Spec Pro
Spec Pro
SPECIAL PROCEEDINGS
GENERAL PROVISIONS
[RULE 72]
SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES
Sec. 1. Subject matter of special proceedings.
Rules of special proceedings are provided for in the ff cases:
(1) Settlement of estate of deceased persons;
(2) Escheat;
(3) Guardianship and custody of children;
(4) Trustees;
(5) Adoption;
(6) Rescission and revocation of adoption;
(7) Hospitalization of insane persons;
(8) Habeas corpus;
(9) Change of name;
(10) Voluntary dissolution of corporations;
(11) Judicial approval of voluntary recognition of minor natural children;
(12) Constitution of family home;
(13) Declaration of absence and death;
(14) Cancellation or correction of entries in the civil registry.
ACTION
To protect or enforce a right, or
to prevent or redress a wrong
Initiated by Complaint
Definite Parties
Answer is filed
Handled by court of general
jurisdiction
Adversarial
Statute of Limitations applies
15-day appeal period
Governed by: Ordinary Rules
Supplemented by: Special rules
SPECIAL PROCEEDINGS
To establish a status, right, or a
particular fact
Initiated by Petition
Definite petitioner, no definite
adverse party
Opposition is filed
Heard by court of limited jurisdiction
Not adversarial
No statute of limitations
30-day appeal period
Governed by: Special Rules
Supplemented by: Ordinary rules
SPs are NOT limited to the cases enumerated in Section 1. List is NOT
EXCLUSIVE.
- It includes cases the purpose of which is to establish the status or right of
a party or a particular fact.
- Other Special Proceedings:
o Petition for declaration of marriage,
o Liquidation of an insolvent corporation,
o Corporate rehabilitation,
o Recognition/enforcement/setting aside/vacation/modification of
arbitration awards and proceedings
o Arbitration
Cases covered by the Interim Rules of Intra-corporate controversies
Notes:
- GR: They are considered as Ordinary Civil Actions
o They seek to recover damages for a violation of a right.
Special Proceedings (SPs), defined: This is a remedy by which a party seeks to
- EXC: Petitions for Rehabilitation is still a Special Proceeding
establish a status, a right, or a particular fact. (Rule 1, Sec. 3c). It is also an
o They seek to establish a status or fact
application to establish any remedy other than an ordinary suit in a court of
Action for Reconveyance is an Ordinary Civil Action where matters relating
justice.
to the settlement of estate cannot be adjudicated
Ordinary Action v. Special Proceeding
- Ordinary Action: A formal demand of ones right in a court of justice in
the manner prescribed by the court or by the law. It is the method of
applying legal remedies according to definite established rules.
Sec. 2. Applicability of rules of civil actions.
- Special Proceedings: (See definition above) usually, no formal
pleadings are required, unless the statute so provides. The remedy is
In the absence of special provisions, the rules provided for in ordinary actions
granted upon an application or motion
shall be, as far as practicable, applicable in special proceedings.
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Judicial:
o Testate: if the decedent left a will
o Intestate: In default of a valid will or when not all of the estate
is disposed of by will.
Note: Probate of a will is MANDATORY. Testate proceedings take precedence
over intestate proceedings.
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o Administration
o Liquidation
o Distribution
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Sec. 3. Process.
In the exercise of probate jurisdiction, CFI may:
- issue warrants and processes necessary
o to compel the attendance of witnesses or
o to carry into effect their orders and judgments, and
- all other powers granted them by law.
IF a person does not perform an order of judgment rendered by the said court:
- it may issue a warrant for the apprehension and imprisonment of
such person
- UNTIL he performs such order/judgment, OR is released.
EXCEPTIONS:
1. To satisfy distributive shares of the devisees, legatees, and heirs in possession
of decedents assets;
2. To enforce payment of expenses in partition;
3. To satisfy costs when a person is cited for examination in probate
proceedings.
4. To satisfy the claim in summary settlement proceedings of creditors or heirs
who appear w/in 2 years from the distribution.
Sec. 4. Presumption of death.
For purposes of settlement of his estate, a person shall be presumed dead:
- if absent and unheard from for the periods fixed in the Civil Code.
BUT if such person proves to be alive:
- he shall be entitled to the balance of his estate
- AFTER payment of all his debts.
The balance may be recovered by motion in the same proceeding.
Notes:
No Independent Action for Declaration of Presumption of Death
- The disputable presumption may arise and may be invoked within an
action or in a special proceeding
- Independently of such action it cannot be invoked
Periods:
- GR: After the absence of 7 years, presumed dead
- For purposes of Succession: 10 years
- If age is above 75: 5 years
- A person on board a vessel lost or airplane missing 4 years
- A person in the armed forces who took part in the war 4 years
- A person who has been in danger of death under other circumstances
4 years
Presumption of Death Must Yield to Preponderance of Evidence
- A person may be presumed dead depending on the circumstances even
w/o waiting for the period to expire to be presumed dead
Notes:
GR: Probate Court may NOT issue Writs of Execution
- Reason: Adjudication of claims against the estate may be satisfied w/o a
need of executor processes.
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conditioned upon the payment of any just claim that may be filed under
Sec 4 of this rule.
[RULE 74]
SUMMARY SETTLEMENT OF ESTATES
Sec. 1. Extrajudicial settlement by agreement between heirs.
IF the:
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Substantive
1. Decedent left NO
will and NO debts
2. The heirs are all of
age or are
represented by
guardians
time of settlement
Can be resorted to only at the instance
Procedural
1. Division must be in a public instrument OR and by agreement of all heirs. (If heirs
do not agree, they may resort to an
affidavit of adjudications (if sole heir)
action for partition)
2. Filed w/ the proper RD
3. Publication of notice of such settlement once a Amount of bond = amount of the
personal property
week for 3 consecutive weeks
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Failure to attach original of will to petition is not critical where the will
itself was adduced in evidence. It is not necessary to attach the original
will to petition for probate.
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[RULE 76]
ALLOWANCE OR DISALLOWANCE OF WILL
Sec. 1. Who may petition for the allowance of will.
Note: Attaching a mere copy of the will is sufficient: It has been the practice of
some courts to permit attachment of a mere copy of the will w/o prejudice to
producing the original at the hearing or when the court so required. This is a
precautionary measure to avoid the will being lost or destroyed.
IF Petition For Probate is Filed BY:
A Third Person
Notice published once a week for 3
consecutive weeks
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shall fix a time and place for proving the will when all concerned may
appear to contest the allowance thereof, and
- shall cause notice of such time and place to be published
o 3 weeks successively, previous to the time appointed,
o in a newspaper of general circulation in the province.
But no newspaper publication shall be made:
- where the petition for probate has been filed by the testator himself.
Notes:
Sec. 3. Court to appoint time for proving will. Notice thereof to be published.
When a will is delivered to, OR a petition for the allowance of a will is filed in,
the court having jurisdiction, such court:
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execution of the will is entitled to greater weight than the testimony of a person
casually called to participate in the act.
Note: Test of w/n the will was signed in the presence of one another Not
actually seeing it but w/n he was in a position to see it by the mere casting of the
eyes.
Notes:
Substantial Compliance Rule, defined: 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
- It is allowed when the purpose of the law has been satisfied since the
solemnities are intended to protect the testator from all kinds of fraud and
trickery.
In Holographic Wills:
- The law does not require a particular location where the date should be
placed. For as long as it is dated, it complies w/ the requirement.
Weight of Testimonial Evidence
GR: The date should contain the day, month and year
- A will may be allowed even if some witnesses do not remember having
- EXC: when there is no fraud, undue influence, or bad faith, the
attested to it, if other evidence satisfactorily show due execution.
authenticity is established and the only question is the validity of the date
- The failure of the witness to identify his signature does not bar probate.
substantial compliance may be applied.
