Page 1 of 69

SPECIAL PROCEEDINGS
DEFINITION:
A special proceeding is a remedy by which a party seeks to establish a status, a right or a
particular fact. (Section (c), Rule 1)
The term special proceeding may be defined as an application or proceeding to establish
the status or right of a party, or a particular fact. Usually, in special proceedings, no formal
pleadings are required unless the statute expressly so provides and the remedy is granted
generally upon an application or motion. (Natcher vs. CA, G.R. No. 133000, October 2,
2001)
A special proceeding, by which a party seeks to establish a status, right, or a particular
fact, has one definite party, who petitions or applies for a declaration of a status, right, or
particular fact, but no definite adverse party. (Montaer vc CA, G.R. No. 174975,
January 20, 2009)
Are the enumerations under Sec. 1, Rule 72 exclusive?
The list under Section 1, Rule 72 is not exclusive. Any petition which has for its main
purpose the establishment of a status, right or a particular fact may be included as special
proceeding. (Festin, Special Proceedings, A Foresight to the Bar Exam: Question
and Answer Noted, Bar Questions, Cases and Updated Laws, 2011)
What are some of the cases which are considered special proceeding?
1. Declaration of Nullity of Marriage;
2. Annulment of Marriage
3. Insolvency proceedings
4. Proceeding for the issuance of writ of amparo
5. Proceedings for the issuance of writ of habeas data
6. Alternative Dispute Resolution proceedings;
7. Presumptive death
Can a special proceeding be joined with ordinary civil actions?
No, by express provision of Sec. 5, Rule 2 which requires that the joinder of causes of action
must not involve special civil actions or actions governed by special rules, (which includes
special proceedings)
Specific rules on settlement prevail over general rules
We read with approval the CAs use of statutory construction principle of lex specialis
derogate generali, leading to the conclusion that the specific provisions of Section 5, Rule 86
of the Rules of Court should prevail over the general provisions of Section 11, Rule 6 of the
Rules of Court; the settlement of the estate of deceased persons (where claims against the
deceased should be filed) is primarily governed by the rules on special proceedings, while
the rules provided for ordinary claims, including Section 11, Rule 6 of the Rules of Court,
merely apply suppletorily. (Metropolitan Bank & Trust Company v. Absolute
Management Corporation, G.R. No. 170498. January 9, 2013)
4.1. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESS
A special proceeding for the settlement of an estate is filed and intended to settle the entire
estate of the deceased is obvious and elementary ( Vda. De Reyes vs. CA, G.R. No. L47027 January 27, 1989). Page 2 of 69

Probate of the will takes precedence over intestate proceedings: Effect if probate
of the will is disapproved:
If in the course of intestate proceedings pending before a court of first instance it is found it
that the decedent had left a last will, proceedings for the probate of the latter should replace
the intestate proceedings even if at that stage an administrator had already been appointed,
the latter being required to render final account and turn over the estate in his possession to
the executor subsequently appointed but this is without prejudice to the fact that should the
alleged last will be rejected or is disapproved, the proceeding shall continue as intestacy.
(Uriarte vs CFI Of Negros, G.R. Nos. L-21938-39 May 29, 1970)
Insolvency proceedings and settlement are actions in rem:
Insolvency proceedings end settlement of a decedents estate is both proceedings in rem
which are binding the whole world. Consequently, a liquidation of similar import or other
equivalent general liquidation must also necessarily be a proceeding in rem so that all
interested persons whether known to the parties or not may be bound by such proceeding.
(Philippine Savings Bank vs Lantin, G.R. No. L-33929. September 2, 1983.)
4.1. 1. JURISDICTION OVER SETTLEMENT OF THE ESTATE.
The Regional Trial Court has jurisdiction over proceedings for the settlement of the estate
of a deceased person (probate proceedings) where the gross value of the estate
exceeds P300,000 and in Metro Manila where the gross value of the estate exceeds
P400,000. Where the gross value does not exceed P300,000 or P400,000 it would be
the Municipal Trial Court which would have jurisdiction. (BP 129 and RA 7691)
4.1. 2 VENUE IN JUDICIAL SETTLEMENT OF ESTATE
The matter of venue, or the particular Court of First Instance where the special proceeding
should be commenced, is regulated by former Rule 75, Section 1 of the Rules of Court, now
Section 1, Rule 73 of the Revised Rules of Court, which provides that the estate of a
decedent inhabitant of the Philippines at the time of his death, whether a citizen or an alien,
shall be in the court of first instance in the province in which he resided at the
time of his death, and if he is an inhabitant of a foreign country, the court of first
instance of any province in which he had estate. (Uriarte vs CFI Of Negros, G.R.
Nos. L-21938-39 May 29, 1970)
Place of residence of the deceased is for the determination of venue:
The place of residence of the deceased is not an element of jurisdiction over the subjectmatter but merely of venue. And it is upon this ground that in the new Rules of Court the
province where the estate of a deceased person shall be settled is properly called "venue".
(Cuenco vs CA, G.R. No. L-24742 October 26, 1973)
The place of residence of the deceased in settlement of estates, probate of will, and
issuance of letters of administration does not constitute an element of jurisdiction over the
subject matter. As it is merely constitutive of venue (Fule vs. CA, L-40502, November 29,
1976).
Venue in settlement of the estate waivable:
It is well settled in this jurisdiction that wrong venue is merely a waiveable procedural
defect. Moreover, it must be remembered that this Court is not inclined to annul proceedings
regularly had in a lower court even if the latter was not the proper venue therefor, if the net
result would be to have the same proceedings repeated in some other court of similar
jurisdiction; more so in a case like the present where the objection against said proceedings
is raised too late. (Uriarte vs CA, G.R. Nos. L-21938-39 May 29, 1970) Page 3 of 69

Exclusionary rule on venue in settlement of the estate:

Even assuming that there is concurrent venue among the Regional Trial Courts of the places
where the decedent has residences, the Regional Trial Court first taking cognizance of the
settlement of the estate of the decedent, shall exercise jurisdiction to the exclusion of all
other courts (Section 1, Rule 73). (Vda. De Chua vs CA. G.R. No. 116835 March 5,
1998)
4.1. 3. EXTENT OF JURISDICTION OF PROBATE COURT
Coverage on the extent of the power of the probate court: Issue of ownership not
included:
The probate jurisdiction of the former court of first instance or the present regional trial
court relates only to matters having to do with the settlement of the estate and probate of
wills of deceased persons, and the appointment and removal of administrators, executors,
guardians and trustees and does not extend the jurisdiction of a probate court to the
determination of questions of ownership that arise during the proceeding. The parties
concerned may choose to bring a separate action as a matter of convenience in the
preparation or presentation of evidence. (Ramos vs CA, G.R. No. 42108 December 29,
1989)
Jurisdiction of probate court to determine whether property belongs to conjugal
partnership or exclusive ownership of a party
In the case now before us, the matter in controversy is the question of ownership of certain
of the properties involved whether they belong to the conjugal partnership or to the
husband exclusively. This is a matter properly within the jurisdiction of the probate court
which necessarily has to liquidate the conjugal partnership in order to determine the estate
of the decedent which is to be distributed among his heirs who are all parties to the
proceedings. (Leo C. Romero and David Amando C. Romero vs. Hon. Court of
Appeals, Aurora C. Romero and Vittorio C. Romero, G.R. No. 188921, April 18,
2012)
Probate court has a special and limited jurisdiction:
It must be emphasized that 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 civil action. (Vda. De Manalo vs. CA, G.R. No.
129242. January 16, 2001)
The authority of the Regional Trial Court, sitting, albeit with limited jurisdiction, as a probate
court over the estate of deceased individual, is not a trifling thing. The court's jurisdiction,
once invoked, and made effective, cannot be treated with indifference nor should it be
ignored with impunity by the very parties invoking its authority. (Romero vs CA, G.R. No.
188921, April 18, 2012)
Issues that may be resolved by the probate court:
In testament to this, it has been held that it is within the jurisdiction of the probate court to
(1) approve the sale of properties of a deceased person by his prospective heirs before final
adjudication; (2) to determine who are the heirs of the decedent; (3) the recognition of a
natural child; (4) the status of a woman claiming to be the legal wife of the decedent; the
legality of disinheritance of an heir by the testator; and (5)to pass upon the validity of a
waiver of hereditary rights. (Romero vs CA, G.R. No. 188921, April 18, 2012)
Determination of heir an issue resolvable by probate court
While the foregoing allegations, if admitted to be true, would consequently warrant the
reliefs sought for in the said complaint, the rule that the determination of a decedents
lawful heirs should be made in the corresponding special proceeding precludes the RTC, in
an ordinary action for cancellation of title and reconveyance, from granting the same. In the
case of Heirs of Teofilo Gabatan v. CA, the Court, citing several other precedents, held that
the determination of who are the decedents lawful heirs must be made in the Page 4 of 69

