MEMORY AIDE FOR SPECIAL PROCEEDINGS

Extent of Jurisdiction of Probate Courts

Probate courts are courts of limited jurisdiction. It may only determine and rule upon
issues relating to the settlement of the estate, namely:
1. Administration of the estate
2. Liquidation of the estate
3. Distribution of the estate
WHEN PROBATE PASSES UPON QUESTION OF TITLE TO PROPERTY:
a. Interested parties who are all heirs consents and 3rd parties not prejudiced (Bernardo
v. CA, Feb. 28, 1963);
b. Otherwise, only in a provisional manner, to determine whether property should be
included in the inventory, without prejudice to the final determination of title in a
separate action.
c. Question is one of collation or advancement
GENERAL RULE
Probate court cannot issue writs of execution.
EXCEPTION: When probate courts can issues writs of execution:
a. To satisfy distributive shares of the devisees, legatees, and heirs in possession of
decedents assets;
b. To enforce payment of expenses in partition;
c. To satisfy costs when a person is cited for examination in probate proceedings.
d. To satisfy the claim in summary settlement proceedings of creditors or heirs who
appear within 2 years from the distribution.
PRINCIPLE OF EXCLUSIONARY RULE
The Court first taking cognizance of the settlement of the estate of the decedent shall
exercise jurisdiction to the exclusion of all other courts
GROUNDS FOR DISALLOWING WILL:
a. Not executed and attested as required by law;
b. Testator was mentally incapacitated to make a will or insane at the time of execution;
c. Executed under duress, influence of fear, or threats;
d. Procured by undue and improper influence and pressure on the part of the
beneficiary or of some other person for his/her benefit;
e. Signature of testator was procured by fraud/trick and she/he did not intend instrument
to be will.
IN RE-PROBATE OF WILL PROVEN ABROAD,
PROPONENT MUST PROVE:
a. Testator was domiciled in the foreign country;
b. Will has been admitted to probate in such country;
c. Foreign country was, under the laws of such country, a probate court with jurisdiction;
d. Law on foreign probate procedure and proof of compliance therewith;

e. Legal requirements in said country for valid execution of will.

SERVING AS EXECUTORS OR ADMINISTRATORS:
a. A minor;
b. A non-resident (of Phils.)
c. A person unfit in the opinion of the court to execute the duties of his trust by reason
of:
i. drunkenness;
ii. improvidence;
iii. want of understanding and integrity;
iv. conviction of an offense involving moral turpitude.
Executor Administrator
ADMINISTRATOR
Nominated by the testator and appointed
by the court
Must present will to the court within 20
days after knowledge of death or of such
appointment, unless the will has reached
the court in any manner
Testator may provide that he may serve
without a bond (Court may still require but
conditioned only in payment of debts)
Compensation may be provided for by
testator otherwise, compensation under
Rule 85, Sec. 7

EXECUTOR
Appointed by the court in case the testator
did not appoint and executor or if the
executor refused or if the will was
disallowed or there is no will (intestacy)
No such duty

Must always post bond

Governed by Rule 85, Sec. 7

ORDER OF PREFERENCE IN GRANTING LETTERS OF ADMINISTRATION:

a. The surviving spouse or the next of kin or both in the discretion of the court, or to
such person as such surviving spouse or next of kin request to have appointed, if
competent and willing to serve (SURVIVING SPOUSE OR NOMINEE)
b. If above be incompetent or unwilling or they neglect for 30 days after death to apply
for administration, any one or more of the PRINCIPAL CREDITORS, if competent and
willing to serve
c. If above be incompetent or unwilling, it may be granted to such other person as the
court may select (STRANGER).
SPECIAL ADMINISTRATOR
He is appointed when there is a delay in granting letters testamentary or of
administration by any cause, including an appeal from the allowance or disallowance of
the will.

