PART 1 SPECIAL PROCEEDINGS

Special proceedings vs. ordinary civil actions

Special proceedings is a remedy to establish a status, right or particular fact.
In the absence of specific provisions, the ordinary rules pertaining to ordinary civil
actions shall govern
Important characteristic of special proceedings as compared to ordinary civil actions:
1 Publication court always issues an order for publication of that particular
petition
2 Ordinary actions plaintiff and defendants
Special proceedings petitioner and respondents

Special Proceedings
1 Cases under ROC
2 Under various laws
3 SC Circulars

Petitions under the Family Courts

a Petition for the Declaration of Nullity of Marriage

marriage is void from the beginning (Art 36 FC Psychological

incapacity)

Annulment of Voidable Marriage

Voidable marriage (even if the party already died, one can still file a petition
to declare the marriage null and void if only to the extent to affect the
legitime or the rights of the heirs (Badayog case?)

b Legal Separation
c Provisional orders
d Custody of Minor children
e Writ of Habeas corpus in relation to custody of minor children
f Summary judicial proceedings under the Family Court
g Declaration of Absence
h Presumption of Death

In cases which are summary, like Declaration of Absence or Presumption of Death, if

you are NOT CONTENT with the decision of the lower court, appeal is not a remedy.
There is no appeal in cases considered in SUMMARY PROCEEDINGS.
If there is grave abuse of discretion amounting to lack or excess of jurisdiction, file
Petition for Certiorari under Rule 65.

If you file for a spouse for presumptive death because he failed to appear in 4 years,
unless it is reduced to 2 years in extraordinary circumstances and the other party is
aggrieved and he appealed that to the CA, that is not a remedy because there is no
appeal in cases which are considered as Summary Proceedings cases (one of which is
Presumption of Death can either be for purposes of remarriage or for purposes of
opening up succession)

Thats why in presumption/declaration of death, you have to specify in your petition

whether it is for remarriage or whether it is for opening up of succession

APPEAL is not a remedy.

Proceedings for Protection Order under RA 9262 (VAWC)

i Proceedings under alternative dispute resolution

Special Proceedings under SC Circulars

1 Petition for Writ of Amparo
2 Petition for Writ of Habeas Data

The special proceedings cases in the Rules of Court start with Settlement of Estate of
Deceased Person

Determine whether there is a WILL or whether there is NO WILL because it becomes

a TESTATE PROCEEDING if there is a will and it becomes INTESTATE PROCEEDING if
there is no will.

Determine if decedent left a will or the decedent left no will because there a
difference in terms of your action.

You call it settlement of estate TESTATE or INTESTATE proceedings (if there is no

will)

In a petition for settlement of estate whether with a will or without a will, the
petitioner-applicant seeks to
1 Establish the fact of the death of the decedent; and
 2 To be duly recognized as among the group of heirs to be able to participate in the
settlement and liquidation of the estate

Where the deceased left a will, the proceedings is called TESTATE; if no will, that is
called INTESTATE

Dont forget that the settlement of estate is covered by the Alternative Dispute
resolution meaning to say that it is subject for mediation.

Settlement of estate of a deceased person is subject to Alternative Dispute Resolution.

For purposes of jurisdiction,
1 More than 300K RTC
2 300K or less 1st level courts

Except in Metro Manila

More than 400K RTC
400K or less -- MTC/ 1st level courts

Under RA 7691

Determine the amount involved in the estate because jurisdiction depends on the
value of the amount of the estate involved

In a settlement of estate, the jurisdiction of the court is limited whether testate or

intestate proceedings because more or less in the settlement of the estate whether in
testate or intestate proceedings, it is limited only to the settlement of that estate and
probate of a will (if there is a will), and the appointment of an executor (if there is a
will) or an administrator (if there is no will or if there is a will but the executor is not
qualified)

Executor a person named in the will

Administrator the will did not name any person or the person named in the will is
not qualified or did not name any person to execute the will

