedy of partition is
the Registry of Deeds. available to the heirs, then the heirs or the
majority of them may not be compelled to submit
The sole heir shall file, simultaneously with and
to administration proceedings. In this case, all the
as a condition precedent to the filing of the public
heirs, with the exceptions of one, agreed to
instrument or stipulation in the action for
judicial partition as they see it to be the more
partition, or of the affidavit in the office of the
convenient method.
register of deeds, a bond with the said register of
deeds, in an amount equivalent to the value of the
personal property involved as certified to under
10
AVELINO v. CA RULE 75| Production of Will;

In cases where the heirs disagree as to the
partition of the estate and no extrajudicial Allowance of Will Necessary
settlement is possible, then an ordinary action
for partition may be resorted to. A. Explain Probate or Allowance of Wills
It is the act of proving in court a document
SPS. BENATIRO v. HEIRS OF purporting to be the last will and testament of a
EVARISTO CUYOS certain deceased person for the purpose of its
The publication of the settlement does not official recognition, registration, and carrying out
constitute constructive notice to the heirs who its provision in so far as they are in accordance
had no knowledge or did not take part in it with law.
because the same was notice after the fact of
execution. Sec.1, Rule 75 – No will shall pass either real
or personal estate unless it is proved in the
proper court. Subject to the right of appeal,
such allowance of the will shall be conclusive
as to its due execution.
• Allowance of a will – NECESSARY.

• Probate of a will – MANDATORY.
o Until admitted to probate, a will
has NO EFFECT and NO
RIGHT can be claimed
thereunder4.
o A lawyer cannot execute a deed
of partition; neither can a court
approve a project of partition
without probate of the will.
• Decree of probate – CONCLUSIVE
o conclusive with respect to the
due execution of the will
o cannot be impugned on any
grounds, in any separate or
independent action or
proceeding EXCEPT FRAUD
Concept and Extent of “Due Execution”
Due execution covers the following:

1. The will was executed in accordance
with the STRICT FORMALITIES of the
law.
4
409 SCRA 105
11
2. The testator was of SOUND and witnesses. The notary public shall not be
DISPOSING mind at the time of the required to retain a copy of the will, or file
execution of the will another with the office of the Clerk of Court.
3. Consent is NOT VITIATED by any
duress, fear, or threats
B. Intrinsic Validity
4. The will was NOT procured by any
UNDUE INFLUENCE from the • In a special proceeding for the probate of
beneficiary or by some other person for a will, the issue is restricted to
his benefit; and EXTRINSIC validity.
5. The SIGNATURE of the testator is o E.g. The question of ownership
GENUIINE. is an extraneous matter which
the probate court cannot resolve
Formalities of a will with finality.
Article 805. Every will, other than a “Such allowance of the will shall be conclusive
holographic will, must be subscribed at the end as to its due execution”
thereof by the testator himself or by the
• precludes any interested person from
testator's name written by some other person in
his presence, and by his express direction, and questioning the due execution of the will
attested and subscribed by three or more but NOT the intrinsic validity of its
credible witnesses in the presence of the testamentary provisions.
testator and of one another. o Governed by substantive law on
inheritance and partition.
The testator or the person requested by him to
write his name and the instrumental witnesses C. Doctrine of Estoppel in Probate
of the will, shall also sign, as aforesaid, each Proceedings
and every page thereof, except the last, on the
• Not applicable since the presentation of
left margin, and all the pages shall be
numbered correlatively in letters placed on the the probate of a will are required by
upper part of each page. public policy.
D. Limited Jurisdiction
The attestation shall state the number of pages
used upon which the will is written, and the • The probate court is a court of limited
fact that the testator signed the will and every jurisdiction
page thereof, or caused some other person to • The probate court may only determine
write his name, under his express direction, in
and rule upon issues that relate to
the presence of the instrumental witnesses, and
settlement of the estate of deceased
that the latter witnessed and signed the will and
all the pages thereof in the presence of the person such as the administration,
testator and of one another. liquidation, and distribution of the estate.
o also includes the determination
If the attestation clause is in a language not of whether a property should be
known to the witnesses, it shall be interpreted included in the inventory is
to them. within the jurisdiction of a
probate court.
o and who are the heirs, validity of
Article 806. Every will must be acknowledged
a waiver of hereditary rights,
before a notary public by the testator and the
status of each heir and all other
12
matters incidental to the death of the testator, deliver the will to the
administration, settlement, and court having jurisdiction, or to the executor
distribution of estate. named In the will.
NOTE: When questions arise as to ownership of SEC. 3. Executor to present will and accept
property alleged to be part of the estate of a or refuse trust.—A person named as executor
deceased but claimed by some other by virtue of in a will shall, within twenty (20) days after
any right of inheritance, such questions cannot be he knows of the death of the testator, or
determined in the courts of administration within twenty (20) days after he knows that
proceedings. (Jurisdiction belongs to the trial be is named executor if he obtained such
court in general jurisdiction) knowledge after the death of the testator,
present such will to the court having
GR: Probate court cannot decide a question of
jurisdiction, unless the will has reached the
title of ownership.
court in any other manner, and shall, within
EXN: such period, signify to the court in writing
his acceptance of the trust or his refusal to
• The interested parties who are ALL accept it.
HEIRS of the deceased consent thereto
and the interests of third parties are not SEC. 4. Custodian and executor subject to
prejudiced fine for neglect. — A person who neglects
• in a provision manner, to determine any of the duties required in the two last
whether said property should be included preceding sections without excuse
in or excluded from the inventory; satisfactory to the court shall be fined not
without prejudice to the final exceeding two thousand pesos.
determination of title in a separate action.
SEC. 5. Person retaining will may be
Principle of Exclusionary Rule committed. — A person having custody of a
When a probate court first takes cognizance and will after the death of the testator who
jurisdiction over the settlement of the estate of a neglects without reasonable cause to deliver
deceased person, it shall continue to exercise the same, when ordered so to do, to the court
jurisdiction over the same to the exclusion of having jurisdiction, may be committed to
other courts. prison and there kept until he delivers the
will.
E. Duty of a Custodian and Executor of a
Will
May MANDAMUS compel the production of the
• Custodian – deliver the will to the court original will?
having jurisdiction or the executor within NO. There being a plain, speedy, and adequate
20 days after he knows of the death of the remedy in the ordinary court of law for the
testator production of the subject will, the remedy
• Executor – presents the will to the court mandamus cannot be availed of (see above).
and must accept or refuse the trust, within
20 days of knowledge of death. PACIOLES, JR v. CHUATOCO-CHING
GR: Jurisdiction of the trial court either as an
Rules of Court, Rule 75 intestate or a probate court relates ONLY to
SEC. 2. Custodian of will to deliver.—The matters having to do with the settlement of the
person who has custody of a will shall, estate.
within twenty (20) days after he knows of the
13
EXN: intestate or probate court may hear and RULE 76 | Allowance or

pass upon questions of ownership when its
purpose is to determine whether or not a Disallowance of Will
property should be included in the inventory.
(Adjudication merely incidental and
provisional) Who man Petition for the allowance of Will?
Any Executor, devisee, or legatee named in will,
or any other persons interested in the estate, may,
at any time after the death of the testator, petition
the court having jurisdiction to have the will
allowed, whether the same be in his possession or
not, or is lost or destroyed.
NOTE: The testator himself may, during his
lifetime, petition the court for the allowance of his
will.
Who is a “person interested in the estate”?
In order that a person may be allowed to intervene
in a probate proceeding he must have an interest
in the estate, or in the will, or in the property to
be affected by it either as executor or as claimant
of the estate. An interested party is one who
would be benefited by the estate such as an heir
or one who has a claim against the estate like a
creditor.
Probate of a Will
It is an act of proving in court a document
purporting to be the last will and testament of a
deceased person in order that it may be officially
recognized, registered and its provision carried
insofar as they are in accordance with law.
Is probate subject to prescription?
No. The petition for probate of the will is not
subject to the statute of limitations and does not
preclude, as such petition to be filed “at any time”
and is required by public policy.
Petition for the allowance of the Will must