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

SPECIAL ADMINISTRATOR
Not subject of appeal
Cannot pay debts of the estate
Appointed when there is delay in granting
letters testamentary or administration

UNDERTAKINGS OF BOND OF EXECUTOR/ADMINISTRATOR:

a. Make and return a complete inventory of the property of the estate which has come to
his possession or knowledge, or the possession of any person for him, within 3 months;
b. To administer the property of the estate according to the Rules (if administrator) or
according to the will (if executor);
c. To render an account within 1 year and at any other time required by the court; and
d. Perform all orders of the court.
GROUNDS FOR REMOVAL OF EXECUTORS OR ADMINISTRATORS:
a. Neglects to render account and settle the estate according to law;
b. Failure to perform order or judgment of the court or duty prescribed by the rules;
c. Absconds;
d. Becomes insane;
e. Incapable or unsuitable to discharge trust.
NOT PROPER EXPENSES OF ADMINISTRATION WHICH ARE NOT CHARGEABLE
TO ESTATE:
a. Services rendered by administrator which are not beneficial to the estate in favor of
an heir;
b. Premiums for her/his bond;
c. Expenses for repair of property of the estate being used and occupied by him;
d. Expenses for keeping ordinary records and receipts involved in his administration;
e. Losses incurred in conduct of business with use of funds of the estate.
OPTIONS OF ATTORNEY TO COLLECT ATTORNEYS FEES FROM ESTATE:
a. Sue administrator/executor in the latters personal capacity (who may then include
any fees so paid in his account); OR
b. File a petition in the testate/intestate proceedings asking the court, after notice to all
interested persons, to allow his claim and to direct the executor/administrator to pay it
as an expense of administration.
CLAIMS WHICH MUST BE FILED WITH THE PROBATE COURT:
a. All claims for money against decedent arising from contract;
b. Claims for funeral expenses and for the last illness;
c. Judgment for money.

ALTERNATIVE REMEDIES AVAILABLE TO MORTGAGE CREDITOR UPON DEATH

OF MORTGAGOR:
a. Abandon security and prosecute claim in probate court;
b. Foreclose mortgage judicially; and recover deficiency thru claim in probate court;
c. Rely solely on mortgage or security and foreclose the same within statute of
limitations, without the right to recover the deficiency
Claims which should not be filed under the Statute of Non-claims (ACTIONS
WHICH DO NOT
SURVIVE)
1. Money claims, debts incurred by deceased during his lifetime arising from
contract:
a. express or implied;
b. due or not due;
c. absolute or contingent;
2. Claims for funeral expenses;
3. For the last illness of the decedent; and
4. Judgment for money against decedent.
CONTINGENT CLAIM
It is a conditional claim or claim that is subject to the happening of a future uncertain
event.
ACTIONS WHICH MAY BE COMMENCED DIRECTLY AGAINST THE EXECUTOR OR
ADMINISTRATOR (These are actions that survive the death of the decedent):
1. recovery of real or personal property or any interest therein from the estate;
2. enforcement of a lien thereon;
3. action to recover damages for any injury to person or property, real or personal
(tortuous acts).
REQUISITES BEFORE ACTION MAY BE FILED BY CREDITORS
1. there is a DEFICIENCY of assets in the hands of an executor or administrator for the
payment of debts and expenses of administration;
2. the deceased in his lifetime had made or attempted to make a FRAUDULENT
CONVEYANCE of his property or had so conveyed such property that by law the
conveyance would be void as against his creditors;
3. the subject of the attempted conveyance would be liable to ATTACHMENT in his
lifetime;
4. the executor or administrator has shown NO DESIRE TO FILE action the action or
failed to institute the same within a reasonable time;
5. LEAVE is granted by the court to the creditor to file the action;
6. a BOND is filed by the creditor;
7. the action by the creditor is in the NAME of the executor or administrator.