Generally speaking, a settlement of estate, court has no power to determine

ownership, including adjudication of a title that are in issue during the proceedings
because if there are questions involving title, there has to be a filing of a separate
action.
As a rule, because of the limited jurisdiction of a court in a settlement of estate, it has
no power to determine ownership and title to any property which are in issue during
the proceedings.
Because as a rule, if there are titles or ownership in issue, it has to be done by way of
filing a separate civil action. EXCEPT, however, in the following instances:
1. If the interested parties are all heirs, and they agreed among themselves to
submit the question of title on ownership to the probate court
2. The question is one of collation or advancement (advances which were already
given to one of the heirs even when the decedent was still alive which might
affect the sharing of the heirs
3. If the parties consent to the assumption of jurisdiction by the probate court and
the rights of third parties are not impaired

The probate court can tackle issues concerning title and ownership (Reyes vs. RTC of
Makati, et al GR No. 165744, Aug 11, 2008)
This case gives you the exceptions to the Limited Jurisdiction of a probate or intestate
court

I told you they cannot tackle on issues involving title and ownership except the 3
instances earlier. If this is probate (there is probate because there is a will), the rule
says:
In settlement of estate proceedings the authority of a probate court is limited to
ascertaining whether the testator
1 Being of sound mind,
2 Freely executed the will in accordance with the formalities prescribed by law
That is basically the main issue if that is a settlement of estate by means of probate of
a will. The probate court has to determine
1 whether the will is valid
2 whether it was executed by the testator while he was still alive and
3 he was of sound mind
4 it was freely executed
Those are the formalities which have to be determined by the probate court. Unless it
will fall on the exceptions in the case of Reyes vs. RTC of Makati, et al.
Furthermore, a probate court cannot act on rights to property arising from contract
and to proceed to probate of will that preterites a compulsory heir. Remember in the
recent decision of the Supreme Court.
The SC found out in one case that the probate court may act on matters pertaining to
the estate but not on the rights to property arising from a contract. The probate court
shall not go through a probate of a will that preterited a compulsory heir since
preterition invalidates the will. Once one of the compulsory heirs is preterited, that
means to say the will in itself becomes null and void because you cannot preterite in a
will a compulsory heir. If you want not to give an inheritance to one of your
compulsory heirs. Better, in your will place a provision that you are disinheriting that
heir in the will itself on the ground for example of ingratitude. Because one of the
grounds to preterite/disinherit an heir is act of ingratitude. Di ba, the grounds for
the law does not allow donations are same grounds which will also allow the
disinheritance of an heir. Otherwise, if the will did not provide for any disinheritance,
you cannot preterite a compulsory heir. Otherwise the will in itself becomes null and
void. The will is invalidated if there is a preterition of a compulsory heir.

Furthermore, a probate court cannot act on a side agreement of parties as to a right

of way. In this case, the SC said any agreement other than the judicially approved
compromise between the parties such as the grant of right of way is outside the
limited jurisdiction of the probate court. Thus, an alleged right arising from a side
agreement on the right of way can be fully protected by filing of an ordinary action or
specific performance in a court of general jurisdiction. However, while there is a
limited jurisdiction of the probate court, there are certain exceptions (these can be
tackled by the probate court):
1 it can act on questions regarding heirship and status of an illegitimate child who
claims to be an heir of the estate
The probate court can determine if you are an heir of the decedent. If you claim
to be an illegitimate child and you claim to be entitled to the inheritance, that can
also be tackled by the probate court
2 it can also rule on distributive shares and accounting of funds and assets to
determine shareholdings
So those are within the jurisdiction of the limited jurisdiction of the probate court.

Venue
In venue, determine whether the decedent was a resident of the Philippines or a non-
resident of the Philippines. The rule on venue is very important. Always asked in the
bar on settlement of estate of a deceased person.

A If the decedent was a resident of the Philippines, the settlement of estate shall be
filed in the proper court of the place of residence of the deceased at the time of his
death regardless of citizenship.

If he is not a resident of the Philippines (lets say he is a resident of a foreign

country, di ba we have plenty of Filipinos who are residents of the US). When the
law says, residence, it is not domicile.
 Residence means actual residence. It means actual residence or place of abode
provided the person resides therein with continuity and consistency.
That is the concept of residence in all actions, be it ordinary civil action, special
proceedings cases, provisional remedies, special actions. It is actual residence,
not legal residence and not domicile.

