Em, Victoria Special Proceedings Reviewer
Special Proceedings Codal and Reviewer
Note: The cases cited in “Cases” from the tables below are selected cases from Prof. Chrysilla Bautista’s 2nd
Semester SY 2019-2020 Syllabus.
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 following cases:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Trustees;
(d) Adoption;
(e) Rescission and revocation of Adoption* (Governing rule is now the rule on adoption)
(f) Hospitalization of insane persons*
(g) Habeas Corpus
(h) Change of name
(i) Voluntary Dissolution of Corporations* (Governing Rule is the Corporation Code;
dissolution now filed with SEC rather than courts)
(j) Judicial approval of voluntary recognition of minor natural children (Family Code no
longer applies the concept of ‘natural children’)
(k) Constitution of Family Home* (by operation of law, Art 153 Family Code)
(l) Declaration of absence and death
(m) Cancellation of correction of entries in the civilregistry
Sec 2. Applicability of rules of civil actions—
In absence of special provisions, the rules provided for in ordinary actions shall be, as far as
practicable, applicable in special proceedings
Concept
Notes
●
The list in Sec. 1, Rule 72 is not exclusive, special laws also provide for the governing
rules on actions that are classified as Special Proceedings (see also Sec. 3, Rule 1; a
special proceeding is a remedy by which a party seeks to establish a status, a
right, or a particular fact)
○ Other Examples of Special Proceedings Not Mentioned in R72,S1:
■ Land registration
■ Writ of Amparo
■ Writ of Habeas Data
■ Special ADR Rules (Rule 1.2 Special ADR Rules)
Distinctions between Ordinary Civil Actions and Special Proceedings
Ordinary Civil Actions
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Special Proceedings
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Cases
As to purpose
To protect/enforce a right or
prevent/redress a wrong
To establish a status/right/fact
Number of
parties
Two or more
May involve only one
As to
Jurisdiction of
Courts
General Jurisdiction
Limited Jurisdiction
Laws on
pleadings
Applicable.
Not generally applicable.
Period to appeal
15 days
30 days
Sps. Alcantara v. Sps. Belen (April 25, 2017)
Significance: Discusses the general rule on the scope of the issues that can be determined in
special proceedings and civil actions.
Doctrine: The courts must refrain from making a declaration of heirship in an ordinary civil
action because matters relating to the rights of filiation and heirship must be ventilated in a
special proceeding instituted precisely for the purpose of determining such rights
Summary: Petitioners filed an action for quieting title and reivindicatoria against Sps. Belen,
claiming that the property was inherited by Elvira Alcantara from her mother, Asuncion
Alimon. The Trial Court ruled in favor of the petitioners, but the CA reversed on the ground
that Elvira was merely adopted/ “palake” by Asuncion Alimon, using a mere testimony as basis.
The Supreme Court ruled that the CA cannot rule on filiation in action for quieting title and
reivindicatoria.
Portugal v. Portugal-Beltran (Aug 16, 2005)
Significance: Provides guidance on when a special proceeding must be filed; exception to the
general rule that courts must make a declaration of heirship in ordinary civil actions
Doctrine:
● Determination of issues such as heirship must be through a special proceeding when
○ The adverse parties are putative heirs to the estate of a decedent or parties to
the special proceedings for its settlement, AND:
○ The special proceedings are pending
○ There is no pending special proceeding, but based on the circumstances there is
a need to file one
● Determination of issues of heirship may be filed through an ordinary civil action, where:
○ The Special Proceedings have been instituted and have finally been terminated
○ If a putative heir has lost the right to have themselves declared in the special
proceeding and can no longer ask for its re-opening
○ The civil action may be resorted to in order to annul the partition and
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distribution and have themselves declared as heirs
Summary: Petitioners are the 2nd wife and son of the decedent. They filed an action to annul
the Affidavit of Adjudication of Sole Heir executed by respondent Leonila, who is a daughter of
the first marriage of the deceased. The lower court dismissed the complaint on the ground that
the petitioners’ status as heirs had not been established in a probate proceeding. The Supreme
Court reversed, saying that the petitioners are not required to institute a special proceeding
before they can proceed with the annulment of the Adjudication of Sole Heir. The case only
concerns 1 subject property and the court found it would be impractical, costly and burdensome
to require the institution of administration proceedings. The Supreme Court required the lower
court to consider the evidence already presented to determine the petitioners’ status as heirs.
Republic v. CA and Jomoc (May 6, 2005)
Significance: Discusses the nature of special proceedings and the applicability of the rules of
civil procedure
Doctrine: A Civil action is one that seeks the enforcement/protection of a right or redress of a
wrong. A civil action necessarily requires a cause of action. A special proceeding merely
establishes a fact, a status or a right. The declaration of presumptive death (under Art 41 of the
Family Code) is not a special proceeding. It is governed by the rules of Summary Procedure and
does not require a record on appeal.
Summary: RTC Ormoc granted the petition to declare absentee spouse Clemente Jomoc
presumptively dead under Art 41 of the Family Code (a summary procedure; for purposes of
subsequent marriage). The Republic, through OSG, appealed via notice on appeal. The Trial
Court dismissed, saying that as a special proceeding, the correct procedure is record on appeal.
The OSG filed a petition for certiorari before the CA, which was denied. Sec 238 of the Family
Code provides that the procedural rules under Title XI of the Family Code shall apply in all cases
provided for in the Codes requiring summary proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules. The SC reversed the CA’s ruling and
remanded the case for appropriate action.
Rule 73
3
VENUE AND PROCESS
Sec 1. Where Estate of the Deceased Person Settled—
● WHERE
○ Decedent was an inhabitant of the Philippines at the time of their death
■ Citizen or Alien
■ At the CFI of any province in which decedent died at the time of their
death
○ Decedent was an inhabitant of a foreign country
■ CFI of any province in which they had an estate (properties)
● Effect of CFI taking jurisdiction (aka Rule of Preferential “Jurisdiction”/Venue)
○ The court first taking cognizance of the settlement of the estate shall exercise
jurisdiction to the exclusion of all other courts
○ The jurisdiction assumed by a court shall not be contested in a suit or
proceeding except in an appeal from that court, in the original case, or when the
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want of jurisdiction appears on the record.
■ The want of jurisdiction insofar as it depends on the place of residence
of the decedent or location of th properties
Sec. 2 Where Estate settled upon dissolution of marriage—
● When the marriage is dissolved by the death of the husband or wife, the community
property shall be inventoried, administered, and liquidated, and the debts thereof paid, in
the testate or intestate proceedings of the deceased spouse.
● If both spouses have died, the conjugal partnership shall be liquidated in the testate or
intestate proceedings of either.
Sec. 3. Process —
● In the exercise of probate jurisdiction, Courts of First Instance may issue warrants and
process necessary:
○ to compel the attendance of witnesses
○ or to carry into effect their orders and judgments, and all other powers granted
them by law.
○ If a person does not perform an order or judgment rendered by a court in the
exercise of its probate jurisdiction, it may issue a warrant for the apprehension
and imprisonment of such person until he performs such order or judgment, or
is released.
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.
Concept
Notes
JURISDICTIONAL AMOUNTS (Sec 19(4), BP 129 as amended)
● RTC has jurisdiction over settlement of estates with a gross value in excess of
○ Php 300,000 OUTSIDE Metro Manila
○ Php 400,000 IN Metro Manila
● If not in excess of said amounts, MTC has jurisdiction
○ If the Estate doesn’t exceed Php 10,000 in value, then the procedure is summary
settlement of estates under Rule 74 (regardless of there being a will or not). The
MTC also has jurisdiction over these cases
REMEDY IN CASE OF IMPROPER VENUE
● General Rule: Ordinary appeal under Rule 40/41, not certiorari
● Exception: Motion to Dismiss/Certiorari if want of jurisdiction appears on the record
○ For example, the jurisdictional amount/gross value of the estate was not even
alleged, a dismissal is proper. (Frianela v. Banayad, July 30, 2009)
○ Certiorari was proper in the case of Manzanero v. CFI, 61 Phil 850
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EXTENT OF PROBATE COURT’S JURISDICTION:
General Rule: Can only decide on heirship, identification of properties of the estate, distribution
of properties. It CANNOT decide on matters of ownership, except:
● In the provisional inclusion of properties in the estate’s inventory, without prejudice to
final determination in a separate action
● With the consent of the parties, without prejudice to the rights of third persons
● Estate consists of only one property
Cases
Fule v. CA (November 29, 1976)
Significance: Meaning of “residence” in Rule 73, Sec 1 is explained.
Doctrine: The term “resides” connotes ex vi termini “actual residence” (as in physical presence)
as distinguished from “legal residence or domicile” (no need to prove animus revertendi).
Summary: Virgina Fule filed letters of administration over the estate of Amado Garcia, in the
CFI of Laguna claiming that he had properties in that place. Preciosa Gardia contested that the
CFI of Laguna had no jurisdiction because Amado actually resided in QC. Preciosa presented a
residence certificate obtained 3 months before Amado died and several documents which listed
QC as his place of residence (Deed of Donation, Marketing Agreement and Power of Atty)
Eusebio v. Eusebio (December 28, 1956)
Significance: Important case to determine place of residence especially when the decedent
moved/went to a location not long before their time of death
Doctrine: The following conditions are essential, namely: (1) capacity to choose and freedom of
choice of location (2) physical presence at the place chosen (3) intention to stay permanently
Summary: Andres Eusebio was domiciled in Pampanga and went to QC for heart treatment, and
bought property at Espana Extension. He suffered a stroke and he stayed in his son’s residence
until he was brought to UST Hospital, where he died. Eugenio Eusebio filed a petition for his
appointment as administrator of the estate in CFI Rizal but the illegitimate children opposed
saying that Andres actually resided in Pampanga. The Supreme Court held the venue was
improper because Andres did not intend to move away from his residence in Pampanga
permanently.
Rule 74
SUMMARY SETTLEMENT OF ESTATE
Sec. 1 Extrajudicial Settlement:
● If the decedent left no will and no debts
● and the heirs are all of age, or the minors are represented by their judicial/legal
representatives duly authorized for the purpose,
● the parties may without securing letters of administration,
○ divide the estate among themselves as they see fir by means of a public
instrument filed in the office of the register of deeds
Ordinary Action for Partition:
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●
●
●
Decedent left no will and no debts
Heirs are of age, or the minors are duly represented
and should they disagree, they may do so in an ordinary action of partition.
Affidavit of Self-Adjudication
● 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.
COMMON condition precedent for the filing with the register of deeds
● A bond must be posted with the register of deeds on an amount equivalent to
the value of personal property involved as certified to under oath by the parties
and
● conditioned upon the payment of any just claim that may be filed under section
4 of this rule
PRESUMPTION OF NO DEBT
● When no creditor files a petition for letters of administration within 2 years after
the death of the decedent
PUBLICATION
● The fact of the extrajudicial settlement or administration shall be published in a
newspaper published
○ 1x/a week for 3 consecutive weeks
○ in a newspaper of general circulation in the province
● but no extrajudicial settlement shall be binding upon any person who has not
participated therein or had no notice thereof
Sec 2. Summary Settlement of Estate of Small Value
● Applicable Mode when:
○ Gross estate of the decedent does not exceed Php 10,000
○ Whether or not he died testate or intestate
○ Whether or not the estate has debts or not
● The fact is made to appear to the CFI (MTC) having jurisdiction of the estate by the
petition of an interested person and upon hearing, which shall be held 1-3 months from
the date of the last publication of a notice
○ published 1x/a week for 3 consecutive weeks
○ in a newspaper of general circulation in the province
● After such notice to interested persons as the court may direct, the court may proceed
summarily,
○ without the appointment of an executor or administrator, and
○ without delay, to grant, if proper, allowance of the will, if any there be,
■ to determine who are the persons legally entitled to participate in the
estate,
■ and to apportion and divide it among them after the payment of such
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debts of the estate as the court shall then find to be due;
and such persons, in their own right, receive and enter into the
possession of the portions of the estate so awarded to them respectively
(if found to be entitled).
■ The court shall make such order as may be just respecting the costs of
the proceedings
■ All orders and judgements will be recorded in the office of the clerk
■ If the order of partition or award involves real estate, it shall be recorded
in the proper register’s office
● Under Sec 3, the distributees may be required to file a bond in
an amount fixed by the court, conditioned for the payment of
any just claim which may be filed under the next succeeding
section
Section 3. Bond to be filed by distributees. —The court, before allowing a partition in
accordance with the provisions of the preceding section, my require the distributees, if property
other than real is to be distributed, to file a bond in an amount to be fixed by court, conditioned
for the payment of any just claim which may be filed under the next succeeding section.
■
Sec 4. Liability of the Distributees and Estate
● If within two (2) years after the settlement and distribution of an estate, that an heir or
other person has been unduly deprived of his lawful participation in the estate,
○ such heir or such other person may compel the settlement of the estate in the
courts in the manner hereinafter provided for the purpose of satisfying such
lawful participation.
○ And if within the same time of two (2) years, it shall appear that there are debts
outstanding against the estate which have not been paid, or that an heir or other
person has been unduly deprived of his lawful participation payable in money,
the court having jurisdiction of the estate may, by order for that purpose, after
hearing,
■ settle the amount of such debts or lawful participation
■ and order how much and in what manner each distributee shall
contribute in the payment thereof, and
■ may issue execution, if circumstances require, against the bond
provided in the preceding section or against the real estate belonging to
the deceased, or both.
■ Such bond and such real estate shall remain charged with a liability to
creditors, heirs, or other persons for the full period of two (2) years after
such distribution, notwithstanding any transfers of real estate that may
have been made.
Sec 5. Period for claim of minor or incapacitated person — If on the date of the expiration
of the 2 year period, the person authorized to filed a claim is
● a minor or
● mentally incapacitated, or is
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●
●
Concept
Notes
in prision or outside the Philippines,
he may present his claim within 1 year after such disability is removed
Procedure for summary settlement of estates under Rule 74, sec 1.
1) Division of the estate in a public instrument or affidavit of adjudication
2) Filing of the public instrument with the register of deeds, with a bond in the amount of
the value of the personal property involved
3) Notice to interested persons
4) Publication of the fact of settlement in a newspaper of general circulation in the province
concerned for once a week for 3 consecutive weeks
5) Hearing to be held 1-3 months from the last publication of notice
Procedure for Settlement of Estates of Small Value, Rule 74, Sec 2.