proper special proceeding for such purpose, and not in an ordinary suit for recovery of
ownership and/or possession, as in this case:
Jurisprudence dictates that the determination of who are the legal heirs of the
deceased must be made in the proper special proceedings in court, and not in an
ordinary suit for recovery of ownership and possession of property. This must take
precedence over the action for recovery of possession and ownership. The Court has
consistently ruled that the trial court cannot make a declaration of heirship in the civil action
for the reason that such a declaration can only be made in a special proceeding. Under
Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as one by which
a party sues another for the enforcement or protection of a right, or the prevention or
redress of a wrong while a special proceeding is a remedy by which a party seeks to
establish a status, a right, or a particular fact. It is then decisively clear that the declaration
of heirship can be made only in a special proceeding inasmuch as the petitioners here are
seeking the establishment of a status or right. (Heirs of Magdaleno Ypon vs. Gaudioso
Ponteras Ricaforte a.k.a. Gaudioso E. Ypon, and The Register of Deeds of Toledo
City., G.R. No. 198680, July 8, 2013)
Nature of the determination of issue of ownership in probate not conclusive
merely provisional:
The probate court may pass upon the title thereto but such determination is not conclusive
and is subject to the final decision in a separate action regarding ownership which may be
instituted by the parties. (Reyes vs Mosqueda, G.R. No. L-45262 July 23, 1990)
The jurisprudence and rule are both to the effect that the probate court "may" provisionally
pass upon the question of exclusion, not "should". The obvious reason is the probate court's
limited jurisdiction and the principle that questions of title or ownership, which result to
inclusion in or exclusion from the inventory of the property, can only be settled in a separate
action. (Pio Baretto vs. Aa, G.R. No. L-62431-33 August 31, 1984)
It cannot but be conceded that the limited jurisdiction of a probate court prohibits it from
determining rights to property left by a decedent which depends on the contract (Goodin v.
Casselman 200 N.W. 94, 51 N.D. 543).
However, actions of the probate court, in the case at bar, do not refer to the adjudication of
rights under the contract entered into by the deceased during his lifetime. It is to be noted
that the dealings of the respondent with the court arose out of the latter's bid to sell
property under its authority to sell, mortgage or otherwise encumber property of the estate
to pay or settle against the estate (Rule 89, Revised Rules of Court).
"[A] probate court or one in charge of proceedings whether testate or intestate cannot
adjudicate or determine title to properties claimed to be a part of the estate and which are
claimed to belong to outside parties. All that the said court could do as regards said
properties is to determine whether they should or should not be included in the inventory or
list of properties to be administered by the administrator. "( De Leon vs. CA, G.R. No.
128781, August 6, 2002)
Although generally, a probate court may not decide a question of title or ownership, yet if
the interested parties are all heirs, or the question is one of collation or advancement, or the
parties consent to the assumption of jurisdiction by the probate court and the rights of third
parties are not impaired, then the probate court is competent to decide the question of
ownership. (Romero vs CA, G.R. No. 188921, April 18, 2012) Page 5 of 69

4.1.4. POWERS AND DUTIES OF PROBATE COURT

In probate proceedings, the court:
a) Orders the probate of the will of the decedent (Sec. 3, Rule 77);
b) Grants letters of administration of the party best entitled thereto or to any qualified
applicant (Sec. 5, Rule 79);
c) Supervises and control all acts of administration;
d) Hears and approves claims against the estate of the deceased (Sec. 11, Rule 86);
e) Orders payment of lawful debts (Sec. 11, Rule 88);
f) Authorizes sale, mortgage or any encumbrance of real estate (Sec. 2, Rule 89);
g) Directs the delivery of the estate to those entitled thereto (Sec. 1, Rule 90);
h) Issue warrants and processes necessary to compel the attendance of witnesses or to
carry into effect their orders and judgments, and all other powers granted them by law (Sec.
3, Rule 73);
i) If a person defies a probate order, it may issue a warrant for the apprehension and
imprisonment of such person until he performs such order or judgment, or is released (Sec.
3, Rule 73).
Power of supervision and control of the probate court:
"The court which acquires jurisdiction over the properties of a deceased person through the
filing of the corresponding proceedings, has supervision and control over the said
properties, and under the said power, it is its inherent duty to see that the inventory
submitted by the administrator appointed by it contains all the properties, rights and credits
which the law requires the administrator to set out in his inventory. In compliance with this
duty the court has also inherent power to determine what properties, rights and credits of
the deceased should be included in or excluded from the inventory. (De Leon vs CA, G.R.
No. 128781, August 6, 2002)
The court acts as trustee and as such, should jealously guard the estate and see to it that it
is wisely and economically administered, not dissipated (Timbol vs. Cano, 111 Phil. 923,
G.R. No. L-15445, April 29, 1961).
Should an heir or person interested in the properties of a deceased person duly call the
courts attention to the fact that certain properties, rights or credits have been left out in the
inventory, it is likewise the courts duty to hear the observations, with power to determine if
such observations should be attended to or not and if the properties referred to therein
belong prima facie to the intestate, but no such determination is final and ultimate in nature
as to the ownership of the said properties. (De Leon vs CA, G.R. No. 128781, August 6,
2002)
4.2. SUMMARY SETTLEMENT OF ESTATES
General rule:
When a person dies leaving property, the same should be JUDICIALLY ADMINISTERED and the
competent court should appoint a qualified administrator, in the order established in Section
6, Rule 78, in case the deceased left no will, or in case he had left one, should he fail to
name an executor therein. (Pereira vs CA, G.R. No. L-81147 June 20, 1989)
Exceptions:
1. Extrajudicial settlement (Section 1, Rule 74) 2. Summary settlement of estates of small
value (Section 2, Rule 74)
4.2.1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS, WHEN
ALLOWED Page 6 of 69

As a general rule, when a person dies living property in the Philippine Islands, his property
should be judicially administered and the competent court should appoint a qualified
administrator, or in case the deceased left no will, or in case he had left one should he fail to
name an executor therein. This rule, however, is subject to the exceptions, such as when the
heirs are all of lawful age and there are no debts there is no reason why the estate should be
burdened with the cost and expenses of an administrator. (Pereira vs CA, G.R. No. L81147 June 20, 1989 citing Utulo vs. Pasion vda. De Garcia, 66 Phil. 303, G.R. No.
45904, September 30, 1938)
This court repeatedly held that when a person dies without leaving pending obligations to be
paid, his heirs, whether of age or not, are not bound to submit the property to a judicial
administration and the appointment of an administrator are superfluous and unnecessary
proceedings (Fule vs CA, G.R. No. L-40502 November 29, 1976)
If the intention were otherwise the framer of the rule would have employed the word shall as
was done in other provisions that are mandatory in character. Note that the word may is
used not only once but in the whole section which indicates an intention to leave the matter
entirely to the discretion of the heirs. (Arcilla vs Montejo, G.R. No. L-21725, November
29, 1968)
It should be noted that recourse to an administration proceeding even if the estate has no
debts is sanctioned only if the heirs have good reasons for not resorting to an action for
partition. Where partition is possible, either in or out of court, the estate should not be
burdened with an administration proceeding without good and compelling reasons. (Pereira
vs CA, G.R. No. L-81147 June 20, 1989)
Effect of Exclusion of Heirs-Agreement null and void
Hence, in the execution of the Extra-Judicial Settlement of the Estate with Absolute Deed of
Sale in favor of spouses Uy, all the heirs of Anunciacion should have participated.
Considering that Eutropia and Victoria were admittedly excluded and that then minors Rosa
and Douglas were not properly represented therein, the settlement was not valid and
binding upon them and consequently, a total nullity.
Section 1, Rule 74 of the Rules of Court provides:
SECTION 1. Extrajudicial settlement by agreement between heirs. x x x no extrajudicial
settlement shall be binding upon any person who has not participated therein or had no
notice thereof. x x x (emphasis supplied). (Neri, at al. vs. Heirs of Hadji Yusop Uy and
Julpha Ibrahim Uy., G.R. No. 194366, October 10, 2012)
4.2.2. TWO-YEAR PRESCRIPTIVE PERIOD
Extrajudicial settlement is an ex-parte proceeding:
The procedure outlined in Section 1 of Rule 74 of extrajudicial settlement, or by affidavit, is
an ex parte proceeding. It cannot by any reason or logic be contended that such settlement
or distribution would affect third persons who had no knowledge either of the death of the
decedent or of the extrajudicial settlement or affidavit, especially as no mention of such
effect is made, either directly or by implication. (Sampilo vs CA, G.R. No. L-10474,
February 28, 1958)
Two (2) year prescriptive period applies only persons who knew or participated in
the extrajudicial settlement:
The provisions of Section 4 of Rule 74, barring distributees or heirs from objecting to an
extrajudicial partition after the expiration of two years from such extrajudicial partition, is
applicable only to persons who have participated or taken part or had notice of the
extrajudicial partition, and, in addition, when the provisions of Section 1 of Rule 74 have
been strictly complied with. There is nothing therein, or in its source Page 7 of 69