B If he is a resident of a foreign country, the petition shall be filed in the proper

court of any place where he had estate. Meaning to say, in any place where the
property is situated or located

Now there is an angle that you have to consider for purposes of venue, if this involves
deceased husband or wife as regards liquidation of the conjugal or absolute
community of property of a deceased husband and wife
The petition shall be made in the corresponding estate proceedings. But if both
spouses are already dead, then it shall be in the estate proceedings of either. Take
note that in settlement of estate of a deceased person, the court must first resolve the
issue of venue before taking cognizance of the petition. If it appears in the petition
that it is not filed in the proper venue, then the court has all the right to dismiss the
petition right away because it is settled in our rules that before taking cognizance of
the petition, the court first has to determine questions as to venue.

Kinds of settlement of estate

1 Extrajudicial settlement
2 Summary settlement of estate of small value
3 Judicial partition
4 Judicial settlement through letters testamentary or Letters of Administration with
or without the will annexed

If there is only one heir, what does he do? Execute an affidavit of self-adjudication

What are the requisites for extrajudicial settlement?

1 The decedent left no will
2 The decedent left no debts or if there are any, debts have been paid by the
heirs.
3 The heirs are all of legal age or if there are minors, they should be represented
by their judicial or legal representatives duly authorized for that purpose
4 It should be contained in a public instrument
5 The public instrument should be registered with the Registry of Deeds
6 Simultaneous registration of the agreement with the Registry of Deeds, the
parties file with the same Register of Deeds, a bond in an amount equivalent to
 the value of the personal property, if there is personal property involved,
conditioned upon t payment of any just claim that may crop up within 2 years.
The bond requirement is an extrajudicial settlement only and applies if there is a
personal property involved in the settlement. If there is no personal property,
there is no need for the posting of a bond
7 The fact of extrajudicial settlement shall be published in a newspaper of
general circulation once a week for three consecutive weeks.

Even if there are no debts, do you think the heirs can resort to administration
proceedings and file a case in court? Pwede! Yes! While extrajudicial settlement by
agreement of the parties may be resorted to, recourse to an administration
proceeding even if the estate left no debts is allowed. But only if the heirs have good
reasons for not resorting to the action for partition. What is a good reason depends
on the circumstances of the case. That is the ruling of the Supreme Court in the case
of Pereira vs. CA 174 SCRA 154 GR 81147.
Take note that as ruled by the SC, extrajudicial settlement is in a nature of a contract.
Therefore if it is in the nature of a contract, it must comply with the essential
requisites for a valid contract, that is consent, object certain and cause of the
obligation which is established.

What about if the extrajudicial settlement was not notarized and the requisite di ba is
that it must appear in a public document? What is the effect of extrajudicial
settlement among the heirs of an estate of the deceased person which was
unfortunately not notarized. Remember, if that is not notarized it remains to be a
private document but it is valid. However, it can only bind the parties thereto. That is
the effect. It is binding but only on the parties because it is considered a private
document. Whether it is valid or not, yes it is and being a private document it can
only bind the parties thereto. Meaning to say, it will not bind third persons or the
whole world. And furthermore, if the instrument is a private document, you have to
prove the due execution of that particular private document because it is only in the
public instrument where the rule says there is a presumption of its due execution and
genuineness.

Time Bar
There is a time limit for parties who participated to object to the extrajudicial
proceedings. Meaning to say you changed your mind, you want to object. You can do
that? Yes. Sec 4 Rule 74 of the Revised Rules of Court bars heirs and distributes
represented by themselves or through guardians from interposing objections to an
extrajudicial partition after the expiration of 2 years from said partition. So if you
would like to object, you have to do that within 2 years from the date of extrajudicial
settlement was entered into. But the prohibition applies only to parties who have
taken part in the extrajudicial settlement but not to third parties who had no
participation in the proceedings. So maybe you included one of the properties in the
extrajudicial settlement which belongs to a third person, because it was already sold
by the decedent before his death. Is he barred from questioning the same beyond 2
years? No, because the bar of 2 years will only apply to those who participated in the
extrajudicial settlement but not to third parties who had no participation in the
proceedings. That is what we call the time bar in objecting in the extrajudicial
settlement.