Note: In weighing the testimony of the attesting witnesses to a will, the statement
Ground for Disallowance of Wills are EXCLUSIVE. Hence, the ONLY issues
of a competent attorney charged w/ the responsibility of seeing to the proper
to be resolved are:
1. w/n the instrument was indeed the decedents will
Notes:
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3. w/n the decedent had the necessary testamentary capacity at the time the
will was executed
4. w/n the execution of the will and the signing were voluntarily made
Sec. 11. Subscribing witnesses produced or accounted for where will contested.
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Sec. 12. Proof where testator petitions for allowance of holographic will.
[RULE 77]
Where the testator himself petitions for the probate of his holographic will
ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND
AND no contest in filed:
ADMINISTRATION OF ESTATE THEREUNDER
- the fact that he affirms that the holographic will and the signature are in
his own handwriting,
Sec. 1. Will proved outside Philippines may be allowed here.
- shall be sufficient evidence of the genuineness and due execution
thereof.
Wills proved and allowed in a foreign country:
- according to the laws of such country
IF the holographic will is contested:
- may be allowed, filed, and recorded by the proper CFI in the RP.
- the burden of disproving the genuineness and due execution thereof shall
be on the contestant.
Notes:
The testator may, in his turn, present such additional proof as may be necessary
to rebut the evidence for the contestant.
The Rule Talks About the Reprobate of the Will:
- It is a requirement that the will proved and allowed in a foreign country
must be re-probated in the RP.
Sec. 13. Certificate of allowance attached to proved will. To be recorded in the
- If the decedent owns properties in different countries separate
Office of Register of Deeds.
proceedings must be had to cover the same.
IF the court is satisfied, upon proof taken and filed:
- that the will was duly executed, and
- that the testator at the time of its execution was of sound and disposing
mind, and not acting under duress, menace, and undue influence, or
fraud,
a certificate of its allowance:
o signed by the judge, and attested by the seal of the court
- shall be attached to the will and
- filed and recorded by the clerk.
Attested copies of the will devising real estate and of certificate of allowance
thereof:
- shall be recorded in the RD of the province in which the lands lie.
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4. Hearing and
5. Certificate of Allowance
The Court shall Give Notice as in the Case of an Original Will Presented
for Probate
- This rule means that w/ 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.
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Administrator
Appointed by the intestate court in case the
testator:
a. Dies w/o leaving a will
b. Did not name any executor even if there was a
will or
c. If there be one named, he is incompetent or
refuses the trust or fails to give a bond, or the
will is subsequently declared null and void
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No such duty
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Letter of
Administration
Letters of
Administration w/
Will Annexed
be incompetent or unwilling, or
IF the husband or widow, or next of kin:
- neglects for 30 days after the death of the person:
o to apply for administration or
o 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.
Notes:
Order of Preference
When ALL of the executors named in a will cannot act:
1. Surviving husband or wife
- because of incompetency,
2. Next of Kin
- refusal to accept the trust, or
3. Principal Creditors
- failure to give bond, on the part of one or more of them,
4. Such Other person as the court may select
letters testamentary may issue to:
- such of them as are competent, accept and give bond, and
GR: The court CANNOT set aside the order of preference in Sec 6
- they may perform the duties and discharge the trust required by the will. EXC: When the persons who have the preferential right to be appointed under
the rule are not competent or are unwilling to serve the courts may select such
Sec. 6. When and to whom letters of administration granted.
other person.
IF:
(a) To the surviving husband or wife, as the case may be, or next of kin, or both,
Mere Failure to Apply for Letters of Administration Does Not Automatically
- in the discretion of the court, or
Remove Preference: There must be a very strong case to justify the exclusion of
To such person as such surviving husband or wife, or next of kin, requests to
the widow from administration.
have appointed:
if competent and willing to serve;
Herrera: The 30-day Period May be Waived. The provision merely provides that
(b) IF such surviving husband or wife, as the case may be, or next of kin, or the the said letter as an alternative may be granted to one or more of the principal
creditors.
person selected by them:
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[RULE 79]
OPPOSING ISSUANCE OF LETTERS TESTAMENTARY. PETITION
AND CONTEST FOR LETTERS OF ADMINISTRATION
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Notes:
Notes:
Grounds for Opposition:
In Letters Testamentary
In Letters of
Administration
Incompetence
*Incompetence
*Preferential right of the heir under Rule 78
Note: Defects in the petition may be cured by failure to make timely objection.
Sec. 3. Court to set time for hearing. Notice thereof.
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it shall order the issuance of letters of administration to the party best entitled
thereto.
Notes:
Letters of Administrations Shall Issue IF it is Proven:
1. Notice as required in Sec 3 was given
2. The decedent left no will; or if there is no competent and willing
executor.
[RULE 80]
SPECIAL ADMINISTRATOR
Sec. 1. Appointment of special administrator.
When there is delay in granting letters testamentary or of administration:
- BY any cause including an appeal from the allowance or disallowance of
a will,
the court may:
- appoint a special administrator to take possession and charge of the
estate of the deceased
- UNTIL the questions causing the delay are decided and executors or
administrators appointed.
Notes:
Special Administrator, defined: A representative of decedent appointed by the
probate court to care for and preserve his estate until an executor or general
administrator is appointed
Administrator
Appointed when deceased died
intestate or did not appoint an executor
in the will or will was disallowed
One of the obligations is to pay the
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The court making the appointment retains control over it and make
modify, rescind or revoke the same on sufficient grounds at any time
before final judgment
[RULE 81]
BONDS OF EXECUTORS AND ADMINISTRATORS
Sec. 1. Bond to be given before issuance of letters; Amount; Conditions.
BEFORE:
- an executor or administrator enters upon the execution of his trust, and
- letters testamentary or of administration issue,
he shall give a bond, in such sum as the court directs, conditioned as follows:
(a) To make and return to the court, w/in 3 months, a true and complete
inventory
- of all goods, chattels, rights, credits, and estate of the deceased
- which shall come to his possession or knowledge or to the possession of
any other person for him;
(b) To administer according to these rules, and,
IF an executor, according to the will of the testator,:
- all goods, chattels, rights, credits, and estate which shall at any time
come
o to his possession or
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Luzon Surety v. Quebrar: The terms and effectivity of bond does not depend on
the payment of the premium and does not expire until the administration is
closed. As long as the probate court retains jurisdiction over the estate, the bond
contemplates a continuing liability.
[RULE 82]
REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND
REMOVAL OF EXECUTORS AND ADMINISTRATORS
Sec. 1. Administration revoked if will discovered; Proceedings thereupon.
Sec. 2. Bond of executor where directed in will. When further bond required.
IF the testator in his will directs that the executor serve:
- w/out bond OR with only his individual bond,
- he may be allowed by the court to give bond:
o in such sum and with such surety as the court approves
o conditioned only to pay the debts of the testator;
BUT the court may require of the executor a further bond in case:
- a change in his circumstances, or for other sufficient cause,
- with the conditions named in the last preceding section
Sec. 3. Bonds of joint executors and administrators.
IF AFTER:
- letters of administration have been granted on the estate of a decedent
as if he had died intestate,
- his will is proved and allowed by the court,
the letters of administration:
- shall be revoked and
- all powers thereunder cease, and
- the administrator shall:
o forthwith surrender the letters to the court, and
o render his account within such time as the court directs.
Proceedings for the issuance of letters testamentary or of administration under
the will shall be as hereinbefore provided.
When two or more persons are appointed executors or administrators, the court
may take:
Notes:
a separate bond from each, or a joint bond from all.
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Note: Acts done in good faith prior to revocation of the letters of administrator
shall be protected.
