IV. SPECIAL PROCEEDINGS Q: What is Special Proceeding?

A: It is a remedy by which a party seeks to establish a status, a right or a particular fact [Sec. 3(c), Rule 1]. Note: It is a proceeding in rem. Q: Distinguish an Ordinary action and Special Civil Action from a special proceeding. A: Special Civil Action Ordinary Action Special Proceeding To protect or enforce a right or prevent or redress a wrong Involve 2 or more parties plaintiff and defendant Governed by ordinary rules, supplemented by special rules Initiated by a complaint, and parties respond through an answer Heard by courts of general jurisdiction Issues or disputes are stated in the pleadings of the parties Adversarial Based on a cause of action Involves the establishment of a right, status, or fact May involve only one party only petitioner Governed by special rules, supplemented by ordinary rules Initiated by a petition and parties respond through an opposition Heard by courts of limited jurisdiction Issues are determined by law Not adversarial Not based on a cause of action (except habeas corpus) Civil Action subject to specific rules. Involves two or more parties Ordinary rules apply primarily but subject to specific rules Some are initiated by complaint, while some are initiated by petition

Issues or disputes are stated in the pleadings of the parties Some are adversarial while some are not adversarial Some special civil action have no cause of action

Q: What are the subject matters of special proceedings? A: Special Jurisdiction Proceeding RTC- Gross value of the estate exceeds 300,000/400,000 (Manila) MTC- Gross value of the estate does not exceed 300,000/400,000 Note: MTC jurisdiction is exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses and costs 1.

Venue If inhabitant (resident) of the Philippines (whether citizen or alien)- Court of the province/ city where the deceased resides at the time of death 2. Inhabitant (nonresident) of foreign country- court of any province/ city wherein he had estate 1. Ordinary escheat proceedings: RTC a. If resident- place where the deceased last resided b. If non-resident- place where he had estate 2. Reversion of land to the State for violation of the Consitution/ Laws- RTC where the land lies in whole or in part 3. Unclaimed deposits (for 10 years)- RTC of the city/ province where the bank is

Rules 7390

Settlement of Estate of Deceased Persons

Rule 91

Escheat

RTC

located Note: All banks located in 1 province where the court is located may be made partydefendant in 1 action. RTC-Gross value of the estate exceeds 300,000/400,000 MTC- does not exceed 300,000/400,000 of RTC RTC Where the will was allowed or where the property or portion thereof affected by the trust is situated Where such insane person may be found Where petitioner resides for 3 years prior to the filing of the petition Where the corresponding civil registry is located Where the absentee resided before his disappearance Where principal office of the corporation is situated Where principal office corporation is situated of

Rule 98

Trustees

Rule 101 Rule 103

Hospitalization insane person Change of name

Rule 108 Rule 107 A.M. No. 00-8-10SC Rule 104

Cancellation or correction of entries in the civil registry Declaration of absence and death Corporate rehabilitation Voluntary dissolution corporation of

RTC RTC RTC

SEC

RA 9048

Administrative correction of entry/change of first name or nickname

Local civil registry/Consul general

Rules 9297; A.M. No. 0302-05-SC A.M. No. 02-06-02SC A.M. No. 02-6-02SC A.M. No. 02-6-02SC Rule 99

Guardianship

Family Court In case of minors RTC In cases other than minors

Local civil registry office where the record is kept/where the interested party is presently residing or domiciled 1. If resident- place where minor/ incompetent resides 2. If non-resident- place where minor/ incompetent has property Where the adopter resides

Domestic Adoption Rescission Adoption Inter-country Adoption Custody of Minors Judicial Approval of Voluntary Recognition of Minor Natural Children Summary Proceedings 1. of

Family Court

Family Court Family Court or the InterCountry Adoption Board Family Court

Where the adoptee resides

Where the adopter resides Where petitioner resides or where the minor may be found

Rule 105

Family Court

Where the child resides

Family Code

R.A. 8369

Where the petitioner resides or where the child resides if it involves minors Actions mentioned in the Family Courts Act Petitions on Where petitioner or Foster care and respondent has been residing Family Court Temporary for at least 6 months prior to Custody the date of filing Family Court

2.

3.

Declaration of Nullity of Marriage Cases of Domestic Violence Against Women and Children SC, CA, RTC, MTC in the province or city in case there is no RTC judge; SB only in aid of its appellate jurisdiction Family Court, CA, SC RTC, SB, CA or SC or any justice thereof

In case of non-resident respondent, where he may be found at the election of the petitioner

Rule 102

Habeas Corpus

Where the aggrieved party is detained (RTC) Where the petitioner resides or where the minor may be found Where the threat, act or omission was committed or any of its elements occurred Where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner Where the unlawful act, omission or threat was committed Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent, where he may be found at the election of the petitioner Where petitioner or respondent has been residing for at least 6 months prior to the date of filing In case of non-resident respondent, where he may be found at the election of the petitioner

A.M. No. 03-04-04SC A.M. No. 07-9-12SC

Habeas Corpus in Relation to Custody of Minors Writ of Amparo

A.M. No. 08-1-16SC

Writ of habeas data

RTC, SB, CA or SC or any justice thereof

A.M. No. 09-6-8SC

Writ of Kalikasan

SC or any stations of CA

A.M. No.0211-10-SC

Declaration of nullity of void marriage/Annulment of marriage

Family Court

A.M. No. 02-11-11SC

Legal Separation

Family Court

Q: What is the publication requirement in special proceedings? A: Special Proceeding Publication of Order of Hearing Administrative change of first name or nickname Once a week for 2 consecutive weeks Corporate rehabilitation Settlement of estate of deceased persons Judicial change of name Judicial cancellation or correction of entries in the civil registry Once a week for 3 consecutive weeks Domestic adoption Inter-country adoption Voluntary dissolution of corporation (Except shortening of corporate term) Once a week for 3 consecutive weeks Declaration of absence Note: The declaration of absence shall not take

Escheat Guardianship Trustees Custody of minors Hospitalization of insane person Rescission of adoption Administrative cancellation or correction of entries Habeas corpus Writ of amparo Writ of habeas data Writ of kalikasan 1. Petitions on foster care and temporary custody 2. Cases of domestic violence against women and children Summary proceedings

effect until six (6) months after its publication in a newspaper of general circulation. Once a week for 6 consecutive weeks

None

Note: In declaration of nullity or annulment of marriage or legal separation, service of summons may be through publication once a week for 2 consecutive weeks. Q: Who should be notified in special proceedings? A: To whom notice must be given Special proceeding Settlement of estate of deceased persons Executor/administrator/any interested party Trustees All persons interested on the trust On the person alleged to be insane and to the one Hospitalization of insane person having charge of him or any of his relatives Judicial change of name Interested parties/Solicitor General Judicial cancellation or correction of entries in Persons named in the petition/Solicitor the civil registry General/Civil Registrar impleaded as respondent Heirs/legatees/devisees/creditors/other interested Declaration of absence and death persons Corporate rehabilitation Creditors/Debtors Voluntary dissolution of corporation Creditors Administrative correction of entry/ change of Interested parties first name or nickname The minor if above 14 years of age/incompetent Guardianship himself/Interested parties on the property of the ward. General or special notice may be given. Domestic Adoption Biological parents/Solicitor General Rescission of Adoption Adopter Inter-country Adoption Biological parents, if any/guardian Custody of Minors Biological parents/guardian if any Habeas corpus To the person to which the writ is directed Writ of amparo Respondent Writ of habeas data Respondent Writ of kalikasan Respondent Summary proceedings Respondent and interested party 1. Petitions on foster care and temporary custody Solicitor General/Public Prosecutor 2. Cases of domestic violence against women and children Declaration of nullity of void marriage / City/Provincial Prosecutor/ Respondent Annulment of marriage Legal separation City/Provincial prosecutor/ Respondent Escheat A. None SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESSES

1. WHICH COURT HAS JURISDICTION Q: Which court has jurisdiction over the estate of the deceased? A: Metropolitan Trial Regional Trial Court Court Gross value of the Gross value of the estate does not estate exceeds exceed 400,000 400,000 (within Metro (within Metro Manila) Manila) or 300,000 or 300,000 (outside (outside Metro Manila) Metro Manila) Q: State the rule on venue in judicial settlement of estate of deceased persons. A: Resident Court of the province/city where the deceased resided at the time of death, whether a citizen or alien Non-Resident Court of the province/city wherein he had estate

2. VENUE IN JUDICIAL SETTLEMENT OF ESTATE Q: What is the venue? A: Under the Rules of Court, it is the province where the estate of the deceased shall be settled (Cuenco v. CA, G.R. No. L-24742, October 26, 1973). Resident Court of the province/city where the deceased resided at the time of death, whether a citizen or alien Non-Resident Court of the province/city wherein he had estate

Q: Is venue waivable? A: Yes. Wrong venue is a waivable procedural defect, and such waiver may occur by laches where a party had been served notice of the filing of the probate petition for a year and allowed the proceedings to continue for such time before filing a motion to dismiss. Note: Jurisdiction under Rule 73 does not relate to jurisdiction per se but to venue. Hence institution in the court where the decedent is neither an inhabitant nor had his estate may be waived (Uriarte v. CFI, G.R. Nos. L-21938-39, May 29, 1970). Q: What constitutes residence? A: It is the personal, actual, physical habitation, his actual residence or place of abode (Fule v. CA, G.R. No. L-40502, Nov. 29, 1976) and not his permanent legal residence or domicile. Note: MTC jurisdiction is exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses and costs. Q: What is the remedy if Venue is improperly laid? A: GR: ORDINARY APPEAL should be filed, not certiorari or mandamus.