1) Application for summary settlement of estate, alleging the gross value does not exceed
Php 10,000
2) Notice to interested persons
3) Publication of the fact of summary settlement of estate in a newspaper of general
circulation in the province, once a week for 3 consecutive weeks
4) Hearing to be held 1-3 months from the last publication of the notice
5) Court will proceed summarily without the appointment of an executor or administrator
and may make orders:
a) Grant the allowance of the will, if there is a will
b) Determine persons entitled to the estate
c) Pay debts of the estate which are due
d) File a bond fixed by the court
e) Partition the estate
Cases
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Avelino v. Court of Appeals (2000)
Significance: Should the heirs be required to appoint an administrator? When is an
administrator not necessary?
Doctrine: The general rule is that when a person dies intestate, or, if testate, failed to name an
executor in his will or the executor so named is incompetent, or refuses the trust, or fails to
furnish the bond required by the Rules of Court, then the decedent's estate shall be judicially
administered and the competent court shall appoint a qualified administrator in the order
established in Sec. 6 of Rule 78. However, when . Sec. 1, Rule 74 of the Rules of Court, allows
heirs to divide the estate among themselves without need of delay and risks of being dissipated.
When a person dies without leaving pending obligations, his heirs are not required to submit the
property for judicial administration, nor apply for the appointment of an administrator by the
court. This is because heirs succeed immediately to all of the rights and properties of the deceased
at the moment of the latter's death.
Summary: Maria Avelino filed a petition for the issuance of letters of administration of the estate
of her late father, but it was opposed by his first wife, his second wife and her siblings. They filed
an opposition to convert said petition into an action for partition, which was approved by the
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lower courts on the ground that the decedent died with no debts and the heirs were of legal age.
SC ruled that RTC and CA were correct in doing so.
Sps Domingo v. Roces (2003)
Significance: Effect of the 2 year period applies even on transferees of property.
Doctrine: It is true that one who deals with property registered under the Torrens system need
not go beyond the same, but only has to rely on the title. He is charged with notice only of such
burdens and claims as are annotated on the title. However, this principle does not apply when the
party has actual knowledge of facts and circumstances that would impel a reasonably cautious
man to make such inquiry or when the purchaser has knowledge of a defect or the lack of title in
his vendor or of sufficient facts to induce a reasonably prudent man to inquire into the status of
the title of the property in litigation. One who falls within the exception can neither be
denominated an innocent purchaser for value nor a purchaser in good faith. The land titles
contained annotations which made reference to the provisions of Rule 74, Sec. 4 of the Rules of
Court. The rule clearly covers transfers of real property to any person, as long as the deprived heir
or creditor vindicates his rights within two years from the date of the settlement and distribution
of estate. Contrary to petitioners' contention, the effects of this provision are not limited to the
heirs or original distributees of the estate properties, but shall affect any transferee of the
properties.
Summary: Cesar and Lilia Roces were owners of a parcel of land that was claimed by the GSIS
because of the spouses’ mortgage. After some time, GSIS’ claims were contested by Montinola,
the nephew of Lilia, who had the titles re-issued in his name. The land was sold by Montinola to
Eduardo and Josefina Domingo, containing a note that it was subject to sec 4 Rule 74.
Respondents (Lilia Roces and heirs), contested the sale. CA and SC revoked the sale because the
transferees could not validly claim they are buyers in good faith.
Rule 75
PRODUCTION OF WILL. ALLOWANCE OF WILL NECESSARY
Sec. 1 Allowance Necessary. Conclusive as to execution — No will shall pass either real or
personal estate unless it is proved and allowed inthe proper court. Subject to the right of
appeal, such allowance of the will shall be conclusive as to its due execution.
Sec. 2. Custodian of will to deliver. —The person who has custody of a will shall, within
twenty (20) days after he knows of the death of the testator,
● deliver the will to:
○ the court having jurisdiction, or
○ to the executor named in the will.
Sec. 3. Executor to present will and accept or ref use trust. — A person named as executor
in a will shall (1) present the will to the court having jurisdiction and (2) signify to the court their
acceptance/rejection of the designation as executor in writing
● within twenty (20) days from...
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○
○
Knowing of the death of the testate, or
Knowing he is named executor if he obtained such knowledge after the death
of the testator
Sec. 4. Custodian and executor subject to fine for neglect. —
● 2,000 fine for neglecting the duties above stated if they do not have a satisfactory excuse
Sec. 5. Person retaining will may be committed —
● A person having custody of a will after the death of the testator without reasonable
cause to deliver the same, when ordered so to do, to the court having jurisdiction, may
be committed to prison and there kept until he delivers the will.
Concept
Notes
Will a petition for mandamus lie against a person who refuses to present a will?
● No, these are not the proper remedies. Rule 75, Sec 4 and 5 already have built-in
remedies for the production of the will, within the petition for probate. (See Uy v. Lee,
GR 176831, 15 January 2010) [Riguera pp. 34]
Cases
Guevara v. Guevara (1956)
Significance: the case explains the rationale requiring the presentation of a will
Doctrine: If the decedent left a will and no debts and the heirs and legatees desire to make an
extrajudicial partition of the estate, they must first present that will to the court for probate and
divide the estate in accordance with the will. They may not disregard the provisions of the will
unless those provisions are contrary to law. Neither may they do away with the presentation of
the will to the court for probate, because such suppression of the will is contrary to law and
public policy. 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, as is attempted to be done in the instant case.
Summary:Rosario Guevara, claiming to the natural child of Victorino Guevara, commenced a
suit in CFI Pangasinan for the probate of the will of the decedent. She alleged that the purpose
of the probate was solely to have her acknowledged as the natural child of the deceased. This was
opposed by Ernesto Guevara who alleges that Victorino conveyed the subject lands to him
through deeds of sale, filed a MTD arguing that the will was already revoked when the testator
alienated the land subject of the will and the action has already prescribed. CFI granted MTD.
CA reversed and reinstated the petition to hear and decide whether the will should be allowed to
probate. SC affirmed CA.
Rule 76 ALLOWANCE OR DISALLOWANCE OF WILL
Sec. 1. Who may petition for the allowance of will. — [EDLI]
[After Testator Dies:]
● Executor,
● Devisee, or
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● Legatee named in a will, or any
● other person Interested in the estate,
may, at any time after the death of the testator, petition the court having jurisdiction to have the
will allowed, whether the same be in his possession or not, or is lost or destroyed.
[During Testator’s lifetime:]
● The testator himself may, during his lifetime, petition the court for the allowance of his
will.
Sec. 2. Contents of petition.— A petition for the allowance of a will must show, so far as
known to the petitioner: [WHO died and who are theheirs and who will administer estate,
WHAT was left behind, WHERE died, WHY court has jurisdiction, HOW much was
left]
(a) The jurisdictional facts [fact of death, place of death, value of estate]
(b) The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent;
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters are prayed;
(e) If the will has not been delivered to the court, the name of the person having custody of it.
But no defect in the petition shall render void the allowance of the will, or the issuance of letters
testamentary or of administration with the will annexed.
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 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
three (3) weeks successively, previous to the time appointed, 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.
Sec. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. — The
court shall also cause copies of the noticeof the time and place fixed for proving the will to be
addressed to the designated or other known heirs, legatees, and devisees of the testator resident in
the Philippines at their places of residence, and deposited in the post office with the postage
thereon prepaid at least twenty (20) days before the hearing, if such places of residence be known.
A copy of the notice must in like manner be mailed to the person named as executor, if he be not
the petitioner; also, to any person named as coexecutor not petitioning, if their places of residence
be known. Personal service of copies of the notice at lest (10) days before the day of hearing shall
be equivalent to mailing.
If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory
heirs.
[“HELD” is entitled to personal notice to prove/contest will: Heirs, Executors, Legatees,
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and Devisees]
Sec. 5. Proof at hearing. What is sufficient in absenceof contest. —At the hearing
compliance with the provisions of the last two preceding sections must be shown before the
introduction of testimony in support of the will. All such testimony shall be taken under oath and
reduced to writing. It no person appears to contest the allowance of the will, the court may grant
allowance thereof on the testimony of one of the subscribing witnesses only, if such witness testify
that the will was executed as is required by law.
In the case of a holographic will, it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the will and the signature are in
the handwriting of the testator. In the absence of any such competent witness, and if the court
deem it necessary, expert testimony may be resorted to.
Sec. 6. Proof of lost or destroyed will. Certificatethereupon. — No will shall be proved as a
lost or destroyed will unless the execution and validity of the same be established, and the will
is proved to have been in existence at the time of the death of the testator, or is shown to have
been fraudulently or accidentally destroyed in the lifetime of the testator without his
knowledge, nor unless its provisions are clearly and distinctly proved by at least two (2)
credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated
and certified by the judge, under the seal of the court, and the certificate must be filed and
recorded as other wills are filed and recorded. [LOST WILL: [V]alidity ,[Ex]ecution,
[E]xistence, Destruction, 2 Witnesses to prove the Content; “VEXED 2 Content”]
Sec. 7. Proof when witnesses do not reside in province. — If it appears at the time fixed for
the hearing that none of the subscribing witnesses resides in the province, but that the deposition
of one or more of them can be taken elsewhere, the court may, on motion, direct it to be taken,
and may authorize a photographic copy of the willto be made and to be presented to the
witness on his examination, who may be asked the same questions with respect to it, and
to the handwriting of the testator and others, as would be pertinent and competent if the original
will were present.
Sec. 8. Proof when witnesses dead or insane or do not reside in the Philippines. — If the
appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that
none of them resides in the Philippines, the court may admit the testimony of other witnesses to
prove the sanity of the testator, and the due execution of the will; and as evidence of the execution
of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses,
or of any of them.
Sec. 9. Grounds for disallowing will. — The will shall be disallowed in any of the following
cases: [FUC-DT]
(a) If not executed and attested as required by law; [FORM]
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time
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of its execution; [no CONSENT]
(c) If it was executed under duress, or the influence of fear, or threats; [DURESS]
(d) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary, or of some other person for his benefit; [Undue Influence]
(e) If the signature of the testator was procured by fraud or trick, and he did not intend
that the instrument should be his will at the time of fixing his signature thereto.
[TRICK]
Sec. 10. Contestant to file grounds of contest. — Anyone appearing to contest the will must
state in writing his grounds for opposing its allowance, and serve a copy thereof on the
petitioner and other parties interested in the estate.
Sec. 11. Subscribing witnesses produced or accounted for where will contested. — If the
will is contested, all the subscribing witnesses, and the notary in the case of wills executed
under the Civil Code of the Philippines, if present in the Philippines and not insane, must be
produced and examined, and the death, absence, or insanity of any of them must be
satisfactorily shown to the court. If all or some of such witnesses are present in the Philippines but
outside the province where the will has been filed, their deposition must be taken. If any or all of
them testify against the due execution of the will, or do not remember having attested to it, or are
otherwise of doubtful credibility, the will may nevertheless, be allowed if the court is satisfied
from the testimony of other witnesses and from all the evidence presented that the will was
executed and attested in the manner required by law.
If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who
know the handwriting of the testator explicitly declare that the will and the signature
are in the handwriting of the testator; in the absence of any competent witnesses, and if the
court deem it necessary, expert testimony may be resorted to.
Sec. 12. Proof where testator petitions for allowance of holographic will. —Where the
testator himself petitions for the probate of his holographic will and no contest is filed, the fact
that the affirms that the holographic will and thesignature are in his own handwriting,
shall be sufficient evidence of the genuineness anddue execution thereof. If the
holographic will is contested, the burden of disproving the genuineness and due execution thereof
shall be on the contestant. The testator to rebut the evidence for the contestant.
Sec. 13. Certificate of allowance attached to provewill. To be recorded in the Office of
Register of Deeds. — 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,
signed by the judge, and attested by the seal of thecourt shall be attached to the will and
the will and certificate filed and recorded by theclerk. Attested copies of the will devising
real estate and of certificate of allowance thereof, shall be recorded in the register of deeds of the
province in which the lands lie.
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Cases
Sumilang v. Ramagosa
Significance: The scope of probate proceedings
Doctrine: The court's area of inquiry in a probate proceeding is limited to the extrinsic validity
thereof. The testator's testamentary capacity and the compliance with the formal requisites or
solemnities prescribed by law are the only questions presented for the resolution of the court. Any
inquiry into the intrinsic validity or efficacy of the provisions of the will or the legality of any
devise or legacy is premature.
Summary: Mariano Sumilang filed a petition for the probate of the will of Hilarion Ramagosa,
which institutes him as his sole heir. His petition was opposed by herein appellants, armed only
with bare assertions but without proof of relationship with the testator. Oppositors filed an
MTD alleging lack of jurisdiction because properties in said will had already been sold by the
testator to Sumilang and his brother—an act tantamount to implied revocation. The Trial Court
ruled in favor of Sumilang, denying the MTD. SC upheld the ruling, holding that (1) Probate
court only looks into the extrinsic validity of the will; (2) Revocation of a disposition does not
affect the entire will; (3) Only parties with interest in the estate may oppose the will.
Nepumuceno v. CA (1985)
Significance: There is an exception to the limited scope of probate proceedings. When the
provisions are clearly illegal, the probate court may look beyond the extrinsic validity.
Summary: The mistress of the deceased assailed the Court of Appeals , which disallowed the will
granting her a share in his property because she and the decedent were living in
adultery/concubinage. The will itself admitted that the decedent was married, but he lived in with
his mistress.
Doctrine: When certain provisions of the will are of dubious legality, the trial court acted
correctly in passing upon the will’s intrinsic validity even before its formality is established. Where
practical considerations demand that the intrinsic validity of the will be passed upon, even before
it is probated, the court should meet the issue
In Re Matter of the Petition to Approve the Will ofRuperta Palangas (2011)
Significance: There is no need to approve a foreign will in a foreign court prior to
probating a will in the Philippines (as long as certain requisites are met)
Summary: Ruperta Palangas is a Filipino who became a naturalized US Citizen. She executed her
will in California and died. Her brother filed a petition for probate in RTC Bulacan. Her nephews
opposed, arguing that an unprobated will executed by an American citizen in the US cannot be
probated for the first time in the Philippines and should first be probated in the US. The Supreme
Court ruled that our rules do not require proof that a foreign will has been probated or allowed in
a foreign jurisdiction before it may be probated in Philippine Courts. Ruperta’s nephews likely
had in mind the process of reprobate in which, the local court acknowledges as binding the
findings of the foreign probate court provided its jurisdiction over the matter can be established.
In reprobate (Rule 77), the local court acknowledges as binding the findings of the foreign
probate court provided its jurisdiction over the matter can be established
Doctrine: Our laws do not prohibit the probate of wills executed by foreigners abroad although
the same have not as yet been probated and allowed in the countries of their execution. A foreign
will can be given legal effects in our jurisdiction.