which shows clearly a statute of limitations and a bar of action against third persons.
(Sampilo vs CA, G.R. No. L-10474, February 28, 1958)
4.2.3. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR
If there is only one heir, he may adjudicate to himself the entire estate by means of an
affidavit filed in the office of the register of deeds. The parties to an extrajudicial settlement,
whether by public instrument or by stipulation in a pending action for partition, or the sole
heir who adjudicates the entire estate to himself by means of an affidavit shall file,
simultaneously with and as a condition precedent to the filing of the public instrument, or
stipulation in the action for partition, or of the affidavit in the office of the register of deeds,
a bond with the said register of deeds, in an amount equivalent to the value of the personal
property involved as certified to under oath by the parties concerned and conditioned upon
the payment of any just claim that may be filed under Section 4 of this rule. It shall be
presumed that the decedent left no debts if no creditor files a petition for letters of
administration within two (2) years after the death of the decedent. (Sec.1, Rule 74)
4.2.4. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE, WHEN ALLOWED
Factors to consider in the summary settlement of the estate of small value:
a) WE uniformly held that for the court to acquire jurisdiction in a petition for summary
settlement of estate under the rules, the requirement that the amount of the estate involved
should not exceed P10,000,00 (P6,000.00 under the old rules) is jurisdictional. (Del Rosario
v. Cunanan, L-37903, March 30, 1977);
b) Decedent died testate or intestate;
c) Petition filed by an interested person;
d) Notice published at least once a week for 3 consecutive weeks in a newspaper of general
circulation;
e) Hearing of petition held not less than 1 month nor more than 3 months from the date of
the LAST publication of notice;
f) Payment of such debts of the estate as the court shall find to be due;
g) The order of partition or award, if it involves real estate, recorded in the register of deeds;
and
h) Bond filed with the register of deeds in an amount to be fixed by the court.
Bond not required in case when only real property is involved:
No bond is necessary when only real estate is involved because the lien as recorded is
sufficient security for any claim which may be filed under Sec 4, that is, when an heir or
other person has been unduly deprived of his lawful participation in the estate.
4.2.5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRAJUDICIAL SETTLEMENT OF
ESTATE
Binding effects of extra-judicial settlement:
An extrajudicial settlement despite the publication shall not be binding on any person who
has not participated therein or who had no notice of death of the decedent. this is because
the procedure in section 1, rule 74 is an ex parte proceeding (Sampilo vs CA, G.R. No. L10474, February 28, 1958)
A SUMMARY SETTLEMENT is likewise NOT BINDING upon heirs or creditors who were not
parties therein or had no knowledge thereof.
REMEDIES OF AN EXCLUDED CREDITOR:
1. Proceed Against the Bond (Section 4, Rule 74) Page 8 of 69

a) The unpaid creditor MAY PROCEED against the bond by filing, WITHIN 2 YEARS, a motion
for the payment of his credit in the court wherein such summary settlement was had.
b) AFTER the lapse of the 2 year period, the creditor may NO LONGER proceed against the
bond, BUT can institute an ordinary action against the distributees within the statute of
limitations.
2. Petition for Letters of Administration
3. Action to annul a deed of extrajudicial settlement on the ground of fraud should be
filed within four years from the discovery of fraud. (Regalado, 2008)
4. Proceed Against the Real Property
a) The lien subsists for 2 years.
b) The 2-year lien upon the real property distributed by extrajudicial or summary settlement
shall be annotated on the title issued to the distributees and after 2 years will be cancelled
by the register of deeds without need of court order (LRC Circular 143)
5) Ordinary Civil Action
REMEDIES OF AN EXCLUDED HEIR:
1) Action to compel settlement of estate(Section 4, Rule 74)
2) Action for rescission on the ground of lesion (Art. 1381, par. 1, NCC) Prescriptive period is
4 years
3) Accion Reivindicatoria
4)10 years, Implied Trust. Annulment on the ground of fraud
When does the prescriptive period of four (4) years begin to run?
Prescriptive period is 4 years. The period of four (4) years therein prescribed did not begin to
run until actual discovery of the fraud perpetrated by respondents, which, it is
claimed, took place in 1956 or 1957; and that accordingly, said period had not expired when
the present action was commenced on November 4, 1958. (Gerona vs. De Guzman, Gr L19060, 1964)
PERIOD FOR CLAIM OF MINOR OR INCAPACITATED PERSON
If on the date of the expiration of the period of two (2) years prescribed in the preceding
section 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 (1) year after such
disability is removed. (Section 5, Rule 75)
4.3. PRODUCTION AND PROBATE OF WILL
What is probate of the will?
A judicial act whereby an instrument is adjudged valid and is ordered to be recorded. It is the
statutory method of establishing the proper execution of the instrument and giving notice of
its contents. The probate of a will by the court having jurisdiction thereof is considered as
conclusive as to its due execution and testamentary capacity of the testator (Mercado vs.
Santos, No. 45629, 22 September 1938).
4.3.1. NATURE OF PROBATE PROCEEDING:
The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil.
249; Baluyot vs. Panio, L-42088, May 7, 1976, 71 SCRA 86). Page 9 of 69

Consolidation of the intestate proceedings with testate proceedings:

It is anomalous that the estate of a person who died testate should be settled in an intestate
proceeding. Therefore, the intestate case should be consolidated with the testate proceeding
and the judge assigned to the testate proceeding should continue hearing the two cases.
(Roberts vs. Leonidas, G.R. No. L-55509 April 27, 1984)
Reason why the will should be probated:
The law enjoins the probate of the Will and public policy requires it, because unless the Will
is probated and notice thereof given to the whole world, the right of a person to dispose of
his property by Will may be rendered nugatory. (Maninang vs. CA, G.R. No. L-57848
June 19, 1982)
Exceptions:
a) The heirs divide the estate according to the will; pay the creditors accordingly so that
none of them may be prejudiced. By permitting partition and division of estate without
judicial proceedings would enable the heirs to take over their respective shares in the
inheritance without delay and thereby avoid expenses and waste (McMicking v. Sy
Combieng, 21 Phil. 219)
b) No will shall pass either real or personal property unless it is proved or allowed in court.
We find, that the document may be sustained on the basis of Article 1056 which reads as
follows: Art. 1056. If the testator should make a partition of his properties by an act inter
vivos, or by win, such partition shall stand in so far as it does not prejudice the legitime of
the forced heirs . (Mang-Oy vs CA, G.R. No. L-27421 September 12, 1986)
Issues that may be resolved in probate proceedings:
As a general rule, courts in probate proceedings are limited only to passing upon the
extrinsic validity of the will sought to be probated, the due execution thereof, the testator's
testamentary capacity and the compliance with the requisites or solemnities prescribes by
law. The question of the intrinsic validity of a will normally comes only after the court has
declared that the will has been duly authenticated. (Nufable vs Nufable, G.R. No.
126950 July 2, 1999)
In a special proceeding for the probate of a will, the issue by and large is restricted to the
extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed
the will in accordance with the formalities prescribed by law. (Rules of Court, Rule 75,
Section 1; Rule 76, Section 9.)
Probate court cannot pass upon issue of ownership: Exceptions:
As a rule, the question of ownership is an extraneous matter which the Probate Court cannot
resolve with finality. Thus, for the purpose of determining whether a certain property should
or should not be included in the inventory of estate properties, the Probate Court may pass
upon the title thereto, but such determination is provisional, not conclusive, and is subject to
the final decision in a separate action to resolve title. (Pastor Jr. vs. CA, G.R. No. L-56340
June 24, 1983)
EXCEPTION WHEN PROBATE COURT MAY PASS UPON INTRINSIC VALIDITY:
1) Null and void will:
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the
petitioner as universal heir and completely preterited her surviving forced heirs. A will of this
nature, no matter how valid it may appear extrinsically, would be null and void and separate
or latter proceedings to determine the Page 10 of 69

intrinsic validity of the testamentary provisions would be superfluous. (Nepomuceno vs

CA, G.R. No. L-62952 October 9, 1985)
2) Grave abuse of discretion by the probate court: Remedy of certiorari available:
An act done by a Probate Court in excess of its jurisdiction may be corrected by Certiorari.
And even assuming the existence of the remedy of appeal, we harken to the rule that in the
broader interests of justice, a petition for certiorari may be entertained, particularly where
appeal would not afford speedy and adequate relief. (Maninang vs CA, G.R. No. L-57848
June 19, 1982)
Doctrine of estoppels not applicable in probate proceedings:
Doctrine of estoppel is not applicable in probate proceedings as the presentation and
probate of a will are requirements of public policy, being primarily designed to protect the
testator's, expressed wishes, which are entitled to respect as a consequence of the
decedent's ownership and right of disposition within legal limits. It would be a non sequitur
to allow public policy to be evaded on the pretext of estoppel. (Fernandez, Et Al. vs.
Dimagiba, L-23638, October 12, 1967)
4.3.2. WHO MAY PETITION FOR PROBATE; PERSONS ENTITLED TO NOTICE
The following may petition for the allowance of a will:
a) Testator himself during his lifetime
b) Heir (person interested in the estate)
c) Executor
d) Creditor
e) Devisee or legatee
Person who will intervene in probate proceedings must have an interest:
It is a well-settled rule that in order that a person may be allowed to intervene in a probate
proceeding he must have an interest in the estate, or in the will, or in the property to be
affected by it either as executor or as a claimant of the estate (Ngo The Hua vs. Chung
Kiat Hua, Et Al., L-17091, September 30, 1963);
Who is an interested party?
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 vs. Ramagosa, 21 SCRA
1398, G.R. No. L-23135 December 26, 1967)
4.4. ALLOWANCE OR DISALLOWANCE OF WILL
4.4. 1. Contents of petition for allowance of will
a) Rule 76, section 2 requires that the petition for allowance of a will must show: "(a) the
jurisdictional facts." Such "jurisdictional facts" in probate proceedings, as held by the Court
in Fernando vs. Crisostomo " are the death of the decedent, his residence at the time of his
death in the province where the probate court is sitting, or if he is an inhabitant of a foreign
country, his having left his estate in such province." (Cuenco vs CA, G.R. No. L-24742
October 26, 1973)
b) Names, ages and residences of heirs, legatees, and devisees;
c) Probable value and character of the property of the estate;
Page 11 of 69