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After the filing of the petition for the issuance of letters of administration
and the publication of the notice of hearing the probate court acquires The widow AND minor or incapacitated children of a deceased person:
jurisdiction and retains that jurisdiction UNTIL the proceeding is
- during the settlement of the estate,
closed.
- shall receive therefrom, under the direction of the court, such allowance
However, an administrators unexplained delay in filing the inventory
as are provided by law.
may be a ground for his removal
The Administrator is NOT Chargeable with the Administration of the Estate Allowance, defined: The monetary advances which are subject to collation and
Which Has Not Come to his Possession
are likewise deductible form their share in the estate of the decedent.
- He is however, accountable for the true and complete inventory of all the
property belonging to the state which has come to his knowledge
Allowances for Support Under this Section Should NOT be Limited to the
minor or incapacitated Children of the Deceased.
- Art 133 Family Code: During the liquidation of the conjugal partnership,
The Court which Acquires Jurisdiction Over the Property has Supervision
and Control over the said Properties
the deceaseds legitimate spouse and children, REGARDLESS of age,
civil status or gainful employment are entitled to provision support from
- It is its inherent duty to see to it that the inventory submitted by the
the funds of the estate
administrator contains all the properties, rights, credits which the law
- It is limited however to the legitimate spouses and children
requires the administrator to set out in his inventory.
grandchildren are not entitled to the same allowance.
The Court has the Power to Determine whether the Properties Belong prima
facie to the Intestate
Note: When the liabilities exceed the assets of the estate, his widow and children
- Approval of the inventory is not conclusive determination of what assets are NOT entitled to support pending the liquidation on the ground that such
support, having the character of an advance payment to be deducted from the
constituted the deceaseds estate and of the valuation thereof.
- Such determination is only provisional and a prima facie finding of the respective share of each heir.
issue of ownership.
Note: The sale of the estate is unnecessary when the cash in possession of the
- Property Claimed by a Third Person May be Included in the
administrator is sufficient for payment of the allowance of the heirs. The court
Inventory. The determination does not preclude the claimants from
may not order said sale especially when the heirs opposed it.
maintaining an ordinary civil action for the determination of title.
Sec. 2. Certain articles not to be inventoried.
[RULE 84]
The wearing apparel of the surviving husband or wife and minor
GENERAL POWERS AND DUTIES OF EXECUTORS AND
children,
ADMINISTRATORS
- the marriage bed and bedding, and such provisions and
- other articles as will necessarily be consumed in the subsistence of the
Sec. 1. Executor or administrator to have access to partnership books and
family of the deceased, under the direction of the court:
property; How right enforced.
shall not:
- be considered as assets,
The executor or administrator of the estate of a deceased partner shall at all
- nor administered as such, and
times have access to, and:
- shall not be included in the inventory.
- may examine and take copies of, books and papers relating to the
partnership business, and
Sec. 3. Allowance to widow and family.
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UNLESS it appears that the action or proceeding in which the costs are
taxed was prosecuted or resisted without just cause, and not in good
faith.
he shall NOT charge against the estate any professional fees for legal
services rendered by him.
When the deceased by will makes some other provision for the compensation of
Sec. 7. What expenses and fees allowed executor or administrator. Not to
his executor:
charge for services as attorney. Compensation provided by will controls unless
- that provision shall be a FULL satisfaction for his services
renounced.
- UNLESS by a written instrument filed in the court he renounces all
claim to the compensation provided by the will.
An executor or administrator shall be allowed:
- the necessary expenses in the care, management, and settlement of the Expenses of Administration: Necessary for the management of the estate, for
estate, and
protecting it against destruction or deterioration and possibly, for the production
- for his services, 4 pesos per day for the time actually and necessarily
of fruits. There are expenses and its management for purposes of liquidation,
employed, or a
payment of debts and distribution of the residue among the persons entitle to
- commission upon the value of so much of the estate as comes into his thereto.
possession and is finally disposed of by him in the payment of debts,
expenses, legacies, or distributive shares, or by delivery to heirs or
Compensation if There is No Provision in the Will
devisees, of:
1. P4.00 a day for the time actually and necessarily employed OR
2% of the first 5K of such value
2. Commission
1% of so much of such value as E 5K pesos and does NE 30K
3. A greater sum may be allowed if:
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o TO persons interested
The Rendering of an Accounting by an Administration of his Administration
o OF the time and place of examining and allowing the same; and
Within 1 Year From his Appointment is MANDATORY
- such notice may be given:
- The fact that all the heirs of the estate have entered into an EX-J
o personally to such persons interested or by advertisement in a
settlement and partition cannot be interpreted to mean a waiver of their
newspaper or newspapers, or both,
objections to the accounts submitted by the administrator
as
the
court
directs.
- The duty to render an account is not a mere incident of an administration
proceeding which can be waived or disregarded when the same is
Sec. 11. Surety on bond may be party to accounting.
terminated It is a duty that has to be performed and duly acted upon by
the court before the administration is finally ordered closed or
UPON the settlement of the account of an executor or administrator, a person
terminated.
liable as surety in respect to such account:
may, upon application, be admitted as party to such accounting.
Period to Render Accounting
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[RULE 86]
CLAIMS AGAINST ESTATE
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For as long as the claim is not filed within the time fixed by the court it will
- OTHERWISE they are barred forever,
be forever barred.
- EXCEPT that they may be set forth as counterclaims in any action that
- Both statutes must concur for the creditor to be able to collect,
the executor or administrator may bring against the claimants.
GR: Claims which must be filed under the notice. If not filed - BARRED
Where an executor or administrator commences or prosecutes an action already
EXC: However, a creditor barred by the Statute or Non-claims may file a claim commenced by the deceased in his lifetime, the debtor may:
as a counterclaim in any suit that the E or A may bring against such creditor.
- set forth by answer the claims he has against the decedent, INSTEAD OF
presenting them independently to the court as herein provided, and
Sec. 3. Publication of notice to creditors.
- mutual claims may be set off against each other in such action; and
IF final judgment is rendered in favor of the defendant, the amount so
Every executor or administrator shall immediately after the notice to creditors is determined:
issued cause the same:
- shall be considered the true balance against the estate,
- to be published 3 weeks successively in a newspaper of general
- as though the claim had been presented directly before the court in the
circulation in the province, and
administration proceedings.
- to be posted for the same period in
Claims not yet due or contingent:
o 4 public places in the province and in
- may be approved at their present value.
o 2 public places in the municipality where the decedent last
Notes:
resided.
Purpose of Publication: Constructive notice to all. A claim filed beyond the
Olave v. Carlos : Claims referred to under this section refer to claims for the
period fixed shall be barred and lack of knowledge is not a defense
recovery of money and which are not secured by a lien against the property of the
estate
Sec. 4. Filing copy of printed notice.
W/in 10 days after the notice has been published and posted in accordance with Claims Which Must be Filed With the Probate Court:
the preceding section, the executor or administrator shall file or cause to be (List EXCLUSIVE)
1. All claims for money (money, debt or interest) against decedent arising from
filed in the court:
contract;
- a printed copy of the notice accompanied
- Includes ONLY those contracted by the decedent before his death
- with an affidavit setting forth - the dates of the first and last publication
- The contract may be express of implied
thereof and the name of the newspaper in which the same is printed.
- The debt may be due or not due or contingent
2.
Claims for funeral expenses and
Sec. 5. Claims which must be filed under the notice. If not filed, barred;
3.
Claims for the last illness;
exceptions.
4. Judgment for money
- The judgment must be presented as a claim against the estate, where the
- All claims for money against the decedent,
judgment debtor dies before levy on execution of his properties.
o arising from contract, express/implied
o whether the same be due, not due, or contingent,
Absolute Claim, defined: It is such a claim as, if contested between living
- all claims for funeral expenses and expenses for the last sickness of persons, would be proper subject of immediate legal action and would supply a
the decedent, and
basis of a judgment for a sum certain.