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Kiao Eng v. Lee (2010)
Significance: Mandamus is not the proper remedy to require the production of a will
Summary: Nixon Lee filed a petition for mandamus to compel petitioner, his mother, to
produce the holographic will so that probate proceedings fo the allowance of the will could be
instituted. The Supreme Court ruled that a petition for mandamus was not the proper remedy
because there was another plain, speedy and adequate remedy as provided for in the Rules of
Court. The Rules do not prevent a person who does not have possession of the will from filing a
petition for probate.
Doctrine: The remedy of mandamus cannot be availed of by respondent Lee because there lies
another plain, speedy and adequate remedy in the ordinary course of law. (Rule 75 secs. 2 to 5)
Rule 77
ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND
ADMINISTRATION OF ESTATE THEREUNDER
Sec. 1. Will proved outside Philippines may be allowedhere. — Wills proved and allowed in
a foreign country, according to the laws of such country, may be allowed, filed, and recorded by
the proper Court of First Instance in the Philippines.
Sec. 2. Notice of hearing for allowance. — When a copy of such will and of the order or
decree of the allowance thereof, both duly authenticated,are filed with a petition for
allowance in the Philippines, by the executor or other person interested, in the court having
jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be
given as in case of an original will presented for allowance.
Sec. 3. When will allowed, and effect thereof. — If it appears at the hearing that the will
should be allowed in the Philippines, the shall so allow it, and a certificate of its allowance, signed
by the judge, and attested by the seal of the court, to which shall be attached a copy of the will,
shall be filed and recorded by the clerk, and the will shall have the same effect as if originally
proven and allowed in such court.
Sec. 4. Estate, how administered. — When a will is thus allowed, the court shall grant letters
testamentary, or letters of administration with the will annexed, and such letters testamentary or
of administration, shall extend to all the estate of the testator in the Philippines. Such estate, after
the payment of just debts and expenses of administration, shall be disposed of according to such
will, so far as such will may operate upon it; and the residue, if any shall be disposed of as is
provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of
another state or country.
Cases
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Suntay v. Suntay
Em, Victoria Special Proceedings Reviewer
Significance: How foreign-probated wills are allowed in the Philippines
Doctrine: The following should have been proven by competent evidence: (1) The fact that the
municipal district of Amoy is a probate court, (2) the law of China in the probate or allowance of
wills, and (3) the legal requirements for the execution of a valid will in China in 1931.
Summary: Jose Suntay died in Amoy, China. Silvino, his son from a second marriage, filed a
petition for the probate of a will that had been probated in China. The Supreme Court ruled
that the petitioner was unable to prove the foreign law.
Rule 78
LETTERS TESTAMENTARY
Sec. 1. Who are incompetent to serve as executors or administrators. — No person in competent
to serve as executor or administrator who: [Unfit, Resident outside Philippines,Age,
Drunkeness, Improvidence, Improvidence, Conviction: U-R-A-DIIC,
(a) Is a minor; [Age]
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of
drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of
an offense involving moral turpitude.
Sec. 2. Executor of executor not to administer estate. — The executor of an executor shall not, as
such, administer the estate of the first testator. [you can’t execute each other]
Sec. 3. Married women may serve. — A married woman may serve as executrix or administratrix,
and the marriage of a single woman shall not affect her authority so to serve under a previous
appointment. [eyeroll provision]
Sec. 4. Letters testamentary issued when will allowed. — When a will has been proved and
allowed, the court shall issue letters testamentary thereon to the person named as executor
therein, if he is competent, accepts the trust, and gives bond as required by these rules. (Letters
testamentary CAB: Competent, Accepts, Bond paid)
Sec. 5. Where some co-executors disqualified others may act. — When all of the executors
named in a will can not act because of incompetency, refusal to accept the trust, or failure to give
bond, on the part of one or more of them, letters testamentary may issue to such of them as are
competent, accept and give bond, and they may perform the duties and discharge the trust
required by the will.
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:
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(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 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.
Cases
Vda. De Catalan v. Catalen-Lee (2012)
Significance: Explains the order of preference of administrators
Summary: The decedent died without a will and 9 months after such death, the private
respondent-illegitimate child was able to secure the letters of administration. During the
proceedings, the petitioners-legitimate family of the decedent sought the recall of the letters of
administration contending that the surviving spouse is preferred in cases of issuance of letters of
administration. The Supreme Court ruled that while there is an order of preference, admits of
exceptions such as when the preferred individual neglects to file for the issuance of letters of
administration within 30 days. Such neglect, however, is not enough to totally exclude such
preferred person but the latter risks being co-administrator with other interested persons.
Doctrine: The rule on order of preference in the issuance of letters of administration provided
in Rule 78, Sec. 6 may be disregarded when the most preferred person neglects to apply for
administration of the decedent’s estate within 30 days. However, this disregard of the order of
preference does not warrant the total exclusion from administration of the preferred person
who neglects to apply for administration.
Silverio v. CA (1999)
Significance: How the Order of Preference is reconciled with the unsuitability of the
administrator
Summary: Beatriz Silverio died intestate. Her conjugal property was not settled. Hence, her son
Edgardo sought to be appointed as an administrator by filing a petition for letters of
administration. He was appointed special, and later regular administrator. Beatriz’s husband
Ricardo Sr. opposed this, claiming that the RTC should respect the order of preference in Rule
78, § 6. therefore he should be the one placed in the position held by Edgardo. At issue was
Ricardo’s (the surviving spouse’s) moral unfitness. Edgardo presented proof that his father used
funds from the conjugal partnership and purchased them for his illegitimate children and his
mistress. The Supreme Court affirmed the RTC’s appointment of Edgardo, citing
jurisprudence (Navas v. Garcia) wherein the court may appoint a person other than the one
enjoying preferential rights if the latter is unsuitable. The Court emphasized that the trial court
has the sound discretion to disregard the order of preference.
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Doctrine: A probate court cannot arbitrarily disregard the preferential rights of the surviving
spouse to the administration of the estate of a deceased person; but if the person enjoying such
preferential rights is unsuitable the court may appoint another person.
Republic v. Marcos II (2009)
Significance: The Supreme Court explains the “conviction of moral turpitude”
disqualification
Summary: At issue is the competence of Imelda Marcos and Ferdinand Marcos II to be
appointed as administrators. Imelda’s convictions were reversed by the Supreme Court, and
Ferdinand Marcos II was charged with NIRC violations (non-filing of returns, nonpayment of
deficiency tax). His appeal from conviction was pending.
Doctrine: Even assuming arguendo that his conviction is later on affirmed, the same is still
insufficient to disqualify him as the failure to file an ITR is not a crime involving moral
turpitude, because these specific violations did not involve willfulness or fraudulent intent. The
argument that the Marcoses deposited and hid significant amounts of their assets in Swiss banks
were unsupported allegations which could not be considered by the probate court.
Rule 79
OPPOSING ISSUANCE OF LETTERS TESTAMENTARY. PETITION AND CONTEST
FOR LETTERS OF ADMINISTRATION
Sec. 1. Opposition to issuance of letters testamentary. Simultaneous petition for administration.
— Any person interested in a will may state in writing the grounds why letters testamentary
should not issue to the persons named therein as executors, or any of them, and the court, after
hearing upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same
time, be filed for letters of administration with the will annexed.
Sec. 2. Contents of petition for letters of administration. — A petition for letters of
administration must be filed by an interested person and must show, so far as known to the
petitioner:
(a) The jurisdictional facts; [Death of testator,the decedent’s residence at time of death or
where the estate is located if the decedent is aninhabitant in a foreign country]
(b) The names, ages, and residences of the heirs, and the names and residences of the creditors, of
the decedent;
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters of administration are prayed.
But no defect in the petition shall render void the issuance of letters of administration.
Sec. 3. Court to set time for hearing. Notice thereof. — When a petition for letters of
administration is filed in the court having jurisdiction, such court shall fix a time and place for
hearing the petition, and shall cause notice thereof to be given to the known heirs and creditors of
the decedent, and to any other persons believed to have an interest in the estate, in the manner
provided in sections 3 and 4 of Rule 76.
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Sec. 4. Opposition to petition for administration. — Any interested person may, by filing a
written opposition, contest the petition on the ground of the incompetency of the person for
whom letters are prayed therein, or on the ground of the contestant's own right to the
administration, and may pray that letters issue to himself, or to any competent person or person
named in the opposition.
Sec. 5. Hearing and order for letters to issue. — At the hearing of the petition, it must first be
shown that notice has been given as hereinabove required, and thereafter the court shall hear the
proofs of the parties in support of their respective allegations, and if satisfied that the decedent
left no will, or that there is no competent and willing executor, it shall order the issuance of letters
of administration to the party best entitled thereto.
Sec. 6. When letters of administration are granted to any applicant. — Letters of administration
may be granted to any qualified applicant, though it appears that there are other competent
persons having better rights to the administration, if such persons fail to appear when notified
and claim the issuance of letters to themselves.
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.
Sec. 2. Powers and duties of special administrator. — Such special administrator shall take
possession and charge of the goods, chattels, rights, credits, and estate of the deceased and
preserve the same for the executors or administrator afterwards appointed, and for that purpose
may commence and maintain suits as administrator. He may sell only such perishable and
other property as the court orders sold. A special administrator shall not be liable to pay
any debts of the deceased unless so ordered by thecourt.
Sec. 3. When powers of special administrator cease. Transfer of effects. Pending suits. — When
letters testamentary or of administration are granted on the estate of the deceased, the powers of
the special administrator shall cease, and he shall forthwith deliver to the executor or
administrator the goods, chattels, money, and estate of the deceased in his hands. The executor or
administrator may prosecute to final judgment suits commenced by such special administrator.
Concept
Notes
19
Difference Between Special Administrator and Regular Administrator:
Regular Administrator
Special Administrator
Appointed by the Court in the following
Appointed by Court when:
Em, Victoria Special Proceedings Reviewer
instances:
1. Testator did not appoint an executor
2. Executor refused appointment
3. The will was disallowed
4. Decedent left no will
1. There is delay in granting letters
testamentary or administration
2. When the executor is a claimant of
the estate
3. By any cause, including an appeal
from allowance or disallowance of a
will
Should pay the debts of the estate
Cannot pay the debts of the estat unless
ordered by the court
An Order of appointment is final and
appealable
Order of appointment is interlocutory and
not appealable.
Powers and Duties of Special Administrators
1. Payment of a bond in an amount as the court directs
2. Possession, charge and preservation of the goods, chattels, rights, credits, and estate of
the deceased
3. Commencement and maintenance of suits for the purpose of preserving the estate for
the executor/administrator
4. Sale of perishable property and other property ordered sold by the court
5. Payment of debts ordered by the court
6. Inventory of goods from the estate of the deceased that come into their possession
7. True account of the goods, chattels, rights and credits of the deceased, according to the
conditions of the bond
8. Delivery of the goods to executor or administrator or other person authorized to receive
the goods
Rule 81
BOND OF EXECUTORS AND ADMINISTRATORS
Sec. 1. Bond to be given issuance of letters. Amount. Conditions. — Before an executor or
administrator enters upon the execution of his trust, and letters testamentary or 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, within three (3) months, a true and complete inventory
of all goods, chattels, rights, credits, and estateof the deceasedwhich 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 to his
possession or to the possession of any other person for him, and from the proceeds to pay and
discharge all debts, legacies, and charges on the same, or such dividends thereon as shall be
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decreed by the court;
(c) To render a true and just account of his administrationto the court within one (1) years,
and at any other time when required by the court;
(d) To perform all orders of the court by him to be performed.
Sec. 2. Bond of executor where directed in will. When further bond required. — If the testator
in his will directs that the executors serve without bond, or with only his individual bond,
he may be allowed by the court to give bond in such sum and with such surety as the court
approves conditioned only to pay the debts of the testator; but the court may require of the
executor a further bond in case of a change in his circumstance, or for other sufficient case, with
the conditions named in the last preceding section.
Sec. 3. Bonds of joint executors and administrators. — When two or more persons are appointed
executors or administrators the court may take a separate bond from each, or a joint bond
from all.
Sec. 4. Bond of special administrator. — A special administrator before entering upon the duties
of his trust shall give a bond, in such sum as the court directs, conditioned that he will make and
return a true inventory of the goods, chattels, rights,credits, and estate of the deceased
which come to his possession or knowledge, and that he will truly account for such as are
received by him when required by the court, and will deliver the same to the person appointed
executor or administrator, or to such other person as may be authorized to receive them.
Concept
Notes
Conditions of bond of executors/administrators
1. Make and return to the court within 3 months a true and complete inventory of the
deceased’s property that came to his knowledge and possession or to the possession of
another person for him/her
2. Administer the estate and pay and discharge all debts, legacies, and charges, including
dividends declared by the court from the proceeds
3. Render a true and just account within 1 year and when required by the court
4. Perform all orders of the court
Rule 82
REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL
OF EXECUTORS OR ADMINISTRATOR
Sec. 1. Administration revoked if will discovered. Proceedings thereupon. — 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 ofadministration shall be revoked and all
powers thereunder cease, and the administrator shall forthwith surrender the letters to the court,
and render his account with such time as the court directs. Proceeding for the issuance of letters
testamentary or of administration under the will shall be as hereinbefore provided.
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Sec. 2. Court may remove or accept resignation of executor or administrator. Proceeding upon
death, resignation, or removal. —
If an executor or administrator
● neglects to:
○ render his account and settle the estate according to law, or to
○ perform an order or judgment of the court, or a
○ duty expressly provided by these rules,
● or absconds,
● or becomes insane,
● or otherwise incapable or insuitable to discharge the trust,
the court may remove him, or in its discretion, may permit him to resign. When an executor or
administrator dies, resign, or is removed the remaining executor or administrator may administer
the the trust alone, unless the court grants letters to someone to act with him. If there is no
remaining executor or administrator, administration may be to any suitable person.
Sec. 3. Acts before revocation, resignation, or removal to be valid. — The lawful acts of an
executor or administrator before the revocation of his letters testamentary or of administration,
or before his resignation or removal, shall have the like validity as if there had been no such
revocation, resignation, or removal.
Sec. 4. Powers of new executor or administrator. Renewal of license to sell real estate. — The
person to whom letters testamentary or of administration are granted after the revocation of
former letters, or the death, resignation, or removal of a former executor or administrator, shall
have the like powers
● to collect and settle the estate not administered that the former executor or
administrator had, and
● may prosecute or defend actions commenced by or against the former executor or
administrator, and
● have execution on judgments recovered in the name of such former executor or
administrator.
● An authority granted by the court to the former executor or administrator for the sale
or mortgage of real estate may be renewed in favor of such person without further
notice or hearing.