d) Name of person for whom letters are prayed;

e) Name of person having custody of will, if it has not yet been delivered to the court. (In
The Matter Of The Petition To Approve The Will Of Ruperta Palaganas vs. Ernesto
Palaganas, G.R. No. 169144, January 26, 2011)
4.4. 2. GROUNDS FOR DISALLOWING A WILL:
What are the grounds for the disallowance of a will? Nature? Issues to be resolved
in the probate of a holographic will:
a) The will was not executed and attested as required by law;
b) The testator was insane or otherwise mentally incapable of making a will at the time of its
execution;
c) The will was executed through force or under duress or the influence of fear, or threats;
d) The will was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person for his benefit;
e) The signature of the testator was procured by fraud or trick;
f) The testator acted by mistake or did not intend that the instrument he signed should be
his will at the time of affixing his signature thereto. (Section 9, Rule 76 of Rules of court and
Art 839, New Civil Code)
These lists are exclusive; no other grounds can serve to disallow a will. Thus, in a petition
to admit a holographic will to probate, the only issues to be resolved are: (1) whether the
instrument submitted is, indeed, the decedent's last will and testament; (2) whether said
will was executed in accordance with the formalities prescribed by law; (3) whether the
decedent had the necessary testamentary capacity at the time the will was executed; and,
(4) whether the execution of the will and its signing were the voluntary acts of the
decedent. (Ajero vs. CA, G.R. No. 106720 September 15, 1994)
4.4. 3. REPROBATE OF THE WILL:
Duty of the court in reprobate of the will:
Reprobate is specifically governed by Rule 77 of the Rules of Court. In reprobate, the local
court acknowledges as binding the findings of the foreign probate court provided its
jurisdiction over the matter can be established. (In The Matter Of The Petition To
Approve The Will Of Ruperta Palaganas vs. Ernesto Palaganas, G.R. No. 169144,
January 26, 2011)
a) Requisites before a will proved abroad will be allowed in the Philippines
Article 816 of the Civil Code of the Philippines provides thus:
Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with
the formalities prescribed by the law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with those which this Code prescribes.
(Art. 816 of the Civil Code)
Matters to be proved in reprobate of the will:
The evidence necessary for the reprobate or allowance of wills which have been probated
outside of the Philippines are as follows: (1) the due execution of the will in accordance with
the foreign laws; (2) the testator has his domicile in the foreign country and not in the
Philippines; (3) the will has been admitted to probate in such country; (4) the fact that the
foreign tribunal is a probate court, and (5) the laws of a foreign country on procedure and
allowance of wills . (De Perez vs. Tolete, G.R. No. 76714 June 2, 1994)
Duty of proving foreign laws in reprobate of the will: Reason: Page 12 of 69

The necessity of presenting evidence on the foreign laws upon which the probate in the
foreign country is based is impelled by the fact that our courts cannot take judicial notice of
them (Philippine Commercial and Industrial Bank vs. Escolin, 56 Scra 266 G.R. Nos.
L-27860 and L-27896 March 29, 1974).
Duty of the court in case a will is presented for reprobate:
The rule that the court having jurisdiction over the reprobate of a will shall "cause notice
thereof to be given as in case of an original will presented for allowance" (Revised Rules of
Court, Rule 27, Section 2) means that with regard to notices, the will probated abroad should
be treated as if it were an "original will" or a will that is presented for probate for the first
time. (De Perez vs. Tolete, G.R. No. 76714 June 2, 1994)
Where to make the administration of property?
When a person dies intestate owning property in the country of his domicile as well as in a
foreign country, administration is had in both countries. (B.E. Johannes vs. Harvey, G.R.
No. 18600, March 9, 1922)
Principal/domiciliary administration vs. Ancillary administration:
That which is granted in the jurisdiction of decedent's last domicile is termed the principal/
domiciliary administration, while any other administration is termed the ancillary
administration. The ancillary administration is proper, whenever a person dies, leaving in a
country other than that of his last domicile, property to be administered in the nature of
assets of the deceased liable for his individual debts or to be distributed among his heirs."
(Testate Estate of Idonah Perkins vs Benguet Consolidated, G.R. No. L-23145,
November 29, 1968)
4.4.4. EFFECTS OF PROBATE:
a) The will shall be treated as if originally proved and allowed in Philippine courts; (De
Perez vs. Tolete, G.R. No. 76714 June 2, 1994)
b) Letters testamentary or administration with a will annexed shall extend to all estates of
the Philippines;
c) After payment of just debts and expenses of administration, the residue of the estate shall
be disposed of as provided by law in cases of estates in the Philippines belonging to persons
who are inhabitants of another state or country (Section 4, Rule 77).
4.5. LETTERS TESTAMENTARY AND OF ADMINISTRATION
4.5. 1. WHEN AND TO WHOM LETTERS OF ADMINISTRATION GRANTED
The following may administer the estate of a deceased:
1. Executor
2. Administrator
WHO ARE INCOMPETENT TO SERVE AS EXECUTORS OR ADMINISTRATORS
No person is competent to serve as executor or administrator who: (a) Is a minor; (b) Is not a
resident of the Philippines; and Page 13 of 69

(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of
i.)drunkenness,
ii.) improvidence, or
Iii.)want of understanding or integrity, or
iv.) by reason of conviction of an offense involving moral turpitude. (Section 1, Rule 78)
v.) Antagonistic Interest. "(I)n this jurisdiction, one is considered to be unsuitable for
appointment as administrator when he has adverse interest of some kind of hostility to
those immediately interested in the estate.". (Medina vs. CA, G.R. No. L-34760,
September 28, 1973)
Determination of executor or administrator discretionary upon the court:
The Rules of Court gives the lower court the duty and discretion to determine whether in its
opinion an individual is unfit to serve as an executor. The sufficiency of any ground for
removal should thus be determined by the said court, whose sensibilities are, in the first
place, affected by any act or omission on the part of the administrator not conformable to or
in disregard of the rules of orders of the court. (Matute vs. Court Of Appeals, No. L26751, January 31, 1969, 26 SCRA 768, 784)
Choice of executor prerogative of the testator:
The choice of his executor is a precious prerogative of a testator, a necessary
concomitant of his right to dispose of his property in the manner he wishes. The
curtailment of this right may be considered as a curtailment of the right to dispose and as
the rights granted by will take effect from the time of death, the management of his estate
by the administrator of his choice should be made as soon as practicable, when no
reasonable objection to his assumption of the trust can be interposed any longer. (RP vs.
Marcos Ii, G.R. Nos. 130371 &130855, August 4, 2009)
4.5. 2. ORDER OF PREFERENCE
Order of preference in the appointment of a regular administrator:
Section 6, Rule 78 of the Rules of Court lists the order of preference in the appointment of an
administrator of an estate:
SEC. 6. When and to whom letters of administration granted. If no executor is named in the
will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a
person dies intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the
discretion of the court, or to such person as such surviving husband or wife, or next of kin,
requests to have appointed, if competent and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin,
neglects for thirty (30) days after the death of the person to apply for administration or to
request that administration be granted to some other person, it may be granted to one or
more of the principal creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it may be granted to such
other person as the court may select.
However, the order of preference is not absolute for it depends on the attendant facts
and circumstances of each case and it has been long held that the selection of an
administrator lies in the sound Page 14 of 69

discretion of the trial court. (In The Matter Of The Intestate Estate Of Cristina
Aguinaldo- Suntay; Emilio A.M. Suntay III vs. Cojuangco-Suntay, G.R. No. 183053,
June 16, 2010)
Factor to consider in the appointment of administrator:
The paramount consideration in the appointment of an administrator over the estate of a
decedent is the prospective administrators interest in the estate. This is the same
consideration which Section 6, Rule 78 takes into account in establishing the order of
preference in the appointment of administrator for the estate. The rationale behind the rule
is that those who will reap the benefit of a wise, speedy and economical administration of
the estate, or, in the alternative, suffer the consequences of waste, improvidence or
mismanagement, have the highest interest and most influential motive to administer the
estate correctly. In all, given that the rule speaks of an order of preference, the person to be
appointed administrator of a decedents estate must demonstrate not only an interest in the
estate, but an interest therein greater than any other candidate. (Emilio A.M. Suntay III
vs. Isabel Cojuangco-Suntay., G.R. No. 183053, October 10, 2012)
In the appointment of the administrator of the estate of a deceased person, the principal
consideration reckoned with is the interest in said estate of the one to be appointed as
administrator. The underlying assumption behind this rule is that those who will
reap the benefit of a wise, speedy, economical administration of the estate, or, on
the other hand, suffer the consequences of waste, improvidence or
mismanagement, have the highest interest and most influential motive to
administer the estate correctly. (Gonzales vs. Aguinaldo, G.R. No. 74769
September 28, 1990)
When can the court appoint an administrator if the executor is disqualified,
refused to assume the trust, etc.?
The rule is that if no executor is named in the will, or the named executor or executors are
incompetent, refuse the trust, or fail to give bond, or a person dies intestate, the court must
appoint an administrator of the estate of the deceased who shall act as representative not
only of the court appointing him but also of the heirs and the creditors of the estate. In the
exercise of its discretion, the probate court may appoint one, two or more co-administrators
to have the benefit of their judgment and perhaps at all times to have different interests
represented. (Gonzales vs. Aguinaldo, G.R. No. 74769 September 28, 1990)
Appointment of co-administrators:
Where the estate is large, to appoint two or more administrators of such estate to have
different interests represented and satisfied, and furthermore, to have such representatives
work in harmony for the best interests of such estate. (Matute vs. CA, G.R. No. 26751,
January 31, 1969)
Appointment of co-administrator is allowed but as an exception
It is to this requirement of observation of the order of preference in the appointment of
administrator of a decedents estate, that the appointment of co-administrators has been
allowed, but as an exception. We again refer to Section 6(a) of Rule 78 of the Rules of Court
which specifically states that letters of administration may be issued to both the surviving
spouse and the next of kin. In addition and impliedly, we can refer to Section 2 of Rule 82 of
the Rules of Court which say that x x x [w]hen an executor or administrator dies, resigns, or
is removed, the remaining executor or administrator may administer the trust alone, x x x.
In a number of cases, we have sanctioned the appointment of more than one administrator
for the benefit of the estate and those interested therein. We recognized that the
appointment of administrator of the estate of a decedent or the determination of a persons
suitability for the office of judicial administrator rests, to a great extent, in the sound
judgment of the court exercising the power of appointment.
Under certain circumstances and for various reasons well-settled in Philippine and American
jurisprudence, we have upheld the appointment of co-administrators: (1) to have the
benefits of their Page 15 of 69