- judgment for money against the decedent
must be filed:
Contingent Claim defined: It is a conditional claim or claim that is subject to
- w/in the time limited in the notice;
the happening of a future uncertain event. It is one by which, by its nature is
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necessarily dependent upon an uncertain event for its existence and claim, and its
validity and enforceability depending upon an uncertain event.
Note: a deficiency judgment is a contingent claim
Note: Claims not yet due or contingent may be approved at their present value.
Sec. 7. Mortgage debt due from estate.
A claim that is extinguished by death should be distinguished from an action A creditor holding a claim against the deceased secured by mortgage or other
which does not survive. A claim is extinguished by reason of death if the action collateral security:
is personal to either parties such as in cases of legal separation, annulment or
- may abandon the security and prosecute his claim in the manner
declaration of nullity. The claim is not extinguished if there is already a final
provided in this rule, and share in the general distribution of the assets
decree.
of the estate; or
he may foreclose his mortgage or realize upon his security:
Suits Against Deceased Spouse NOT Allowed: A creditor cannot sue the
o by action in court, making the executor or administrator a party
surviving spouse of a decedent in an ordinary proceeding for the collection of
defendant, and
sum of money chargeable against the conjugal partnership. The proper remedy
o
IF there is a judgment for a deficiency, AFTER the sale of the
for him is to file a claim in the settlement of the estate of the deceased.
mortgaged premises, or the property pledged, in the foreclosure
or other proceeding to realize upon the security, he may claim his
Claim for Support Should not be Granted: The claim must await until all
deficiency judgment in the manner provided in the preceding
claims against the estate have been settled.
section; or
- he may rely upon his mortgage of other security alone, and foreclose
Execution of Final Judgment Not Proper Remedy But Filing of Claim: Even
the same:
if the judgment in a civil case may have been final and executor, the claim must
o at any time within the period of the statute of limitations, and
still be filed before the probate court so that the said court may order the
o in that event: he shall not be admitted as a creditor AND shall
administrator to pay the amount
receive no share in the distribution of the other assets of the
- Mandamus is also not available
estate;
- Ordinary action for Collection is NOT allowed
but nothing herein contained shall prohibit the executor or administrator from
redeeming the property mortgaged or pledged:
Sec. 6. Solidary obligation of decedent.
- BY paying the debt for which it is held as security, under the direction of
the court,
Where the obligation of the decedent is solidary with another debtor, the claim
IF the court shall adjudge it to be for the best interest of the estate that
shall be filed:
such redemption shall be made.
- against the decedent as if he were the only debtor
Three Distinct, Alternative Remedies Available to a Mortgage Creditor Upon
- without prejudice to the right of the estate to recover contribution form the Death of the Mortgagor: (Mutually Exclusive)
the other debtor.
1. To waive the security mortgage and claim the entire debt from the estate as
In a joint obligation of the decedent:
an ordinary claim. By filing money claim against the estate, he is deemed to
- the claim shall be confined to the portion belonging to him.
have abandoned the mortgage and thereafter he cannot file a foreclosure suit
if he fails to recover his money claim against the estate
Joint Obligation of decedent: The claim must be confined to the portion
2. To foreclose the mortgage judicially and prove any deficiency as an ordinary
belonging to the decedent.
claim. The foreclosure suit should be against the executor or administrator as
party defendant. In the event that a creditor fails to fully recover his claim, he
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may obtain deficiency judgment and file it as a claim against the estate in the
- but a copy thereof with all indorsements shall be attached to the claim
manner provided by this Rule.
and filed therewith.
3. To rely solely upon the mortgage and foreclosure the same at any time before On demand, however, of the executor or administrator, or by order of the
it is barred by prescription w/o right to claim for any deficiency. This modecourt or judge:
includes EX-J foreclosure of sale and its exercise precludes one from
- the original shall be exhibited,
recovery any balance of indebtedness against the estate and frees the estate
- UNLESS it be lost or destroyed, in which case - the claimant must
from further liability
accompany his claim with affidavit or affidavits containing a copy or
Note: The mortgagee does not lose its right to EX-J foreclose the mortgage even
particular description of the instrument and stating its loss or destruction.
after the death of the mortgagor.
When the claim is due, it must be supported by affidavit stating:
- the amount justly due,
No Right to Claim Deficiency Judgment Under the Third Option: The credit
- that no payments have been made thereon which are not credited, and
having chosen the remedy of EX-J foreclosure of the mortgaged property of the
- that there are no offsets to the same, to the knowledge of the affiant.
deceased is precluded from pursuing its deficiency claim against the estate of the If the claim is not due, or is contingent, when filed, it must ALSO be supported
deceased.
by affidavit stating the particulars thereof.
Sec. 8. Claim of executor or administrator against an estate.
When the affidavit is made by a person other than the claimant, he must set
forth therein:
- the reason why it is not made by the claimant.
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BUT the court, in its discretion, BEFORE approving the claim, may
order that known heirs, legatees, or devisees be notified and heard.
IF upon hearing, an heir, legatee, or devisee opposes the claim, the court may, in
its discretion:
- allow him 15 days to file an answer to the claim in the manner prescribed
in the preceding section.
UPON the filing of an answer to a claim, or UPON the expiration of the time for
W/in 15 days AFTER service of a copy of the claim on the executor or
such filing, the clerk of court:
administrator, he shall file his answer:
- shall set the claim for trial with notice to both parties.
- admitting or denying the claim specifically, and
The court may refer the claim to a commissioner.
- setting forth the substance of the matters which are relied upon to support
the admission or denial.
Sec. 13. Judgment appealable.
If he has no knowledge sufficient to enable him to admit or deny specifically:
- he shall state such want of knowledge.
The judgment of the court approving or disapproving a claim:
The executor or administrator in his answer shall allege in offset:
- shall be filed with the record of the administration proceedings with
- any claim which the decedent before death has against the claimant, and
notice to both parties, and
- his failure to do so shall bar the claim forever.
- is appealable as in ordinary cases.
A copy of the answer shall be served by the executor or administrator on the
A judgment against the executor or administrator:
claimant.
- shall be that he pay, in due course of administration, the amount
The court in its discretion may:
ascertained to be due, and
- extend the time for filing such answer.
- it shall not:
o create any lien upon the property of the estate, or
Notes:
o give to the judgment creditor any priority of payment.
GR: A probate court has no jurisdiction to entertain a claim in favor of the estate
Mode of Appeal: Record of appeal which must be filed 30 days from notice of
against a 3rd person as the same must be the subject of an ordinary action
EXC: Sec 10 authorizes the E or A to interpose any counterclaim to offset of a judgment
claim against the estate. Said counterclaim is regarded as a compulsory
Sec. 14. Costs.
counterclaim as the failure to file the same shall bar the claim forever.
When:
- the executor or administrator, in his answer, admits and offers to pay
Sec. 11. Disposition of admitted claim.
part of a claim, AND
the claimant refuses to accept the amount offered in satisfaction of his
Any claim admitted entirely by the executor or administrator:
claim,
- shall immediately be submitted by the clerk to the court WHO may
IF he fails to obtain a more favorable judgment:
approve the same without hearing;
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Note: When the demand is in favor of the administrator and the party against
he cannot recover costs,
BUT must pay to the executor or administrator costs from the time of the whom it is enforced is a third party the demand cannot be by mere motion by
the administrator, but an independent action against the 3 rd person.
offer.
Where:
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UNTIL there is an order of the court assigning such lands to such heir or IF an executor or administrator, heir, legatee, creditor, or other individual
interested in the estate of the deceased, complains to the court having
devisee OR
jurisdiction of the estate:
- UNTIL the time allowed for paying debts has expired.