Concept
Notes
Duties upon revocation of letters of administration:
1. Surrender the letters to the court
2. Render his account within such time as the court may direct
Grounds for removal of executor or administrator [N3, I3, A]
1. Neglect to perform a duty from an order/judgement/as provided in the rules
2. Neglect to settle the estate according to rules
3. Neglect to render accounts within 1 year and when required by the court
4. Insanity, incapability, unsuitability to discharge the trust
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5. Absconding
Other valid grounds for removal (from cases):
1. Adverse interest of the administrator to that of the estate
2. Physical inability and consequent unsuitability
3. False representation by an administrator in securing his appointment
4. Disbursement of funds of estate without judicial approval
Mode of review
- Appeal, it is a final order
Rule 83
INVENTORY AND APPRAISAL. PROVISION FOR SUPPORT OF FAMILY
Sec. 1. Inventory and appraisal to be returned within three months. — Within three (3)
months after his appointment every executor or administrator shall return to the court a true
inventory and appraisal of all real and personal estateof the deceasedwhich has come
into his possession or knowledge. In the appraisement of such estate, the court may order one or
more of the inheritance tax appraisers to give his or their assistance.
Sec. 2. Certain article not to be inventoried. — [“BAPS”- bed, apparel, provisions for
subsistence excluded from inventory]
● The wearing apparel of the surviving husband or wife and minor children., the
● marriage bed and bedding, and such
● provisions and other articles as will necessarily be consumed in the subsistence of the
family of the deceased, under the direction of the court, shall not be considered as
assets, nor administered as such, and shall not be included in the inventory.
Sec. 3. Allowance to widow and family. — The widow and minor or incapacitated children of a
deceased person, during the settlement of the estate, shall receive therefrom, under the direction
of the court, such allowance as are provided by law.
Rule 84
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GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS Sec.
1. Executor or administrator to have access to partnership books and property. How right
enforced. —
The executor or administrator of the estate of a deceased partner shall
● at all times have access to, and may examine and take copies of, books and papers
relating to the partnership business, and
● make examine and make invoices of the property belonging to such partnership; and
○ the surviving partner or partners, on request, shall exhibit to him all such
books, papers, and property in their hands or control.
Em, Victoria Special Proceedings Reviewer
○
On the written application of such executor or administrator, the court
having jurisdiction of the estate may order any such surviving partner or
partners to freely permit the exercise of the rights, and to exhibit the books,
papers, and property, as in this section provided, and may punish any partner
failing to do so for contempt.
Sec. 2. Executor or administrator to keep buildings in repair. —
An executor or administrator shall maintain in repair the houses and other structures and
fences belonging to the estate, and deliver the same in such repair to the heirs or devisees when
directed so to do by the court.
Sec. 3. Executor or administrator to retain whole estate to pay debts, and to administer estate
not willed. — An executor or administrator shall have the right to the possession and
management of the real as well as the personal estate of the deceased so long as it is necessary
for the payment of the debts and the expenses of administration.
Rule 85
ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND
ADMINISTRATORS
Sec. 1. Executor or administrator chargeable with all estate and income. — Except as
otherwise expressly provided in the following sections, every executor or administrator is
chargeable in his account with:
● the whole of the estateof the deceased which has come into his possession, at the
value of the appraisement contained in the inventory;
● with all the interest, profit, and income of such estate;
● and with the proceeds of so much of the estate asis sold by him, at the price at
which it was sold.
Sec. 2. Not to profit by increase or lose by decrease in value. —
No executor or administrator shall profit by the increase, or suffer loss by the decrease or
destruction, without his fault, of any part of the estate.
He must account for the excess when he sells any part of the estate for more than the
appraisement, and if any is sold for the less than the appraisement, he is not responsible for the
loss, if the sale has justly made. If he settles any claim against the estate for less than its nominal
value, he is entitled to charge in his account only the amount he actually paid on the settlement.
Sec. 3. When not accountable for debts due estate. — No executor or administrator shall be
accountable for debts due the deceased which remain uncollected without his fault.
Sec. 4. Accountable for income from realty used by him. — If the executor or administrator uses
or occupies any part of the real estate himself, he shall account for it as may be agreed upon
between him and the parties interested, or adjusted by the court with their assent; and if the
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parties do not agree upon the sum to be allowed, the same may be ascertained by the court,
whose determination in this respect shall be final.
Sec. 5. Accountable if he neglects or delays to raise or pay money. — When an executor or
administrator neglects or unreasonably delays to raise money, by collecting the debts or selling
the real or personal estate of the deceased, or neglects to pay over the money he has in his hands,
and the value of the estate is thereby lessened or unnecessary cost or interest accrues, or the
persons interested suffer loss, the same shall be deemed waste and the damage sustained may be
charged and allowed against him in his account, and he shall be liable therefor on his bond.
Sec. 6. When allowed money paid as cost. — The amount paid by an executor or administrator
for costs awarded against him shall be allowed in his administration account, 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.
Sec. 7. What expenses and fees allowed executor or administrator. Not to charge for services as
attorney. Compensation provided by will controls unless renounced. —
An executor or administrator shall be allowed the necessary expenses
● the care, management, and settlement of the estate,
● and for his services, four pesos per day for the time actually and necessarily employed
(wow) or a commission upon the value of so much of the estate as comes into his
possession and is finally disposed of by him in the payment of debts, expenses, legacies,
or distributive shares, or by delivery to heirs or devisees,
■ 2% for first Php 5,000 of value
■ 1% of the value exceeding Php 5,000, max Php 30,000,
■ 0.5% of so much of such value as exceeding Php 100,000.
○ But in any special case, where the estate is large, and the settlement has been
attended with great difficulty, and has required a high degree of capacity on the
part of the executor or administrator, a greater sum may be allowed.
○ If objection to the fees allowed be taken, the allowance may be re-examined on
appeal.
○ If there are two or more executors or administrators, the compensation shall be
apportioned among them by the court according to the services actually
rendered by them respectively.
○ When the executors or administrator is an attorney, 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 his executor, that provision shall be a full satisfaction for his services unless
by a written instrument filed in the court he renounces all claim to the
compensation provided by the will.
Sec. 8. When executor or administrator to render account. — Every executor or administrator
shall render an account of his administration
● within one (1) year from the time of receiving letters testamentary or of administration,
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●
●
unless the court otherwise directs because of extensions of time
○ for presenting claims against, or paying the debts of, the estate, or
○ for disposing of the estate; and
he shall render such further accounts as the court may require until the estate is wholly
settled.
Sec. 9. Examinations on oath with respect to account — The court may examine the executor or
administrator upon oath with respect to every matter relating to any account rendered by him,
and shall so examine him as to the correctness of his account before the same is allowed,
● except when no objection is made to the allowance of the account and its
● correctness is satisfactorily established by competent proof.
The heirs, legatees, distributees, and creditors of the estate shall have the same privilege as the
executor or administrator of being examined on oath on any matter relating to an
administration account.
Sec. 10. Account to be settled on notice. — Before the account of an executor or administrator
is allowed, notice shall be given to persons interested of the time and place of examining and
allowing the same; and such notice may be given personally to such persons interested or by
advertisement in a newspaper or newspapers, or both, as the court directs.
Sec. 11. Surety on bond may be party to accounting. — Upon the settlement of the account of
an executor or administrator, a person liable as surety in respect to such account may, upon
application, be admitted as party to such accounting.
Overview of the executor/administrator’s responsibilitiesafter being appointed:
1. Accept the trust
2. Take Oath
3. Post Bond
4. File inventory of real and personal property of the estate within 3 months from appointment
5. Submit an appraisal within 3 months
6. Administer and Maintain properties of the estate: Pay necessary expenses, pursue debts, represent the
estate in suits
7. Render an Account after 1 year and at any time so ordered by the court
SUMMARY OF POWER AND DUTIES OF EXECUTORS/ADMINISTRATORS
Powers
(1) Has access to and can examine and take copies of books and papers relating to the partnership, if
deceased is a partner
(2) Can examine and make invoices of property belonging to the partnership, if deceased is a partner
(3) Has right to possess and manage real and personal property of deceased, when necessary for:
(a) Payment of debts
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(b) Expenses of administration
Duties
(1) Give a bond with the conditions to: make a return to the court within 3 months of the deceased’s
property, pay the estate’s debts, administer the estate, render an account within a year/when required by
the court, and perform all the court’s orders.
(2) Return to the court an appraisal of all the real and personal property of the estate, within the same 3
months given for the inventory
(3) During the settlement proceedings, give an allowance to the surviving spouse and children of the
deceased
(4) Administer and maintain the properties of estate by paying the necessary expenses, pursuing debts,
representing the estate in suits
(5) Account for excess when sale of estate property made in excess of appraisal
(6) Render an account after 1 year and at any time so ordered by the court
Restrictions on Powers
(1) Cannot acquire by purchase property under administration, even at a public or judicial auction, either
in person or indirectly
(2) Cannot profit or suffer loss by increase/decrease any part of the estate
(3) Cannot lease the property for more than 1 year
(4) Cannot exercise right of legal redemption over a portion of the property owned in common, if property
is sold by one of the other co owners
(5) Cannot borrow money without court authority
(6) Cannot continue business of the deceased without court authority
Rule 86
CLAIMS AGAINST ESTATE
Sec. 1. Notice to creditors to be issued by court. — Immediately after granting letters
testamentary or of administration, the court shall issue a notice requiring all persons having
money claims against the decedent to file them in the office of the clerk of said court.
Sec. 2. Time within which claims shall be filed. — In the notice provided in the preceding
section, the court shall estate the time for the filing of claims against the estate, which shall not
be more than twelve (12) not less than six (6) months after the date of the first
publication of the notice.However, at any time before an order of distribution is entered,
on application of a creditor who has failed to file his claim within the previously limited, the
court may, for cause shown and on such terms as are equitable, allow such claim to be filed
within a time not exceeding one (1) month.
Sec. 3. Publication of notice to creditors. — Every executor or administrator shall, immediately
after the notice to creditors is issued, cause the same to be published three (3) weeks
successively in a newspaper of general circulationin the province, and to be posted for the
same period in four public places in the province and in two public places in the municipality
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where the decedent last resided.
Sec. 4. Filing of copy of printed notice. — Within ten (10) days after the notice has been
published and posted in accordance with the preceding section, the executor or administrator
shall file or cause to be filed in the court a printed copy of the noticeaccompanied with an
affidavit setting forth the dates of the first and last publication thereof and the name of the
newspaper in which the same is printed.
Sec. 5. Claims which must be filed under the notice. If not filed, barred; exceptions. — All
claims for money against the decent,
● arising from contract,
● express or implied,
● whether the same be due, not due, or contingent,
● all claims for funeral expenses and expense for the last sickness of the decedent, and
● judgment for money against the decent,
● must be filed within the time limited in the notice; otherwise they are barred
forever,
○ except that they may be set forth as counterclaims in any action that the
executor or administrator may bring against the claimants.
○ Where an executor or administrator commences an action, or prosecutes an
action already commenced by the deceased in his lifetime, the debtor may set
forth by answer the claims he has against the decedent, instead of
presenting them independently to the court as herein provided, and
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 determined
shall be considered the true balance against the estate, as though the claim had
been presented directly before the court in the administration proceedings.
Claims not yet due, or contingent, may be approved at their present value.
Sec. 6. Solidary obligation of decedent. — Where the obligation of the decedent is solidary with
another debtor, the claim shall be filed against the decedent as if he were the only debtor,
without prejudice to the right of the estate to recover contribution from the debtor. In a joint
obligation of the decedent, the claim shall be confined to the portion belonging to him.
Sec. 7. Mortgage debt due from estate. — A creditor holding a claim against the deceased
secured by mortgage or other collateral security,
● may abandon the security and prosecute his claim in the manner provided in
this rule, and share in the general distribution of the assets of the estate; or he may
● foreclose his mortgage or realize upon his security, by action in court, making
the executor or administrator a party defendant,
○ and if there is a judgment for a deficiency, after the sale of the mortgaged
premises, or the property pledged, in the foreclosure or other proceeding to
realize upon the security,
■ he may claim his deficiency judgment in the manner provided
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●
in the preceding section or
he may rely upon his mortgage or other security alone, and foreclosure the same at
any time within the period of the statute of limitations,
○ and in that event he shall not be admitted as a creditor, and shall receive no
share in the distribution of the other assets of estate;
○ but nothing herein contained shall prohibit the executor or administrator
from redeeming the property mortgaged or pledged, by paying the debt for
which it is held as security, under the direction of the court, if the court shall
adjudge it to be for the best interest of the estate that such redemption shall be
made.
Sec. 8. Claim of executor or administrator against an estate. — If the executor or administrator
has a claim against the estate he represents, he shall
● give notice thereof, in writing, to the court, and
○ the court shall appoint a special administrator, who shall, in the adjustment
of such claim, have the same power and be subject to the same liability as the
general administrator or executor in the settlement of other claims.
○ The court may order the executor or administrator to pay to the special
administrator necessary funds to defend such claim.
Sec. 9. How to file a claim. Contents thereof. Notice to executor or administrator. —
A claim may be filed by
● delivering the same with the necessary vouchers to the clerk of court
● and by serving a copy thereof on the executor or administrator.
If the claim be founded
● on a bond, bill, note, or any other instrument,
○ the original need not be filed, but a copy thereof with all indorsements shall
be attached to the claim and filed therewith.
■ On demand, however, of the executor or administrator, or by order
of the court or judge, the original shall be exhibited,
■ unless it be list or destroyed, in which case the claimant must
accompany his claim with affidavit or affidavits containing a copy or
particular description of the instrument and stating its loss or
destruction.
When the claim is DUE it must be supported by affidavit
● stating the amount justly due,
● that no payments have been made thereon which are not credited, and
● that there are no offsets to the same, to the knowledge of the affiant.
If the claim is NOT DUE/ Contingent, when filed,
● it must also be supported by affidavits stating the particulars thereof.
○ 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
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claimant.
The claim once filed shall be attached to the record of the casein which the letters
testamentary or of administration were issued, although the court, in its discretion, and as a
matter of convenience, may order all the claims to be collected in a separate folder.
Sec. 10. Answer of executor or administrator. Offsets —
● Within fifteen (15) days after service of a copy of the claim on the executor or
administrator, he shall file his answer
○ admitting or denying the claim specifically, and
○ setting forth the admission or denial.
○ If he has no knowledge sufficient to enable him to admit or deny specifically,
he shall state such want of knowledge.
○ The executor or administrator in his answer shall allege in offset any claim
which the decedent before death had against the claimant, and his failure to
do so shall bar the claim forever.
○ A copy of the answer shall be served by the executor or administrator on the
claimant.