judgment and perhaps at all times to have different interests represented; (2) where justice
and equity demand that opposing parties or factions be represented in the management of
the estate of the deceased; (3) where the estate is large or, from any cause, an intricate and
perplexing one to settle;(4) to have all interested persons satisfied and the representatives
to work in harmony for the best interests of the estate; and when a person entitled to the
administration of an estate desires to have another competent person associated with him
in the office. (Emilio A.M. Suntay III vs. Isabel Cojuangco-Suntay., G.R. No. 183053,
October 10, 2012)
4.5. 3. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS
FILING OF PETITION FOR ADMINISTRATION
Who may oppose the petition for issuance of letter administration?
Only an interested person may oppose the petition for issuance of letters of
administration. An interested person 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; his interest is material
and direct, and not one that is only indirect or contingent. (Vda. De Chua vs. CA. G.R. No.
116835 March 5, 1998)
Who is an interested party?
An interested party has been defined in this connection as one who would be benefited by
the estate, such as an heir, or one who has a claim against the estate, such as a creditor
(Intestate Estate of Julio Magbanwa 40 Off. Gaz. 1171).
Nature of the interest?
The interest required in order that a person may be a party thereto must be material
and direct, and not merely indirect or contingent. In the case at bar, Petitioners
interest in the estate of the deceased Maria V. Lindayag was disputed, through a motion to
dismiss her petition, by the surviving spouse on the ground that said deceased was survived
by him and by three legally adopted children thus excluding petitioner who was the
deceaseds sister, as an heir. (Saguinsin vs. Lindayag, G.R. No. L-17759. December
17, 1962 )
Lack of interest is a ground for the dismissal of the action on the ground of lack
legal capacity to sue:
Of course, since the opening sentence of the section requires that the petition must be filed
by an interested person, it goes without saying that a motion to dismiss may lie not on the
basis of lack of jurisdiction on the part of the court, but rather on the ground of lack of legal
capacity to institute the proceedings. (Pilipinas Shell vs. Dumlao, G.R. No. 44888.
February 7, 1992)
4.5. 4. POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS;
RESTRICTIONS ON THE POWERS:
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 make improvements on the properties under administration with the necessary court
approval except for necessary repairs;
4) To possess and manage the estate when necessary:
a) payment of debts; and
b) payment of expenses of administration; Page 16 of 69

5) 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.
Duty to account by the executor or administrator mandatory:
The duty of an executor or administrator to render an account is not a mere incident of an
administration proceeding which can be waived or disregarded as it is a duty that has to be
performed and duly acted upon by the court before the administration is finally ordered
closed and terminated, to the end that no part of the decedent's estate be left unaccounted
for. The fact that the final accounts had been approved does not divest the court of
jurisdiction to require supplemental accounting. (Vda. De Chua vs. CA. G.R. No. 116835
March 5, 1998)
Purpose of the bond by the administrator:
Pursuant to Section 1 of Rule 81, the bond secures the performance of the duties and
obligations of an administrator namely:
(1) to administer the estate and pay the debts;
(2) to perform all judicial orders;
(3) to account within one (1) year and at any other time when required by the probate court;
and
(4) to make an inventory within three (3) months.
More specifically, per Section 4 of the same Rule, the bond is conditioned on the faithful
execution of the administration of the decedents estate requiring the special administrator
to:
(1) make and return a true inventory of the goods, chattels, rights, credits, and estate of the
deceased which come to his possession or knowledge;
(2) truly account for such as received by him when required by the court; and
(3) deliver the same to the person appointed as executor or regular administrator, or to such
other person as may be authorized to receive them.
Verily, the administration bond is for the benefit of the creditors and the heirs, as it compels
the administrator, whether regular or special, to perform the trust reposed in, and discharge
the obligations incumbent upon, him, therefore, it should not be considered as part of the
necessary expenses chargeable against the estate, not being included among the acts
constituting the care, management, and settlement of the estate. (Ocampo vs. Ocampo,
G.R. No. 187879, July 5, 2010)
4.5. 5. APPOINTMENT OF SPECIAL ADMINISTRATOR:
Order of preference in the appointment of regular administrator may be
considered in the appointment of a special administrator:
Nothing is wrong for the judge to consider the order of preference in the appointment of a
regular administrator in appointing a special administrator. After all, the consideration that
overrides all others in this respect is the beneficial interest of the appointee in the estate of
the decedent (Fule vs. CA, G.R. No. L-40502 November 29, 1976)
Principal object of the appointment of a special administrator:
The principal object of the appointment of a temporary administrator is to preserve the
estate until it can pass to the hands of a person fully authorized to administer it for the
benefit of creditors and heirs, pursuant to Section 2 of Rule 80 of the Rules of Court.
(Ocampo vs. Ocampo, G.R. No. 187879, July 5, 2010)
Nature of the duty of the special administrators: Page 17 of 69

The Special Administrators that while they may have respective interests to protect, they are
officers of the Court subject to the supervision and control of the Probate Court and are
expected to work for the best interests of the entire estate, its smooth administration, and
its earliest settlement. (Corona vs. CA, G.R. No. L-59821 August 30, 1982)
When can a special administrator be appointed?
The specific and limited powers of special administrators and that their appointment merely
temporary and subsists only until a regular administrator is duly appointed (since Rule 80,
section 1 provides for the appointment of a special administrator as a caretaker only "when
there is delay in granting letters testamentary or of administration by any cause")
(Medina vs. Beda Gonzales, G.R. No. L-34760 September 28, 1973)
Appointment of a special administrator discretionary:
The discretion to appoint a special administrator or not lies in the probate court but that is
no authority for the judge to become partial, or to make his personal likes and dislikes
prevail over, or his passions to rule, his judgment but such discretion must be based on
reason, equity, justice and legal principle. There is no reason why the same fundamental and
legal principles governing the choice of a regular administrator should not be taken into
account in the appointment of a special administrator. (Fule vs. CA, G.R. No. L-40502
November 29, 1976)
Choice of the executrix of special administrator deserves highest consideration:
The executrix's choice of Special Administrator, considering her own inability to serve and
the wide latitude of discretion given her by the testatrix in her Will (Annex "A-1"), is entitled
to the highest consideration.. (Corona vs CA, G.R. No. L-59821 August 30, 1982)
4.5. 6. GROUNDS FOR REMOVAL OF ADMINISTRATOR:
1.) neglects to render his account and settle the estate according to law, or
2) neglects to perform an order or judgment of the court, or
3.) neglect to perfom a duty expressly provided by these rules, or
4.) absconds, or becomes insane, or otherwise incapable or unsuitable to discharge the
trust, the court may remove him, or, in its discretion, may permit him to resign. (Section 2,
Rule 82)
Other grounds for the removal of the administrator discretionary upon the court:
The probate court may appoint or remove special administrators based on grounds other
than those enumerated in the Rules at its discretion, such that the need to first pass upon
and resolve the issues of fitness or unfitness and the application of the order of preference
under Section 6 of Rule 78, as would be proper in the case of a regular administrator, do not
obtain. (Ocampo vs. Ocampo, G.R. No. 187879, July 5, 2010)
Nature of the powers of administrator:
Administrators have such an interest in the execution of their trust as to entitle them to
protection from removal without just cause. Hence, Section 2 of Rule 82 of the Rules of Court
provides the legal and specific causes authorizing the court to remove an administrator.
(Gonzales vs. Aguinaldo, G.R. No. 74769 September 28, 1990)
Trial courts action of removing administrator deserves respect by the appellate
court except when there is an error or grave abuse of discretion: Page 18 of 69