XPN: CERTIORARI OR MANDAMUS should be filed when want of jurisdiction appear on the record of the case. Q: What is the Principle of Preferential Jurisdiction? A: GR: The court first taking cognizance of the settlement of the estate of the decedent shall exercise jurisdiction to the exclusion of all other courts (Sec. 1 of Rule 73). The probate court acquires jurisdiction from the moment the petition for the settlement of estate is filed with said court. It cannot be divested of such jurisdiction by the subsequent acts of the parties as by entering into extrajudicial partition of the estate ( Sandoval v. Santiago, L- 1723, May 30, 1949); or by filing another petition for settlement in a proper court of concurrent venue ( De Borja v. Tan, 77 Phil 872). XPN: Estoppel by Laches Note: The rule applies to both testate and intestate proceedings (Intestate Estate of Wolfson, 45 SCRA 381 June 15, 1972). 3. EXTENT OF JURISDICTION OF PROBATE COURT Q: May probate courts determine issues of ownership in a proceeding for the settlement of estate of decedent? Explain. A: GR: No, because probate courts are courts of limited jurisdiction. XPNS: 1. Provisionally, for the sole purpose of including the property in the inventory, without prejudice to its final determination in a separate action; 2. When all the parties are heirs of the decedent and they agreed to submit the issue of ownership to the probate court, provided that no rights of third persons are prejudiced; 3. If the question is one of collation or advancement; or 4. If the parties consent to the assumption of jurisdiction by the probate court and no rights of third parties are prejudiced (Agpalo, Handbook on Special Proceedings, pp. 10-12, 2003 ed.). Note: The intestate court may pass upon the title to a certain property for the purpose of determining whether the same should or should not be included in the inventory but such determination is not conclusive and is subject to final decision in a separate action regarding ownership which may be constituted by the parties [Reyes v. Mosqueda, 187 SCRA 661, (1990)]. Q: The probate court ordered the inclusion of a parcel of land registered in the name of Richard in the inventory of the properties of the deceased Anna. Richard opposed the inclusion arguing that the probate court cannot determine the issue of the ownership of the parcel of land inasmuch as the same was registered in his name. Is Richard correct? A: Yes. In probate proceedings, if a property covered by Torrens title is involved, the presumptive conclusiveness of such title should be given due weight, and in the absence of strong compelling evidence to the contrary, the holder thereof should be considered as the owner of the property in controversy until his title is nullified or modified in an appropriate ordinary action, particularly, when as in the case at bar, possession of the property itself is in the persons named in the title (Luy Lim v. CA, G.R. No. 124715, Jan. 24, 2000). Q: What may the court do in the exercise of its probate jurisdiction? A: It may issue warrants and processes to compel the attendance of witnesses or carry into effect their orders and judgments and all other powers granted them by law (Sec. 3, Rule 73). Q: May the probate court issue a writ of execution? A: GR: No, because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the necessity of resorting to a writ of execution. XPNS: 1. To satisfy the contributive share of the devisees, legatees and heirs when the latter had entered prior possession over the estate (Sec. 6, Rule 88); 2. To enforce payment of the expenses of partition (Sec. 3, Rule 90); and 3. To satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142; De Valera v. Hon. Ofilada, G.R. No. L-27526, Sept. 19, 1974).

4.

To satisfy the claim in a summary proceedings of creditors or heirs who appear within two years from distribution. (See Herrera, Remedial Law, Vol. III-A, pgs. 222-223, 2005 ed.)

Q: Can a declaration of heirship be made in an independent action? A: 1. If the special proceedings are pending, or if there are no special proceedings filed but there is a need to file one, then the determination of heirship should be raised and settled in said special proceedings. 2. If the special proceeding had been instituted but had been finally closed and terminated, or if a putative heir has lost the right to have himself declared in the special proceedings as co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or adjudication of properties belonging to the estate of the deceased (Portugal and Portugal, Jr. v. Portugal-Beltran, G.R. No. 155555, Aug. 16, 2005). Q: Where should the estate be settled if the marriage is dissolved by death of either spouse or both? A: When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either (Sec. 2, Rule 73). Note: If separate proceedings have been instituted for each estate, both proceedings may be consolidated if they were filed in the same court. The rule on consolidation in settlement proceedings for husband and wife exclusively applies to them. It does not apply to siblings, parents and child or other relatives no matter how close (Benigno v. de la Pea, G.R. No. L-38036, Oct. 15, 1932). Notes: 1. The jurisdiction of a court as well as the concomitant nature of the action is determined by the averments in the complaint and not by the defenses contained in the answer ( Vda. De Manalo v. CA, 349 SCRA 135). 2. The residence of the deceased or the location of his estate is not an element of jurisdiction over the subject matter but merely of venue (Cuenca v. CA 53 SCRA 360, 1973). 4. POWERS AND DUTIES OF PROBATE COURT Q: What are the powers and duties of a Probate Court? A: In probate proceedings, the court: 1. Orders the probate of the will of the decedent 2. Grants letters administration 3. Supervises and controls all acts of administration 4. Hears and approves claims against the estate of the deceased 5. Orders payment of lawful debts 6. Authorizes sale, mortgage or any encumbrance of real estate 7. Orders the payment of taxes and other charges 8. Directs the delivery of the estate to those entitled thereto. Note: The court acts as a trustee and as such must jealously guard the estate and see to it that it is wisely and economically administered, not dissipated (Timbol v. Cano, 111 Phil 923, 926). Q: What are the specific powers and duties of a probate court? A: 1. To pass upon the issue regarding the validity of the will (i.e. formalities required by law) 2. Distribute shares 3. Determine who are the legal heirs 4. Issue warrants and processes to secure attendance of witnesses 5. Determine and rule upon issues relating to settlement of the estate, such as administration, liquidation, and distribution of the estate 6. Determine the following: a. Heirs of the decedent; b. Recognition of natural child; c. Validity of disinheritance effected by testator; d. Status of a woman who claims to be the lawful wife of the decedent ;

e. Validity if waiver of hereditary heirs; f. Status of each heir; g. Whatever property in the inventory is conjugal or exclusive property of deceased spouse; or h. Matters incidental or collateral to the settlement and distribution of the estate. Note: The trial court sitting as a probate court, has limited and special jurisdiction, and cannot hear and dispose of collateral matters and issues which may be properly threshed out only in an ordinary action (Vda. de Manalo v. CA, GR 129242, January 16, 2001). B. SUMMARY SETTLEMENT OF ESTATES

Q: What are different modes of settlement of estate of a deceased person? A: 1. Extrajudicial settlement Where the decedent left no will and no debts and heirs are all of age, or the minors are represented by their representatives duly authorized for the purpose (Sec. 1, Rule 74). 2. Judicial settlement a. Summary settlement of estate of small value Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does not exceed P10,000, the court may proceed summarily, without the appointment of an executor or administrator (Sec. 3, Rule 74). b. Testate proceedings When the decedent left a last will and testament (Rules 75-79). c. Intestate proceedings When the decedent died without a will, or died with a will but was found invalid and thereafter disallowed (Rule 79). d. Partition When there is no will and the parties entitled to the estate would then agree on the project of partition (Rule 69). 1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS, WHEN ALLOWED EXTRA JUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS No court intervention The value of the estate is immaterial Allowed only in intestate succession There must be no outstanding debts of the estate at the time of the settlement Resorted at the instance and by agreement of all heirs Amount of bond is equal to the value of personal property SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE Requires summary adjudication Gross value of the estate must not exceed P10,000 Allowed in both testate and intestate succession Available even if there are debts, it is the court which will make provision for its payment May be instituted by any interested party even a creditor of the estate without the consent of all the heirs Amount of bond is to be determined by the court

Q: Distinguish the procedure in extrajudicial settlement from summary settlement A: A. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN THE HEIRS

Division of estate made through a public instrument or affidavit of adjudication

Publication of notice of the fact of extrajudicial settlement once a week for three consecutive weeks in a newspaper of general circulation

Filing of the public instrument or affidavit of adjudication with the proper Register of Deeds

Personal property- file a bond equivalent to its amount. Real property- subject to a lien in favor of the creditors, heirs or other persons for the full period of 2 years from such distribution and such lien cannot be substituted by a bond

B.

SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE

Petition for summary settlement to be filed in the MTC with an allegation that the gross value of the estate, whether he died testate or intestate does not exceed P10,000

Publication of notice once a week for 3 consecutive weeks; court may likewise order that notice be given to persons as the court may direct

Hearing to be held not less than 1 month nor more than 3 months from the date of last publication of notice

The court proceeds summarily without the necessity of appointing an executor or administrator; and to make orders as may be necessary The court may also require a bond in an amount fixed by the court (not value of personal property) conditioned upon payment of just claims under Section 4

Q: When is extra judicial settlement by agreement between the heirs allowed? (Substantial Requisites) A: When the decedent: 1. 2. Left no will and no debts; and the heirs are all of age; and The minors are represented by their judicial or legal representatives duly authorized for the purpose (Sec. 1, Rule 74).

Q: What are the requisites before an extrajudicial settlement of estate could be resorted to as evidence of its validity? (Procedural Requisites) A:

1.

Settlement is made in a public instrument or by affidavit of adjudication in the case of a sole heir; Note: In case of disagreement of heirs, they may state their oppositions in an ordinary action of partition.

2. 3. 4.

Filed with the Register of Deeds; Fact of settlement must be published in a newspaper of general circulation once a week for 3 consecutive weeks; and Bond filed equivalent to the value of personal property (Sec. 1, Rule 74).

Note: While the Rules of Court provide that the decedent must not have left any debts, it is sufficient if any debts he may have left have been paid at the time the extrajudicial settlement is entered into (Guico v. Bautista, G.R. No. L-14921, Dec. 31, 1960). It is a disputable presumption that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent. Q: What is a bond? A: It is the value of the personal property certified by the parties under oath and conditioned upon payment of just claims against the estate under Section 4, Rule 74. Note: The amount of bond required under Section 2 is determined by the COURT whereas in Section 1 the amount is EQUAL TO THE VALUE OF THE PERSONAL PROPERTY as established by adjudication. Q: When is a bond required to be filed in extrajudicial settlement of estate? A: When personal property is involved, a bond is required. On the other hand, if it is a real property, it is subject to a lien in favor of a creditor for 2 years from distribution and such lien cannot be substituted by a bond (Sec. 1, Rule 74). Note: The same provision on the bond and lien also applies in summary settlement of estate (Sec. 2, Rule 74). Q: Is a public instrument necessary for the validity of the extrajudicial settlement? A: No, the requirement of public instrument is not constitutive of the validity but is merely evidentiary in nature (Hernandez v. Andal, G.R. No. L-273, Mar. 23, 1947). Even a private instrument, oral agreement of partition or compromise agreement entered into without previous authority from the court is valid. However, reformation of the instrument may be compelled (Borja vs. Vda. De Borja, 46 SCRA 577). Note: Public instrument is required in transfer and registration of title to the heirs. Q: What is the effect of an extra-judicial partition executed without the knowledge and consent of the other co-heirs? A: It shall not prejudice the co-heir who had no knowledge nor consented to the same. He shall have the right to vindicate his inheritance. Such heir or such other person deprived of his lawful participation payable in money may compel the settlement of the estate in courts for the purpose of satisfying such lawful participation (Sec. 4, Rule 74). Q: Why is publication of the extrajudicial settlement necessary? A: To notify and bind the whole world of the extrajudicial settlement and give the concerned parties a chance to come forward and challenge the same (Sec. 1, Rule 74). Note: Publication alone does not suffice to bind the excluded heirs to the extrajudicial settlement unless he did not participate in the proceedings. Q: What is the effect if the provisions on notice or participation requirement under Sec. 1, Rule 74 has been strictly complied with? A: It bars distributees or heirs from objecting to an extra-judicial partition after the two-year prescriptive period to question such partition (Sec. 4, Rule 74). 2. TWO-YEAR PRESCRIPTIVE PERIOD Q: When does the two year period rule apply? A: After the expiration of two years from the extrajudicial partition, distributees or heirs are barred from objecting to an extra- judicial partition. The two year prescriptive period applies only:

1. 2.