○ The court in its discretion may extend the time for filing such answer.
Sec. 11. Disposition of admitted claim. —
● Any claim admitted entirely by the executor or administrator shall immediately be
submitted by the clerk to the court who may approve the same without hearing;
● 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, legatees, or devisee opposes the claim, the court may,
in its discretion, allow him fifteen (15) days to file an answer to the claim in the
manner prescribed in the preceding section.
Sec. 12. Trial of contested claim. — Upon the filing of an answer to a claim, or upon the
expiration of the time for such filing, the clerk of court shall set the claim for trial with notice to
both parties. The court may refer the claim to a commissioner.
Sec. 13. Judgment appealable. — The judgment of the court approving or disapproving a claim,
shall be filed with the record of the administration proceedings with notice to both parties, and
is appealable as in ordinary cases. A judgment against the executor or administrator shall be
that he pay, in due course of administration, the amount ascertained to be due, and it shall not
create any lien upon the property of the estate, or give to the judgment creditor any priority of
payment.
Sec. 14. Costs. —
When the executor or administrator, in his answer, admits and offers to pay part of a claim, and
the claimant refuses to accept the amount offered in satisfaction of his claim,
● if he fails to obtain a more favorable judgment, he cannot recover costs, but must pay
to the executor or administrator costs from the time of the offer.
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Where an action commenced against the deceased for money has been discontinued and the
claim embraced therein presented as in this rule provided,
● the prevailing party shall be allowed the costs of his action up to the time of its
discontinuance.
Concept
Notes
Claims covered by the rule
Claims to recover money not secured by lien against any of the
deceased’s property; not extinguished by death but shall be
prosecuted as a money claim against the deceased’s estate
What claims should be filed
1.
2.
3.
4.
Money claims incurred by deceased during his lifetime
Claims for funeral expenses
Expenses for last illness of decedent
Judgment for money against decedent
How to file claim
1. Deliver claim with necessary vouchers to clerk of
court
2. Serve copy on executor and administrator
Mode of Review
Appealable by record on appeal within 30 days from notice of
judgment
Summary of Sec. 5, Statute of Non-claims
General Rules
Creditors of the decedent must file within the time fixed, otherwise
they are barred forever.
By notice: within the time fixed in notice
By publication: 6-12 months from the date of first publication
Exceptions
1. Belated claims—On application of creditor who failed to
file his claim within the time period, and at any time
before order of distribution is entered, the court may, for
cause shown, and on equitable terms, allow claim to be
filed within a time not exceeding 1 month from order
allowing belated claims
2. Counterclaims- Creditor barred by statute of non-claims
may file claim as counterclaim in any suit that the executor
or administrator may bring against him
Exception to Exception Administrator/executor’s failure to plead statute of non-claims
constitutes a waiver
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Creditors’ Remedies (Sec. 7)
(1) Abandon/waive security and prosecute claim against the estate, sharing in the general
distribution of the assets
(2) Foreclose his mortgage or realize upon his security by action in court, making executor or
administrator a party defendant. If there is judgment for deficiency, he may file a claim against
the estate within the statute of non-claims.
(3) Rely solely on his mortgage and foreclose judicially or extrajudicially any time within period
of the statute of limitations. But he cannot be admitted as creditor, and shall not receive in the
distribution of the estate’s other assets.
Claims of executor or administrator against estate (Sec 6)
(1) Executor/Administrator shall give notice thereof, in writing, to the court
(2) The court shall appoint a special administrator who shall have the same powers and liabilities
as the general executor/administrator in the adjustment of such claim.
(3) The court may order the executor or administrator to pay to the special administrator
necessary funds to defend such claim.
Rule 87
ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS
Sec. 1. Actions which may and which may not be brought against executor or administrator. —
No action upon a claim for the recovery of money or debt or interest thereon shall be
commenced against the executor or administrator; but to recover real or personal property, or an
interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for
an injury to person or property, real or personal, may be commenced against him.
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 deceased, actions for causes which survive.
Sec. 3. Heir may not sue until shall assigned — When an executor or administrator is appointed
and assumes the trust, no action to recover the title or possession of lands or for damages done
to such lands shall be maintained against him by an heir or devisee until there is an order of the
court assigning such lands to such heir or devisee or until the time allowed for paying debts has
expired.
Sec. 4. Executor or administrator may compound with debtor. — Within the approval of the
court, an executor or administrator may compound with the debtor of the deceased for a debt
due, and may give a discharge of such debt on receiving a just dividend of the estate of the
debtor.
Sec. 5. Mortgage due estate may be foreclosed. — A mortgage belonging to the estate of a
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deceased person, as mortgagee or assignee of the right or a mortgage, may be foreclosed by the
executor or administrator.
Sec. 6. Proceedings when property concealed, embezzled, or fraudulently conveyed. — If an
executor or administrator, heir, legatee, creditor or other individual interested in the estate of
the deceased, complains to the court having jurisdiction of the estate that a person is suspected
of having concealed, embezzled, or conveyed away any of the money, goods, or chattels of the
deceased, or that such person has in his possession or has knowledge of any deed, conveyance,
bond, contract, or other writing which contains evidence of or tends or discloses the right, title,
interest, or claim of the deceased, the court may cite such suspected person to appear before it
any may examine him on oath on the matter of such complaint; and if the person so cited
refuses to appear, or to answer on such examination or such interrogatories as are put to him,
the court may punish him for contempt, and may commit him to prison until he submits to the
order of the court. The interrogatories put any such person, and his answers thereto, shall be in
writing and shall be filed in the clerk's office.
Sec. 7. Person entrusted with estate compelled to render account. — The court, on complaint of
an executor or administrator, may cite a person entrusted by an executor or administrator with
any part of the estate of the deceased to appear before it, and may require such person to render
a full account, on oath, of the money, goods, chattels, bonds, account, or other papers belonging
to such estate as came to his possession in trust for such executor or administrator, and of his
proceedings thereon; and if the person so cited refuses to appear to render such account, the
court may punish him for contempt as having disobeyed a lawful order of the court.
Sec. 8. Embezzlement before letters issued — If a person, before the granting of letters
testamentary or of administration on the estate of the deceased, embezzles or alienates any of the
money, goods, chattels, or effects of such deceased, such person shall be liable to an action in
favor of the executor or administrator of the estate for double the value of the property sold,
embezzled, or alienated, to be recovered for the benefit of such estate.
Sec. 9. Property fraudulently conveyed by deceased may be recovered. When executor or
administrator must bring action. — When there is a deficiency of assets in the hands of an
executor or administrator for the payment of debts and expenses of administration, and the
deceased in his lifetime had conveyed real or personal property, or a right or interest therein, or
an debt or credit, with intent to defraud his creditors or to avoid any right, debt, or duty; or had
so conveyed such property, right, interest, debt or credit that by law the conveyance would be
void as against his creditors, and the subject of the attempted conveyance would be liable to
attachment by any of them in his lifetime, the executor or administrator may commence and
prosecute to final judgment an action for the recovery of such property, right, interest, debt, or
credit for the benefit of the creditors; but he shall not be bound to commence the action unless
on application of the creditors of the deceased, not unless the creditors making the application
pay such part of the costs and expenses, or give security therefor to the executor or
administrator, as the court deems equitable.
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Sec. 10. When creditor may bring action. Lien for costs. — When there is such a deficiency of
assets, and 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 creditor 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. Where the
conveyance or attempted conveyance had been made by the deceased in his lifetime in favor of
the executor or administrator, the action which a credit 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.
Actions to be Brought Against Administrators
(1) Recover real or personal property or interest therein
(2) Or to enforce a lien thereon and
(3) Actions to recover damages for an injury to a person or property [ Sec. 1, Rule 87]
Actions which may NOT brought against Administrators: Claim for the recovery of
money or debt or interest cannot be brought against executors/administrators.
Executor or Administrator may Bring or Defend Actions Which Survive Death For the
recovery or protection of the property or rights of the deceased (Sec. 2, Rule 87): Covers
injury to property i.e. not only limited to injuries to specific property, but extends to other
wrongs by which personal estate is injured or diminished.
When recovery of property fraudulently conveyed bydeceased may be recovered
○ There is deficiency of assets and the deceased, in his lifetime, had conveyed real
or personal property, right or interest therein, or debt or credit with intent to
defraud his creditors or avoid any right, debt or duty; or
○ Had so conveyed such property, right, interest, debt or credit that by law the
conveyance would be void as against the creditors; and
○ The subject of the attempted conveyance would be liable to attachment by any
of them in his lifetime. (Sec. 9, Rule 87)
Recovery by the EXECUTOR/ADMINISTRATOR of property fraudulently conveyed
(1) Commence and prosecute to final judgment an action for the recovery of such property,
right, interest, debt or credit for benefit of the creditors
(2) Provided, creditors make an application and pay such part of the costs and expenses or give
security therefor. (Sec. 9, Rule 87)
If a person before granting letters testamentary or administration embezzles or alienates any of
the money, goods, chattels, or effects of such deceased
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Consequence: Such person shall be liable to an action in favor of the
executor/administrator of the estate for double the value of the property sold,
embezzled, or alienated, to be recovered for the benefit of such estate. (Sec. 8, Rule 87)
Any CREDITOR may commence and prosecute to final judgment a like action for the recovery
of the subject of the conveyance or attempted conveyance if the following requisites are satisfied:
(1) If executor/administrator failed to commence such action
(a) With court permission
(b) In the name of the executor/administrator
(c) He files a bond, conditioned to indemnify the executor/administrator against the cost and
expenses incurred by such action
(2) If conveyance or attempt is made in favor of executor/administrator
- No need for court permission
- No need for Bond.
- Action shall be brought in the name of all the creditors
● Note: 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. (Sec.
10, Rule 87)
●
Rule 88
PAYMENT OF THE DEBTS OF THE ESTATE
Sec. 1. Debts paid in full if estate sufficient. — If, after hearing all the money claims against the
estate, and after ascertaining the amount of such claims, it appears that there are sufficient assets
to pay the debts, the executor or administrator pay the same within the time limited for that
purpose.
Sec. 2. Part of the estate from which debt is paid when provision is made by will. — If the
testator makes provision by his will, or designates the estate to be appropriated for the payment
of his debts, the expenses of administration, or the family expenses,
● they shall be paid according to the provisions of the will;
● but if the provision 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.
Sec. 3. Personalty first chargeable for debts, then realty. —
The personal estate of the deceased not disposed of by will shall be first chargeable with the
payment of debts and expenses;
● and if said personal estate is not sufficient for that purpose,
● or its sale would redound to the detriment of the participants for the estate,
● the whole of the real estate not dispose of by will, or so much thereof as is necessary,
may be sold, mortgaged, or otherwise encumbered for that purpose by the executor or
administrator, after obtaining the authority of the court therefor.
● Any deficiency shall be met by contributions in accordance with the provisions of
section 6 of this rule.
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Sec. 4. Estate to be retained to meet contingent claims. — If the court is satisfied that a
contingent claim duly filed is valid,
● it may order the executor or administrator to retain in his hands sufficient estate to pay
such contingent claim when the same becomes absolute,
● or if the estate is insolvent, sufficient to pay a portion equal to the dividend of the other
creditors.
Sec. 5. How contingent claim becoming absolute in two years allowed and paid. Action against
distributees later. —
If such contingent claim becomes absolute and is presented to the court, or to the executor or
administrator,
● within two (2) years from the time limited for other creditors to present their claims,
● it may be allowed by the court if not disputed by the executor or administrator and, if
disputed, it may be proved and allowed or disallowed by the court as the facts may
warrant.
If the contingent claim is allowed, 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, within said two (2)
years, and allowed, the assets retained in the hands of the executor or administrator, not
exhausted in the payment of claims, shall be disturbed by the order of the court to the
persons entitled to the same;
● but the assets so distributed may still be applied to the payment of the claim when
established, and the creditor may maintain an action against the distributees to recover
the debt, and such distributees and their estates shall be liable for the debt in
proportion to the estate they have respectively received from the property of the
deceased.
Sec. 6. Court to fix contributive shares where devisees, legalitees, or heirs have been possession.
—
● Where devisees, legatees, or heirs have entered into possession of portions of the estate
before the debts and expenses have been settled and paid, and have become liable to
contribute for the payment of such debts and expenses, the court having jurisdiction
of the estate may, by order for that purpose, after hearing, settle the amount of
their several liabilities, and order how much and in what manner each person
shall contribute, and may issue execution as circumstances require.
Sec. 7. Order of payment if estate insolvent — If the assets which can be appropriated for the
payment of debts are not sufficient for that purpose, the executor or administrator shall pay the
debts against the estate, observing the provisions of Articles 1059 and 2239 to 2251 of the Civil
Code.
Sec. 8. Dividends to be paid in proportion to claims. —
● If there are no assets sufficient to pay the credits of any once class of creditors after
paying the credits entitled to preference over it,
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●
●
each creditor within such class shall be paid a dividend in proportion to his claim.
No creditor of any one class shall receive any payment until those of the preceding class
are paid.
Sec. 9. Estate of insolvent non-resident, how disposed of. — In case administration is taken in
the Philippine of the estate of a person who was at the time of his death an inhabitant of
another country, and who died insolvent,
● his estate found in the Philippines shall, as far as practicable, be so disposed of that his
creditors here and elsewhere may receive each an equal share, in proportion to their
respective credits.
Sec. 10. When and how claim proved outside the Philippines against insolvent resident's estate
paid. —
● If it appears to the court having jurisdiction that claims have been duly proven in
another country against the estate of an insolvent who was at the time of his death an
inhabitant of the Philippines, and that the executor or administrator in the Philippines
had knowledge of the presentation of such claims in such country and an opportunity
to contest their allowance,
● the court shall receive a certified list of such claims, when perfected in such country, and
add the same to the list of claims proved against the deceased person in the Philippines
so that a just distribution of the whole estate may be made equally among all its
creditors according to their respective claims;
● but the benefit of this and the preceding sections shall not be extended to the creditors
in another country if the property of such deceased person there found is not equally
apportioned to the creditors residing in the Philippines and the other creditor,
according to their respective claims.
Sec. 11. Order for payment of debts. —
● Before the expiration of the time limited for the payment of the debts, the court shall
order the payment thereof,
● the distribution of the assets received by the executor or administrator for that purpose
among the creditors, as the circumstances of the estate require and in accordance with
the provisions of this rule.
Sec. 12. Orders relating to payment of debts where appeal is taken. —
● If an appeal has been taken from a decision of the court concerning a claim, the court
may suspend the order for the payment of the debtsor may order the distributions
among the creditors whose claims are definitely allowed, leaving in the hands of the
executor or administrator sufficient assets to pay the claim disputed and appealed.