The sufficiency of any ground for removal should thus be determined by said court, whose
sensibilities are, in first place, affected by any act or omission on the part of the
administrator not conformable to or in disregard of the rules or the orders of the court.
Consequently, appellate tribunals are disinclined to interfere with the action taken by a
probate court in the matter of the removal of an executor or administrator unless positive
error or gross abuse of discretion is shown. (Matute vs. CA, No. L- 26751, January 31,
1969, 26 Scra 768, 784)
Grounds for removal of administrator must be proved by evidence:
While it is conceded that the court is invested with ample discretion in the removal of an
administrator, it however must have some fact legally before it in order to justify a removal.
There must be evidence of an act or omission on the part of the administrator not
conformable to or in disregard of the rules or the orders of the court, which it deems
sufficient or substantial to warrant the removal of the administrator. (Gonzales vs.
Aguinaldo, G.R. No. 74769 September 28, 1990)
Effects of revocation of letters testamentary or administration:
It is elementary that 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
a similar protection will be extended to rights acquired under a previous grant of
administration. (Vda. De Bacaling vs. Laguna, G.R. No. L-26694 December 18, 1973)
Order of appointment of special administrator an interlocutory order subject to
certiorari:
The appointment or removal of special administrators, being discretionary, is thus
interlocutory and may be assailed through a petition for certiorari under Rule 65 of the Rules
of Court. (Ocampo vs. Ocampo, G.R. No. 187879, July 5, 2010)
4.6. CLAIMS AGAINST THE ESTATE
Upon the death of a person, all his property is burdened with all his debts, his death creating
and equitable lien thereon for the benefit of the creditors. Such lien continues until all debts
are extinguished either by the payment, prescription, or satisfaction in one of the modes
recognized by law. (Sui Liong vs. Taysan, G.R. No. L-4777, November 11, 1908 )
4.6.1. TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS
Statute of non-claims:
Section 2, Rule 86, which provides:
Sec. 2. Time within which claims shall be filed. In the notice provided in the preceding
section, the court shall state the time for the filing of claims against the estate, which shall
not be more than twelve (12) nor less than six (6) months after the date of the
first publication of the notice. However, at anytime 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) months.
Purpose of the fixing of the period of claims:
The purpose of the law, in fixing a period within which claims against an estate must be
presented, is 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. (Heirs of Pizarro vs.
Consolacion, G.R. No. L-51278 May 9, 1988) Page 19 of 69

Purpose of the presentation of the claims against the estate:

The purpose of presentation of claims against decedents of the estate in the probate court is
to protect the estate of deceased persons to enable the executor or administrator will be
able to examine each claim and determine whether it is a proper one which should be
allowed. Further, the primary object of the provisions requiring presentation 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. (Estate of Olave vs. Reyes, G.R. No. L-29407 July 29, 1983)
4.6.2.CLAIMS AGAINST THE ESTATE:
The following are money claims which can be charged against the estate:
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. All
claims for expenses for the last sickness of the decedent; and 4. Judgment for money
against the decedent. (Section 5, Rule 86)
What does the word claims connotes?
The word "claims" as used in statutes requiring the presentation of claims against a
decedent's estate is generally construed to mean debts or demands of a pecuniary nature
which could have been enforced against the deceased in his lifetime and could have been
reduced to simple money judgments; and among these are those founded upon contract.
(Gutierrez vs. Baretto-Datu, G.R. No. L-17175, July 31, 1962)
Actions that does not survives the death of the party: Rationale:
This situation brings to the fore a consideration of Section 21, Rule 3 of the Rules of Court,
which reads:
SEC. 21. Where claim does not survive. When the action is for recovery of money, debt or
interest thereon, and the defendant dies before final judgment in the Court of First Instance,
it shall be dismissed to be prosecuted in the manner especially provided in these rules.
( Section 21, Rule 3 of the Rules of Court)
The Philosophy behind the rule which provides for the dismissal of the civil case is that, upon
the death of defendant, all money claims should be filed in the testate or interstate
proceedings "to avoid useless duplicity of procedure." (Ignacio vs. Pambusco., G.R. No.
L-18936, May 23, 1967)
Money claims arising from contract against the estate is an action that survives:
Generally, death of either the creditor or the debtor does not extinguish the obligation and
only obligations that are personal or are identified with the persons themselves are
extinguished by death. Section 5 of Rule 86 of the Rules of Court expressly allows the
prosecution of money claims arising from a contract against the estate of a deceased debtor
as these claims are not actually extinguished. (Stronghold Insurance vs. RepublicAsahi, G.R. No. 147561, June 22, 2006)
Claims for taxes survive the death of the decedent:
Claims for taxes may be collected even after the distribution of the decedent's estate among
his heirs who shall be liable therefor in proportion of their share in the inheritance.
(Government of the Philippines vs. Pamintuan, 55 Phil. 13)
Reason for the rule: Page 20 of 69

The reason for the more liberal treatment of claims for taxes against a decedent's estate in
the form of exception from the application of the statute of non-claims, is not hard to find.
Taxes are the lifeblood of the Government and their prompt and certain availability are
imperious need. (Vera vs. Hon. Fernandez, G.R. No. L-31364 March 30, 1979)
Claims against a deceased surety on the performance bond is a claim which
survive:
Death is not a defense that he or his estate can set up to wipe out the obligations under the
performance bond. Consequently, petitioner as surety cannot use his death to escape its
monetary obligation under its performance bond. (Stronghold Insurance vs. RepublicAsahi, G.R. No. 147561, June 22, 2006)
Claims include quasi-Contract and contingent claims
In Maclan v. Garcia, Maclan filed a civil case to recover from Ruben Garcia the necessary
expenses he spent as possessor of a piece of land. Garcia acquired the land as an heir of its
previous owner, he set up the defense that this claim should have been filed in the special
proceedings to settle the estate of his predecessor. Maclan, on the other hand, contended
that his claim arises from law and not from contract, express or implied. Thus, it need not be
filed in the settlement of the estate of Garcias predecessor, as mandated by Section 5, Rule
87 of the Rules of Court (now Section 5, Rule 86).
The court held under these facts that a claim for necessary expenses spent as previous
possessor of the land is a kind of quasi-contract. Citing Leung Ben v OBrien, it explained
that the term implied contracts, as used in our remedial law, originated from the common
law where obligations derived from quasi-contracts and from law are both considered as
implied contracts. Thus, the term quasi-contract is included in the concept implied
contracts as used in the Rules of Court. Accordingly, the liabilities of the deceased arising
from quasi-contracts should be filed as claims in the settlement of his estate, as provided in
Section 5, Rule 86 of the Rules of Court.
A distinctive character of Metrobanks fourth-party complaint is its contingent nature the
claim depends on the possibility that Metrobank would be adjudged liable to AMC, a future
event that may or may not happen. This characteristic unmistakably marks the complaint as
a contingent one that must be included in the claims falling under the terms of Section 5,
Rule 86 of the Rules of Court. (Metropolitan Bank & Trust Company v. Absolute
Management Corporation, G.R. No. 170498. January 9, 2013)
4.6.3. CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE
Remedies of a creditor:
The contract made between the administrator and the lawyer does not bind the estate to
such an extent that the lawyer can maintain an action against it and recover a judgment
which is binding upon it. In such a case the creditor has two remedies:
(1)He can prosecute an action against the administrator as an individual. If judgment is
rendered against the administrator and it is paid by him, when he presents his final account
to the Court of First Instance as such administrator he can include the amount so paid as an
expense of administration. The creditor can also
(2) Present a petition in the proceeding relating to the settlement of the estate, asking that
the court, after notice to all persons interested, allow his claim and direct the administrator
to pay it as an expense of administration. Whichever course is adopted the heirs and other
persons interested in the estate will have a right to inquire into the necessity for making the
contract and the value of the work performed by the attorney." (Ramos vs. Bidin, G.R. No.
L-53650 May 28, 1988) Page 21 of 69

Causal relation between the monetary claims and the acts of administration:
The rule is that where the monetary claim against the administrator has a relation to his acts
of administration in the ordinary course thereof, such claims can be presented for payment
with the court where a special proceeding for the settlement of the estate is pending,
although said claims were not incurred by the deceased during his lifetime and collectible
after his death. (Quirino vs. Gorospe, G.R. No. L-58797, January 31, 1989)
4.6.4. PAYMENT OF DEBTS
Procedure for the payment of debts:
The proper procedure allowed by the Rules of Court is for the court to order the sale of
personal estate or the sale of mortgaged of real property of the deceased and all debts or
expenses of administration should be paid out of the proceeds of the 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,
according to Rule 89, section 3, and Rule 90, section 2. (Aldamiz vs. CFI, G.R. No. L2360, December 29, 1949)
Action against a distributee of the debtors assets by the creditor based on
monetary claims:
The only instance wherein a creditor can file an action against a distributee of the debtor's
asset is under Section 5, Rule 88 of the Rules of Court. The contingent claims must first have
been established and allowed in the probate court before the creditors can file an action
directly, against the distributes, such is not the situation in the case at bar. (De Bautista
vs. De Guzman, G.R. No. L-28298 November 25, 1983)
Instances when the probate court can issue writ of execution: Exclusive:
The circumstances that the Rules of Court expressly specifies that the probate court may
issue execution
(1) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees and
heirs in possession of the decedent's 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)
Under the rule of inclusion unius est exclusion alterius, above cited instances are the only
circumstances when probate court can issue a writ of execution. (Pastor, Jr. vs. CA, G.R.
No. L-56340 June 24, 1983)
4.7. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS
4.7.1. ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND
ADMINISTRATORS
The only actions that may be instituted against the executor or administrator independently
of the testate or intestate proceedings are:
1) Recovery of real or personal property or any interest therein from the estate;
2) Enforcement of a lien thereon;
3) Action to recover damages for an injury to person or property, real or personal; and
4) Action to recover damages for breach of contract entered into by the decedent, but
committed by the administrator, which is personal to him (Gutierrez vs. Barreto-Datu,
G.R. No. L-17175, July 31, 1962).
Claim by the administrator against third person is by way of an action not by
motion: Page 22 of 69