Rule 75
I was talking about venue last meeting and the kinds of settlement. We ended in the
extrajudicial settlement and the requisites for extrajudicial settlement. For those who
participated in the extrajudicial settlement, they have two years from the execution
of said extrajudicial settlement to interpose any objection. But the 2-year period will
not apply to those who did not participate in the execution of that extrajudicial
settlement because the two-year bar for questioning an extrajudicial settlement is
only applicable to those who participated in the extrajudicial settlement but not to
those who did not participate in the extrajudicial settlement. But, you have to take
note, however, if in case you did not participate but you are aggrieved. What is your
remedy? File a petition or an action for reconveyance. I repeat. For those who did not
participate in the extrajudicial settlement, but they are aggrieved by the same
because they are supposed to be included in the extrajudicial settlement, they should
file an action for reconveyance based on implied or constructive trust. In relation to
an heir who did not participate or who had no knowledge in the extrajudicial
partition. But it should be filed within 10 years from the alleged fraudulent
registration or issuance of certificate of title over the property.
 PART 2
I was talking about venue last meeting and the kinds of settlement, we ended in the
extrajudicial settlement and the requisites for extrajudicial settlement
CONTINUATION KINDS OF SETTLEMENT OF ESTATE:
For those who participated in the extrajudicial settlement, they have 2 years
from the execution of said extrajudicial settlement to interpose any objection, but the
2-year period will not apply to those who did not participate in the execution of the
extrajudicial settlement because the 2-year time bar for questioning an extrajudicial
settlement is only applicable to those who participated in the extrajudicial settlement
but NOT to those who did not participate. BUT you have to take note however, in
relation to an heir who did not participate or who had no knowledge of the
extrajudicial settlement, but they are aggrieved by the same because they are
supposed to be included in the extrajudicial settlement, they should file an action for
reconveyance based on implied or constructive trust. But it should be filed within 10
years from the alleged fraudulent registration or issuance of certificate of title over
the property. But there is an exception: when there was bad faith in securing the
certificate of title, in which case, the reckoning period is from actual discovery.
Another kind of settlement is summary settlement of estate of small value.
Requisites: 1. When the gross value of the estate of the deceased person does not
exceed 10k. Upon proper petition filed by an interested person, the court having
jurisdiction may proceed summarily to settle the estate without appointment of an
executor or administrator and without delay. 2. Bond is required if property other
than real, the same is true in extrajudicial if it includes personal property. Amount of
bond is fixed by the court conditioned on the payment of any just claim. You would
see the difference of this with extrajudicial settlement because in extrajudicial
settlement will only be allowed if the decedent left no will and no debts. If there are
debts you cannot resort to extrajudicial settlement. If you feel that the amount does
not exceed 10k, you do that by summary settlement under rule 74
Another kind of settlement is judicial partition under rule 69 in relation to
art. 493 of the civil code as when the heirs cannot agree on the division of the estate
and the conditions of extrajudicial settlement are present. The provisions of the rules
of court on partition apply to partition of estate composed of personal property or
both real and personal in so far as may be applicable. If the applicable provision is
sec. 1 rule 69 which deals with an action for partiion, no need for publication
The last kind of settlement is judicial settlement through letters
testamentary or letters of administration with or without a will annexed. Of
course this particular type of settlement shall be under court proceedings with either
an executor or administrator managing the estate until there is partition or
distribution after the payment of the debts, legacies and devisees. But the most
common here is the petition for the issuance of letters of administration because
there is a time limit after the death of the decedent.
PROBATE AND AUTHENTICATION OF A WILL:
If there is a will you file a petition for probate of the will. No will in the Philippines
shall pass real or personal properties unless proved in court.
If the decedent left a will before he dies, you file a petition for probate of that will. But
if he has a will you may file immediately a petition for issuance of letters of
administration if the will did not mention any person as executor.
What is a will? To remember that we have a notarial will and a holographic will.
Between the two, better encourage your clients to make a holographic will and not a
notarial will because in terms of proving the same in court, it is difficult to prove a
notarial will. Holographic wills are those which is entirely written, dated and signed
by the testator himself. In a notarial will, the law is very strict, there must be 3
witnesses who must sign in the presence of the testator face to face. When the
testators view is blocked by a blackboard you could no longer prove the will because