- that a person is suspected of having concealed, embezzled, or conveyed
Previous Declaration of Heirship is NOT Necessary: The rights to the
away any of the money, goods, or chattels of the deceased, or
succession are transmitted from the moment of the death of the decedent.
- that such person has in his possession or has knowledge of any deed,
- Heir may bring a reinvindicatory action before declaration of heirship.
conveyance, bond, contract, or other writing which contains evidence of
- HOWEVER, the heir may not sue when an E or A is appointed Until
or tends to disclose:
his share is assigned.
o the right, title, interest, or claim of the deceased to real or
Scope of Prohibition
personal estate, or
- The prohibition applies ONLY to heir or devisees
o the last will and testament of the deceased,
- Not to a donee inter vivos who may compel the E or A to deliver he
the court:
property donated
- may cite such suspected person to appear before it and
GR: Upon the commencement of the testate or intestate proceedings, the heirs
- may examine him on oath on the matter of such complaint; and
have no standing in court actions for recovery or protection of the property rights
IF the person so cited refuses:
of the deceased
- to appear, or
EXCEPTIONS:
- to answer on such examination or such interrogatories as are put to him,
1. When the E or A is unwilling to bring suit
the
court:
2. When the E or A is made a party defendant where he is alleged to have
- may punish him for contempt, and
participated in the act complained of.
- may commit him to prison UNTIL he submits to the order of the court.
3. When there is no appointed E or A
The interrogatories put to any such person, AND his answers thereto:
- shall be in writing and
- shall be filed in the clerk's office.
Notes:
Purpose of the Rule: To elicit information or to secure evidence form those
persons suspected as having possessed or having knowledge of properties
belonging to deceased, or of having concealed, embezzled or conveyed away any
properties of the deceased.
GR: The probate court has no authority to decide whether or not the properties
belong to the estate or to the person being examined since probate courts are
courts of limited jurisdiction.
EXC:
1. Provisional determination of ownership for inclusion in the intervenory
or
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2. When the parties are all heirs and they voluntarily submitted the issue to The Double Value Rule Does Not Apply: Does not apply to the manager of a
the probate court and the determination of which will not prejudice the company who carries on the business after the death of his principal and applied
rights of 3rd person. (Bernardo v. CA, 1990)
the proceeds of sale to the payment of debts contracted in running the business.
Note: Such proceedings are intended merely to investigate and take testimony for The Rule Contemplates: An embezzlement or alienation which causes the estate
use in an independent action since the court in such proceedings lacks power to to lose the property converted by the wrongdoer.
adjudicate title.
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the action which a creditor may bring shall be in the name of ALL the
creditors, and
permission of the court and filing of bond as above prescribed, are NOT
necessary.
Notes:
Requisites For a Creditor To File an Action:
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. 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 action the
Sec. 10. When creditor may bring action; Lien for costs.
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;
When:
6.
a BOND is filed by the creditor;
- there is such a deficiency of assets, AND
7.
the action by the creditor is in the NAME of the executor or administrator.
- the deceased in his lifetime had made or attempted such a conveyance, as
is stated in the last preceding section, AND
the executor or administrator has not commenced the action therein
provided for,
any creditor of the estate may, with the permission of the court:
- commence and prosecute to final judgment, in the name of the
executor or administrator, a like action for the recovery of the subject
of the conveyance or attempted conveyance for the benefit of the
creditors.
BUT the action shall not be commenced UNTIL the creditors has filed in a court
a bond executed to the executor or administrator
- in an amount approved by the judge,
- conditioned to indemnify the executor or administrator against the costs
and expenses incurred by reason of such action.
Such creditor shall have a lien:
- upon any judgment recovered by him in the action for such costs and
other expenses incurred therein as the court deems equitable.
Note: However, the last three requisites are unnecessary where the grantee is the
executor or administrator himself, in which event the action should be in the
name of all creditors.
An Administratrix Creditor Cannot Ask For Preliminary Attachment: He is
also included in the prohibition.
Where the conveyance or attempted conveyance has been made by the deceased
in his lifetime in favor of the executor or administrator:
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IF the testator:
- makes provision by his will, or
- designates the estate to be appropriated for the payment of debts, the
expenses of administration, or the family expenses,
they shall be paid:
- according to the provisions of the will;
BUT IF the provisions made by the will or the estate appropriated, is not
sufficient for that purpose:
- such part of the estate of the testator, real or personal, as is not disposed
of by will, if any, shall be appropriated for that purpose.
Note: Although the testator has acknowledged a specific debt in his will, the
creditor is not relieved from the duty of filing his claim in the settlement
proceedings otherwise his claim will be barred.
[RULE 88]
PAYMENT OF THE DEBTS OF THE ESTATE
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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,
Note: The residue funds within the estate although already in the possession of
- if the estate is insolvent, sufficient to pay a portion equal to the dividend the heirs are funds of the estate
of the other creditors.
Jaucian v. Querol: If the contingent claim matures after the expiration of the two
Requisites:
years, the creditors may sue the distributes, who are liable in proportion to the
1. Contingent claim is duly filed;
shares in the estate respectively received by them.
2. Court is satisfied that the claim is valid; and
De Bautista v. De Guzman, 1983: It has been ruled that the only instance
3. The claim has become absolute
wherein a creditor can file an action against a distributee of the debtors assets is
under 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
Sec. 5. How contingent claim becoming absolute in two years allowed and
action directly against the distributes.
paid; Action against distributees later.
Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have
been in possession.
IF such contingent claim:
- becomes absolute and
Where devisees, legatees, or heirs:
- is presented to the court, or to the executor or administrator, w/in 2 years
- have entered into possession of portions of the estate BEFORE the
FROM the time limited for other creditors to present their claims,
debts and expenses have been settled and paid, and
it may:
have become liable to contribute for the payment of such debts and
- be allowed by the court IF not disputed by the executor or administrator,
expenses,
and,
- IF disputed, it may be proved and allowed or disallowed by the court as the the court having jurisdiction of the estate may, BY order for that purpose,
AFTER hearing:
facts may warrant.
- settle the amount of their several liabilities, and
- order how much and in what manner each person shall contribute, and
IF the contingent claim is allowed:
- may issue execution as circumstances require.
- the creditor shall receive payment to the same extent as the other creditors IF
the estate retained by the executor or administrator is sufficient.
But IF the claim is not so presented, after having become absolute, w/in said 2 Liability of heir and Distributees
- GR: Heirs are not required to respond with their own property for the debts
years, and allowed:
of their deceased ancestors
- 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 - EXC: Even after partition of an estate they are liable individually for the
payment of all lawful outstanding claims against the estate in proportion to
court to the persons entitled to the same;
the amount or value of the property they have respectively received from the
- BUT:
estate
o the assets so distributed may still be applied to the payment of the
Ratio:
The hereditary property consists only of that part which remains after the
claim when established, AND
settlement of all lawful claims against the estate
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add the same to the list of claims proved against the deceased person in
the RP so that a just distribution of the whole estate may be made equally
IF the assets which can be appropriated for the payment of debts are not
among all its creditors according to their respective claims;
sufficient for that purpose, the executor or administrator:
but the benefit of this and the preceding sections shall NOT be extended to the
- shall pay the debts against the estate, observing the provisions of Articles creditors in another country: (principle of reciprocity)
1059 and 2239 to 2251 of the Civil Code.
- IF the property of such deceased person there found is not equally
apportioned to the creditors residing in the RP and the other creditors,
according to their respective claims.
Sec. 8. Dividends to be paid in proportion to claims.
Sec. 11. Order for payment of debts.
IF there are no assets sufficient to pay the credits of any one class of creditors
AFTER paying the credits entitled to preference over it:
BEFORE the expiration of the time limited for the payment of the debts, the
- each creditor within such class shall be paid a dividend in proportion to court shall:
- order the payment thereof, and
his claim.