show:
1. The jurisdictional facts;
2. The names, ages and residences of the
heirs, legatees and devisees of the
testator;
3. The probable value and character of the
property of the estate;
14
4. The name of the person whom letters are Bar Question: Sufficient to disallow a will on the
prayed; ground of mistake.
5. If the will has not been delivered to the The testator intended a donation inter vivos but
court, the name of the person having unwittingly executed a will.
custody of it.
Bar Question: May an order denying the
Do rules require proof that the foreign will has probate of a will still be overturned after period
been probated in the foreign country? to appeal therefrom has lapsed? Why?
No. The rules do not require proof that the foreign Yes, an order denying the probate of a will may
will has already been allowed and probated in the be overturned after the period to appeal therefrom
country of its execution. has lapsed. A petition for relief may be filed on
the grounds of fraud, accident, mistake or
Bar Question: What are the Jurisdictional facts excusable negligence within a period of 60 days
that must be alleged in a petition for the after the petitioner learns of the judgment or final
allowance of the will? order and not more than 6 months after such
1. Death of the decedent;
judgment or final order was entered.
2. His residence at the time of his death in
the province of where the probate court is Who are entitled to notice of time and place of
sitting; or probate proceeding?
3. If he is an inhabitant of a foreign country, Sec. 4, Rule 76 provides that known heirs,
his leaving his estate in such province. legatees and devisees of the testator are entitled
to notices.
Nature of Probate Proceeding
Probate proceeding is in rem. The notice by ALABAN vs COURT OF APPEALS
publication as a prerequisite to the allowance of a Publication is notice to the whole world that
will, is a constructive notice to the whole world, the proceeding has for its object to bar
and when probate is granted the judgment is indefinitely all who might be minded to make
binding upon everybody, even against the State. an objection of any sort against the right sought
to be established. It is the publication of such
How may a lost will be probated? notice that brings in the whole world as a party
The Rules declares that no will shall be proved as in the case and vests the court with jurisdiction
a lost or destroyed will unless the execution and to hear and decide it. Thus, even though
validity of the same be established, and the will is petitioner were not mentioned in the petition
proved to have been in existence at the time of for probate, they eventually became parties
death of the testator, or is shown to have been thereto as a consequence of the publication of
fraudulently or accidentally destroyed in the the notice of hearing.
lifetime of the testator without his knowledge, nor
unless its provisions are clearly and distinctly
proved by at least two credible witnesses.
Bar Question: What are the requisites in order
that a lost or destroyed will may be probated?
1. Execution and validity of the will must
be established;
2. The will must have been in existence at
the time of the death of the testator;
3. There must be at least two credible
witnesses.
15
RULE 77| Allowance of Will May a will executed by foreigners abroad be

probated in the Philippines even if not yet proved
Proved Outside the Philippines and allowed in the country of execution?
Yes, our laws do not prohibit the probate of wills
and Administration of Estate executed by foreigners abroad although the same
Thereunder have not yet been probated and allowed in the
countries of their execution. Art. 816 of the Civil
A Will was probated in a Foreign Country. Code states that the will of an alien who is abroad
Must it be re-probated in the Philippines?
produces effect in the Philippines if made in
Yes. Section 1, of Rule 77 provides that a will
accordance with the formalities prescribed by the
proved and allowed in a foreign country must be
law of the place where he resides, or according to
re-probated in the Philippines. If the decedent
the formalities observed in his country.
owns properties in different countries, separate
proceedings must be had to cover the same. Can our courts take judicial notice of foreign
laws?
No, foreign laws do not prove themselves in our
What must the proponent prove during a
jurisdiction and our courts are not authorized to
reprobate?
1. That the testator was domiciled in the take judicial notice of them. Hence, executors or
foreign country; administrator of the decedent’s estate are duty-
2. That the will has been admitted to bound to introduce in evidence the pertinent law
probate in such country; of the foreign court which admitted to probate the
3. That the foreign court was, under the will of the deceased.
laws of said foreign country, a probate What is the duty of the petitioner in a probate
court with jurisdiction over the proceeding?
proceeding; They are duty-bound to introduce the pertinent
4. The law on probate procedure in said law of the State of the decedent.
foreign country and proof of compliance
therewith;
5. The legal requirements in said foreign
country for valid execution of the will.
Effects of allowance of a Will
1. Treated as if originally proved and
allowed in Philippine courts;
2. Letters testamentary or administration
with a will annexed shall extend to all
estates of the Philippines;
3. After payment of just debts and
expenses of administration, the residue
of the estate shall be disposed of as
provided by law in cases of estates in the
Philippines belonging to persons who
are inhabitants of another state or
country;
16
RULE 78| Letters • Executor of an executor shall not, as such,