To persons who have participated or taken part or had notice of the extrajudicial partition; and When all the persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through their guardians.

Note: It is only a bar against the parties who had taken part in the extrajudicial proceedings, but not against third persons not parties thereto (Herrera, Remedial Law, Vol. III-A, p.39, 2005 ed.). Q: Does the two-year period apply for a claim of minor or incapacitated person? A: If on the date of the expiration of the period of two years prescribed, the person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim within one year after such disability is removed (Sec. 5, Rule 74). 3. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR Q: What is an Affidavit of Self-Adjudication by sole heir? A: It is an affidavit required by Sec.1, Rule 74 to be executed by the sole heir or a deceased person in adjudicating to himself the entire estate left by the decedent. 4. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE Q: What is summary settlement of estate? A: It is a judicial proceeding, without appointment of executor or administrator, and without delay, wherein the competent court summarily proceeds to estimate the value of estate of the decedent; allow his will if any; declare his heirs, devisees, and legatees; distribute his net estate among them, who shall thereupon be entitled to receive and enter into the possession of the parts of the estate so awarded to them, respectively. Q: When is summary settlement of estates of small value allowed? A: Only when gross estate does not exceed P10,000. Amount is jurisdictional (Sec. 2, Rule 74). Notes: 1. Amount is jurisdictional; 2. Summary settlement of estate of small value is allowed in both testate and intestate estates; 3. Available even if there are debts as the court will make provisions for the payment thereof. 4. In accordance with B.P. Blg. 129, the jurisdiction is vested to the Municipal Trial Courts. 5. Instituted by any interested party and even by a creditor of the estate, without the consent of all the heirs. 6. The date for hearing, shall be set by court not less than 1 month nor more than 3 months from date of publication of last notice and the order of hearing be published once a week for 3 consecutive weeks in a newspaper of general circulation. 7. Notice shall be served upon such interested persons as the court may direct. 8. Bond in an amount fixed by the court (not value of the personal property) conditioned upon payment of just claims under Sec. 4. Q: When can settlement of estates in courts be compelled? A: 1. If there is undue deprivation of lawful participation in the estate; 2. The existence of debts against the estate; 3. If there is undue deprivation of lawful participation payable in money (Sec. 4, Rule 74). 5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE Q: What are the remedies of the aggrieved party in summary or extrajudicial settlement of the estate? A: CLAIM AGAINST THE BOND GROUNDS: (Section 4, Rule 74) OR REAL ESTATE a. If there is undue deprivation of lawful participation in the estate; b. Existence of debts against the estate. Should be brought within 2 years after settlement and distribution of the estate COMPEL THE SETTLEMENT OF ESTATE IN COURTS Should be brought within 2 years after settlement and distribution of the estate

ACTION FOR RESCISSION

ACTION FOR RECONVEYANCE OF REAL PROPERTY

REOPENING BY INTERVENTION IN SUMMARY SETTLEMENT

If there is preterition of compulsory heir tainted with bad faith (Art 1104, NCC). It must be availed of within 5 years from the time the right of action accrues (Art. 1149, NCC). Also applicable in judicial proceedings GR: It is based on an implied or constructive trust which prescribes in 10 years from the date of registration or date of issuance of certificate of title or from actual discovery of fraud if the registration was made in bad faith. XPN: If the plaintiff is in possession of the property and did not pass to innocent purchaser for value and good faith, action is imprescriptible (Marquez v. CA, G.R. No. 125715, Dec. 29, 1998). Also applicable in judicial proceedings. Upon motion of a person who either: a. Has a legal interest in the matter in litigation; b. Has such legal interest in the success of either of the parties, or an interest against both; or c. Is so situated as to be adversely affected by the distribution of property in the custody of the court or of an officer. Note: May be availed of after judgment but before its finality or appeal by the aggrieved party. On grounds of fraud, accident, mistake, and excusable negligence within 60 days after petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered (Rule 38). Also applicable in judicial proceedings. On the ground of fraud which should be filed within 4 years from the discovery of fraud.

PETITION FOR RELIEF (SUMMARY SETTLEMENT)

ACTION TO ANNUL A DEED OF EXTRAJUDICIAL SETTLEMENT OR JUDGMENT IN SUMMARY SETTLEMENT ORDINARY ACTION BUT NOT AGAINST THE BOND

If the order of closure has already become final and executory, the heir must file an independent civil action of accion reinvidicatoria to recover his deprived share. Note: It must be brought within 10 years from the time the right of action accrues [Art. 1144(c)]. Also applicable in judicial proceedings. After the lapse of two years an ordinary action may be instituted against the distributees within the statute of limitations but not against the bond.

C. PRODUCTION AND PROBATE OF WILL 1. NATURE OF PROBATE PROCEEDING Q: What is probate? A: Probate is the act of proving before a competent court the due execution and validity of a will by a person possessed of testamentary capacity, as well as the approval thereof by said court (also known as nd Allowance of Will) (Tabingan, Special Proceedings, p. 75, 2 Ed.). Q: Why is probate necessary? A: To settle all questions concerning the capacity of the testator and the proper execution of his will, irrespective of whether its provisions are valid and enforceable (Fernandez v. Dimagiba, G.R. No. L23638, Oct. 12, 1967). Q: What is the nature of a probate proceeding? A: nd 1. IN REM- It is binding upon the whole world (Tabingan, Special Proceedings, p. 76, 2 Ed.). 2. MANDATORY- No will shall pass either real or personal property unless it is proved and allowed in the proper court (Sec 1. Rule 75). Note: However, a will may be sustained on the basis of Article 1080 of the NCC which states that, if the testator should make a partition of his property by an act intervivos or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heir (Mang- Oy v. CA, L-27421, 1986). 3. IMPRESCRIPTIBLE- because of the public policy to obey the will of the testator 4. DOCTRINE OF ESTOPPEL DOES NOT APPLY- the probate of the will is mandatory. The presentation and probate of the will is required by public policy. It involves public interest ( Fernandez v. Dimagiba, L- 23638, 1967). Q: Does the probate court look into the intrinsic validity of the will? A: GR: No. The jurisdiction of probate court is limited to the examination and resolution of the extrinsic validity of a will. XPNS: Principle of practical considerations wherein the court may pass upon the intrinsic validity of the will: 1. If the case where to be remanded for probate of the will, it will result to waste of time, effort, expense, plus added anxiety; as in the case of absolute preterition (Nuguid v. Nuguid, G.R. No. L-23445, June 23, 1966). 2. Where the entire or all testamentary dispositions are void and where the defect is apparent on its face (Nepomuceno v. CA, G.R. No. L-62952, Oct. 9, 1985). Note: Principle does not apply where the meat of the controversy is not the intrinsic validity of the will. Note: The decree of probate is conclusive with respect to the due execution of the will and it cannot be impugned on any of the grounds authorized by law, except by fraud, in any separate or independent action or proceeding [Manahan v. Manahan, 58 Phil 448,451 (1933); Solano v. CA, 126 SCRA 122 (1983)]. Note: Testate proceedings take precedence over intestate proceedings for the same estate. If in the course of the intestate proceedings, it is found that the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that state, an administrator had already been appointed (Uriarte v. CFI, 33 SCRA 252, 1970). Note: Mere discovery of a document purporting to be the last will and testament of decedent after appointment of an administrator does not ipso facto nullify the letters of administration already issued until the will has been proven and allowed (Advincula v. Teodoro, 99 Phil 413).

2. WHO MAY PETITION FOR PROBATE Q: Who may file a petition for allowance of will?

A: 1. 2. 3. Executor (Sec. 1, Rule 76); Devisee or legatee named in the will (Sec. 1, Rule 76); Person interested in the estate; e.g. heirs Note: 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 such as a creditor (Sumilang v. Ramagosa, G.R. No. L23135, Dec. 26, 1967). Testator himself during his lifetime (Sec. 1, Rule 76); or Any creditor as preparatory step for filing of his claim therein.

4. 5.

Q: Who are the people entitled to notice in a probate hearing? A: 1. Designated or known heirs, legatees and devisees of the testator resident in the Philippines at their places of residence, at least 20 days before the hearing, if such places of residence be known. 2. Person named executor, if he not the petitioner. 3. To any person named as co-executor not petitioning, if their places of residence be known. 4. If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs (Sec. 4, Rule 76). D. ALLOWANCE OR DISALLOWANCE OF A WILL

1. CONTENTS OF PETITION FOR ALLOWANCE FOR WILL Q: What are the contents of a petition for allowance of a will? A: 1. Jurisdictional facts: I. death of the testator and II. his residence at the time of his death III. if non- resident, the province where the estate was left 2. The names, ages and residences of the heirs, legatees and devisees of the testator or decedent. 3. The probable value and character of the property of the estate. 4. The name of the persons for whom letters are prayed. 5. The name of the person having custody of the will if it has not been delivered to the court ( Sec. 2, Rule 76). Note: But no defect in the petition shall render void the allowance of the will or the issuance of letters testamentary or of administration with the will annexed ( Ibid.). Q: What is the effect of the allowance of a will? A: The judgment or decree of the court allowing the will is: 1. Conclusive as to its extrinsic validity; 2. Not subject to collateral attack and it stands as final, if not modified, set aside, or revoked by a direct proceeding, or reversed on appeal by a higher court; and 3. Conclusive on the whole world (Yuseco v. CA, G.R. Nos. L-40719-21, Dec. 29, 1975). Q: How should a will be proved? A: Uncontested Contested

Notarial will

The court may grant allowance thereof on the testimony of one of the subscribing witnesses only, if such witness testifies that the will was executed as is required by law (Sec. 5, Rule 76). At least one witness who knows the handwriting and signature of the testator explicitly declares that the will and signature are in the handwriting of the testator (Sec. 5, Rule 76).

All the subscribing witnesses and the notary public must testify as to due execution and attestation of the will (Sec. 11, Rule 76).

Holographic will

The will shall be allowed if at least three witnesses who know the handwriting of the testator explicitly declare that the will and signature are in the handwriting of the testator (Sec. 11, Rule 76).