GENERAL RULE: ORDER OF DISTRIBUTION shall be made AFTER PAYMENTS of

all debts, funeral expenses, expenses of administration, allowance of widow and
inheritance tax is effected.
EXCEPTION: If the distributes or any of them gives a bond conditioned for the payment
of said obligation, the ORDER OF DISTRIBUTION may be made even BEFORE
PAYMENTS of all debts, etc.
ESCHEAT
This is a proceeding whereby the real and personal property of a deceased person in
the Philippines, who dies without leaving any will or legal heirs, become the property of
the State upon his death.
3 INSTANCES OF ESCHEATS
1. When a person dies intestate leaving no heir but leaving property in the Philippines
(Section 1);
2. Reversion Proceedings Sale in violation of the Constitutional provision; and
3. Unclaimed Balances Act (dormant accounts for 10 years shall be escheated).
KINDS OF GUARDIANS:
A. According to scope:
1. General over the person of the ward or over his property
2. Limited over the property only.
B. According to Constitution:
1. General Guardian;
2. Legal Guardian without judicial appointment;
3. Guardian Ad Litem appointed by courts of justice to prosecute or defend a minor,
insane or person declared to be incompetent, in an action in court.
Who may petition for appointment of guardian for resident
INCOMPETENT
MINOR
INCOMPETENT
(a) any relative; or
(a) any relative; or
(b) other person on behalf of a minor; or
(b) friend; or
(c) the minor himself if 14 years of age or
(c) other person on behalf of the resident
over; or
incompetent who has no parents or lawful
guardian; or
(d) the Secretary of Social Welfare and
(d) the Director of Health in favor of an
Development AND by the Secretary of
insane person who should be hospitalized
Health in case of an insane minor who
or in favor of an isolated leper (Sec. 1); or
needs to be hospitalized (Sec. 2 of A.M.
No. 03-02-05-SC)
(e) any one interested in the estate of a
nonresident incompetent (Sec. 6)

Contents of Petition
MINOR
(a) The jurisdictional facts;

INCOMPETENT
(a) The jurisdictional facts;

(b) the name, age and residence of the

prospective ward;

(b) The incompetency rendering the

appointment necessary or convenient;

(c) the ground rendering the appointment

necessary or convenient;

(c) the probable value and character of his

estate;

(d) the death of the parents of the minor or

the termination, deprivation or suspension
of their parental authority;

(d) the names, ages, and residences of the

relatives of the incompetent, and of the
persons having him in their care;

(e) the remarriage of the minors surviving

parent;

(e) the name of the person for whom

letters of guardianship are prayed.
(Section 2 of Rule 93)

(f) the names, ages, and residences of

relative within the 4th civil degree of minor,
and of persons having him in their care
and custody;

(f) any one interested in the estate of a

nonresident incompetent (Section 6)

(g) the probable value, character and

location of the property of the minor; and
(h) the name, age and residence of the
person from whom letters of guardianship
are prayed. (Sec. 7 of
A.M. No. 03-02-05-SC)
NEXT OF KIN
This pertains to those relatives who are entitled to share in the estate of the ward under
the Law on Intestate Succession including those who inherit per stirpes or by right of
representation.
GENERAL POWERS AND DUTIES OF GUARDIANS:
1. have the care and custody of the person of the ward, and the management of the
estate only, as the case may be (Sec. 1);
2. pay the debts of the ward (Sec. 2);
3. settle accounts, collect debts and appear in actions for ward (Sec. 3);
4. manage the estate of the ward frugally, and apply the proceeds to maintenance of the
ward (Sec. 4);
5. render verified inventory within 3 months after his appointment and annually
thereafter upon application of interested persons (Sec. 7); and