● When a disputed claim is finally settled the court having jurisdiction of the estate shall
order the same to be paid out of the assets retainedto the same extent and in the
same proportion with the claims of other creditors.
Sec. 13. When subsequent distribution of assets ordered. — If the whole of the debts are not
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paid on the first distribution, and if the whole assets are not distributed, or other assets
afterwards come to the hands of the executor or administrator, the court may from time to time
make further orders for the distributions of assets.
Sec. 14. Creditors to be paid in accordance with terms of order. — When an order is made for
the distribution of assets among the creditors, the executor or administration shall, as soon as
the time of payment arrives, pay the creditors the amounts of their claims, or the dividend
thereon, in accordance with the terms of such order.
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 disposing of the estate and paying the debts and
legacies of the deceased, which shall not, in thefirst instance, exceed one (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 theestate require not exceeding
six (6) months for a single extension not so that the whole period allowed to the
original executor or administrator shall exceed two (2) years.
Sec. 16. Successor of dead executor or administrator may have time extended on notice within
certain period. — When an executor or administrator dies, and a new administrator of
the same estate is appointed, 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, not
exceeding six (6) months at a time and not exceeding six (6) months beyond the time which the
court might have allowed to such original executor or administrator; and notice shall be given of
the time and place for hearing such application, as required in the last preceding section.
Rule 89
SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY OF
DECEDENT
Sec. 1. Order of sale of personalty. — Upon the application of the executor or administrator,
and on written notice to the heirs and other persons interested, the court may order the whole
or a part of the personal estate to be sold, if it appears necessary for the purpose of paying debts,
expenses of administration, or legacies, or for the preservation of the property.
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
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written notice of the heirs, devisees, and legatees residing in the Philippines, 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 encumbrance 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.
Sec. 3. Persons interested may prevent such sale, etc., by giving bond. — No such authority to
sell, mortgage, or otherwise encumber real or personal estate shall be granted if any person
interested in the estate gives a bond, in a sum to be fixed by the court, conditioned to pay the
debts, expenses of administration, and legacies within such time as the court directs; and such
bond shall be for the security of the creditors, as well as of the executor or administrator, and
may be prosecuted for the benefit of either.
Sec. 4. When court may authorize sale of estate as beneficial to interested persons. Disposal of
proceeds. — When it appears that the sale of the whole or a part of the real or personal estate,
will be beneficial to the heirs, devisees, legatees, and other interested persons, the court may,
upon application of the executor or administrator and on written notice to the heirs, devisees,
and legatees who are interested in the estate to be sold, authorize the executor or administrator
to sell the whole or a part of said estate, although not necessary to pay debts, legacies, or expenses
of administration; but such authority shall not be granted if inconsistent with the provisions of
a will. In case of such sale, the proceeds shall be assigned to the persons entitled to the estate in
the proper proportions.
Sec. 5. When court may authorize sale, mortgage, or other encumbrance of estate to pay debts
and legacies in other countries. — When the sale of personal estate, or the sale, mortgage, or
other encumbrance of real estate is not necessary to pay the debts, expenses of administration, or
legacies in the Philippines, but it appears from records and proceedings of a probate court in
another country that the estate of the deceased in such other country is not sufficient to pay the
debts, expenses of administration, and legacies there, the court here may authorize the executor
or administrator to sell the personal estate or to sell, mortgage, or otherwise encumber the real
estate for the payment of debts or legacies in the other country, in same manner as for the
payment of debts or legacies in the Philippines.
Sec. 6. When court may authorize sale, mortgage, or other encumbrance of realty acquired on
execution or foreclosure. — The court may authorize an executor or administrator to sell
mortgage, or otherwise encumber real estate acquired by him on execution or foreclosure sale,
under the same circumstances and under the same regulations as prescribed in this rule for the
sale, mortgage, or other encumbrance of other real estate.
Sec. 7. Regulation for granting authority to sell, mortgage, or otherwise encumber estate. —
The court having jurisdiction of the estate of the deceased may authorize the executor or
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administrator to sell personal estate, or to sell, mortgage, or otherwise encumber real estate, in
cases provided by these rules and when it appears necessary or beneficial under the following
regulations.
(a) The executor or administrator shall file a written petition setting forth the debts due from
the deceased, the expenses of administration, the legacies, the value of the personal estate, the
situation of the estate to be sold, mortgaged, or otherwise encumbered, and such other facts as
show that the sale, mortgage, or other encumbrance is necessary or beneficial.
(b) The court shall thereupon fix a time and place for hearing such petition, and cause notice
stating the nature of the petition, the reasons for the same, and the time and place of hearing, to
be given personally or by mail to the persons interested, and may cause such further notice to be
given, by publication or otherwise, as it shall deem proper;
(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;
(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 registry of deeds of the province in which the real estate thus
sold, mortgage, 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.
Sec. 8. When court may authorize conveyance of realty which deceased contracted to convey.
Notice. Effect of deed. — Where the deceased was in his lifetime under contract, binding in law,
to deed real property, or an interest therein, the court having jurisdiction of the estate may, on
application for that purpose, authorize the executor or administrator to convey such property
according to such contract, or with such modifications as are agreed upon by the parties and
approved by the court; and if the contract is to convey real property to the executor or
administrator, the clerk of court shall execute the deed. The deed executed by such executor,
administrator, or clerk of court shall be as affectual to convey the property as if executed by the
deceased in his lifetime; but no such conveyance shall be authorized until notice of the
application for that purpose has been given personally or by mail to all persons interested, and
such further notice has been given, by publication or otherwise, as the court deems proper; nor
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if the assets in the hands of the executor or administrator will thereby be reduced so as to
prevent a creditor from receiving his full debt or diminish his dividend.
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, authorize the executor or administrator to
deed such property to the person, or his executor or administrator, for whose use and benefit it
was so held; and the court may order the execution of such trust, whether created by deed or by
law
Concept
Notes
Personal Property may be sold upon order (Sec 1 and 4):
(1) To pay debts, expenses, legacies
(2) If it appears necessary to preserve the property
(3) If sale will be beneficial to the heirs, devisees, legatees, and other interested persons and
is not inconsistent with the provisions of the will
Real Property may be sold/mortgaged/encumbered to pay debts when (see Sec 2 and 4) :
(1) Personal estate is insufficient
(2) Sale of personal estate may injure the business of persons interested in the estate
(3) Property appropriated by testator in his will is insufficient to pay debts
● Real property may also be sold to not pay debts: If sale will be beneficial to the heirs,
devisees, legatees and other interested persons and is not inconsistent with the
provisions of the will
Rule 90
DISTRIBUTION AND PARTICIPATION OF THE ESTATE
Sec. 1. When order for distribution of reside 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 personsentitled to the same, naming
them and the proportions, or parts, to which each is entitled, and such persons 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 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, in a sum to be fixed
by the court, conditioned for the payment of said obligations within such time as the court
directs.
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Sec. 2. Questions as to advancement to be determined. — Questions as to advancement made,
or alleged to have been made, by the deceased to any heir may be heard and determined by the
court having jurisdiction of the estate proceedings; and the final order of the court thereon
shall be binding on the person raising the questions and on the heir.
Sec. 3. By whom expenses of partition paid. — If at the time of distribution the executor or
administrator has retained sufficient effects in his hands which may lawfully be applied for the
expenses of partition of the properties distributed,
● such expenses of partition may be paid by such executoror administrator when
it appears equitable to the court and not inconsistent with the intention of the
testator;
● otherwise, they shall be paid by the parties in proportion to their respective shares or
interest in the premises, and the apportionment shall be settled and allowed by the
court, and,
○ if any person interested in the partition does not pay his proportion or share,
the court may issue an execution in the name of the executor or administrator
against the party not paying the sum assessed.
Sec. 4. Recording the order of partition of estate. — Certified copies of final orders and
judgments of the court relating to the real estate or the partition thereof shall be recorded in
the registry of deeds of the province where the propertyis situated.
Concept
Notes
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DISTRIBUTION OF THE ESTATE (stages/remedies)
1. Liquidation
● General Rule: Before an order of distribution or assignment, it must be
shown that the “debts, funeral expenses and expenses of administration,
allowances, taxes, etc., chargeable to the estate” have been paid.
● Exception: The distributees give a bond conditioned on the payment of above
obligations (Sec. 1, Rule 90)
2. Project of Partition (Sec 1)
● It is the court that makes that distribution of the estate and determines the
persons entitled thereto
○ (1) On application of executor/administrator or person interested in
the estate
○ (2) Notice
○ (3) Hearing
● Court 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.
● Such persons may demand and recover their respective shares from the
executor/administrator, or any other person having the same in his possession.
● If there is a controversy as to who are heirs or shares such shall be heard and
decided as in ordinary cases.
3. Remedy of an heir entitled to residue but not givenhis share
(1) Demand his share through a proper motion in the same probate or administrative
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proceedings, or
(2) Motion for reopening of the probate or administrative proceedings if it had already
been closed, and not through an independent action.
4. Instances when probate court may issue writ of execution
Generally, Writs of Execution is not allowed in probate,except:
(1) To satisfy the contributive shares of devisees, legatees and heirs in possession of the
decedent’s assets (Sec. 6, Rule 88)
(2) To enforce payment of expenses of partition, provided:
- No sufficient effects are retained in the hands of the executor or administrator at the
time of distribution
- Expenses of partition are to be paid by interested parties in proportion to their
respective shares or interest
- Such apportionment are settled and allowed by the court
- Any person interested in the partition does not pay his/her proportion or share (Sec.
3, Rule 90)
(3) To satisfy the costs when a person is cited for examination in probate proceedings
(Sec. 13, Rule 142)
Rule 91
ESCHEATS
Sec. 1. When an by whom petition filed. —
● When a person dies intestate,
● seized of real property in the Philippines, leaving no heir or person by law entitled to
the same,
[Filed by] the Solicitor General or his representative in behalf of the Republic of the
Philippines, may file a petition
[Where filed] in the Court of First Instance
● of the province where the deceased last resided or in which he had estate,
● if he resided out of the Philippines, setting forth the facts, and praying that the estate
of the deceased be declared escheated. [where they had estate]
Sec. 2. Order for hearing. — If the petition is sufficient in form and substance, the court, by an
order reciting the purpose of the petition, shall fix a date and place for the hearing thereof,
which date shall be not more than six (6) months after the entry of the order, and shall direct
that a copy of the order be published before the hearing at least once a week for six (6) successive
weeks in some newspaper of general circulation published in the province, as the court shall be
deem best.
Sec. 3. Hearing and judgment. — Upon 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 Philippines, leaving no heir or person entitled to the same, and
no sufficient cause being shown to the contrary, the court shall adjudge that the estate of the
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estate of the deceased in the Philippines, after the payment of just debts and charges, shall
escheat; and shall, pursuant to law, assign the personal estate to the municipality or city where
he last resided in the Philippines, and the real estate to the municipalities or cities, respectively,
in which the same is situated. If the deceased never resided in the Philippines, the whole estate
may be assigned to the respective municipalities or cities where the same is located. Shall estate
shall be for the benefit of public schools, and public charitable institutions and centers in said
municipalities or cities.
The court, at the instance of an interested party, or on its own motion, may order the
establishment of a permanent trust, so that the only income from the property shall be used.
Sec. 4. When and by whom claim to estate filed. — If a devisee, legatee, heir, widow,
widower, or other person entitled to such estate appears and files a claim thereto with the
court within five (5) years from the date of suchjudgment, 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 after deducting reasonable charges for the care of the estate; but a claim
not made within the said time shall be forever barred.
Sec. 5. Other actions for escheat. — Until otherwise provided by law, actions reversion or
escheat of properties alienated in violation of theConstitution or of any statute shall be
governed by this rule, except that the action shall be instituted in the province where the land
lies in whole or in part.
Concept
Notes
When a petition for escheat may be filed:
(1) A person dies without a will and no heirs
(2) Reversion or escheat of properties alienated in violation of the constitution/statute
(3) Unclaimed balances in banks (Acts 3936)
Note: the 5 year prescription period is important to remember! The remedies of the heirs is to
Participate in the escheat proceeding and file a written opposition, file a motion to dismiss or a
petition to annul judgement
TRUSTEE: Rule 98
Concept
Notes
Trust: “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 for the benefit of the latter.”
Which trusts are covered under Rule 98: Express trusts created by will or written instrument
Where a petition to appoint a trustee is filed: The RTC where the will is allowed/province
where the properties of the estate are located. (Sec 1)
● Note: no publication of order
Trustee must file a bond (Sec 5 and 6)
● In an amount fixed by the court, payable to the Government of the Philippines.
● Failure to file a bond shall be considered as declining or resigning the trust.
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Conditions of the bond are under Sec 6:
○ inventory of all the real and personal estate belonging to him as trustee
○ manage and dispose of all such estate, and faithfully discharge his trust in
relation thereto
○ render upon oath at least once a year/ when the court will order a true account
of the property in his hands and the management and disposition thereof,
○ That at the expiration of his trust he will settle his account in court and pay
over and deliver all the estate remaining in his hands, or due from him on such
settlement, to the person or persons entitled to thereto
How Trustees differ from an executor/administrator
1. Trustees’ duties are governed by the intent of the trustor and may cover a wider range
than the responsibilities of an Executor or Administrator’s duties which are fixed by law
2. Trustees’ accounts must be under oath, unlike the administrator/executor accounts
(although their first and last account is under oath)
3. The purpose of the Trustees’ acts of administration can be much broader than
executors and administrators. They may invest or apply properties in a manner that
best effects the object of the trust, while Executors/Admins sell or encumber property
mainly to pay debts, preserve property, benefit heirs/legatees/devisees.
4. The trust ends when the trust has expired, and when the property is turned over to the
beneficiary, while administrators/executors’ duties are completed when the estate’s
debts are paid and the property is distributed to the heirs
●
Removal/Resignation of a Trustee: Sec 8
Petition by interested parties to remove a
trustee
Ground: the removal is essential to their interests
Procedure: due notice to the trustee and hearing
Removal of a trustee by the court
Grounds: (1) removal is essential in the interests
of the petitioners (2) insanity (3) incapable of
discharging trust (4) evident unsuitability
Resignation
Procedure: resign with court’s allowance
ABSENTEE (Rule 107; Rule 73, Sec. 4; Civil Code Art.390 & 391, Family Code Art.
41)
Rule 107
Sec 1
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Petition for appointment of provisional representative
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Who may file: (1) any interested party, (2) absentee’s relative (3) absentee’s friend
Venue: RTC where the absentee resided before they disappeared
When it may be filed: (1) person disappears from their domicile, their whereabouts are
unknown and they left no agent to administer their property
Who may be appointed? (Sec 7)
● Spouse present is preferred when there is no legal separation
● Any competent person may be appointed if the absentee left no spouse, or if the
spouse present is a minor or incompetent. [how can a spouse be a minor?????]