Note: At the hearing, compliance with publication and notice must first be shown before the introduction of testimony in support of the will. In the absence of competent witness, and if the court deems it necessary, expert testimony may be resorted to (Sec. 5, Rule 76). Q: What is the remedy if none of the subscribing witnesses resides in the province where probate is being conducted? A: A motion for taking of deposition of one or more of them (Sec. 7, Rule 76). Note: Court may also authorize photographic copy of the will to be made and to be presented to the witness on his examination, who may be asked questions with respect to matters pertaining to the will (Sec. 7, Rule 76). Q: What are the instances when the court may admit the testimony of witnesses other than the subscribing witnesses? A: 1. The subscribing witnesses are dead or insane; or 2. None of them resides in the Philippines (Sec. 8, Rule 76). Q: What matters shall be testified on by the other witnesses? A: 1. The sanity of the testator; and 2. Due execution of the will (Sec 8, Rule 76). Note: The court may admit proof of handwriting of the testator and of the subscribing witnesses, or any of them (Sec. 8, Rule 76).

Q: What proof is necessary if the testator himself files the petition for probate of his holographic will and no contest is filed? A: The fact that he affirms that the holographic will and the signature are in his own handwriting shall be sufficient evidence of the genuineness and due execution thereof (Sec. 12, Rule 76). Note: If the holographic will is contested, the burden of disproving the genuineness and due execution thereof shall be on the contestant. The testator may, in his turn, present such additional proof as may be necessary to rebut the evidence for the contestant (Sec. 12, Rule 76). Q: What is the rule on proof of lost or destroyed will? A: If notarial will, it may be proven by a photostatic or xerox copy of the will coupled with the testimonies of the attesting witnesses. If holographic will, a photostatic copy or xerox copy of the lost will would not suffice. But if there are no other copies available then a photostatic or xerox copy would suffice to serve as a comparison to the standard writings of the testator. No testimonies of witnesses is allowed because the will was made entirely by the testator himself (Bonilla vs. Aranz, G.R. No. L-58509, Dec. 7, 1982). Q: What are the requisites for allowance of a lost or destroyed will? A: No will shall be proved as a lost or destroyed will unless: 1. Its execution and validity of the same must be established; 2. It must have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed during the lifetime of the testator without his knowledge; and 3. Its provisions must be clearly and distinctly proved by at least 2 credible witnesses (Sec. 6, Rule 76). 2. GROUNDS FOR DISALLOWING A WILL Q: What are the grounds for disallowance of will? A: 1. If not executed and attested as required by law; 2. If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; 3. If it was executed under duress, influence of fear, or threats; 4. If it was procured by undue and improper pressure or influence, on the part of the beneficiary, or of some other person for his benefit; or 5. If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto (Sec. 9, Rule 76). Q: May an order denying probate of will be overturned after period to appeal has lapsed? Why? A: Yes. A petition for relief may be filed on the grounds of fraud, accident, mistake or excusable negligence within a period of 60 days after the petitioner learns of the judgment or final order and not more than 6 months after such judgment or final order was entered (Secs. 1&3, Rule 38). An action for annulment may also be filed on the ground of extrinsic fraud within 4 years from its discovery, and if based on lack of jurisdiction, before it is barred by laches or estoppel (Secs. 2&3, Rule 47). (2002 Bar Question) Q: What should the court do if, in the course of intestate proceedings, a will is found and it is submitted for probate? Explain. A: The intestate proceeding will be suspended until the will is probated. Consequently, all the powers of the administrator shall cease and the administrator shall forthwith surrender the letters to the court and render his account within such time as the court directs. (2002 Bar Question) Q: What is the Substantial Compliance Rule? A: If the will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud is obviated, said will should be admitted to probate (Art. 809, NCC). Note: Separate wills which contain essentially the same provisions and pertain to properties which in all probability are conjugal in nature, practical considerations dictate their joint probate (Vda. de Perez v. Tolete, GR 76714, June 2, 1994).

3. REPROBATE; REQUISITES BEFORE WILL PROVED OUTSIDE ALLOWED IN THE PHILIPPINES; EFFECT Q: What is reprobate? A: It is a special proceeding to establish the validity of a will proved in a foreign country (Bernardo, Special Proceedings, p. 48, 2006 ed.). Note: The venue for the petition for reprobate is the same as that provided in Rule 73. Q: What are the requisites before a will proven outside the Philippines be allowed here? A: 1. The testator was domiciled in a foreign country; 2. The will has been admitted to probate in such country; 3. The foreign court is, under the laws of said foreign country, a probate court with jurisdiction over the proceedings; 4. Proof of compliance with the law on probate procedure in said foreign country; 5. The legal requirements in said foreign country for the valid execution of the will have been complied with; 6. Filing a petition in the Philippines with copy of the will and of its decree of allowance; and 7. Notice and hearing (PCIB v. Escolin, G.R. No. 76714, June 2, 1994). Note: Under the doctrine of processual presumption, there must be evidence to prove the existence of foreign law, otherwise the court should presume that the law of the foreign country is the same as Philippine laws. The necessity of presenting evidence on the foreign laws upon which the probate in the foreign court is based is impelled by the fact that our courts cannot take judicial notice of them (Salud Teodoro Vda. de Perez v. Hon. Zotico A. Tolete, 232 SCRA 722). Q: What are the effects of (probate) reprobate? A: 1. The will shall have the same effect as if originally proved and allowed in the Philippines (Sec. 3, Rule 77); 2. Letters testamentary or administration with a will annexed shall extend to all estates of the testator in the Philippines (Sec. 4, Rule 77); and 3. Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to the will, so far as such will, may operate upon it, and the residue, if any, shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another country (Sec. 4, Rule 77). Note: As a general rule, administration extends only to the assets of the decedent found within the state or country where it was granted, so that an administrator appointed in one state or country has no power over property in another state or country (Herrera, Remedial Law, Vol. III-A, p. 77, 2005 ed.). Q: What is Ancillary Administration? A: When a person dies intestate owning property in the country of his domicile as well as in a foreign country, administration shall be had in both countries. That which is granted in the jurisdiction of the decedents domicile is termed the principal administration, while any other administration is termed ancillary administration (Ibid.).

E.

LETTERS TESTAMENTARY AND OF ADMINISTRATION

1. WHEN AND TO WHOM THE LETTERS OF ADMINISTRATION GRANTED

EXECUTOR Nominated by the testator and appointed by court

ADMINISTRATOR Appointed by the court in case the testator did not appoint an executor or if the executor refused appointment

Must present will to the court within 20 days after he knows of the death of the testator or after he knew that he was appointed as executor (if he obtained such knowledge after the death of the testator), unless the will has reached the court in any manner Testator may provide that he may serve without a bond (BUT court may direct him to give a bond conditioned only to pay debts) Compensation may be provided for by the testator in the will, otherwise Sec 7, Rule 85 will be followed

(administration with a will annexed) or if the will was disallowed or if the person did not make a will (intestate succession) No such duty.

Required unless exempted by law.

Compensation governed by Sec. Rule 85

is 7,

Q: Who can administer the estate? A: 1. Executor named by the testator in his will for the administration of his property after his death; 2. Administrator appointed by the court in accordance with the Rules or governing statutes to administer and settle the intestate testate; or 3. Administrator with a will annexed appointed by the court in cases when, although there is a will, the will does not appoint any executor, or if appointed, said person is either incapacitated or unwilling to serve as such. Q: Who may serve as executor or administrator? A: Any competent person may serve as executor or administrator. There may be several executors named in the will. Letters testamentary may issue to such of them as are competent, accept and give bond (Sec. 4, Rule 78). Note: If the named executor does not qualify, then an administrator may be appointed (Sec. 6, Rule 78). Q: Who are incompetent to serve as executor or administrator? A: 1. Minor; 2. Non-resident of the Philippines; and 3. Those who, in the opinion of the court, are unfit to execute the duties of the trust by reason of drunkenness, improvidence, want of understanding or integrity, or conviction of an offense involving moral turpitude (Sec. 1, Rule 78). Note: Court cannot add new causes of disqualification (Herrera, Remedial Law, Vol. III-A, p. 81, 2005 ed.).

Q: What authority is issued to the person who administers the estate? A: 1. Letters testamentary authority issued to an executor named in the will to administer the estate; 2. Letters of administration authority issued by the court to a competent person to administer the estate of the deceased who died intestate; or 3. Letters of administration with a will annexed authority issued by the court to a competent person to administer the estate of the deceased if the executor named in the will refused to accept the office, or is incompetent. 2. ORDER OF PREFERENCE Q: State the order of preference in granting letters of administration. A: If no executor is named in the will, or the executors are incompetent, refuse the trust, or fail to give the bond, or a person dies intestate, administration shall be granted to: 1. The surviving spouse or next of kin, or both, in the discretion of the court, or to such person as such surviving spouse or next of kin, requests to have appointed, if competent and willing to serve The principal creditors, if competent and willing to serve, if the surviving spouse or next of kin, or the person selected by them be incompetent or unwilling or if the surviving spouse or next of kin neglects for 30 days after the death of the person to apply for administration or to request that administration be granted to some other person Such other person as the court may select if there is no such creditor competent and willing to serve (Sec. 6, Rule 78).

2.

3.

Note: Order of preference may be disregarded for a valid cause. Administration may be granted to such other person as the court may appoint in case the persons who have the preferential rights to be appointed are not competent or are unwilling to serve (Villamor v. CA, 162 SCRA 574). Next of kin has been defined as those persons who are entitled by law to receive the decedents property (Regalado, Remedial Law Compendium, p. 46, 2008 ed.). Q: What is the rationale behind the order of preference in appointing an administrator? A: The underlying assumption behind this rule is that those who will reap the benefits of a wise, speedy and economical administration of the estate or on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the higher interest and most influential motive to administer the estate correctly (Gonzales v. Aguinaldo, G.R. No. 74769, Sept. 28, 1990). This is likewise the same consideration which the law takes into account in establishing the preference of the widow to administer the estate of her husband upon the latters death, because she is supposed to have an interest therein as a partner in a conjugal partnership [De Guzman v. Limcolioc, 67 Phil 404 (1939)]. Q: When may co-administrators be appointed? A: 1. To have the benefit of their judgment and perhaps at all times to have different interests represented (Gonzales vs. Aguinaldo et al., 140 SCRA 112 (1990)); 2. Where justice and equity demand that opposing parties or factions be represented in the management of the estate of the deceased (Vda. De Dayrit vs. Ramolete, 117 SCRA 608 (1982)); 3. Where the estate is large or, from any cause, an intricate and perplexing one to settle (Herrera, Remedial Law, Vol. III-A, p. 86, 2005 ed); 4. To have all interested persons satisfied and the representatives to work in harmony for the best interest of the estate (ibid); or 5. When a person entitled to the administration of an estate desires to have another competent person associated with him in the office (Gabriel v. CA, G.R. No. 101512, Aug. 7, 1992). The purpose of having co-administrators is to have the benefit of their judgment and perhaps at all times to have different interests represented, especially considering that in this proceeding they will respectively represent the legitimate and illegitimate groups of heirs to the estate (Gabriel v. CA, 212 SCRA 413, Aug. 7,1992).

3. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS FILING OF PETITION FOR ADMINISTRATION Q: Who may oppose the issuance of letters testamentary or administration? A: Any person interested in the will may file a written opposition (Sec. 1, Rule 79). Note: In order to be a party, a person must have material and direct, not indirect or contingent. (Herrera, Remedial Law, Vol. III-A 2005 ed., p. 91) He may attach thereto a petition for letters of administration and pray that letters be issued to himself, or to any competent person named in the opposition (Sec. 1, Rule 79). Earnest efforts of compromise between members of the same family as a condition precedent to the filing of a case in court applies only to suits or ordinary civil actions and not to special proceedings (Vda. de Manalo v. CA, GR 129242, January 16, 2001). Q: What are the grounds for opposing a petition for administration? A: Any interested person may by filing a written opposition, contest the petition on the ground of the: 1. Incompetency of the person for whom letters are prayed therein; or 2. Contestant's own right to the administration (Sec. 4, Rule 79). Note: Letters of administration may be granted to any qualified applicant, though it appears that there are other competent persons having better right to the administration, if such persons fail to appear when notified and claim the issuance of letters to themselves (Sec. 6, Rule 79). Q: Is the order of Appointment of Regular Administrator final? A: No. The order of appointment of a regular administrator is appealable. Where no notice is required by Sec. 3, Rule 79 of the Rules of Court has been given to persons believed to have an interest in the estate of the deceased person; the proceeding for the settlement of the estate is void and should be annulled. The requirement as to notice is essential to the validity of the proceeding in order that no person may be deprived of his right to property without due process of law (Herrera, Remedial Law, Vol. III-A, p. 94, 2005 ed.). Bonds of Executors and Administrators Q: When is bond required to be filed? A: GR: Before an executor or administrator enters upon the execution of his trust (Sec. 1, Rule 81). Note: The term and effectivity of bond do not depend on payment of premium and does not expire until the administration is closed. As long as the probate court retains jurisdiction of the estate, the bond contemplates a continuing liability (Luzon Surety v. Quebrar, G.R. No. L-40517, Jan. 31, 1984). XPN: The executor may serve without a bond if the testator so directs, or with only his individual bond, conditioned only to pay the debts of the testator (Sec. 2, Rule 81). Q: What are the conditions of the bonds? A: 1. Make within 3 months a true and complete inventory of the property of the deceased which came to his knowledge and possession; 2. Administer the estate and pay and discharge all debts, legacies and charges, including dividends declared by the court from the proceeds; 3. Render a true and just account within 1 year and when required by the court; 4. Perform all orders of the court (Ibid.). Q: When may the court require a further bond? A: 1. Change in circumstances of the executor or administrator or for other sufficient cause (Sec. 2, Rule 81); 2. Sale, mortgage, or encumbrance of the property of the estate conditioned that such administrator or executor will account for the proceeds of the sale or encumbrance (Sec. 7, Rule 89). Q: May the probate court order the forfeiture of the administrators bond?

A: Yes, because the execution or forfeiture of an administrators bond is deemed to be a necessary and incident of administration proceedings, as much as its filing and the fixing of its amount. Therefore, the probate court, may have the bond executed in the same proceedings (Phil. Trust Co. v. Luzon Surety Co., G.R. No. L-13031, May 30, 1961). Q: State the rule on bonds in case of joint executors or administrators. A: The court may take separate bonds from each or a joint bond from all (Sec. 3, Rule 81). 4. POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS; RESTRICTIONS ON THE POWERS Q: What are the rights of the executor or administrator of the deceased partners estate? A: 1. He shall at all times have access to, and may examine and take copies of books and papers relating to the partnership; 2. He can make invoices of the property belonging to the partnership, and the surviving partner or partners on request; and 3. The books, papers, and property in the partnerships hands or control shall be exhibited t o such executor or administrator (Sec. 1, Rule 84). Note: To exercise these rights, the executor or administrator must file his application with the probate court which must grant the same. Q: What should be done by the executor or administrator to freely exercise his rights and duties? A: He shall submit a written application to the court having jurisdiction of the estate (Sec. 1, Rule 84). Q: What are the general powers of an administrator or an executor? A: 1. To have access to, and examine and take copies of books and papers relating to the partnership in case of a deceased partner 2. To examine and make invoices of the property belonging to the partnership in case of a deceased partner 3. To maintain in tenantable repairs, houses and other structures and fences and to deliver the same in such repair to the heirs or devisees when directed so to do by the court 4. To make improvements on the properties under administration with the necessary court approval except for necessary repairs 5. To possess and manage the estate when necessary: i) For the payment of debts; and ii) For the payment of expenses of administration (Rule 84). Q: Is the right of an executor/administrator to the possession and management of property of the deceased absolute? A: No, it can only be exercised so long as it is necessary for the payment of debts and expenses of administration (Ruiz v. CA, G.R. No.118671, Jan. 29, 1996). Q: What are the restrictions on the powers of administrator or executor? A: 1. He cannot acquire by purchase, even at public or judicial action, either in person or mediation of another, the property under administration (Art. 1491 NCC, par. 3); 2. He cannot borrow money without authority from the court; 3. He cannot speculate with funds under administration; 4. He cannot lease the property under administration for more than 1 year; Note: The administrator has the power to enter into lease contracts involving the properties of the estate even without prior judicial authority and approval (Mananquil v. Villegas, A.M. No. 2430, Aug. 30, 1990). He cannot continue the business of the deceased unless authorized by the court; and He cannot profit by the increase or decrease in the value of the property under administration; He cannot exercise the right of legal redemption over a portion of the property owned in common sold by one of the other co-owners (Herrera, Remedial Law, Vol. III-A, pp. 116-117, 2005 ed.). 5. APPOINTMENT OF SPECIAL ADMINISTRATOR

5. 6. 7.

REGULAR ADMINISTRATOR Order of Appointment may be the subject of an appeal One of the obligations is to pay the debts of the estate Appointed when the deceased died intestate or did not appoint an executor in the will or the will was disallowed

SPECIAL ADMINISTRATOR Order of Appointment is interlocutory and hence not appealable Cannot pay the debts of the estate Appointed when there is delay in granting letters testamentary or administration

Q: When may a probate court appoint a special administrator? A: 1. When there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will (Sec. 1, Rule 80); or 2. When the executor or administrator is a claimant against the estate he represents (Sec. 6, Rule 86). The special administrator shall have the same powers as that of a general administrator. Note: Only one special administrator at a time may be appointed, since the appointment is merely temporary. When appointed, a special administrator is regarded, not as a representative of the agent of the parties suggesting the appointment, but as the administrator in charge of the estate, and in fact, as an officer of the court subject to the supervision and control of the probate court (Corona v. CA, 116 SCRA 316). Q: Why is there a need for appointing a special administrator? A: The principal object is to preserve the estate until it can pass into the hands of persons fully authorized to administer it for the benefit of the creditors and heirs (De Guzman v. Guadiz, G.R. No. L48585, Mar. 31, 1980). Q: What are the qualifications of a special administrator? A: These are not spelled out in the Rules of Court. Thus, the appointment should be within the sound discretion of the court. The fundamental and legal principles governing the choice of a regular administrator should also be taken into account in the appointment of a special administrator (Herrera, Vol. III-A, p. 99, 2005 ed.). Note: Notice through publication is still necessary for the appointment of a special administrator. (Herrera, Remedial Law, Vol. III-A, p, 96, 2005 ed.) Q: Does the order of preference in the appointment of regular administrators apply to the appointment of special administrators? A: No, but such order of preference may be followed by the judge in the exercise of sound discretion (Matias v. Gonzales, G.R. No. L- 13391, May 25, 1960). Q: Is the order appointing a special administrator appealable? A: No, it is an interlocutory order (Esler v. Tad-y, G.R. No. L-20902, Oct. 9, 1923). Q: What are the powers and duties of a special administrator? A: 1. Possess and take charge of the goods, chattels, rights, credits and estate of the deceased; 2. Preserve the same; 3. Commence and maintain suit for the estate; 4. Sell only: a. Perishable property; and b. Other property ordered sold by the court; 5. Pay debts only as may be ordered by the court (Sec. 2, Rule 80). 6. Submit an inventory and render an accounting of his administration as required by the terms of his bond (Sec 4, Rule 81). Note: While a special administrator may commence and maintain suits under Sec 2 Rule 80, he cannot be sued by a creditor for the payment of the debts of the deceased (De Gala v. Gonzales, et al. 53 Phil 104). Such suit must await the appointment of a regular administrator. Q: When do the powers of special administrator cease?

A: After the questions causing the delay are resolved and letters testamentary or administration are granted to executor or regular administrator (Sec. 1, Sec. 80). Note: An order appointing a special administrator is interlocutory and the court making the appointment retains control over it to modify, rescind, or revoke the same on sufficient grounds at any time before final judgment. No appeal lies from the appointment of a special administrator (Herrera, Remedial Law, Vol. III-A, p. 102, 2005 ed.). 6. GROUNDS FOR REMOVAL OF ADMINISTRATOR Q: What are the grounds for the removal of an executor or administrator? A: 1. Neglect to render an account and settle the estate according to law; 2. Neglect to perform an order or judgment of the court, or a duty expressly provided by the Rules; 3. Absconds; 4. Becomes insane; or 5. Becomes incapable or unsuitable to discharge the trust (Sec. 2, Rule 82). Note: These grounds are not exclusive. The position of the administrator is one of confidence and when the court finds that the administrator is not entitled to such confidence, it is justified in withdrawing the appointment and giving no valid efficacy thereto (Cobarrubias v. Dizon, G.R. No. L-225, Feb. 26, 1946). Q: What are the other grounds for removal of an executor or administrator? A: 1. Death; 2. Resignation; 3. An administrator who disbursed funds of the estate without judicial approval. (Cotia vs. Jimenez, 104 Phil. 960); 4. False representation by an administrator in securing his appointment (Cabarubbias vs. Dizon, 76 Phil. 209); 5. An administrator who holds an interest adverse to that of the estate or by his conduct showing his unfitness to discharge the trust (Garcia vs. Vasquez, 32 SCRA 490); 6. An administrator who has the physical inability and consequent unsuitability to manage the estate (De Borja vs. Tan, 93 Phil. 167). Note: An administrator is required to exercise reasonable diligence and act in entire good faith in the performance of that trust. Note: Temporary absence is not a ground for disqualification (Herrera, Remedial Law, Vol. III-A, p. 109, 2005 ed.) Q: Are the grounds for removal of executor or administrator the same for special administrator? A: No. The grounds for the removal of regular administrator do not apply strictly to the special administrator as he may be removed by the court on other grounds upon its discretion. Q: What is the status of the act made prior to the revocation, resignation, or removal of an executor or administrator? A: The effect of revocation of letters testamentary or of administration is to terminate the authority of the executor or administrator, but the acts of the executor or administrator, done in good faith prior to the revocation of the letters will be protected, and similar protection will be extended to rights acquired under a previous grant of administration [Vda. de Bacaling v. Laguda, et al., 54 SCRA 243 (1973)]. Q: Does the discovery of a will automatically terminate the letters of administration? A: No, until the will has been proved and allowed pursuant to Section 1, Rule 82 (De Parreno v. Aranzanso, G.R. No. L- 27657, Aug. 30, 1982). Q: What are the duties of administrator upon revocation of the letters? A: 1. Surrender the letters to the court; and 2. Render his account within such time as the court may direct ( Sec. 1, Rule 82).