"When the demand is in favor of the administrator and the party against whom it is enforced
is a third party, not under the court's jurisdiction, the demand cannot be by mere motion by
the administrator, but by an independent action against the third person." Matters affecting
property under judicial administration may not be taken cognizance of by the court in the
course of intestate proceedings, if the "interests of third persons are prejudiced". (Dela
Cruz vs. Camon, G.R. No. L-21034, April 30, 1966)
When does the liability of an administrator for tax payment begin?
That "the assessment is deemed made when the notice to this effect is released, mailed or
sent to the taxpayer for the purpose of giving effect to said assessment." It appearing that
the person liable for the payment of the tax, in this case the administrator, did not receive
the assessment, the assessment could not become final and executory. (RP vs. Dela
Rama, G.R. No. L-21108, November 29, 1966)
Monetary claims against the estate?
It is apparent that actions for damages caused by tortious conduct of a defendant survive
the death of the latter. Under Rule 87, section 5, the actions that are abated by death are:
(1) claims for funeral expenses and those for the last sickness of the decedent;
(2) judgments for money; and
(3) "all claims for money against the decedent, arising from contract express or implied".
It is not enough that the claim against the deceased party be for money, but it must arise
from "contract express or implied", and these words (also used by the Rules in connection
with attachments and derived from the common law) were construed to include all purely
personal obligations other than those which have their source in delict or tort. (Aguas v.s
Llemos, G.R. No. L-18107, August 30, 1962)
Action that survive against the executor or administrator:
Rule 88, section 1, enumerates actions that survive against a decedent's executors or
administrators, and they are:
(1) actions to recover real and personal property from the estate;
(2) actions to enforce a lien thereon; and
(3) actions to recover damages for an injury to person or property.
When heirs may act in place of the Administrator:
1) No appointed administrator yet.
Section 2 of Rule 87 of the same Rules, which also deals with administrators, states: Sec. 2.
Executor or administrator may bring or defend actions which survive. - For the recovery or
protection of the property or rights of the deceased, an executor or administrator may bring
or defend, in the right of the deceased, actions for causes which survive.
When no administrator has been appointed, as in this case, there is all the more reason to
recognize the heirs as the proper representatives of the deceased (Go Chan vs. Young,
G.R. No. 131889, March 12, 2001)
Even if there is an appointed administrator, jurisprudence recognizes two exceptions, viz:
(2) if the executor or administrator is unwilling or refuses to bring suit; and
(3) when the administrator is alleged to have participated in the act complained of [31] and he
is made a party defendant. Evidently, the necessity for the heirs to seek judicial relief to
recover property of the Page 23 of 69

estate is as compelling when there is no appointed administrator, if not more, as where

there is an appointed administrator but he is either disinclined to bring suit or is one of the
guilty parties himself.
All told, therefore, the rule that the heirs have no legal standing to sue for the recovery of
property of the estate during the pendency of administration proceedings has three
exceptions, the third being when there is no appointed administrator such as in this case.
(Rioferio vs. CA, G.R. No. 129008. January 13, 2004 )
4.7.2. REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR RECOVERY OF
PROPERTY FRAUDULENTLY CONVEYED BY THE DECEASED
1) There is DEFICIENCY of assets in the hands of an executor or administrator for the
payment of debts and expenses of administration;
2) The deceased in his lifetime 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;
7) The action by the creditor is in the NAME of the executor or administrator. (Section 10,
Rule 87)
Power of supervision and control of the probate court over properties of the
decedent:
The court which acquires jurisdiction over the properties of a deceased person through the
filing of the corresponding proceedings has supervision and control over these properties
and in compliance with this duty, the court also has the inherent power to determine what
properties, rights and credits of the deceased the administrator should include or exclude in
the inventory. (Chua vs. Absolute Management Corp., G.R. No. 144881, October 16,
2003)
Power to recover properties against third person belongs to the administrator not
the court:
The trial court has no authority to decide whether the properties, real or personal, belong to
the estate or to the persons examined. If after such examination there is good reason to
believe that the person examined is keeping properties belonging to the estate, then the
administrator should file an ordinary action in court to recover the same. (Chua vs.
Absolute Management Corp., G.R. No. 144881, October 16, 2003)
Issuance of a writ of attachment must be for the protection of the estate not of
the creditor:
Any writ of attachment necessary to secure the judgment must be related to the protection
of the estate. The writ may not issue if only to protect the personal interests of the private
respondent as a creditor of that estate. (Gruenberg vs. CA, G. R. No. L-45948
September 10, 1985)
4.8. DISTRIBUTION AND PARTITION
4.8.1. LIQUIDATION
What is administration? Purpose?
Administration is for the purpose of liquidation of the estate and distribution of the residue
among the heirs and legatees. And liquidation means the determination of all the assets of
the estate and payment of all the debts and expenses. (Luzon Surety vs Quebrar, G.R.
No. L-40517 January 31, 1984)
When can distribution of the estate be done?
No distribution shall be allowed until the payment of the obligations above-mentioned has
been made or provided for, unless the distributees, or any of them, give a bond, in a sum to
be fixed by the court, Page 24 of 69

conditioned for the payment of said obligations within such time as the court directs.
(Estate Of Ruiz vs. CA, G.R. No. 118671, January 29, 1996)
How will the distribution of the estate properties be done?
In settlement of estate proceedings, the distribution of the estate properties can only be
made:
(1) after all the debts, funeral charges, expenses of administration, allowance to the widow,
and estate tax have been paid; or
(2) before payment of said obligations only if the distributees or any of them gives a bond in
a sum fixed by the court conditioned upon the payment of said obligations within such time
as the court directs, or when provision is made to meet those obligations. (Castillo v.
Castillo, 124 Phil. 485 [1966])
Estate tax must be paid before distribution of estate properties:
The estate tax is one of those obligations that must be paid before distribution of
the estate. If not yet paid, the rule requires that the distributees post a bond or make such
provisions as to meet the said tax obligation in proportion to their respective shares in the
inheritance. (Estate Of Ruiz vs. CA, G.R. No. 118671, January 29, 1996)
Declaration of heirs can be made even before the satisfaction of the obligation
chargeable to the estate:
What the court is enjoined from doing is the assignment or distribution of the residue of the
deceased's estate before the above-mentioned obligations chargeable to the estate are first
paid. Nowhere from said section may it be inferred that the court cannot make a declaration
of heirs prior to the satisfaction of these obligations. (Ngo The Hua vs. Chung Kiat Hua,
G.R. No. L-17091, September 30, 1963)
Determination of charges against the estate necessary before the distribution of
legal share:
Before any conclusion about the legal share due to a compulsory heir may be reached, it is
necessary that the net estate of the decedent must be ascertained, by deducting all payable
obligations and charges from the value of the property owned by the deceased at the time
of his death; then, all donations subject to collation would be added to it, form there, the
legitime of the compulsory heir or heirs can be established; and it is only then can it be
ascertained whether or not a donation had prejudiced the legitimes. (Natcher vs. CA, G.R.
No. 133000, October 2, 2001)
Claim of the creditor of the heirs of the deceased may be collected from the share
of the heir:
The creditor of the heirs of a deceased person is entitled to collect his claim out of the
property which pertains by inheritance to said heirs, only after the debts of the testate or
intestate succession have been paid and when the net assets that are divisible among the
heirs are known, because the debts of the deceased must first be paid before his heirs can
inherit. (Litonjua vs. Montilla, G.R. No. L-4170, January 31, 1952)
4.8.2. PROJECT OF PARTITION
Power of the probate court to determine share: Project of partition:
The probate court, in the exercise of its jurisdiction to distribute the estate, has the power to
determine the proportion or parts to which each distributee is entitled . A project of partition
is merely a proposal for the distribution of the heredity estate which the court may accept or
reject. It is the court that makes that distribution of the estate and determines the persons
entitled thereto. (Vda. De Kilayko vs. Tengco, G.R. No. 45425 March 27, 1992)
Approval of the project of partition does not terminate administration
proceedings: Page 25 of 69