Sec 2
Petition for declaration of absence
When filed: (1) When their whereabouts are unknown, after 2 years from disappearance (2) if
the absentee left a person in charge of their property, after 5 years from their disappearance
May be applied for by: (1) spouse who is present (2) heirs instituted in a will, who may present
an authentic copy (3) relatives who may succeed through intestate succession (4) those who have
a right to the property based on the condition of the absentees’ death
Who may be appointed? (Sec 7)
● Spouse present is preferred where there is no legal separation.
● Any competent person may be appointed if the absentee left no spouse, or if the
spouse present is a minor or incompetent.
Sec 8
Termination of administration
(1) When absentee appears personally or by means of an agent
(2) When the death of the absentee is proved and his heirs appear
(3) When a third person appears, showing a proper document that he has acquired the
absentee’s property by purchase or other title
Effect: trustee or administrator shall cease in the performance of his office, and the property shall
be placed at the disposal of those who may have a right thereto
Concept
Notes
Under the civil code, the petition is proper when:
Absence
2 years
Purpose/Circumstances of absence
●
●
4 years
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●
Petition for appointment of representative under Rule 107 of the Rules
of Court, except if the absentee left an administrator to manage his
property
Present spouse may remarry given the ff circumstances:
○ Spouse was lost after a sea or air voyage
○ They were in the armed forces and took part in war
○ They were in danger of death under other circumstances
Presumed dead for ALL purposes, including succession, when:
○ Lost after a sea or air voyage
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●
Cases
○ They were in the armed forces and took part in war
○ They were in danger of death under other circumstances
Present spouse may remarry
5 years
●
●
Petition for declaration of absence under Rule 107
Presumed dead for all purposes, including the opening of succession, if
the absentee disappeared after the age of 75 years old
7 years
●
No special circumstances, presumed dead for all purposes, except the
purpose of succession
10 years
●
No special circumstances, presumed dead for all purposes, including
opening succession
Republic v. Nolasco
Significance: Explains what a “well-founded belief” of the absentee’s death means, how proven
Summary: Nolasco filed a petition for the declaration of presumptive death of his wife, as the
latter disappeared after the birth of their son. He cited several efforts to look for his wife: looked
for her in England, sent her letters, asked their friends etc. Court held that he failed to conduct a
search for his wife with such diligence as to give rise to a “well-founded belief” that she is dead.
His investigation was not thorough enough in the eyes of the court. He could not explain the
loss of the alleged letters he sent to his wife which were returned to him, he did not identify the
friends he inquired his wife’s whereabouts from, and he failed to explain why he did not even try
to get help from the police or other authorities in London.
GUARDIANSHIP
Concept Notes
Governing Rules:
● Incompetent Persons: Rules 92- Rule97 of the Rulesof Court
● Minors: AM 03-02-05-SC (1 May 2003)
Guardianship over Incompetents
Who may petition
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1. Relative
2. Friend
3. Other person on behalf od the
Guardianship over Minors
By default, parents are joint legal
guardians with no need of court
appointment
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incompetent when the latter
has no guardian or parent
4. Director of Health, in favor of
an insane person who should
be hospitalized/an isolated
leper
5. Anyone interested in the estate,
when the incompetent is a
non-resident of the Philippines
with property here
1. Relative
2. Other person on behalf of the
minor
3. Secretary of DOH in case
minor needs to be
hospitalized/DSWD
4. Anyone interested in the estate,
when the minor is a
non-resident of the Philippines
with property here
Where to file
RTC , for guardianship over person
AND property
● In case incompetent resides in
the Philippines, in the RTC
with jurisdiction over the place
where they reside
● In case incompetent resides in a
foreign country, RTC where
incompetent has property
Over property only: RTC/MTC
depending on the value of the
properties involved
Family Court
● With jurisdiction over the place
where minor resides
● With jurisdiction over where
the minor’s property resides, in
case the minor lives abroad
What factors courts
consider when they
appoint a guardian
[Based on the case of Felicano Francisco
v. CA (1984)]
1. Financial situation
2. Physical condition
3. Sound judgment
4. Prudence and trustworthiness
5. Morals, character, and conduct
6. Present and past history of
prospective appointee, as well as the
probability of his being able to exercise
the powers and duties of guardian for
the full period during which
guardianship will be necessary.
1. Moral character
2. Physical, mental and psychological
condition
3. Financial status
4. Relationship of trust with the minor
5. Availability to exercise the powers and
duties of a guardian for the full period
of the guardianship
6. Lack of conflict of interest with the
minor
7. Ability to manage the property of the
minor.
Who may be appointed?
1. Surviving grandparent;
2. Oldest brother or sister of the minor
over 21 years of age,
3. Actual custodian of the minor over
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21 years of age,
4. Any other person, who in the sound
discretion of the court would serve the
best interests of the minor.
Petition Contents
1. Jurisdictional facts
2. Incompetency rendering the
appointment necessary or convenient
3. Names, ages, and residences of the
relatives of the incompetent, and of the
person having him in their care
4. Probable value and character of his
estate
5. Name of the person for whom letters
of guardianship are prayed.
1. Jurisdictional facts
2. Name, age, and residence of the
prospective ward
3. Ground rendering the appointment
necessary or convenient
4. Death of the parents of the minor or
the termination, deprivation, or
suspension of their parental authority
5. Remarriage of the minor’s surviving
parent
6. Names, ages, and residences of
relatives within the 4th civil degree of
the minor, and of the persons having
him in their care and custody
7. Probable value, character, and
location of the property of the minor
8. Name, age, and residence of the
person for whom letters of guardianship
are prayed.
Powers and Duties:
(1) Care and custody of the person of the ward, management of their estate
(2) Payment of the ward’s just debts out of their personal estate and the income of his real estate, if
sufficient
(3) Manage the estate frugally and apply proceeds to the ward’s maintenance
(4) Join in partition proceedings after hearing
(5) Render to the court an inventory within 3 months after his appointment and annually after such
appointment, which must be under oath
(6) Render account to the court after 1 year from his appointment and as often thereafter as may be
required.
ADOPTION
Domestic Adoption: RA 8552 and 9523 Intercountry Adoption: RA 8043
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and 9523
Policy
(a) It is hereby declared the policy of the State to
ensure that every child remains under the care
and custody of his/her parent(s) and be
provided with love, care, understanding and
security towards the full and harmonious
development of his/her personality. Only when
such efforts prove insufficient and no
appropriate placement or adoption within the
child's extended family is available shall
adoption by an unrelated person be considered.
(b) In all matters relating to the care, custody
and adoption of a child, his/her interest shall
be the paramount consideration in
accordance with the tenets set forth in the
United Nations (UN) Convention on the
Rights of the Child; UN Declaration on Social
and Legal Principles Relating to the Protection
and Welfare of Children with Special Reference
to Foster Placement and Adoption, Nationally
and Internationally; and the Hague Convention
on the Protection of Children and Cooperation
in Respect of Intercountry Adoption. Toward
this end, the State shall provide alternative
protection and assistance through foster care or
adoption for every child who is neglected,
orphaned, or abandoned. (RA 8552)
It is hereby declared the policy of the
State to provide every neglected and
abandoned child with a family that will
provide such child with love and care as
well as opportunities for growth and
development. Towards this end, efforts
shall be exerted to place the child with an
adoptive family in the Philippines.
However, recognizing that inter-country
adoption may be considered as allowing
aliens not presently allowed by law to
adopt Filipino children if such children
cannot be adopted by qualified Filipino
citizens or aliens, the State shall take
measures to ensure that inter-country
adoptions are allowed when the same
shall prove beneficial to the child’s best
interests, and shall serve and protect
his/her fundamental rights. (RA 8043,
sec 2)
Where to file
The petition for adoption shall be filed with
the Family Court of the province or city
where the prospective adoptive parents
reside (see AM 02-6-02-SC, Sec. 6)
Family Court with jurisdiction over the
place where the child resides/may be
found or with the Inter-Country
Adoption Board (AM 02-6-02-SC, Sec.
28)
Who May be
Adopted
A child legally available by adoption, as
certified by DSWD; RA 9253, Sec. 2(5)
A child legally available by adoption, as
certified by DSWD; RA 9253, Sec. 2(5)
What petition
may include
1. Prayer for change of name (title and
caption must state: registered name of the
child, aliases or other names by which the
child is known, and full name by which the
child is known)
2. Rectification of simulated birth
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3. Declaration that the child is a foundling,
abandoned, dependent, or neglected (AM
02-6-02-SC, Sec. 7)
Supervised Trial
Custody
6 month period, within the philippines
(AM 02-6-02-SC, Sec 15)
6 month period, within the country of
the adopter (AM 02-6-02-SC, Sec 15)
Publication
At least once a week for 3 successive weeks
in a newspaper of general circulation in the
province or city where the court is situated
(AM 02-6-02-SC, Sec 12)
No publication required
Annexes
A. Birth, baptismal or foundling certificate,
as the case may be, and school records
showing the name, age and residence of the
adoptee;
a) Birth certificate of petitioner;
B. Affidavit of consent of the following:
1. The adoptee, if ten (10) years of age or
over;
2. The biological parents of the child, if
known, or the legal guardian, or the
child-placement agency, child-caring agency,
or the proper government instrumentality
which has legal custody of the child;
3. The legitimate and adopted children of
the adopter and of the adoptee, if any, who
are ten (10) years of age or over;
4. The illegitimate children of the adopter
living with him who are ten (10) years of
age or over; and
5. The spouse, if any, of the adopter or
adoptee.
C. Child study report on the adoptee and
his biological parents;
D. If the petitioner is an alien, certification
by his diplomatic or consular office or any
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b) Marriage contract, if married, and, if
applicable, the divorce decree, or
judgment dissolving the marriage;
c) Sworn statement of consent of
petitioner’s biological or adopted children
above ten (10) years of age;
d) Physical, medical and psychological
evaluation of the petitioner certified by a
duly licensed physician and psychologist;
e) Income tax returns or any authentic
document showing the current financial
capability of the petitioner;
f) Police clearance of petitioner issued
within six (6) months before the filing of
the petitioner;
g) Character reference from the local
church/minister, the petitioner’s
employer and a member of the immediate
community who have known the
petitioner for at least five (5) years;
h) Full body postcard-size pictures of the
petitioner and his immediate family taken
at least six (6) months before the filing of
the petition.
Em, Victoria Special Proceedings Reviewer
appropriate government agency that he has
the legal capacity to adopt in his country
and that his government allows the adoptee
to enter his country as his own adopted
child unless exempted under Sec. 4(2);
E. Home study report on the adopters. If
the adopter is an alien or residing abroad
but qualified to adopt, the home study
report by a foreign adoption agency duly
accredited by the Inter-Country Adoption
Board; and
F. Decree of annulment, nullity or legal
separation of the adopter as well as that of
the biological parents of the adoptee, if any.
Court issuing
adoption
Family Court
Foreign Court
Effects of Adoption (see Art 189, Family Code)
For civil purposes, the adopted shall be deemed a legitimate child of the adoptioners and both shall acquire the
reciprocal rights and obligations arising from the relationship of parents and child, including the right of the
adopted to use the surname of the adopters
(2) The parental authority of the parents by nature over the adopted shall terminate
and be vested in the adopters, except that if the adopter is the spouse of the parents by
nature of the adopted, the parental authority over the adopted shall be exercised jointly by
both spouses; and
(3) The adopted shall remain an intestate heir of his parents and other
blood relatives.
Note: Adoption is only between the adoptee and adopter, no relation between ascendants of the adoptive
parents and the adoptee (see Republic v. Valencia, G.R.L-32181, (1986) where the court ruled the child could
not represent their adopter in the inheritance from their adopters’ ascendants. The filiation by legal fiction is
only between adoptee and adoptive parents)
Rescission of adoptionby adoptee
●
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Sec. 19-24 of the Rules of Adoption, AM 02-6-02-SC
Em, Victoria Special Proceedings Reviewer
●
Verified petition filed by the adoptee who is over 18 years old or with the assistance of the DSWD if
minor, or by guardian or counsel, if the adoptee is over 18 but incapacitated.
●
Grounds committed by ADOPTER:
1. repeated physical and verbal maltreatment by adopter despite having undergone counseling
2. attempt on life of adoptee
3. sexual assault or violence
4. abandonment or failure to comply with parental obligations
●
Effects of Rescission of Adoption (Sec 23)
(a) parental authority of the biological parent of the adoptee, if known, or the legal custody of DSWD is
restored if the adoptee is still a minor or incapacitated;
(b) reciprocal rights and obligations of the adopter and adoptee to each other are extinguished;
(c) succession rights revert to their status prior to adoption, as of the date of judgment of rescission, but
vested rights acquired prior to rescission are to be respected
(d) court shall order adoptee to use the name stated In the original birth or foundling certificate
(e) court shall order the Civil Registrar where the adoption decree was registered to cancel the new birth
certificate of the adoptee and reinstate the original birth or foundling certificate
COMMITMENT/HOSPITALIZATION
A. Commitment of Children- AM 02-1-19-SC (2002)
B. Hospitalization of Insane Person- Rule 101, RPC 12,par. 1
CONSTITUTION OF FAMILY HOME
Rule 106- deemed repealed
Family Code Art 152-162
RULES ON PROTECTION OF LIFE, LIBERTY AND SECURITY
Definition
53
HABEAS CORPUS
AMPARO
HABEAS DATA
Latin phrase which
literally means “you
have the body.” It is a
writ directed to the
person detaining
another, commanding
him to produce the body
of the prisoner at a
A remedy for any person
whose
right to life, liberty, and
security has been
violated or is threatened
with violation by an
unlawful act or omission
of a public official or
A remedy for any
person whose right
to privacy in life,
liberty or security is
violated or
threatened by an
unlawful act or
omission of a public
Em, Victoria Special Proceedings Reviewer
designated time and
place, with the day and
cause of his capture
and detention, to do,
submit to, and receive
whatsoever the court or
judge awarding the writ
shall consider in that
behalf.
employee, or of a
private individual or
entity. The writ covers
extralegal killings and
enforced
disappearances or
threats thereof.
official or employee,
or of a private
individual or entity
engaged in the
gathering, collecting
or storing data or
information regarding
the person, family,
home and
correspondence of
the aggrieved party.
Availability
To all cases of illegal
confinement or
detention:
1. By which any person
is deprived of his liberty;
or
2. By which the rightful
custody of any person is
withheld from the
person entitled thereto.