6. render to court for its approval an accounting of the property for 1 year from his
appointment and every year thereafter (Sec. 8).
GROUNDS FOR REMOVAL OF A GUARDIAN (exclusive):
1. insanity;
2. incapability or unsuitability to discharge functions;
3. wastage or mismanagement of the property of the ward; and
4. failure to render an account or make a return within 30 days after it was due.
Grounds for Petition (Sec. 4) [THE RULE ON GUARDIANSHIP OF MINORS (A.M.
No. 03-02-05-SC, effective May 1, 2003)]
1. continued absence, or incapacity or death of his parents;
2. suspension, termination or deprivation of parental authority;
3. remarriage of his surviving parent, if the latter is found unsuitable to exercise parental
authority;
4. when the best interest of the minor so requires.
Who may be appointed guardian of the person or property, or both, of a minor
(Sec. 6) (A.M. No. 03-02-05-SC, effective May 1, 2003)
In default of parents or a court appointed guardian, the court may appoint a guardian of
a minor, observing as far as practicable, the following ORDER OF PREFERENCE:
1. the SURVIVING GRANDPARENT and In case several grandparents survive, the
court shall select any of them taking Into account all relevant considerations;
2. the OLDEST BROTHER OR SISTER of the minor over twenty-one years of age,
unless unfit or disqualified;
3. the ACTUAL CUSTODIAN of the minor over twenty-one years of age, unless unfit or
disqualified; and
4. any OTHER PERSON, who in the sound discretion of the court, would serve the best
interests of the minor.
EXECUTOR/ADMINISTRATOR
Accounts are not under oath
and except for initial and final
submission of accounts, they
shall be filed only at such times
as may be requiredby the court.
Court that has jurisdiction may
be MTC or RTC.

GUARDIAN
Accounts must be under
oath and filed annually.

TRUSTEE
Accounts must be under
oath and filed annually.

Court which has

jurisdiction is RTC
(incompetent) or Family
Court (minor).

Court which has

jurisdiction is MTC or
RTC if appointed to carry
into effect provisions of a
will; if trustee dies,
resigns or removed in a
contractual trust, RTC
has jurisdiction in the
appointment of new
trustee.

May sell, encumber or

mortgage property if it is
necessary for the purpose of
paying debts, expenses of
administration or legacies, or
for the preservation or property
or if sale will be beneficial to the
heirs, legatees or devisees.

May sell or encumber

property of ward if
income of estate is
insufficient to maintain
ward and his family and
educate the minor; the
sale or encumbrance is
for the benefit of ward
upon order of the court.

May sell or encumber

property of estate held in
trust if necessary for
expedient upon order of
the court.

Order of sale has no time limit

Order of sale is valid for

only 1year after grant of
the same.
Appointed as guardian.

Order of sale has no time

limit

Appointed by the court to settle

estate of decedent.

Not exempted from filing bond

Must always file a bond.
even if such exemption is
provided in the will (bond is only
conditioned upon payment of
debts.
Services of executor or
administrator are terminated
upon payment of debts and the
estate and distribution of
property to heirs.

Must pay the debts of the

estate.

Guardianship is
terminated upon
attainment of age of
majority of the minor or
upon gaining competency
in the case of an
Incompetent (need court
order for the latter).
Must pay the debts of the
ward.

Appointed to carry into

effect the provisions of a
will or written instrument
(contractual trust).
May be exempted from
filing bond if provided in
the will or if beneficiaries
requested exemption.
Trusteeship is terminated
upon turning over the
property to beneficiary
after expiration of
trust (period may be
provided for in the will or
trust contract)
No obligations to pay
debts of beneficiary or
trustor.

NATURE AND CONCEPT OF ADOPTION

Adoption is a juridical act, a proceeding IN REM, which creates between two persons a
relationship similar to that which results from legitimate paternity and filiation.
JUDICIAL ADOPTION
Proper in domestic adoption.
Under the jurisdiction of the Family Court
(where adopter resides).