No creditor of any one class shall receive any payment:
- the distribution of the assets received by the executor or administrator for
- UNTIL those of the preceding class are paid.
that purpose among the creditors, as the circumstances of the estate
require and in accordance with the provisions of this rule.
Sec. 9. Estate of insolvent nonresident, how disposed of.
Sec. 12. Orders relating to payment of debts where appeal is taken.
In case administration is taken in the RP of the estate of a person:
- WHO was at the time of his death an inhabitant of another country, AND IF an appeal has been taken from a decision of the court concerning a claim, the
court:
- WHO died insolvent,
- may suspend the order for the payment of the debts OR
his estate found in the RP shall, as far as practicable, be so disposed of:
- that his creditors here and elsewhere may receive each an equal share, in
- may order the distribution among the creditors whose claims are
proportion to their respective credits.
definitely allowed,
leaving in the hands of the executor or administrator sufficient assets to pay the
Sec. 10. When and how claim proved outside the Philippines against insolvent claim disputed and appealed.
resident's estate paid.
When a disputed claim is finally settled, the court having jurisdiction of the
IF it appears to the court having jurisdiction:
estate shall:
- that claims have been duly proven in another country AGAINST the
- order the same to be paid out of the assets retained to the same extent and
estate of an insolvent WHO was at the time of his death an inhabitant of
in the same proportion with the claims of other creditors.
the RP, and
- that the executor or administrator in the RP had knowledge of: the
Sec. 13. When subsequent distribution of assets ordered.
presentation of such claims in such country AND an opportunity to
contest their allowance,
IF:
the court shall:
1. the whole of the debts are not paid on the first distribution, AND IF:
- receive a certified list of such claims, when perfected in such country,
2. the whole assets are not distributed OR other assets afterwards come to
AND
the hands of the executor or administrator,
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the court may from time to time make further orders for the distribution of When:
assets.
- an executor or administrator dies, AND a
- new administrator of the same estate is appointed,
Sec. 14. Creditors to be paid in accordance with terms of order.
the court may extend the time allowed for the payment of the debts or legacies
beyond the time allowed to the original executor or administrator:
When an order is made for the distribution of assets among the creditors, the
- NE 6 months at a time and
executor or administrator shall, as soon as the time of payment arrives:
- NE 6 months beyond the time which the court might have allowed to
- pay the creditors the amounts of their claims OR the dividend thereon,
such original executor or administrator; and
- in accordance with the terms of such order.
notice shall be given of the time and place for hearing such application, as
required in the last preceding section.
Note: The speedy settlement of the estate is the spirit of the probate law.
Sec. 15. Time for paying debts and legacies fixed, or extended after notice,
within what periods.
On granting letters testamentary or administration the court shall:
- allow to the executor or administrator a time for:
o disposing of the estate and paying the debts and legacies of the
deceased,
o which shall not, in the first instance, exceed 1 year;
but the court may:
- on application of the executor or administrator and
- after hearing on such notice of the time and place therefor given to all
persons interested as it shall direct,
extend the time as the circumstances of the estate require:
- NE 6 months for a single extension
- nor so that the whole period allowed to the original executor or
administrator shall exceed 2 years.
Sec. 16. Successor of dead executor or administrator may have time extended
on notice within certain period.
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Note: It is only the court that has the power to authorize the sale. A power of
attorney executed by the heirs in favor of the E or A gives no legal effect to the
sale.
Sec. 2. When court may authorize sale, mortgage, or other encumbrance of
realty to pay debts and legacies through personalty not exhausted.
When:
the personal estate of the deceased is not sufficient to pay the debts,
expenses of administration, and legacies, OR
- where the sale of such personal estate may injure the business or other
interests of those interested in the estate, AND
- where a testator has not otherwise made sufficient provision for the
payment of such debts, expenses, and legacies,
the court, on the application of the executor or administrator AND on written
notice to the heirs, devisees, and legatees residing in the RP, may authorize the
executor or administrator:
- to sell, mortgage, or otherwise encumber so much as may be necessary
of the real estate, in lieu of personal estate,
- for the purpose of paying such debts, expenses, and legacies,
- if it clearly appears that such sale, mortgage, or encumbrances would be
beneficial to the persons interested; and
IF a part cannot be sold, mortgaged, or otherwise encumbered without injury to
those interested in the remainder, the authority may be for the sale, mortgage,
or other encumbrance:
- of the whole of such real estate OR
- so much thereof as is necessary or beneficial under the circumstances.
[RULE 89]
When the Court May Authorize Sale, Mortgage, or Other Encumbrance of
SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF
Realty to Pay Debs and Legacies Though Personalty NOT Exhausted
PROPERTY OF DECEDENT
1. If personal estate is NOT SUFFICIENT to pay debts, expenses of administration
and legacies;
Sec. 1. Order of sale of personalty.
2. If sale of personal estate may injure the business or interest of those interested in
the estate;
UPON the application of the executor or administrator, AND on written notice to 3. If testator has NOT made sufficient provision for payment of such debts,
the heirs and other persons interested, the court may:
expenses and legacies;
- order the whole or a part of the PERSONAL estate to be sold,
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4. If deceased was in his lifetime under contract, binding in law to deed real
property to beneficiary (Section 8);
When it appears that the sale of the whole or a part of the real or personal estate,
5. If the deceased during his lifetime held real property in trust for another person will be beneficial to the heirs, devisees, legatees, and other interested persons,
(Section 9).
the court may:
Requisites:
- upon application of the executor or administrator and
1. Application of executor or administrator;
- on written notice to the heirs, devisees and legatees who are interested in
2. Written notice to person interested; and
the estate to be sold,
3. Hearing.
authorize
the executor or administrator:
Note: Assets in the hands of E or A will not be reduced to prevent a creditor from
to
sell
the whole or a part of said estate, although not necessary to pay
receiving his full debt or diminish his dividends.
debts, legacies, or expenses of administration;
- BUT such authority shall not be granted IF inconsistent with the
Without notice and hearing the sale, mortgage or encumbrance is void. Notice is
mandatory.
provisions of a will.
- Non-compliance therewith under the sale is null and void.
In case of such sale:
- Notice given to the heirs is mandatory regardless of their age. Notice to
- the proceeds shall be assigned to the persons entitled to the estate in the
parents of minor is not sufficient.
proper proportions.
- HOWEVER, notice to counsel or guardian ad litem is sufficient.
Ratio for the Rule: The reason behind this requirement is that the heirs are the Sec. 5. When court may authorize sale, mortgage, or other encumbrance of
presumptive owners. Since they succeed to all the rights and obligation of the estate to pay debts and legacies in other countries.
deceased from the moment of the latters death, they are the person directly affected
by the sale or mortgage and therefore cannot be deprived of the property, except in
When the sale of personal estate, or the sale, mortgage, or other encumbrance of
the manner provided by law.
real estate:
- is not necessary to pay the debts, expenses of administration, or legacies
Sec. 3. Persons interested may prevent such sale, etc., by giving bond.
in the RP,
No such authority to sell, mortgage, or otherwise encumber real or personal
BUT it appears from records and proceedings of a probate court in
estate shall be granted:
another country that:
- IF any person interested in the estate gives a bond:
o the estate of the deceased in such other country is not sufficient
o in a sum to be fixed by the court,
to pay the debts, expenses of administration, and legacies there,
o conditioned to pay the debts, expenses of administration, and
the court here may authorize the executor or administrator:
legacies
- to sell the personal estate or to sell, mortgage, or otherwise encumber the
o within such time as the court directs;
real estate for the payment of debts or legacies in the other country,
and such bond:
- in the SAME manner as for the payment of debts or legacies in the RP.