In the case of Montemayor vs. Gutierrez (114 Phil. 95), an estate may be partitioned even
before the termination of the administration proceedings. Hence, the approval of the project
of partition did not necessarily terminate the administration proceedings. (Luzon Surety
vs. Quebrar, G.R. No. L-40517 January 31, 1984)
Requisites in order to consider settlement proceeding closed:
In order that a proceeding for the settlement of the estate of a deceased may be deemed
ready for final closure:
(1) there should have been issued already an order of distribution or assignment of the
estate of the decedent among or to those entitled thereto by will or by law, but
(2) such order shall not be issued until after it is shown that the "debts, funeral expenses,
expenses of administration, allowances, taxes, etc. chargeable to the estate" have been
paid, which is but logical and proper.
(3) Besides, such an order is usually issued upon proper and specific application for the
purpose of the interested party or parties, and not of the court. (Palicte vs. Ramolete,
G.R. No. L-55076 September 21, 1987)
When will the heirs be entitled to residue of the estate?
It is only after, and not before, the payment of all debts, funeral charges, expenses of
administration, allowance to the widow, and inheritance tax shall have been effected that
the court should make a declaration of heirs or of such persons as are entitled by law to the
residue. (Moran, Comments on the Rules of Court, 2nd ed., Vol. II, p. 397, citing Capistrano
vs. Nadurata, 49 Phil., 726; Lopez vs. Lopez, 37 Off. Gaz., 3091.) (Jimoga-On vs.
Belmonte, 84 Phil. 545, G.R. No. L-1605, September 13, 1949)
Order of distribution and delivery of the residue of the estate closes the
settlement proceeding:
What brings an intestate (or testate) proceeding to a close is the order of distribution
directing delivery of the residue to the persons entitled thereto after paying the
indebtedness, if any, left by the deceased. (PCIB vs. Escolin, G.R. Nos. L-27860 And L27896 March 29, 1974)
Grounds to set aside final liquidation:
The only instance where a party interested in a probate proceeding may have a final
liquidation set aside is when he is left out by reason of circumstances beyond his control or
through mistake or inadvertence not imputable to negligence. Even then, the better practice
to secure relief is reopening of the same case by proper motion within the reglementary
period, instead of an independent action. (Vda. De Alberto vs. Ca, G.R. No. L-29759
May 18, 1989)
After approval of partition and distribution and receipt of share of the distributee
forecloses attack o its validity:
Where a partition had not only been approved and thus become a judgment of the court, but
distribution of the estate in pursuance of such partition had fully been carried out, and the
heirs had received the property assigned to them, they are precluded from subsequently
attacking its validity or any part of it. (Ralla vs. Judge Untalan, G.R. Nos. L-63253-54,
April 27, 1989)
Power to distribute exclusive with the power court: Doctrine of non-interference:
We hold that the separate action was improperly filed for it is the probate court that has
exclusive jurisdiction to make a just and legal distribution of the estate. In the interest of
orderly procedure and to avoid confusing and conflicting dispositions of a decedent's estate,
a court should not Page 26 of 69

interfere with probate proceedings pending in a co-equal court. (Solivio vs. CA, G.R. No.
83484, February 12, 1990)
4.8.3. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE:
Non-compliance of the order of distribution of estate does not terminate probate
proceedings:
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 because a judicial partition is not
final and conclusive and does not prevent the heirs from bringing an action to obtain his
share, provided the prescriptive period therefore has not elapsed (Mari vs. Bonilia, 83
Phil. 137 March 19, 1949, G.R. No. L-852).
Remedies of heir who has not receive his share:
As a general rule, the better practice, however, for the heir who has not received his share,
is to demand his share through a proper motion in the same probate or
administration proceedings, or for reopening of the probate or administrative
proceedings if it had already been closed, and not through an independent action.
(Solivio vs. CA, G.R. No. 83484, February 12, 1990)
ANALYSIS of Solivio and Guilas case:
In Solivio case, the proceeding were still pending, thus, the movant had lost her right to
have herself declared as a co-heir in said proceedings. Because she failed to pursue the
motion in the same action but instead erroneously chose to file a separate action. Unlike the
circumstances present in the Guilas case where the estate proceedings had already been
closed and terminated for three years, thus, the separate action filed by the movant for the
annulment of the project partition was allowed to continue.
4.8.4. INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION
Probate court generally cannot issue a writ of execution. It is not supposed to issue a writ of
execution 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. The probate court, as such, does not render any judgment enforceable by
execution. (Pastor, Jr. vs. CA, G.R. No. L-56340, June 24, 1983)
The circumstances that the Rules of Court expressly specifies that the probate court may
issue execution
(1) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees and
heirs in possession of the decedent's 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)
Under the rule of inclusion unius est exclusion alterius, the above cited instances are the
only circumstances when probate court can issue a writ of execution. Clearly, the provision
authorizes execution to enforce payment of debts of estate. A legacy is not a debt of the
estate.(Pastor, Jr. vs. CA, G.R. No. L-56340, June 24, 1983)
4.8.5. Effects of judgment of local courts:

Section 47 of Rule 39 provides:

Page 27 of 69

The effect of a judgment or final order rendered by a court of the Philippines, having
jurisdiction to pronounce the judgment or final order, may be as follows:
(a) In case of a judgment or final order against a specific thing, or in respect to
the probate of a will, or the administration of the estate of a deceased
person, or in respect to the personal, political, or legal condition or status
of a particular person or his relationship to another, the judgment or final
order is conclusive upon the title to the thing, the will or administration,
or the condition, status or relationship of the person; however, the probate
of a will or granting of letters of administration shall only be prima facie
evidence of the death of the testator or intestate;
4.9. TRUSTEES
What is a trust?
A trust is a confidence reposed in one person, called the trustee, for the benefit of another,
called the cestui que trust, with respect to property held by the former to the latter. The
person in whom the confidence is reposed as regards property for the benefit of another is
known as trustee. (Special Proceedings by Gemilito Festin, Second Edition, 2011,
Page 134)
What is an express trust?
Express trusts are those which are created by the direct and positive acts of the parties,
by some writing or deed, or will, or by words evincing an intention to create a trust. Implied
trusts are those which, without being express, are deducible from the nature of the
transaction as matters of intent, or which are superinduced on the transaction by operation
of law as matters of equity, independently of the particular intention of the parties. (Olaco
vs. Co Cho Chit, G.R. No. 58010. March 31, 1993.)
What is a resulting trust?
A resulting trust is one that arises by implication of law and presumed always to have
been contemplated by the parties, the intention as to which can be found in the nature of
their transaction although not expressed in a deed or instrument of conveyance. Upon the
other hand, a constructive trust is a trust not created by any word or phrase, either
expressly or impliedly, evincing a direct intention to create a trust, but one that arises in
order to satisfy the demands of justice. (Yap vs. CA, G.R. No. 133047. August 17, 1999)
Implied trust may be established by parol evidence?
Implied Trust may be established by parol evidence, Express Trust cannot. Even then, in
order to establish an implied trust in real property by parol evidence, the proof should be as
fully convincing as if the acts giving rise to the trust obligation are proven by an authentic
document. An implied trust, in fine, cannot be established upon vague and inconclusive
proof. (Yap vs. CA, G.R. No. 133047. August 17, 1999)
Requisites to bar action by beneficiary against trustee which acquired title to the
property by acquisitive prescription:
It is true that in express trusts and resulting trusts, a trustee cannot acquire by prescription
a property entrusted to him unless he repudiates the trust. Acquisitive prescription may bar
the action of the beneficiary against the trustee in an express trust for the recovery of the
property held in trust where (a) the trustee has performed unequivocal acts of repudiation
amounting to an ouster of the cestui que trust; (b) such positive acts of repudiation have
been made known to the cestui que trust, and (c) the evidence thereon is clear and
conclusive. (Torbela vs. Rosario, G.R. No. 140528 G.R. No. 140553, December 7,
2011 ) Page 28 of 69

Elements for the existence of trust:

As a rule, however, the burden of proving the existence of a trust is on the party asserting
its existence, and such proof must be clear and satisfactorily show the existence of the trust
and its elements. The presence of the following elements must be proved: (1) a trustor or
settlor who executes the instrument creating the trust; (2) a trustee, who is the person
expressly designated to carry out the trust; (3) the trust res, consisting of duly identified
and definite real properties; and (4) the cestui que trust, or beneficiaries whose identity
must be clear. (CANEZO VS ROJAS, G.R. NO. 148788, NOVEMBER 23, 2007)
4.9.1. DISTINGUISHED FROM
Trustee
EXECUTOR/ADMINISTRATOR
Executor/Administrator
Accounts are NOT under oath and except
Accounts must be UNDER OATH and filed
for initial and final submission of accounts;
ANNUALLY.
they shall be filed only at such times as
may be REQUIRED by the court.
Court that has jurisdiction may be MTC or
Court which has jurisdiction is RTC if
RTC.
appointed to carry into effect provisions of a
will; if trustee dies, resigns or removed in a
contractual trust, RTC has jurisdiction in the
appointment of new trustee.
May sell, encumber or mortgage property if
May sell or encumber property of estate
it is necessary for the purpose of paying
held in trust if necessary or expedient upon
debts, expenses of administration or
ORDER of the court.
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.
Order of sale has NO TIME LIMIT.
Appointed by the court to SETTLE estate of
Appointed to CARRY INTO EFFECT the
decedent.
provisions of a will or written instrument
(contractual trust).
NOT EXEMPTED from filing bond even if
May be EXEMPTED from filing bond if
such exemption is provided in the will (bond provided in the will or if beneficiaries
is only conditioned upon payment of debts). requested exemption.
Services of executor or administrator are
Trusteeship is terminated upon TURNING
terminated UPON PAYMENT OF DEBTS of
OVER THE PROPERTY to beneficiary after
the estate and distribution of property to
expiration of trust (period may be provided
heirs.
for in the will or trust contract).
MUST PAY the debts of the estate.
NO OBLIGATION to pay debts of beneficiary
or trustor.