the law says that it must be signed face to face by the 3 witnesses in front of the
testator. This requirement is not needed in a holographic will.
Formal requisites in execution and attestation of will: 1. in writing, 2. Executed in the
language known by the testator, 3. Except in a holographic will, every notarial will
must be subscribed at the end thereof by the testator or his name written by another
in his presence and under his direction, 4. The will must be attested and subscribed
by 3 or more credible witnesses in the presence of the testator and of one another, 5.
The testator or person requested to write his name and the attesting witnesses shall
sign on each and every page of the will on the left hand margin, except the last page;
6. All the pages of the will must be numbered correlatively in letters placed on the
upper part of each page; 7. The attestation clause must state the number of pages
used and the fact that the testator signed the will and every page thereof or caused
another person to write his name under his express direction and in his presence and
the witnesses witnessed and signed the will and all the pages thereof in the presence
of the testator and of one another. If the attestation clause is in the language not
known to the witnesses, it must be interpreted to them; 8. Will must be
acknowledged before a notary public by the testator and the witnesses.
Why do you have to know these requisites? Because if you want to submit the will for
probate in court, you have to prove that the notarial will was executed in accordance
to the requirements set forth by law and the rules because if you cannot prove all
requisites, the court will definitely dismiss your petition.
In case of a holographic will, it is enough that it is entirely written, dated and signed
by the testator himself and need not be witnessed.
Who initiates petition for probate of a will? The testator himself may file the petition
at any time while he is still alive and that is the best way. If you become lawyers,
advice your clients while they are still alive to probate their wills especially when the
will contains a provision of disinheritance because if the will preterits an heir, the
will itself is null and void. If your child committed an act of ingratitude and you want
to disinherit your child, you better do that in your will and provide a disinheritance
instead of pretriting him. Ante-mortem probate is probate of will done while testator
is still alive. If you become lawyers and somebody executed a will, advise him to file a
petition for probate while he is still alive.
After the death of the testator, probate may only be done by: 1. Any executor, devisee
or legatee in the will, 2. Any person interested in the estate, 3. When a party is
directed by the court pursuant to the rules of court. Take note the time to submit the
will to the court is within 20 days from knowledge of death of the testator, the
custodian of the will shall deliver it to the court or the executor named in the will. The
executor if the will is delivered to him shall have 20 days from knowledge of death of
testator or knowledge that he was named executor to submit the will to the court
unless the will has already reached the court. Within the same period, an executor
shall signify to the court in writing whether he accepts or refuses the trust. Take note
that there are sanctions for failure or neglect to comply with the foregoing duty
without any excuse satisfactory to the court shall be fined. Those having custody of
the will after death of the testator who neglects without reasonable cause to deliver
the same when ordered to do so may be committed to prison until he delivers the will
(you can be imprisoned pala up to the time when you are already ready to deliver the
will to the court. Likewise he shall be fined for an amount not exceeding 2k.
Contents of Petition for Probate of Will: 1. Allege in the petition jurisdictional facts
which would include among others, a. that a person died having a will, b. that the
testator at the time of his death is a resident within the territorial jurisdiction of the
court. If the testator is a non-resident, the place where he left certain properties shall
be the test of jurisdiction, c. state the names, ages and residences of heirs, legatees,
devisees of the testator, d. probable value and character of the properties contained
in the estate, e. Name of the person whom letters are prayed and if the will has not
been delivered to the court, the name of the person having custody of it. No defect in
the petition shall render void the allowance of the will or issuance of letters
testamentary or letters of administration with will annexed. The court shall fix the
time and place for proving the will where all concerned may appear to contest the
allowance thereof. 2. Court shall order publication of notice of hearing once a week
for 3 consecutive weeks in a newspaper of general circulation in the province
(publication is common to all special proceedings). This is to serve as notice to
persons who want to file objections, especially to heirs who may have been preterited
to file their corresponding opposition to the petition. Take note that probate of a will
is a considered as a proceeding in rem and not quasi in rem nor in personam. Thats
why the notice serves as a constructive notice to the whole world, so that if the court
renders a judgment allowing the will, the same shall be binding to the whole world