- shall be for the security of the creditors, as well as of the executor or
Sec. 6. When court may authorize sale, mortgage, or other encumbrance of
administrator, and
realty acquired on execution or foreclosure.
- may be prosecuted for the benefit of either.
Note: If the opposition to the sale is based on the fact that, oppositor claims title
The court may authorize an executor or administrator:
o he property to be sold the court will holds the abeyance the authority to sell
- to sell, mortgage, or otherwise encumber real estate acquired by him on
such property until the issue of ownership is settled (Ratio: court has no
execution or foreclosure sale,
jurisdiction to resolve issues of ownership)
- under the SAME circumstances and under the SAME regulations as
prescribed in this rule for the sale, mortgage, or other encumbrance of
Sec. 4. When court may authorize sale of estate as beneficial to interested
other real estate.
persons; Disposal of proceeds.
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(d) IF the requirements in the preceding subdivisions of this section have been
complied with, the court, BY order stating such compliance, may authorize the
executor or administrator:
- to sell, mortgage, or otherwise encumber, in proper cases,
- such part of the estate as is deemed necessary, and
in case of sale the court may authorize it to be:
- public or private, as would be most beneficial to all parties concerned.
The executor or administrator shall be furnished with a certified copy of such
order;
(e) IF the estate is to be sold at auction the mode of giving notice of the time and
place of the sale:
- shall be governed by the provisions concerning notice of execution sale;
(f) There shall be recorded in the RD of the province in which the real estate thus
sold, mortgaged, or otherwise encumbered is situated:
- a certified copy of the order of the court,
- together with the deed of the executor or administrator for such real
estate,
which shall be as valid as if the deed had been executed by the deceased in his
lifetime.
(c) IF the court requires it, the executor or administrator shall give an additional
bond:
- in such sum as the court directs,
- conditioned that such executor or administrator will account for the
proceeds of the sale, mortgage, or other encumbrance;
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Power of the Probate Court to Nullify Unauthorized Sale: The probate court
can declare it null and void for as long the proceedings had not been closed or
terminated.
Sec. 8. When a court may authorize conveyance or realty which deceased
contracted to convey; Notice; Effect of deed.
Sec. 9. When court may authorize conveyance of lands which deceased held in
trust.
Where the deceased in his lifetime held real property in trust for another person,
the court may:
- AFTER notice given as required in the last preceding section,
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[RULE 90]
DISTRIBUTION AND PARTITION OF THE ESTATE
Sec. 1. When order for distribution of residue made.
When the debts, funeral charges, and expenses of administration, the allowance
to the widow, and inheritance tax, if any, chargeable to the estate in accordance
with law,
- have been paid,
the court:
- on the application of the executor or administrator, or of a person
interested in the estate, and
- after hearing upon notice,
shall assign the residue of the estate to the persons entitled to the same:
- naming them and the proportions, or parts, to which each is entitled, and
- such person may demand and recover their respective shares from the
executor or administrator, or any other person having the same in his
possession.
IF there is a controversy before the court:
- as to who are the lawful heirs of the deceased person or
- as to the distributive shares to which each person is entitled under the
law,
the controversy shall be heard and decided as in ordinary cases.
No distribution shall be allowed:
- UNTIL the payment of the obligations above mentioned has been made
or provided for,
- UNLESS the distributees, or any of them, give a bond:
o in a sum to be fixed by the court,
o conditioned for the payment of said obligations
o within such time as the court directs.
Liquidiation: This means the determination of all assets of the estate and
payment of all debts and expenses.
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Note: This is one of the instances where writ of execution may be issued.
[RULE 91]
ESCHEATS
Sec. 1. When and by whom petition filed.
When a person:
- dies intestate,
- seized of real or personal property in the RP,
- leaving no heir or person by law entitled to the same,
the Solicitor General or his representative in behalf of the RP:
- may file a petition in the CFI of the province where the deceased last
resided OR
- in which he had estate, if he resided out of the RP,
setting forth the facts, and praying that the estate of the deceased be declared
escheated.
Escheat, defined: The proceeding whereby the real and personal property of a
deceased person in the RP, who dies w/o leaving any will or legal heirs, become
property of the State upon his death
Concept of Escheat:
- It is the falling of a decedents estate into the general property of the state on
his death intestate w/o lawful heirs, and is applied indifferently to all his
rights to property of whatever nature
- It is a proceeding whereby the state, by virtue of sovereignty, steps in and
claims the real or personal property of a person who dies intestate leaving no
heir.
Requisites for Petition for Escheat
1. Person died intestate;
2. Person died leaving no heirs; AND
3. Person died leaving properties in the Philippines
3 Instances of Escheats
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1. When a person dies intestate leaving no heir but leaving property in the
RP (Sec 1)
escheated
Basis of the States Right to Receive Property in Escheat: Order of succession
Sec. 3. Hearing and judgment.
under the NCC, the STATE is the last heir of the decedent
UPON the satisfactory proof in open court on the date fixed in the order:
- that such order has been published as directed and
- that the person died intestate, seized of real or personal property in the
Where to file: RTC of last residence or of location of this estate in the
RP, leaving no heir or person entitled to the same, and no sufficient cause
Philippines if he is a non-resident.
being shown to the contrary,
the
court:
Instance when an Escheat Proceeding is Proper even if the decedent dies
- shall adjudge that the estate of the deceased in the RP, after the
testate? When his will was not allowed to probate and he has no known heirs.
payment of just debts and charges, shall escheat; and
shall, pursuant to law, assign:
Sec. 2. Order for hearing.
o the personal estate TO the municipality or city where he last
resided in the RP, and
IF the petition is sufficient in form and substance, the court:
o
the real estate TO the municipalities or cities, respectively, in
- by an order reciting the purpose of the petition,
which the same is situated.
- shall fix a date and place for the hearing thereof:
o
IF the deceased never resided in the RP, the whole estate may be
o which date shall be not more than 6 months after the entry of the
assigned: TO the respective municipalities or cities where the
order, and
same is located.
- shall direct that a copy of the order be published before the hearing:
Such
estate
shall
be for the benefit of:
o at least once a week for 6 successive weeks
- public schools, and public charitable institutions and centers in said
o in some newspaper of general circulation published in the
municipalities or cities.
province, as the court shall deem best.
Who files: Sol Gen or his representative in behalf of the Philippines.
2. Direct the publication of a copy of the order at least once a week for 6
The right to escheat may be waived expressly or impliedly
CONSECUTIVE WEEKS.
Requisites:
1. Publication of the order;
2. Person died intestate;
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NOTE: Escheat under the Unclaimed Balance Law must be filed in RTC of the
w/in 5 years from the date of such judgment,
place where the dormant deposits are found.
such person:
- shall have possession of and title to the same, or
- IF sold, the municipality or city shall be accountable to him for the
proceeds,
o AFTER deducting reasonable charges for the care of the estate;
but a claim not made within said time shall be forever barred.
Who may file a claim on the escheated property: Any devisee, legatee, heir,
GENERAL GUARDIANS AND GENERAL GUARDIANSHIP
widow/er or person entitled thereto.
Guardianship of minors is now governed by the Rule on Guardianship of
When to file: within 5 years from the date of judgment, otherwise, FOREVER Minors (A.M. No. 03-02-05-SC) which took effect on May 1, 2003.
BARRED.
While, guardianship of incompetents is still governed by the provisions of the
Rationale of the 5 year time limitation: Since escheat is one of the incidents of Rules of Court on Guardianship (Rule 92 to Rule 97)
sovereignty, the state may, prescribe the conditions and limits of time within a
claim o such property may be made. The 5 year period is not a device
Guardianship, defined: The power of protective authority given by law and
capriciously conjured by the state to defraud any claimant. On the contrary, it is imposed on an individual who is fee and in enjoyment of his rights over one
decidedly prescribed to encourage would be claimants to be meticulous in
whose weakness on account of his age or other infirmity renders him unable to
asserting their claims.
protect himself.