Q: What are the powers of a new executor or administrator after the first one resigns or is removed? A: 1. To collect and settle the estate not administered; 2. To prosecute or defend actions commenced by or against the former executor or administrator; and 3. To recover execution on judgments in the name of former executor or administrator. An authority granted by the court to the former executor or administrator for the sale or mortgage of real estate may be renewed in favor of such person without further notice or hearing (Sec. 4, Rule 82). Note: The order of removal is appealable [Borromeo v. Borromeo, 97 Phil 549, 551 (1955)]. Q: Is the executor or administrator chargeable with all the estate and income of the deceased? A: GR: The executor or administrator is accountable for the whole estate of the deceased. XPN: He is not accountable for properties which never came to his possession. XPN to the XPN: When through untruthfulness to the trust or his own fault or for lack of necessary action, the executor or administrator failed to recover part of the estate which came to his knowledge (Sec. 1, Rule 85). Q: When is the executor or administrator liable for damages? A: 1. Neglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased (Sec. 5, Rule 85); 2. Neglects to pay over the money he has in his hands; 3. The value of the estate is lessened; 4. Unnecessary cost or interest accrues; and 5. The persons interested suffer loss (Sec. 6, Rule 85). Q: What are expenses of administration? A: They refer to those necessary for the management of the property, for protecting it against destruction or deterioration, and possibly for the production of fruits (De Guzman v. De Guzman-Carillo, G.R. No. L29466, May 18, 1978). Q. What are not considered as Necessary Expenses? A: 1. Expenses on the anniversary of the death of the deceased; 2. Expenses incurred by a presumptive heir for her appearance and that of her witnesses at the trial to oppose the probate of an alleged will; 3. Expenses for the settlement of the question as who are entitled to the estate left by the deceased; 4. Expenses incurred by the executor or administrator to procure a bond; 5. Personal expenses of the occupant of the heir of the family residences; 6. Expenses for stenographic notes, unexplained representation expenses (Herrera, Remedial Law, Vol. III-A, p.122, 2005 ed.) Q: What are the bases of compensation of the executor or administrator? A: 1. GR: That provided by the will, in case of an executor; XPN: Unless there is a written instrument filed in the court which he renounces all claim to the compensation provided by law. 2. If there is no compensation provided, the compensation shall be either: a. P4.00 per day for the time actually and necessarily employed; b. Commission upon the value of so much of the estate as comes into his possession and finally disposed of by him; or c. 2% of the first P5,000, 1% in excess of P5,000 up to P3,000, % in excess of P30,000 up to P100,000 and % in excess of P100,000 (Sec. 7, Rule 85). Q: How will the compensation be apportioned if there are two or more executors or administrators?

A: It shall be apportioned among them by the court according to the services actually rendered by them respectively (Sec. 7, Rule 85). Q: Can an administrator recover attorneys fees from the estate? A: No because his compensation is fixed by the rule and such compensation is in the nature of executors or administrators commissions, and never as attorneys fees (Sec. 7, Rule 85). Q: What is the remedy of a lawyer who was hired by executor/administrator in collecting attorneys fees? A: 1. Request the administrator to make payment and file an action against him in his personal capacity and not as administrator should he fail to pay; or 2. Petition in the testate or intestate proceeding asking the court, after notice to all persons interested, to allow his claim and direct the administrator to pay it as an expense of administration (Occena v. Marquez, G.R. No. L-28693, Sept. 30, 1974). Q: When should an executor or administrator render an account? A: GR: Within 1 year from the time of receiving letters testamentary or letters of administration. XPN: An extension of time is allowed for presenting claims against or paying the debts of the estate or for disposing of the estate (Sec. 8, Rule 85). Note: Before the account of an executor or administrator is allowed, notice shall be given to persons interested of the time and place of examination and allowing the same (Sec. 10, Rule 85). F. CLAIMS AGAINST THE ESTATE

Q: What is a claim? A: Claim refers to any debt or pecuniary demand against the decedents estate. These are money claims upon a liability contracted by the decedent before his death (Herrera, Remedial Law, Vol. III-A, p. 139, 2005 ed.). Q: What is absolute claim? A: It is one which, if contested between living persons, would be the proper subject of immediate legal action and would supply a basis of judgment for a sum certain (Moran, 1980 Ed. 487). Q: What is contingent claim? A: It is a conditional claim, which is subject to the happening of a future uncertain event (Buan v. Laya, G.R. No. L-7840, Dec. 24, 1957). Q: What is the duty of the court after granting letters testamentary or of administration? A: The court shall issue a notice requiring all persons having money claims to file them in the office of the clerk of court (Sec. 1, Rule 86). Note: Upon the death of a person, all his property is burdened with all his debts, his death creating an equitable lien thereon for the benefit of the creditors. Such lien continues until the debts are extinguished either by the payment, prescription, or satisfaction in one of the modes recognized by law. The purpose of presentation of claims against decedents of the estate in the probate court is to protect the estate of the deceased. Further, its primary object is to apprise the administrator and the probate court of the existence of the claim so that a proper and timely arrangement may be made for its payment in full or by pro rata portion in the due course of the administration (Herrera, Remedial Law, Vol. III-A, p. 131, 2005 ed.). 1. TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS Q: What is the time within which claims shall be filed? A: It should not be less than six (6) months nor more than twelve (12) months from the day of the first publication of the notice thereof. Such period when fixed by the probate court becomes mandatory. However, at any time before an order of distribution is entered, on application of a creditor who has failed to file his claim within the time previously limited, the court may, for cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding one (1) month (Sec. 2, Rule 86). The period prescribed in the notice to creditors is not exclusive; that money claims against the estate may be allowed at any time before an order of distribution is entered, at the discretion of the court for the cause and upon such terms as are equitable (Quisumbing vs. Guison, 76 Phil 730).

Note: The range of period specified in Sec.2 of Rule 86 is intended to give the court the discretion to fix the period for the filing of the claims. The probate court is permitted by the rule to set the period as long as it is within the limitation provided. Q: What is the purpose of the law in fixing the period within which to file the claims against the estate? A: The fixing of the period is intended to insure a speedy settlement of the affairs of the deceased person and the early delivery of the property to the person entitled to the same (Santos v. Manarang, 27 Phil 209, 203, citing Re: Estate of De Dios, 24 Phil 574). 2. STATUTE OF NON-CLAIMS Q: What is the statute of non-claims? A: It is a period fixed by the courts for the filing of claims against the estate for examination and allowance (Herrera, Remedial Law, Vol. III-A, p. 132, 2005 ed.). Q: When should claims be filed? A: GR: Within the time fixed in the notice which shall not be more than 12 months nor less than 6 months after the date of the first publication. Such period once fixed by the court is mandatory. Otherwise, the claims are barred forever. Note: Where an executor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the claims he has against the decedent, and mutual claims may be set off against each other in such action (Sec. 5, Rule 86). XPN: Belated claims. Q: What is the rule on Belated Claims? A: Belated claims may be filed even beyond the period fixed by the court: 1. On application of a creditor who has failed to file his claim within the time previously limited, at any time before an order of distribution is entered, the court may, for just causes, allow such claim to be filed not exceeding 1 month from the order allowing belated claims; or (Sec. 2 , Rule 86) 2. Where the estate filed a claim against the creditor or claimant who failed to present his claim against the estate within the period fixed by the probate court for the settlement of such claims, the creditor will be allowed to set up the same as a counterclaim to the action filed by the estate against him. Note: Statute of non-claims supersedes the Statute of Limitations insofar as the debts of deceased persons are concerned because if a creditor fails to file his claim within the time fixed by the court in the notice, then the claim is barred forever. However, both statute of non-claims and statute of limitations must concur in order for a creditor to collect. (Sikat vs. Vda. De Villanueva, G.R. No. L-35925, November 10, 1932) Q: What claims against the estate of the decedent must be presented in the probate court in the testate or intestate proceedings? A: Only claims which survive such as: 1. All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent; 2. All claims for funeral expenses; 3. Expenses for the last sickness of the decedent; or 4. Judgment for money against the decedent (Sec. 5, Rule 86). Note: Action on contractual claims such as favorable judgment obtained by the plaintiff in an action for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment may be filed against the estate of the decedent (Sec. 20, Rule 3). The enumeration is exclusive. A money claim arising from a crime or quasi-delict committed by the decedent is not included in the concept of claims which have to be filed under this rule but should be the subject of an action against the

executor or administrator (Sec 1, Rule 87) or against the heirs (Belamala v. Polimar L-24098, Nov 18, 1967). Action which survives like an action to recover real or personal property or an interest therein from the estate may be commenced against the executor or administrator under Rule 87. Q: What is the effect of failure to file the claims within the required period? A: As expressly provided by the rule, all claims not presented within the time herein provided are barred. Q: The trial court admitted to probate the holographic will of Alice and thereafter issued an order for all the creditors to file their respective claims against the estate. Alan filed a contingent claim for agent's commission due him in the event of the sale of certain parcels of land belonging to the estate and reimbursement for expenses incurred. The executrix of the estate moved for the dismissal of said money claim against the estate on the grounds that Alan failed to attach a certification against non-forum shopping. The trial court dismissed the case. Is the trial court correct? A: No. Under Sections 1 and 5, Rule 86 of the Rules of Court, after granting letters of testamentary or of administration, all persons having money claims against the decedent are mandated to file or notify the court and the estate administrator of their respective money claims; otherwise, they would be barred, subject to certain exceptions. 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, Alans contingent money claim, not being an initiatory pleading, does not require a certification against non-forum shopping (Sheker v. Estate of Alice O. Sheker, G.R. No.157912, Dec. 13, 2007). Q: Should taxes due and assessed after the death of the decedent be presented in the form of a claim? A: No. The court in the exercise of its administrative control over the executor or administrator may direct him to pay such taxes. Moreover, heirs even after distribution are liable for such taxes (Vera v. Fernandez, G.R. No. L-31364, Mar. 30, 1979.) CLAIMS EXTINGUISHED BY DEATH Personal to either of the parties ACTIONS WHICH SURVIVE An action to recover real or personal property or an interest therein, from the estate, or to enforce a lien therein, and action to recover damages for an injury to property, real or personal. (Sec. 1, Rule 87) Claim is not extinguished by death but shall be prosecuted as a money claim against the estate of the deceased Example: contractual money claim

Extinguished death

by

Examples: legal separation, annulment of marriage, declaration of nullity of marriage

3. CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE Q: What should be the action of the executor or administrator if he has a claim against the estate? A: He shall give notice to the court in writing and the court shall thereafter appoint a special administrator (Sec. 8, Rule 86).