and upon every person. Thats why you really have to make your oppositions before
judgment. But there is an advantage if the testator himself files the petition for the
probate for his will because there is no need for publication. 3. Service of notices at
least 20 days (if mail) or 10 days (personal service) before the hearing to: a. Heirs, b.
Devisees, c. Legatees, d. the executor residing in the Philippines notified personally or
by mail. The mail should be deposited in the post office with postage fully prepaid at
least 20 days before the hearing if place of residence are known. If the testator is the
petitioner, only the compulsory heirs are entitled to notices so devisees and legatees
need not be notified. Of course you know who are the compulsory heirs, as
enumerated in the civil code. 1. Legitimate Children and descendants; 2. Legitimate
Parents and ascendants, 3. Surviving spouse (widow or widower), 4. Acknowledged
natural children and children by legal fiction and other illegitimate children. Take
note that this is important because if any one of them are preterited it will nullify the
will.
When hearing is already commenced for probate of a will, the first thing that you
should do as petitioner is to prove the publication of notice of hearing as well as other
jurisdictional matters and the service of notice of hearing to the heirs, devisees,
legatees and the executor. Meaning to say, if those are not complied with, the court
never acquired jurisdiction to hear the petition for probate.
Witnesses required for probate: Take note if allowance of will is not contested, 1. If
notarial will, the court may grant allowance on the testimony of only one subscribing
witness, but require 3 witnesses if the will is contested; 2. If holographic will, at least
one witness who knows the handwriting of the testator, but expert testimony may be
resorted to if no one can testify on the handwriting of the testator.
If allowance of will is contested: 1. Notarial will, all the subscribing witnesses and the
notary public must testify, but if any of them testifies against the execution of the will,
other witnesses may be presented 2. Holographic will, 3 witnesses who knows the
handwriting of the testator, if none, expert testimony.
Now the problem is, in a notarial will, the 3 subscribing witnesses are all dead or
became insane na or not residents of the Philippines na, can you still prove the will?
Yes! The court may admit other witnesses. So it is not correct that proof shall only be
exclusive and limited to the 3 subscribing witnesses. Although of course, you have to
prove to the court that the subscribing witnesses are all dead or insane or non-
residents already of the Philippines. Because if they are still residing in the
Philippines but could not remember what that is, you cannot compel by subpoena
because they reside more than 100 km away from place of trial (Viatory Right). The
remedy would now be through the taking of a deposition whether oral or written
interrogatories. Now, what if the testator himself is the petitioner, if its a holographic
will, his testimony alone shall be sufficient if not contested. If contested, the burden of
disproving the genuineness and due execution of the will shall be on the oppositor,
but the testator may present a rebuttal
May a will which has been lost or destroyed be allowed for probate? Yes! But prove it
as lost or destroyed when the due execution or validity thereof has already been
established, which means that the will has been proved to have been in existence at
the time of death of the testator. If it has been destroyed and shown to be
fraudulently or accidently destroyed during the lifetime of the testator without his
knowledge and the provisions thereof have been clearly and distinctly proved by at
least 2 credible witnesses. But this only applies to notarial wills, so if holographic
wills are lost or destroyed, thats the end of everything!!!
If the will is contested, the oppositors must submit in writing the ground relied upon
for opposing the allowance of the will and serve a copy thereof to the petitioner and
other parties interested in the estate. It is well-settled that in construing the
provisions of a will, the intent of the testator is controlling.
What are the ground for disallowance of a will? 1. Will not executed or attested as
required by law. 2. Testator was insane or otherwise incapable of making a will at the
time of its execution. 3. Will was executed under duress, in the influence of fear or
threat. 4. Will was executed under undue or improper influence on the part of the
beneficiary or other person for his benefit. 5. Signature of testator was procured by
fraud or trick and the testator did not intend that the instrument should be his will at
the time of affixing his signature.
When a will has already been probated, the court shall now issue letters
testamentary to the person named as executor if he is competent, accepts the trust
and gives his bond. When there are several co-executors and some of them are
disqualified, the others who are competent may perform the duties and discharge the
trust required by the will.
Letters of administration, this one is a petition if there is no executor named in the
will or even if there is an executor named in the will, he is incompetent, refuses to
accept the trust or is insane. What you do is not to file a petition for probate of a will
but a petition for the issuance of letters of administration.
 Part 3 Transcript LETTERS OF ADMINISTRATION