- It is a trust relation of the most sacred character, in which one person,
Sec. 5. Other actions for escheat.
called the guardian acts for another called the ward whom the law
regards as incapable of managing his own affairs.
UNTIL otherwise provided by law, actions for reversion or escheat of
properties alienated in violation of the Constitution or of any statute:
Purpose: To safeguard the right and interests of minors and incompetent persons
- shall be governed by this rule,
- EXCEPT that the action shall be instituted in the province where the land Basis of Guardianship: Parens Patriae
lies in whole or in part.
- When minors are involved, the State acts as parens patriae. It is the duty
of protecting the rights of persons or individuals who because of age or
Period: Within 5 years from the date of judgment; (under Art. 1014 of the Civil
incapacity are in an unfavorable position vis--vis other parties.
Code, THE 5-YEAR PERIOD IS RECKONED FROM THE DATE THE
- Parens Patriae is inherent in the supreme power of the state. It is the
PROPERTY WAS DELIVERED TO THE STATE and further provides that if the
interest of humanity and for the prevention of injury to those who cannot
property had been sold, the municipality or city shall be accountable only for
protect themselves
such part of the proceeds as may not have been lawfully spent.)
Guardian, defined: A person in whom the law had entrusted the custody and
control of the person or estate or both of an infant, insane or other person
incapable of managing his own affairs.
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Note: Venue is the place of residence of the minor or incompetent. If the minor
resides outside the Philippines (non-resident), the petition may be filed RTC
where the property of such minor or incompetent may be situated
B. According to Constitution:
1. General Guardian;
The Guardianship Court does NOT have Jurisdiction to Settle Title to
2. Legal Guardian without judicial appointment;
Properties: The controversy should be threshed out in a separate ordinary action
3. Guardian Ad Litem appointed by courts of justice to prosecute or as the dispute is beyond the jurisdiction of the guardianship court.
defend a minor, insane or person declared to be incompetent, in an action
- HOWEVER, when the right or title of the ward to the property is clear
in court.
and indisputable, the guardianship court may issue an order directing its
4. Judicial Guardian: Appointed in pursuance to law as guardian for insane
delivery or return
persons, prodigals or minors.
[RULE 92]
VENUE
Sec. 1. Where to institute proceedings.
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[RULE 93]
APPOINTMENT OF GUARDIANS
Note: The father and the mother shall jointly exercise legal guardianship over the
person and property of their minor without the necessity of a court appointment.
In such case, this Rule shall be suppletory to the provisions of the Family Code
on Guardianship.
Sec. 2. Contents of petition.
relative,
friend, or
other person on behalf of:
o a resident minor or incompetent who has no parent or lawful
guardian, or
A petition for the appointment of a general guardian must show, so far as known
o the minor himself IF 14 years of age or over,
to the petitioner:
may petition the court having jurisdiction:
- for the appointment of a general guardian for the person or estate, or
(a) The jurisdictional facts;
both, of such minor or incompetent.
(b) The minority or incompetency rendering the appointment necessary or
An:
convenient;
- officer of the Federal Administration of the U.S. in the RP may also file a (c) The names, ages, and residences of the relatives of the minor or incompetent,
petition
and of the persons having him in their care;
o in favor of a ward thereof, and
(d) The probable value and character of his estate;
(e) The name of the person for whom letters of guardianship are prayed.
- the Director of Health,
o in favor of an insane person who should be hospitalized, or
The petition shall be verified;
o in favor of an isolated leper.
- BUT no defect in the petition or verification shall render void the
issuance of letters of guardianship.
MINOR
INCOMPETENT
MINOR
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Notes:
- There is NO requirement for PUBLICATION only NOTICE except in
case of non-resident minor or incompetent.
- However, service of NOTICE upon minor if above 14 years of age or
upon incompetent is MANDATORY AND JURISDICTIONAL.
- If the person is insane, service of notice upon the Director of Hospital
where he is hospitalized is sufficient.
To Whom Notice is Served:
1. Persons mentioned in the petition residing in the RO
2. The incompetent
When a petition for the appointment of a general guardian is filed, the court
- shall fix a time and place for hearing the same, and
- shall cause reasonable notice thereof to be given to:
o the persons mentioned in the petition residing in the province,
including the minor if above 14 years of age or
Grounds:
1. Majority of alleged minor;
2. Competency of alleged incompetent;
3. Unsuitability of the persons for whom letters are prayed.
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[RULE 94]
BONDS OF GUARDIANS
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AFTER due notice to interested persons, when no injury can result therefrom to
those interested in the estate.
Sec. 3. Bonds to be filed; Actions thereon.
Every bond given by a guardian:
- shall be filed in the office of the clerk of the court, and,
- in case of the breach of a condition thereof, may be prosecuted in the
same proceeding or in a separate action for the use and benefit of the
ward or of any other person legally interested in the estate.
Note: The bond of the guardian is a continuing one against the obligors and their
estates until all of its conditions are fulfilled.
- The mere fact that the defendants was removed as guardian did not
relieve his bondsman from liability during the time she was duly action
as such guardian.
Purpose of the Bond: For the protection of the property of the minor or
incompetent to the end that he may be assured of an honest administration of his
funds.
[RULE 95]
SELLING AND ENCUMBERING PROPERTY OF WARD
Sec. 2. When new bond may be required and old sureties discharged.
When:
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Next of Kin: This pertains to those relatives who are entitled to share in the
estate of the ward under the Law on Intestate Succession including those who
inherit per stirpes or by right of representation.
Note: Notice to next of kin and interested persons is JURISDICTIONAL.
Sec. 3. Hearing on return of order; Costs.
Notes:
At the time and place designated in the order to show cause, the court shall:
- hear the proofs and allegations of the petitioner and next of kin, and other
Grounds:
persons interested, together with their witnesses, and
1. When income of estate is insufficient to maintain the ward and his family;
- grant or refuse the prayer of the petition as the best interests of the ward
or
require.
2. When income of estate is insufficient to maintain and educate ward when a The court shall make such order as to costs of the hearing as may be just.
minor; or
3. When it appears that it is for the benefit of the ward.
Sec. 4. Contents of order for sale or encumbrance, and how long effective;
Bond.
Requirements:
1. Petition must be verified;
If, after full examination, it appears:
2. Notice must be give to the next of kin; and
- that it is necessary, or would be beneficial to the ward to sell or
3. Hearing so that they may show cause why petition should not be granted.
encumber the estate, or some portion of it,
the court shall order:
Note: Sale of the wards realty by the guardian w/o authority from the court is
- such sale or encumbrance and
VOID.
- that the proceeds thereof be expended for:
o the maintenance of the ward and his family, or
Note: The parent acting merely as legal administrator of the property of his/her
o the education of the ward, if a minor, or
children does NOT have the power to dispose such w/o legal authority
o for the putting of the same out at interest, or
o the investment of the same as the circumstances may require.
Sec. 2. Order to show cause thereupon.
If it seems probable that such sale or encumbrance:
The order:
- is necessary, or
- shall specify the causes why the sale or encumbrance is necessary or
- would be beneficial to the ward,
beneficial, and
the court shall make an order:
may direct that estate ordered sold be disposed of at either public or
- directing the next of kin of the ward, and all persons interested in the
private sale, subject to such conditions as to the time and manner of
estate,
payment, and security where a part of the payment is deferred, as in the
- to appear at a reasonable time and place therein specified to show cause
discretion of the court are deemed most beneficial to the ward.
why the prayer of the petition should not be granted.
The original bond of the guardian shall:
- stand as security for the proper appropriation of the proceeds of the sale,
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