Note: This is one of the instances where a special administrator is appointed. The special administrator will have authority to act only with respect to the claim of the regular administrator of the executor th (Regalado, Vol. 2, p. 83, 11 ed.). Q: What is the procedure in filing claims? A:

Q: Jericho loaned P5 Million from Carina. Said loan was secured by a real estate mortgage over a parcel of land owned by Jericho. Thereafter, Jericho died without satisfying the loan secured by the said mortgage. What are the remedies available to Carina to enforce her mortgage credit? A: 1. Waive the mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim; 2. Foreclose the mortgage judicially and prove any deficiency as an ordinary claim; 3. Rely on the mortgage exclusively, foreclosing the same at any time before it is barred by prescription without the right to claim for any deficiency (Sec. 7, Rule 86). Note: The above remedies are alternative. (Herrera, Remedial Law, Vol. III-A, p. 154, 2005 ed.)

4. PAYMENT OF DEBTS Q: Is execution the proper remedy to satisfy an approved claim? A: No, because: 1. A writ of execution is not allowed by the Rules of Court for the payment of debts and expenses of administration; 2. The proper procedure is for the court to order the sale of the property of the deceased to satisfy the claim (Herrera, Vol. III-A, p. 177, 2005 ed.) Q: How should the debts of the estate be paid? A: GR: The payment of the debts of the estate must be taken from the following order: 1. Portion or property designated in the will The debts of the testator, expenses of administration, or family expenses, shall be paid according to the provisions of the will. If such are insufficient, the properties not disposed of by will, if any, shall be appropriated for that purpose. 2. Personal property; 3. Real property (Sec. 2, Rule 88). Note: If there is still a deficiency, it shall be met by contributions of devisees, legatees, or heirs who have entered into possession of portions of the estate before the debts and expenses have been settled and paid (Secs. 2, 3, and 6, Rule 88). XPNS: On application by executor or administrator, with written notice to persons interested, and after hearing, real properties can be charged first even though the personal properties are not exhausted when: 1. The personal property is not sufficient to pay the debts, expenses of administration and legacies (Sec. 3, Rule 88); 2. The sale of such personal property would be detrimental to the participants of the estate (Sec. 3, Rule 88); 3. Sale of personal property may injure the business or other interests of those interested of the estate (Sec. 2, Rule 89); 4. The testator has not made sufficient provision for payment of such debts, expenses or legacies (Sec. 2, Rule 89); 5. The decedent was, in his lifetime, under contract, binding in law, to deed real property to beneficiary (Sec. 8, Rule 89); 6. The decedent during his lifetime held real property in trust for another person (Sec. 9, Rule 89). Q: How A: 1. 2. 3. shall the proceeds from sale of personal property be used? To pay the debts and expenses of administration; To pay legacies; and To cover expenses for the preservation of the estate (Sec. 1, Rule 89).

Q: How should contingent claims be paid? A: If the court is satisfied that a contingent claim duly filed is valid, it may order the executor or administrator to retain in his hands sufficient estate to pay such contingent claim when the same becomes absolute, or if the estate is insolvent, sufficient estate to pay a portion equal to the dividend of the other creditors (Sec. 4, Rule 88). Q: What must be satisfied before a contingent claim may be allowed by the court? A: 1. Duly filed within the 2 year period allowed for the creditors to present claims; 2. The claim is valid; and 3. The claim became absolute (Sec. 5, Rule 88). Q: What is the consequence if the contingent claim is not presented within the 2 year period after it becomes absolute? A: The assets retained in the hands of the executor or administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled to the same (Sec. 4, Rule 88). However, the assets so distributed may still be applied to the payment of the claim when established,

and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received from the property of the deceased. (Sec. 5, Rule 88) Note: If heirs have taken possession of portions of the estate before the debts have been settled, they shall become liable to contribute for the payment of debts and expenses, and the court may, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute (Sec. 6, Rule 88). The contingent claims must first have been established and allowed in the probate court before the creditors can file an action directly against the distributees (De Bautista v. De Guzman, L-28298, November 25, 1983). Q: What is the order of payment if estate is insolvent or assets are insufficient? A: The executor or administrator shall pay the debts according to the concurrence and preference of credits provided by Articles 1059 and 2239-2251 of the NCC (Sec. 7, Rule 88). Q: How should the estate in the Philippines of an insolvent non-resident be disposed of? A: It shall be disposed of that his creditors in and outside the Philippines may receive an equal share, in proportion to their respective credits (Sec. 9, Rule 88). Q: When and how should claims proved outside the Philippines against insolvent residents estate be paid? A: Claims proven outside the Philippines where the executor had knowledge and opportunity to contest its allowance may be added to the list of claims proved against the decedent in the Philippines and the estate will be distributed equally among those creditors (Sec. 10, Rule 88). Note: The benefits in the above provision shall not be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditors, according to their respective claims (Sec. 10, Rule 88). Q: When should the court authorize sale, mortgage or other encumbrance of estate to pay debts and legacies in other countries? A: When it appears from records and proceedings of a probate court of another country that the estate of the deceased in foreign country is not sufficient to pay debts and expenses, the court here may authorize the executor or administrator to sell, mortgage or encumber the property in the same manner as for the payment of debts and legacies in the Philippines (Sec. 5, Rule 89). G. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

1. ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND ADMINISTRATORS Q: What actions may be brought against the executor or administrator? A: Those claims which can proceed independently of the settlement proceeding such as: 1. Actions to recover real or personal property, or an interest therein, from the estate; 2. Enforcement of a lien; 3. Actions to recover damages for an injury to person or property, real or personal (Sec. 1, Rule 87). NOTE: When the demand is in favor of the administrator and the party against whom it is enforced is a third party, not under the courts jurisdiction, the demand cannot be by mere motion by the administrator, but an independent action against the third person. The demand cannot be made because third persons, not under the jurisdiction of the court are involved (Paula v. Ecsay, 97 Phil 617; Vide De la Cruz v. Camon, 16 SCRA 886, 888-889). Q: What action may be brought by the executor or administrator? A: Recovery or protection of the property or rights of the deceased, action for causes which survive (Sec. 2, Rule 87). Note: When an executor or administrator is appointed and assumes the trust, no action to recover the title or possession of lands or for damages done shall be maintained against him by an heir or devisee until there is an order of the court assigning the lands to such heir or devisee or until the time allowed for paying debts has expired (Sec. 3, Rule 87). The prohibition applies only to heirs or devisees and not to a

donee inter vivos who may file an action to compel the administrator to deliver the property donated ( Del Rosario v. Del Rosario, 2 Phil 321; Lopez v Olbes, 15 Phil 540). Q: What is the rule with respect to the right of the heirs to sue for the recovery of property of the estate during the pendency of administration proceedings? A: GR: The heirs have no legal standing to sue for recovery of property of the estate. (Herrera, Remedial Law, Vol. III-A, p. 167, 2005 ed.) XPN: 1. If the executor or administrator is unwilling or refuses to bring suit; and 2. When the administrator is alleged to have participated in the act complained of and he is made a party defendant (Herrera, Remedial Law, Vol. III-A, p. 168, 2005 ed.). Q: What is the concept of a supersedeas bond? A: It partakes the form of a security posted by the appealing party (who has lost the case in the lower court) to compensate the opposing party for the legal expenses in case it wins also in the higher (appellate) court. Q: What are the requisites in order that executor/administrator may commence and prosecute an action for the recovery of property, if the decedent fraudulently conveys property to defraud his creditors? A: 1. Application of the creditors; 2. Payment of cost and expenses by the creditors; and 3. Giving of security by the creditors to the executor or administrator (Sec. 9, Rule 87). 2. REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR RECOVERY OF FRAUDULENTLY CONVEYED BY THE DECEASED Q: What are the requisites before a creditor may bring an action for recovery of property fraudulently conveyed by the deceased? A: 1. There is a deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration; 2. In his lifetime, the deceased had made or attempted to make a fraudulent conveyance of his property or had so conveyed such property that by law, the conveyance would be void as against his creditors; 3. The subject of the attempted conveyance would be liable to attachment in his lifetime; 4. The executor or administrator has shown no desire to file the action or failed to institute the same within a reasonable time; 5. Leave is granted by the court to the creditor to file the action; 6. A bond is filed by the creditor; and 7. The action by the creditor is in the name of the executor or administrator (Sec. 10, Rule 87). Note: The creditor shall have a lien on the judgment recovered for costs and expenses. The last 3 requisites are unnecessary where the grantee is the executor or administrator himself, in which event, the action should be in the name of all the creditors (Sec. 10; Herrera, Remedial Law, Vol. III-A, p. 175, 2005 ed.). H. DISTRIBUTION AND PARTITION 1. LIQUIDATION Q: What is liquidation? A: Liquidation is the determination of all assets of the estate and payment of all debts and expenses (Herrera, Remedial Law, Vol. III-A, p. 206, 2005 ed.). . Q: Discuss the process for the distribution of the residue of the estate. A:

Note: Even if the testator stated in his will that he owes a certain person and ordered that the same be paid, if the estate is insolvent, the creditor shall not enjoy priority over other claimants. The provision in the will should only establish the claim of the creditor against the estate. He must still file his claim according to Section 9, Rule 86 and must comply with the statute of non-claims. Q: When is the order for distribution of residue made? A: GR: Order of distribution shall be made after payments of all debts, funeral expenses, expenses for administration, allowance of widow and inheritance tax (Sec. 1, Rule 90). XPN: If the distributees or any of them gives a bond conditioned for the payment of said obligation, the order of distribution may be made even before the payment of all debts, etc. (par. 2, Sec. 1, Rule 90). Note: The probate court loses jurisdiction over the settlement proceedings only upon payment of all debts and expenses of the obligor and delivery of the entire estate to all the heirs (Guilas v. Judge of CFI of Pampanga, G.R. No. L- 26695, Jan. 31, 1972). Q: When should declaration of heirship be made? A: It is only after, and not before, the payment of all debts, funeral expenses, charges of administration, allowances to the widow, and inheritance tax shall have been effected that the court should make the declaration of heirs or of such person as are entitled by law to the residue. It should however be made clear that what the court is enjoined from doing so 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 (Ngo The Hua v. Chung kiat Hua, 118 Phil 956, 9 SCRA 113). Q: What should the executor or administrator do if all the claims are paid or settled? A: The executor or administrator shall prepare the project of partition reflecting the residue of the estate and how it is to be distributed. However, this is not mandatory (Herrera, Remedial Law, Vol. III-A, p. 213, 2005 ed.). 2. PROJECT OF PARTITION Q: What is project of partition? A: It is a document prepared by the executor or administrator setting forth the manner in which the estate of the deceased is to be distributed among the heirs (Solivio v. CA, G.R. No. 83308, Feb. 12, 1990). It is merely a proposal for the distribution of the hereditary estate which the court may accept or reject (Herrera, Remedial Law, Vol. III-A, p. 213, 2005 ed.). Q: May an heir of the deceased sell his undivided share during the pendency of the estate proceedings without the prior approval of the probate court? A: Yes. An heir has the right to sell his undivided or ideal share of the estate, he being the co-owner with other heirs of the estate. Court approval is necessary only if specific property of the estate is sold (Heirs of Pedro Escanlar v. CA, G.R. No. 119777, Oct. 23, 1997). Q: Does the finality of the approval of the project of partition by itself alone terminate the probate proceeding? A: No. As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated (Estate of Ruiz v. CA, G.R. No. 118671, Jan. 29, 1996). 3. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE Q: What is the remedy of an heir who is entitled to the residue but was not given his share? A: 1. MOTION TO SET ASIDE THE DISTRIBUTION- If an heir appears after the court approved the project of partition, the heir must file a Motion to set aside the distribution with the court so that the court will not proceed with the distribution of the residue. The probate court shall determine whether such heir has a right to participate in the distribution of the residue. If it is proven that the heir has a right, the court may order the revision of the project of partition for its adjustment. 2. MOTION FOR THE RE- OPENING OF THE SETTLEMENT PROCEEDINGS-If the distribution has already been made, a motion for closure has already been granted, the heir must file a Motion for the re-opening of the settlement proceedings within the reglementary period, provided the order of closure has not yet become final and executory. (The period is within 30 days from the date the order of closure of the administration proceeding was served on the executor or administrator (Divinagracia vs. Rovira, 72 SCRA 307). ACCION REINVIDICATORIA- If the order of closure has already become final and executory (Vda. de Lopez v. Lopez, G.R. No. L-28602, Sept. 29, 1970).

3.

Q: When is title to property vested to the heirs? A: It is vested from finality of order of distribution. (Herrera, Remedial Law, Vol. III-A, p.214, 2005 ed.). Q: Is the order that determines distributive share appealable? A: Yes (Herrera, Remedial Law, Vol. III-A, p.214, 2005 ed.). 4. INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION Q: What are the instances when the probate court may issue writ of execution? A: GR: A probate court cannot issue a writ of execution. In the case of Aldamiz vs. Judge of CFI of Mindoro, 85 Phil. 228, a writ of execution is not the proper procedure allowed by the Rules of Court for the payment of debts and expenses of administration. The proper procedure is for the court to order the sale of personal estate or the sale or mortgage of real property of the deceased and all debts and expenses of the administration should be paid out of the proceeds of such sale or mortgage. The order for the sale or mortgage should be issued upon motion of the administrator

and with the written notice to all the heirs, legatees and devisees residing in the Philippines. And when the sale or mortgage is to be made, the regulations contained in Rule 89, Sec. 7 should be complied with. XPNS: 1. To satisfy the distributive shares of the devisees, legatees and heirs in possession of the decedents assets (Sec. 6, Rule 88); 2. To enforce payment of the expenses of partition (Sec. 3, Rule 90); and 3. To satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142). I. TRUSTEES 1. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR EXECUTOR/ ADMINISTRATOR Accounts are NOT under oath and except for initial and final submission of accounts, they shall be filed only at such times as may be required by the court Court that has jurisdiction may be MTC or RTC TRUSTEE Accounts must be UNDER OATH and filed ANNUALLY

May sell, encumber or mortgage property if it is necessary for the purpose of paying debts, expenses of administration or legacies or for the preservation of property or if sale will be beneficial to heirs, legatees or devisees (Upon application to the court with written notice to the heirs) Order of sale has NO TIME LIMIT Approved by the court to settle estate of the decedent NOT EXEMPTED from filing a bond even if such exemption is provided in the will (ratio: bond is only conditioned upon payment of debts) Services of executors or administrator is terminated UPON PAYMENT OF DEBTS of the estate and DISTRIBUTION of property to the heirs MUST PAY the debts of the estate

Court which has jurisdiction is the RTC if appointed to carry into effect provisions of a will; if trustee dies, resigns or is removed in a contractual trust, RTC has jurisdiction in the appointment of new trustee May sell or encumber property of the estate held in trust if necessary or expedient or upon order of the court

Order of sale has NO TIME LIMIT Appointed to carry into effect the provisions of a will or written instrument (contractual trust) May be EXEMPTED from filing a bond if provided in the will or if beneficiaries requested such exemption Trusteeship is terminated upon TURNING OVER THE PROPERTY to beneficiary after expiration of the trust (period may be provided for in the will or trust contract) NO OBLIGATION TO PAY the debts of the beneficiaries or trustor

Q: What is a trust? A: A legal relationship between one person having an equitable ownership in property and another person owning the legal title to such property. Q: Who is a trustee? A: A trustee is one who is appointed to carry out the provision of the will or any written instrument executed by the trustor. 2. CONDITIONS OF THE BOND Q: Is the trustee required to file a bond? A: GR: Yes. Neglect of trustees to file a bond will be interpreted by the court as resignation or decline to accept the trust. XPN: If requested by the testator or by all persons beneficially interested in the trust, the trustee may be exempted from filing a bond. But the court may cancel such exemption anytime (Sec. 5, Rule 98). Q: What are the conditions of the bond? A: 1. That the trustee will make and return to the court, at such time as it may order, a true inventory of all the estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge; Note: 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. 2. That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law 3. and the will of the testator or the provisions of the instrument or order under which he is appointed; 4. That he will render upon oath at least once a year until his trust is fulfilled a true account of the property in his hands and of the management and disposition thereof, and such other accounts as the court may order; and 5. That at the expiration of his trust he will settle his accounts in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the persons entitled thereto (Sec. 6, Rule 98). 3. REQUISITES FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE Q: What are the requisites for the removal or resignation of a trustee? A: 1. Petition filed by parties beneficially interested; 2. Notice to trustee; and 3. Hearing (Sec. 8, Rule 98). 4. GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE Q: What are the grounds for removal or resignation of a trustee? A: 1. Removal appears essential in the interest of petitioners; 2. Insanity; 3. Incapability of discharging the trust; or 4. Unsuitability (Sec. 8, Rule 98). Note: A trustee may resign his trust if it appears to the court proper to allow such resignation (Sec. 8, Rule 98). 5. EXTENT OF AUTHORITY OF TRUSTEE Q: What is the extent of authority of a trustee? A: Rule 98 applies only to express trust, one which is created by a will or a written instrument. Note: 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 Republic of the Philippines, under whose courts he was appointed. Remotely, the rule is also based on the rule in international law of the sovereign equality of states (Herrera, Remedial Law, Vol. III-A, p. 452, 2005 ed.). Q: When is there a testamentary trust?

A: If a testator has omitted in will to appoint a trustee in the Philippines, and if such appointment is necessary to carry into effect the provisions of the will. After notice to all persons interested, the proper RTC may appoint a trustee who shall have the same rights, powers, and duties, and in whom the estate shall vest, as if he had been appointed by the testator. Note: The power to appoint a trustee is discretionary with the court before whom application is made, and the appellate court will decline to interfere except in cases of clear abuse (Herrera, Remedial Law, Vol. III-A, p. 449, 2005 ed.). Q: Are notice to and consent of beneficiaries essential for the creation of the trust? A: No. The fact that beneficiaries were not notified of the existence of the trust or that the latter have not been given an opportunity to accept it is of no importance for it is not essential to the existence of a valid trust and to the right of the beneficiaries to enforce the same that they had knowledge thereof at the time of its creation. Neither is it necessary that the beneficiary should consent to the creation of the trust (De Leon, et. al v. Molo-Peckson, et al., G.R. No.L-17809, Dec. 29, 1962). Q: When is there a contractual trust? A: When a trustee under a written instrument declines, resigns, dies, or is removed before the objects of the trust are accomplished, and no adequate provision is made in such instrument for supplying the vacancy after due notice to all persons interested, the proper RTC may appoint a new trustee to act alone or jointly with the others, as the case may be. Q: Will the non-acceptance by trustee result in the failure of the trust? A: GR: No. A trust will never fail for want of a trustee. XPN: Where the trust is purely personal (Herrera, Remedial Law, Vol. III-A, p. 451, 2005 ed.). Q: Can the possession of the trustee of the property ripen into ownership? A: GR: An action to compel a trustee to convey property registered in his name in trust for the benefit of the cestui qui trust does not prescribe. The trustees possession is not adverse and therefore cannot ripen into title by prescription. XPN: Prescription may arise where there is adverse possession of the property. To constitute adverse possession, the following must be present: 1. 2. 3. That the trustee has performed unequivocal acts amounting to an ouster of the cestui qui trust; That such positive acts of repudiation had been made known to the cestui qui trust; and That the evidence thereon should be clear and conclusive ( Ceniza vs. CA, 181 SCRA 552). J. ESCHEAT Q: What is escheat? A: It is a French or Norman term meaning chance or accident. It is the reversion of property to the State in consequence of want of any individual competent to inherit. Escheat is a proceeding whereby the real or personal property of a deceased person in the Philippines, become the property of the state upon his death, without leaving any will or legal heirs (Herrera, Remedial Law, Vol. III-A, p. 225, 2005 ed.). Note: Escheat is a special proceeding commenced by petition. It is a substantial right of the state and is not a claim based on charity, gratuity or unearned benefit ( Ibid.). Q: Is the right to escheat waivable? A: Yes. The right to escheat may be waived, either expressly or impliedly (Herrera, Remedial Law, Vol. III-A, p. 229, 2005 ed.). Q: What is the basis of the states right to receive property in escheat proceedings? A: In the order of succession under the Civil Code, the state is the last heir of the decedent. Q: Who and where may an escheat proceeding be filed? A: The Solicitor General or his representative in behalf of the Republic of the Philippines, may file a petition in the Court of First Instance (now RTC) of the province where the deceased last resided or in which he had estate, if he resided out of the Philippines, setting forth the facts, and praying that the estate of the deceased be declared escheated (Sec. 1, Rule 91). 1. WHEN TO FILE Q: What are the three instances of escheat?