EXTRAJUDICIAL ADOPTION
Proper in inter-country adoption.
Under the jurisdiction of the Inter-Country
Adoption Board (but a petition may also be
filed with the Family Court [where adoptee

Trial custody is in the Philippines for 6

months (but court may reduce period or
exempt parties from trial custody).
Petition for adoption may include prayer
for change of name, rectification of
simulated birth or declaration that child is a
foundling, abandoned, dependent or
neglected child.
Legitimate or illegitimate child of a spouse
or even a person who is of legal age may
be adopted.
Income tax returns, police clearance,
character reference, family picture, birth
certificate of adopter are not required to be
annexed in the petition.
Petition must be published for 3
successive weeks in a newspaper of
general circulation in the province or city
where court is situated.
Application is through a petition with the
FC.
Decree of adoption issued by FC which
has jurisdiction over the case.

resides] which will turn it over to ICAB).

Trial custody is in the country of adopter
and is mandatory before a decree of
adoption is issued (expenses are borne by
the adopter).
Petition for adoption only.

Only a child legally available for domestic

adoption may be the subject of intercountry adoption.
Income tax returns, police clearance,
character reference, family picture, birth
certificate of adopter are required to be
annexed in the petition.
No publication requirement.

Application may be through agency in

foreign country and then submit to ICAB.
Decree of adoption issued by a foreign
court.

WHO MAY ADOPT (Sec. 4) RULES ON DOMESTIC ADOPTION

1. Any Filipino Citizen
(a) Of legal age;
(b) In possession of full civil capacity and legal rights;
(c) Of good moral character;
(d) Has not been convicted of any crime involving moral turpitude;
(e) Emotionally and psychologically capable of caring for children;
(f) In a position to support and care for his/her children in keeping with the means of the
family; and
(g) At least 16 years older that the adoptee.
EXCEPTIONS:
(1) If the adopter is the biological parent of the adoptee
(2) If the adopter is the spouse of the adoptees parent
(3) If the adopter is the sibling of the adoptee (Article IV, 7 of the IRR)
2. Any alien possessing the same qualifications above; provided:
(a) That his/her country has diplomatic relations with the Philippines;

(b) That he/she has been living in the Philippines for at least 3 continuous years prior to
the filing of the application for adoption;
(c) Maintains residence until the adoption decree is entered;
(d) Certified to have legal capacity to adopt; by his/her country; and
(e) That his/her government allows the adoptee to enter his/her country as his/her
adopted son/daughter.
3. The guardian with respect to the ward after the termination of the guardianship and
clearance of his financial accountabilities.
WHO MAY BE ADOPTED (Sec. 5)
1. Any person below eighteen (18) years of age who has been judicially declared
available for adoption OR voluntarily committed to DSWD;
2. The legitimate child of one spouse by the other spouse;
3. An illegitimate child by a qualified adopter to raise the status of the former to that of
legitimacy;
4. A person of legal age regardless of civil status, if, prior to the adoption, said person
has been consistently considered and treated by the adopters as their own child since
minority;
5. A child whose adoption has been previously rescinded;
6. A child whose biological or adoptive parents have died;
7. A child not otherwise disqualified by law or these rules.
GENERAL RULE:
Husband and wife shall jointly adopt.
EXCEPTIONS:
1. If one spouse seeks to adopt the legitimate son/daughter of the other;
2. If one spouse seeks to adopt his/her own illegitimate son/daughter;
3. If the spouses are legally separated from each other.
WRIT OF HABEAS CORPUS
The writ of habeas corpus is a writ directed to the person detaining another,
commanding him to produce the body of the prisoner at a designated time and place,
with the day and cause of his caption and detention, to do, submit to, and receive
whatever the court or judge awarding the writ shall consider in that behalf.
THE WRIT OF HABEAS CORPUS MAY BE OBTAINED IN TWO INSTANCES:
1. cases of illegal confinement or detention by which a person is deprived of his liberty;
and
2. cases by which the rightful custody of the person is withheld from the person entitled
thereto.
WHEN THE WRIT MAY BE AVAILED OF AS A CONSEQUENCE OF A JUDICIAL
PROCEEDING:
1. There has been a deprivation of a constitutional right resulting in restraint of person;