administer the estate of the first testator.
Testamentary and of (Section 2, Rule 78)
Administration, When and To • A married woman may serve as executrix
Whom Issued or administratix. The marriage of a single
woman shall not affect her authority so to
Who may administer the estate: serve under a previous appointment.
1. Executor (Section 3)
2. Administrator Letters of Testamentary
It is an authority issued to an executor named in

Who are incompetent to serve as executors or the will to administer the estate.
administrators?
1. Minor Letters of Administration
2. Not a resident of the Philippines It is an authority issued by the court to a
3. Opinion of the court to be unfit to execute the competent person to administer the estate of the
duties of the trust by reason of drunkenness, deceased who died intestate.
improvidence, or want of understanding or
Rule if some co-executors are disqualified
integrity, or by reason of conviction of an offense
involving moral turpitude. When all of the executors named in a will cannot
act because of incompetency, refusal to accept the
trust, or failure to give bond, on the part of one or
Executor Administrator more of them, letters testamentary may issue to
A person named A person appointed by such of them as are competent, accept and give
expressly by the the intestate court to
deceased person in administer the estate of bond, and they may perform the duties and
his will to a deceased person: discharge the trust required by will.
administer, settle
and liquidate his a. dies without leaving Order of preference in granting letters of
estate a will administration under Section 6 if no executor
b. or did not name any is named in the will or the executor is
executor even if there incompetent, refuses the trust, or fails to give
was a will. bond, or a person dies intestate:
c. if there be one a. To the surviving husband or wife,
named, he is as the case may be, or next of kin,
incompetent, refuses or both, in the discretion of the
the trust or fails to give court, or to such person as such
a bond, or that the will surviving husband or wife, or
subsequently, is next of kin, requests to have
declared null and void.
appointed, if competent and
willing to serve.
• No law that prohibits an alien from b. If such surviving husband or
becoming an executor or administrator. wife, as the case may be, or next
of kin, or the person selected by
them, be incompetent or
17
unwilling, or if the husband or NOTE: Earnest effort is not required in special

widow, or next of kin, neglects proceedings.
for 30 days after the death of the
person to apply for
administration or to request that
administration be granted to
some other person, it may be
granted to one or more of the
principal creditors, if competent
and willing to serve.
c. If there is no such creditor
competent and willing to serve, it
may be granted to such other
person as the court may select.
RATIONALE on order of preference: Those

who will reap the benefit of a wise, speedy,
economical administration of the estate, or, in the
alternative, suffer the consequences of waste,
improvidence or mismanagement, have the
highest interest and most influential motive to
administer the estate correctly.
Principal consideration in the appointment of

an administrator
- Interest in the estate of the one to be
appointed.
Is the rule on order of preference absolute?

GR: Court cannot set aside the order of
preference.
XPN: Not absolute for it depends on the attendant
facts and circumstances of each case.
Other instances when the court may set aside

the order of preference:
When the persons who have the preferential right
to be appointed are NOT COMPETENT or are
UNWILLING TO SERVE.
Scope or limit of administration

Administration extends only to the assets of a
decedent found within the state or country where
it was granted
18
RULE 79 | Opposing Issuance have interest in the