I remember that our last discussion on Tuesday was after the court has issued
an order allowing a will the court is allowed to issue letters of testamentary to the
person executor named in the will that is when he is competent or accept the trust
and gives a bond. You try to memorize for purposes of your brain damaging
midterms exam the requisites which will give the court the opportunity whether to
allow or not. Im talking about the requisites of the validity of the will. Whether
Notarial or holographic will. And in terms of proof or proofs required in probate of
this will i told you last meeting that it depends on whether the will is contested or if
the will is not contested. Its to prove it because the evidence less stringent if the will
is not contested. Meaning to say there are no oppositors to the will. A will whether
notarial or holographic maybe probated even during life time of the testator. In fact i
told you the plenty of advantages if it is the testator who filed the petition for the
probate of his will. One i was telling you publication is actually dispensed with if it is
the testator himself who filed the petition for the probate of his will during his
lifetime.
Okay so our next topic please take note, if there is no executor named in the
will or the executor or executors are incompetent, refused the trust, failed to give
bond, or the person died intestate. When the person dies intestate meaning to say he
died without a will. So under the rules, What should be done? File a petition for
letters of administration. That is the difference for a petition for probate of will and a
petition for filing a petition letters of administration. I repeat ha, even if there is an
executor or executor is incompetent, refuses or does not accept the trust, of fails to
give a required bond or the decent died without a will or intestate. The remedy is to
file a petition for letter of administration. You see now the picture. That is why this
book is for judges only. (LOL)
You see no when you file a petition to prbate a will or to when you resort filing
a petition for for the issuance of letters of administration. Are we clear on that? And
under the rules who are preferred in filing petition for letters of administration okay?
(Sec. 6 Rule 78.)
FIRST, it shall be granted to the Surviving Spouse or next of kin or both or to such
person requested by SSpouse or next of kin
2nd, one or more of the principal creditors of the estate
3rd, any other person the court may select
 So the letters of administration shall be granted to in that order of preference.
So when the law says they are the one granted letters of administration it
logically follows that they should be one who to file LOA because if you are not one of
those enumerated and you filed a petition for LOA sure the case will not be given
credence by court because we the person enumerated under section 6 Rule 78 of
Rules of Court. But usually it is the Surviving spouse. Okay? Now, upon notice to the
heirs, publication as usual is required and the heirs are notified. These are actually
jurisdictional requirements for the court to acquire jurisdiction on cases of special
proceedings cases particularly on Settlement of estate of deceased person which can
either a petition for probate of will or petition for issuance of LOA. The jurisdictional
requirements there will always have publication except what i said earlier when it is
the testator who filed the petition for probate during his lifetime. There must be
publication plus sending of notices to the known heirs, creditors or any person
believed to have interest in the estate of the decent.
And after hearing, the court now shall issue LOA to the best person entitled
thereto. The LOA maybe granted however to any qualified applicant if other
competent persons have the right to enter administration failed to appear when
notified and claim the issuance to them.
There are certain jurisprudence, in the context of petition of LOA. In onecase,
the SC ruled that the defect in the petition of LOA does not render LOA void and
discretionary execution in special circumstance. This is in pursuance to section 2 of
Rule 79. As long as the court was able to acquire jurisdiction over the petition
because you have complied with the jurisdictional requirements as mandated by the
rules. Likewise this is one of the instances in Rule 39 which talk about execution
pending appeal because these are cases where there are multiple appeals my dear
students.
This is one of the instances where the court may allow discretionary execution
where petition capacity of the estate, trust or person of a member, where special
reasons or circumstances exist as with estate would be left without an administrator
and the prompt settlement of the estate have already been unduly delayed. So here
the court may allow discretionary execution, may dear students.
Second, the court may also allow immediate appointment of administration
even if the petition is pending appeal of the petition of LOA. For example, when the
petition is appealed by an heir, the person appointed by the court as the
administrator is allowed to immediately assume his position even if there is a
pending appeal. So that is another principle you have to remember and in terms of
who is given preference in the appointment of an administrator, the SC rule in many