2. The court had no jurisdiction to impose the sentence;

3. An excessive penalty has been imposed, the sentence being void as to the excess;
4. Where the law is amended, as when the penalty is lowered.
PRELIMINARY CITATION
Where a person detained under governmental authority and the illegality of his
detention is not patent from the petition for the writ, the court may issue a citation to the
government officer having the person in her/his custody to show cause why the writ
should not issue.
PEREMPTORY WRIT
It is issued when the cause of detention appears to patently illegal and the noncompliance therewith is punishable
RULE 103
CHANGE OF NAME
Judicial (RTC)
Includes change in surname

PETITIONS FOR CHANGE OF NAME

Petition to be filed in the RTC where the
petitioner resides.
Solicitor General must be notified by
service of a copy of the petition.
Petition is filed by person desiring to
change his name.
Order of the hearing shall be published
once a week for three consecutive weeks
order shall be published once a week for
three consecutive weeks
First name or last name (there must be
valid around with respect to the letter) may
be changed
Service of judgment shall be upon the civil
register concerned

RA NO. 9048
CORRECTION OF CLERICAL OR
TYPOGRAPHICAL ERROR
Extrajudicial (local civil registrar or consul
general in case of non-resident citizen)
Covers clerical or typographical error and
change of first name or nickname
PETITIONS FOR THE CORRECTION,
CANCELLATION OF ENTRIES
Verified petition filed in the RTC where the
corresponding civil registry is located.
Civil registrar concerned is made a party to
the proceeding as a respondent. The
Solicitor General must also be notified by
service of a copy of the petition.
Petition is filed by any person interested in
any ACT, EVENT, ORDER OR DECREE.
Order shall be published once a week for
three consecutive weeks and court shall
cause reasonable notice to person named
in petition
Only typographical errors may be
changed.
Service of judgment shall be upon the civil
register concerned

GROUNDS FOR CHANGE OF FIRST NAME:

1. First name is ridiculous, tainted with dishonor or extremely difficult to write or
pronounce

2. New first name or nickname has been habitually and continuously used by the
petitioner and he has been publicly known by that first name or nickname in the
community
3. Change will avoid confusion
RA 9048
Administrative proceeding
Affidavit is filed
Penalty clause
Publication requirement: once a week for 2
consecutive weeks
Posting in conspicuous place
Change of name is based on 3
enumerated grounds

RULE 108
Summary judicial proceeding
Petition is filed
No penalty clause
Publication requirement: 3 consecutive
weeks
No posting
Change of name is to correct clerical /
innocuous errors

APPEAL IN ORDINARY CIVIL ACTION

15 days
Notice of Appeal and docket fees
No extension

APPEAL IN SPECIAL PROCEEDINGS

30 days
Record on appeal and docket fees
May extend on territorious grounds

THE RULE ON THE WRIT OF AMPARO

The petition for a writ of amparo is a remedy available 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. The writ shall cover
extralegal killings and enforced disappearances or threats thereof.
EXTRALEGAL KILLINGS
Killings committed without due process of law, i.e. without legal safeguards or judicial
proceedings
ENFORCED DISAPPEARANCES
Attended the following characteristics:
a. An arrest
b. Detention or abduction of a person by a government official or organized groups
of private individuals acting with the direct or indirect acquiescence of the
government
c. The refusal of the State to disclose the fate or whereabouts of the person
concerned or a
d. Refusal to acknowledge the deprivation of liberty with places such persons
outside the protection of law
SUBSTANTIAL EVIDENCE
Such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion

THE RULE ON THE WRIT OF HABEAS DATA

The writ of habeas data is a remedy available to any person whose right to privacy in
life, liberty or security is violated or threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity engaged in the gathering,
collecting or storing of data or information regarding the person, family, home and
correspondence of the aggrieved party.