To any person whose
right to life, liberty and
security is violated or
threatened with violation
by an unlawful act or
omission of a public
official or employee, or
of a private individual or
entity.
To any person whose
right to privacy in life,
liberty and security is
violated or
threatened with
violation by an
unlawful act or
omission of a public
official or employee,
or of a private
individual or entity
engaged in:
1. Gathering
2. Collecting
3. Storing
Of data or
information regarding
the person family,
home and
correspondence of
the aggrieved party.
Petitioner
By the party for whose
relief it is intended, or
by some other person in
his behalf
General rule:
The aggrieved party
Aggrieved party, immediate
family, relative within 4th
civil degree of consanguinity
or affniity
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Except:
In cases of extralegal
killings and enforced
disappearances:
1. Immediate family;
2. In default of no. 1,
ascendant,
Em, Victoria Special Proceedings Reviewer
descendant or
collateral relative
within the 4th civil
degree of
consanguinity or
affinity.
Venue
RTC with jurisdiction over
the place where the detainee
is held
SC, CA and SB
RTC of the place where
the threat, act or
omission was
committed or any of its
elements occurred.
SC, CA and SB
RTC:
1. Where petitioner
resides; or
2. Where
respondent resides;
or
3. Which has
jurisdiction over the
place where data or
information is
gathered, etc.
All at the option
Extent of
Enforceability
SC, CA and SB:
anywhere in the
Philippines
Anywhere in the
Philippines
Anywhere in the
Philippines
RTC: only within its
judicial district
Setting of
Hearing
Hearing on Return
Not later than 7 days
from date of issuance of
writ
Not later than 10
days from date of
issuance of writ
Service of Writ
by leaving the
original with the person
to whom it is directed
and preserving a copy
on which to make return
of service. If that person
cannot be found, or has
not the prisoner in
custody then the service
shall be made on any
person having or
exercising such custody
If the writ cannot be
served personally on
respondent, the rules on
substituted service shall
apply
If the writ cannot be
served personally on
respondent, the rules
on substituted
service shall apply
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Filing of Return
Signed and shall also
be sworn to if the
prisoner is not produced
Verified written return
within 5 work days from
service of writ
- cannot be extended
except on highly
meritorious grounds
Verified written return
within 5 days from
service of writ
-may be reasonably
extended by the
court for
Contents of
Return
(a) Whether he has or has
not the party in his custody
or power, or under restraint;
(b) If he has the party in his
custody or power, or under
restraint, the authority and
the
true and whole cause
thereof, set forth at large,
with a copy of the writ,
order, execution,
or other process, if any,
upon which the party is
held;
(c) If the party is in his
custody or power or is
restrained by him, and is not
produced,
particularly the nature and
gravity of the sickness or
infirmity of such party by
reason of
which he cannot, without
danger, be brought before
the court or judge;
(d) If he has had the party in
his custody or power, or
under restraint, and has
transferred such custody or
restraint to another,
particularly to whom, at
what time, for
what cause, and by what
authority such transfer was
made
(a) Lawful defenses to show
that respondent did not
violate or threaten with
violation the
right to life, liberty or
security of the aggrieved
party, through any act or
omission .
(b) Steps or actions taken by
the respondent to determine
the facts or whereabouts of
the
aggrieved party and person
/s responsible for the threat,
act or omission;
(c) All relevant information
in the possession of
respondent pertaining to the
threat, act or
omission against the
aggrieved party;
(d) If respondent is a public
official or employee, the
return shall further state the
actions
that have been or will be
taken:
(i) to verify the identity of
the aggrieved party;
(ii) to recover and preserve
evidence related to the death
or disappearance of the
person
identified in the petition
which may aid in the
prosecution of the person or
persons
(a) Lawful defenses such as
national security, state
secrets, privileged
communication,
confidentiality of the source
of information of media and
others;
(b) If respondent in charge,
in possession or in control of
the data or information
subject of the petition -(i) a disclosure of the data or
information about
petitioner, nature of such
data or
information, and purpose of
its collection;
(ii) steps or actions taken by
respondent to ensure the
security and confidentiality
of the data or information;
(iii) currency and accuracy
of the data and information
held; and
(c) other allegations relevant
to the resolution of the
proceeding;
A general denial of the
allegations in the petition
shall not be allowed.
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Em, Victoria Special Proceedings Reviewer
responsible;
(iii) to identify witnesses and
obtain statements from
them concerning the death
or
disappearance
(iv) to determine the cause,
manner, location and time
of death or disappearance as
well
as any pattern or practice
that may have brought
about the death or
disappearance;
(v) to identify and
apprehend the person or
persons involved in the
death or
disappearance; and
(vi) to bring the suspected
offenders before a
competent court.
A general denial of the
allegations in the petition
shall not be allowed.
Failure to File
Return
In case respondent fails
to file a return, the court,
justice or judge shall
proceed to hear the
petition ex parte
In case respondent
fails to return, the
court, justice or
judge shall proceed
to hear the petition
ex parte, granting
petitioner such relief
as the petition may
warrant unless the
court in its discretion
requires petitioner to
submit evidence.
Prohibited
Pleadings and
Motions
(a) Motion to dismiss;
(b) Motion for extension
of time to file return,
opposition, affidavit,
position paper and other
(a) Motion to
dismiss;
(b) Motion for
extension of time to
file return,
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Em, Victoria Special Proceedings Reviewer
Summary
Hearing
58
pleadings;
(c) Dilatory motion for
postponement;
(d) Motion for a bill of
particulars;
(e) Counterclaim or
cross-claim;
(f)Third-party complaint;
(g)Reply;
(h) Motion to declare
respondent in default;
(i)Intervention;
(j)Memorandum;
(k)Motion for
reconsideration of
interlocutory orders or
interim relief orders; and
(l) Petition for certiorari,
mandamus or
prohibition against any
interlocutory order.
opposition, affidavit,
position paper and
other pleadings;
(c) Dilatory motion
for postponement;
(d) Motion for a bill of
particulars;
(e) Counterclaim or
cross-claim;
(f) Third-party
complaint;
(g) Reply;
(h) Motion to declare
respondent in
default;
(i) Intervention;
(j) Memorandum;
(k) Motion for
reconsideration of
interlocutory orders
or interim relief
orders; and
(l) Petition for certiorari,
mandamus
or prohibition against
any interlocutory
order.
The hearing on the
petition shall be
summary. However, the
court, justice or judge
may call for a
preliminary conference
to simplify the issues
and determine the
possibility of obtaining
stipulations and
admissions from the
parties.
The hearing shall be
from day to day until
completed and given
the same priority as
Same as Amparo
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petitions for habeas
corpus
Interim
Reliefs
1. Unless for good
cause shown, the
hearing is adjourned, in
which event the court
shall make an order for
the safekeeping of the
person imprisoned or
restrained as the nature
of the case requires;
2. The court or judge
must be satisfied that
the person's illness is so
grave that he cannot be
produced without danger
Judgment
Order of discharge and
release
● Condition: When
the court or judge
has examined into
the cause of caption
and restraint of the
prisoner, and is
satisfied that he is
unlawfully
imprisoned or
restrained
● Effectivity: when
the order has been
served on the
officer/person
detaining the
prisoner
● Released if there is
no appeal
The court shall render
judgment within (10) days
from the time the petition is
submitted for decision. If
the allegations in the
petition are proven by
substantial evidence, the
court shall grant the
privilege of the writ and
such reliefs as may be proper
and appropriate; otherwise,
the privilege shall be denied
Same with Writ of Amparo
with an addition that upon
finality, the judgment shall
be enforced by the sheriff or
any lawful officers as may be
designated by the court,
justice or judge within 5
working days.
Appeal
48 hours from notice of
judgment appealed from
by ordinary appeal
Rule 45 by petition for
review on certiorari with
peculiar features:
1. Appeal may raise
questions of fact or law
Same as writ of Amparo
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1. Temporary
protection order
2. Inspection Order
3. Witness protection
order
Em, Victoria Special Proceedings Reviewer
or both;
2. Period of appeal shall
be 5 working days from
the date of notice of the
adverse judgment;
3. Same priority as
habeas corpus cases
Separate
Actions
This Rule shall not
preclude the filing of
separate criminal, civil
or administrative
actions.
Same as Amparo
Effect of
Criminal
Action
No separate petition for
the writ shall be filed.
The reliefs under the
writ shall be available by
motion in the criminal
case.
Same as Amparo
Consolidate
When a criminal action
is filed subsequent to
the filing of a petition for
the writ, the latter shall
be consolidated with the
criminal action.
When a criminal action
and a separate civil
action are filed
subsequent to a petitionfor a
writ of amparo, the
latter shall be
consolidated with the
criminal action.
Same as Amparo
Writ of Habeas Corpus in Relation to the Custody of Minors;
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Em, Victoria Special Proceedings Reviewer
AM 03-04-04-SC (2003)
a. A verified petition for the rightful custody of a minor may be filed by any person claiming such right. The
petition shall be filed with the Family Court of the province or city where the petitioner resides or where the
minor may be found.
b. After trial, the court shall render judgment awarding custody of the minor to the proper party considering the
best interests of the minor.
c. However, if it appears that both parties are unfit to have the care and custody of the minor, the court may
designate either the paternal or maternal grandparent of the minor or his oldest brother or sister, or any
reputable person to take charge of such minor, or commit him to any suitable home for children.
d. The court may issue any order that is just and reasonable permitting the parent who is deprived of the care
and custody of the minor to visit or have temporary custody.
In Matter of Application for the Issuance of Writof Habeas Corpus: Thornton v. Thornton, G.R. No.
15498, (2004): The Supreme Court didn’t require the petition to be filed before the Family Court/RTC
because the whereabouts of the child were unknown. There is nothing in RA 8369 which revoked the Court of
Appeals’ jurisdiction to issue writs of habeas corpus involving the custody of minors.
RULES ON CHANGE, CANCELLATION, OR CORRECTION OF ENTRIES
Rule 103
RA 9048
Rule 108
Rule
Change of Name
Cancellation/Correction of
Entries in the Civil Registry
Clerical Error Act
Subject
Matter
Change of full name or
family name (substantial
corrections)
Cancellation or
correction of civil
registry entries
(substantial corrections)
Change of first name or
nickname and
correction of civil
registry entries (only
typographical or clerical
errors)
Who may
File
A person desiring to
Any person interested in
Any person having
change his name.
any act, event, order or
direct and personal
(Sec. 1)
decree concerning the
interest in the correction
civil status of persons
of a clerical or
which has been
typographical error in an
recorded in the civil
entry and/or change of
register. (Sec. 1)
first name or nickname.
(Sec. 3)
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Venue
RTC of the province in
RTC of city or province
1. Local civil registry
which petitioner resided
where the
office of the city or
for 3 years prior to filing.
corresponding civil
municipality where the
registry is located.
record being sought to
be corrected or changed
is kept;
2. Local civil registrar of
the place where the
interested party is
presently residing or
domiciled;
3. Philippine Consulate
Contents of
Petition
(a) That petitioner has
been a bona fide
resident of the province
where the petition is
filed for at least three
(3) years prior to the
date of such filing;
(b) The cause for which
the change of
petitioner's name is
sought;
(c) The name asked for.
[NOTE] the following
entries in the civil register
may be cancelled or
corrected: (a) births: (b)
marriage; (c) deaths; (d) legal
separations; (e) judgments of
annulments of marriage; (f)
judgments declaring
marriages void from the
beginning; (g) legitimations;
(h) adoptions; (i)
acknowledgments of natural
children; (j) naturalization;
(k) election, loss or recovery
of citizenship; (l) civil
interdiction; (m) judicial
determination of filiation;
(n) voluntary emancipation
of a minor; and (o) changes
of name.
(a) Facts necessary to
establish the merits of
petition;
(b) Particular erroneous
entry or entries, which
are sought to be
corrected and/or the
change sought to be
made.
Petition shall be
supported by the
following documents:
(1) A certified true
machine copy of the
certificate or of the page
of the registry book
containing the entry or
entries sought to be
corrected or changed;
(2) At least two (2)
public or private
documents showing the
correct entry or entries
upon which the
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correction or changes shall
be based; and
(3) Other documents
which petitioner or the
city or municipal civil
registrar or the consul
general may consider
relevant and necessary
for the approval of
petition.
Grounds
Kind of
Proceeding
1. Name is ridiculous,
tainted with dishonor
and extremely difficult to
write of pronounce;
2. Consequence of
change of status;
3. Necessity to avoid
confusion;
4. Having continuously
used and been known
since childhood by a
Filipino name, unaware
of her alien parentage;
5. A sincere desire to
adopt a Filipino name to
erase signs of former
alienage all in good faith
and without prejudicing
anybody.
Upon good and valid
1. Petitioner finds the
grounds.
first name or nickname
Judicial Proceeding
Judicial Proceeding
Administrative
Adversarial in nature
Proceeding
to be ridiculous, tainted
with dishonor or
extremely difficult to
write or pronounce;
2. The new first name or
nickname has been
habitually and
continuously used by
petitioner and he has
been publicly known by
that first name or
nickname in the
community; or
3. The change will avoid
confusion.
because involves
substantial changes and
affects the status of an
individual
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Em, Victoria Special Proceedings Reviewer
What to File
File a signed and verified
petition
File a verified petition
File an affidavit.
for the cancellation or
correction of any entry.
Notice and
Publication
At least once a week for
three consecutive
weeks in a newspaper
circulation (notice of
hearing)
At least once a week for
three consecutive
weeks in a newspaper
of general circulation
(notice of hearing)
At least once a week for
two consecutive weeks
(publish the whole
affidavit) – in change of
first name or nickname
Posting
None
None
Duty of the civil registrar
or Consul to post
petition in a
conspicuous place for
10 consecutive days
Who
represents
the
government
SolGen/Provincial fiscal
Civil Registrar
The Civil Registrar or
Consul
Where to
appeal
CA
CA
Civil Registrar General
APPEALS
See also: Rule 41, Sec 2(a); Rule 41, Sec 3
Proceeding
Mode of Review
“GA-SET”
● Guardianship
● Absentee
● Settlement of Estate (note: Appointment of
Special Administrator is not appeallable)
● Escheat
● Trustee
Record on Appeal
Appointment of Special Administrator
Certiorari
Marital Relations (separation, nullity, annulment)
Motion for Reconsideration and Rule 41
Writ of Habeas Corpus
Ordinary Appeal within 48 hrs.
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Em, Victoria Special Proceedings Reviewer
Amparo and Habeas Data
●
●
65
Change of name
Cancellation of entries in registry
Rule 45, within 5 working days
Notice of Appeal