estate”
of Letters Testamentary Sec. 1, Rule 76 allows a “person
Petition and Contest for Letters interested in the
estate” to petition for
of Administration the allowance of a
will
Sec. 6, Rule 87 allows an individual
interested in the estate
A. Who may file a Petition for Letters of
of the deceased “to
Administration? complain to the court
A petition for letters of administration must be of the concealment,
filed by an interested person (Sec 2). embezzlement or
conveyance of any
B. Who is an “interested party” in estate assets of the decedent,
proceedings? or of evidence of the
decedent’s title or
Interested Party (in estate proceedings) - one interest therein”
who would be benefited in the estate, such as an Sec. 10, Rule 85 requires notice of the
heir, or one who has claim against the estate, such time and place of the
as creditor. examination and
allowance of the
NOTE: “next of kin” refers to those whose Administration’s
relationship with the decedent is such that they account “to the
are entitled to share in the estate as distributes. persons interested”
Sec. 7, Rule 89 requires the court to
“Any interested person” or “any person give notice “to the
interested in the estate” persons interested”
before it may hear and
The following provisions allows “any interested grant a petition
person” or “any person interested in the estate” to seeking the
participate in varying capacities: disposition or
encumbrance of the
Sec. 1, Rule 79 recognizes the right of properties of the
“any person estate
interested” to oppose Sec. 1, Rule 90 “any person
the issuance of letters
interested in the
testamentary and to estate” to petition for
file a petition for an order for the
administration distribution of the
Sec. 3, Rule 79 mandates the giving residue of the estate of
of notice of hearing the decedent, after all
on the petition for obligations are either
letters of satisfied or provided
administration to the for.
known heirs, creditors
and “to any other
persons believed to
19
Remedy given to a creditor or any interested Grounds for opposition of a Petition for
person to protect his interest in the estate: administration:
1. Incompetency of the person for whom
The Rules do not provide for the right to the letters are prayed therein; and
participate in the estate proceeding, however, 2. On the ground of the contestant’s own
they may be allowed to seek certain prayers or right to the administration.
reliefs from the intestate court not explicitly
provided for under the Rules, if the prayer or AMELIA GARCIA –QUIAZON vs BELEN
relief sought is necessary to protect their interest An “interested party” in the estate proceeding,
in the estate. is one who would be benefited in the estate,
such as an heir, or one who has a claim against
Right of the testator to appoint an executor the estate, such as a creditor. Also, in estate
over his property: proceedings, the phrase “next of kin” refers to
those whose relationship with the decedent is
The choice of his executor is a precious
such that they are entitled to share in the estate
prerogative of a testator, a necessary concomitant as distributes
of his right to dispose of his property in the
manner he wishes. It is natural that the testator
should desire to appoint one of his confidence,
one who can be trusted to carry out his wishes in
the disposal of his estate.
NOTE: The curtailment of this right may be
considered a curtailment of the right to dispose.
C. Contents of a petition for letters of
administration:
1. Jurisdictional facts;
2. The names, ages, and residence of the
heirs, and the names and residence of the
creditors;
3. The probable value and character of the
property of the estate;
4. The name of the person for whom letters
of administration are prayed.
NOTE: No defect on the petition shall render void
the issuance of letters of administration.
D. Who may file an OPPOSITION to the
issuance of letters testamentary?
ANY person interested in the will may state in
writing the grounds why letters testamentary
should not be issued to the persons named therein
as executors.
20
RULE 80 | Special preference of appointment in Section 6, Rule 78

for regular administrators not applicable.
Administrator
• Courts may appoint or remove special
A. Special Administrator administrators based on grounds other
than those enumerated in the Rules, at
- representative of the decedent appointed
their discretion.
by the probated court to care for
• Said discretion should not be exercised
Role; principal object of the appointment- with grave abuse.
preserve his estate UNTIL an executor or general • Appointment should be based on equity,
administrator is appointed justice, and legal principles.
o subject to the court’s supervision C. Special Co-Administrators
and control
o expected to work for the best Circumstances that the SC upheld the
interest of the entire estate; with appointment of special co-administrators:
a view to its smooth 1. To have the benefits of their judgment
administration and speedy and perhaps at all times to have different
settlement interests represented;
- NOT regarded as an agent of the parties 2. Where justice and equity demand that
suggesting the appointment opposing parties or factions be
NOTE: A special administrator may be appointed represented in the management of the
by a court when there is delay in granting letters estate of the deceased
testamentary or of administration by an appeal (or 3. Where the estate is large or from any
MR) from the allowance or disallowance of a will cause, an intricate and perplexing one to
or some other cause. settle
4. To have all interested persons satisfied
B. Regular Administrator v. Special and the representatives to work in
Administrator harmony for the best interests of the
estate
Regular Special
5. when a person entitled to the
Appointed when a Appointed when there
administration of an estate desires to
decedent died is delay in granting
intestate or did not letters testamentary or have another competent person
appoint any executor of administration associated with him in the office.
in his will or the will D. REMEDY
is subsequently
disallowed • Rule 65 – Certiorari
Obliged to pay the Nope
debts of the estate TAN v. GEDORIO, JR
May be the subject of Order of appointment The order of preference in the appointment of
appeal regarded as an a regular administrator does NOT apply to the
interlocutory order ; selection of a special administrator. Sec. 6,
not subject to appeal Rule 78 - preference for the next of kin refers
to the appointment of a regular administrator,
and not of a special administrator, as the
NOTE: Appointment of special administrator lies appointment of the latter lies entirely in the
entirely in the sound discretion of the court; court’s discretion and not appealable.
21
RULE 81| Bonds of Executors decedent, hence should not be considered as

part of the necessary expenses chargeable
and Administrators against the estate.
• An executor or administrator before he

enters upon the execution of his trust, and A special administrator before entering upon
letters testamentary or of administration the duties of his trust shall:
issue, he shall give a bond. 1. give a bond conditioned that he will make and
return a true inventory of the goods, chattels,
A. Conditions of a Bond
rights, credits and estate of the deceased
1. To make and return to the court, within 3 which shall come to his possession or
months, a true and complete inventory of all knowledge; AND
goods, chattels, rights, credits and estate of 2. that he will truly account for such as are
the deceased which shall come to his received by him when required by the court
possession or knowledge or to the possession and will deliver the same to the person
of any other person for him; appointed executor or administrator, or to
2. To administer according to these rules, and if such other person as may be authorized to
an executor, according to the will of the receive them.
testator, all goods, chattels, rights, credits,
and estate which shall at any time come to his
possession or to the possession of any other
person for him, and from the proceeds to pay
and discharge all debts, legacies, and charges
on the same, or such dividends thereon as
shall be decreed by the court;
3. To render a true and just account of his
administration to the court within 1 year, and
at any other time when required by the court;
4. To perform all orders of the court by him to
be performed.
B. Purpose of a bond
It is intended as an indemnity to the creditors, the
heirs and the estate. It shall be held accountable
for any breach of duty that may be done by the
administrator or executor.
Such liability may be enforced by motion or in a
separate action.
OCAMPO v. OCAMPO (2010)

Administration bond is for the benefit of the
creditors and the heirs, as it compels the
administrator, whether regular or special, to
perform the trust reposed in, and discharge the
obligations incumbent upon him. Its object and
purpose is to safeguard the properties of the
22

Carol Morales, Karen Umangay, Josiah Quising

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Special Proceedings (Based on FESTIN 2015; Syllabus by Atty.

Can the probate court issue writs of

RULE 78| Letters Testamentary and of A. Special Administrator ............................. 21

Who are incompetent to serve as executors or C. Special Co-Administrators...................... 21

Rule 81| Bonds of Executors and Administrators

RULE 72 | Subject Matters and The Declaration of Heirship can be made in a

• MTC: <PHP 300,000

COMPARATIVE TABLE ON of the city or prvince

Possible consequences if a will is later

What must be done if the notarial will is Presumption of Death

NOTE: In an estate settlement proceeding, there RULE 74| Summary Settlement

AVELINO v. CA RULE 75| Production of Will;

• Allowance of a will – NECESSARY.

Due execution covers the following:

EXN: intestate or probate court may hear and RULE 76 | Allowance or

Petition for the allowance of the Will must

RULE 77| Allowance of Will May a will executed by foreigners abroad be

RULE 78| Letters • Executor of an executor shall not, as such,

It is an authority issued to an executor named in

unwilling, or if the husband or NOTE: Earnest effort is not required in special

RATIONALE on order of preference: Those

Principal consideration in the appointment of

Is the rule on order of preference absolute?

Other instances when the court may set aside

Scope or limit of administration

RULE 79 | Opposing Issuance have interest in the

RULE 80 | Special preference of appointment in Section 6, Rule 78

RULE 81| Bonds of Executors decedent, hence should not be considered as

• An executor or administrator before he

OCAMPO v. OCAMPO (2010)

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