cases that the SS is always preferred as an administrator.
 Three principles to remember 1st, defect in the petition does not render the
issuance LOA void.
2nd, discretionary execution in this case is allowed in special circumstances.
Next , if there is pending appeal the appointed administrator is immediately allowed
to assume his duties and obligations as such.
3rd, Surviving Spouse is given preference in a petition for LOA as ruled by the SC
in the famous case of GONZALES vs AGUINALDO et al Sept. 28, 1990, 190 scra 112.
The same ruling up to the present, its always the SS who is preferred. These
principles are important.
What are the contents in the petition of LOA: 1. Jurisdictional facts; 2. the
names, ages, and residences of the heirs and the names and residences of the
creditors (because there are obligations arising other from delict which actually
obligations that survive even after the death of the decedent), of the decendent; 3. the
probable value and character of the property of the estate (why? Because estate
proceeding will depend on the value of the estate. If it exceed 300,000 it goes to the
RTC, 300,000 and less goes to the first level court) ; 4. the name of the person for
whom LOA are prayed. SEC. 2 Rule 79.
Who are the persons disqualified as executors and administrators? 1. Minor; 2.
Not a resident of the Philippines; 3. one who 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. Section 1 Rule 78
Can a lawyer be appointed? Yes, but definitely a judge cannot act as
administrator. Its nice to be appointed for you can claim administrators fees. A judge
cannot act as executor, administrator, trustee, guardian except when acting in
fiduciary capacity, trust of a person of A MEMBER OF immediate family. This is
pursuance to the case of Ramos vs. Judge Barot Jan. 21, 2004. This is a nice question
in bar no?
Special administrator. When should appointment be given? There is difference
between one who is duly appointed as administrator as to special administrator
because there are certain limits as to the duties. Special Administrator is only
necessary when there is delay in granting LOA. If the decedent left a will of for
administrative purpose when a decedent did not leave a will brought about by any
cause. The court says that the temporary appointment of a special administrator is
only temporary. So you see, when the examiner in the bar used the term temporary
administrator you are referring to special administrator. And his purpose as when
there is delay, there is a need to appoint a special administrator in order to preserve
the estate until it passes into the hands of the person allowed under the law for the
benefit of the creditors and the like. Ah I like this! (LOL).
The SC said, the principal reason of appointing a special administrator is to
preserve the estate until it passes into the hands of the person allowed by law for the
benefit of the creditors and the like. That is why this is only issued when there is
delay so as not to prejudice the estate. Duty is to preserve. That is the extent of the
power of the special administrator.
There are jurisprudence in accordance with the appointment of special
administrator;
1st, appointment maybe revoked anytime on loss of confidence unlike that of duly
appointed administrator who needs to file accounting; 2 nd, the Special Administrator
may be removed in accordance with Rule 82, and when a duly administrator is
appointed, the power of the special administrator ceased, and the newly appointed
may take over the powers.
Take that this special administrator is also applicable in petition of probate of
will. The SC said, the order of the probate court of appointing a special administrator
cannot be appealed. The remedy is file a petition for certiorari under Rule 65 because
of the use of the discretion of the court.
General powers please see rule 84. Take note nalang my students.
Okay for purposes of Bar. 1. Maintain the estate in tenantable repair and deliver
the same to heirs and devises when directed to do so by the court. 2 nd, Possess and
manage the estate of the deceased for the payment of debts and expenses of
administration, access to partnership books where the deceased was a partner, with
the approval to compound or compromise with debtor of the deceased.
Administrator to return properties of estate after payment of expenses, funeral.
Can administrator exercise acts of straight dominion over the property? Only
when allowed by the court. For example payment to the government, and the estate is
not liquid or there is no cash, sale of the property maybe allowed for payment to the
government. There the admin or executor may by motion file for the sale of the
property. Ex. Payment of taxes. Without such order the sale is null and void.
Within 3 months after appointment (regular admin or executor), shall return
true inventory and appraisal of all real and personal estate of the deceased which has
come into his possession or knowledge. SEC. 1 Rule 83
What should not be included in the inventory? 1. Wearing apparel of the
surving spouse and minor children. 2nd, the marriage bed and wedding, 3rd,
provisions and other articles as will necessarily be consumed in the subsistence of
the family of the deceased. These are also not considered assets of the estate and
therefore not to be administered. Sec 2 Rule 83
Can the probate court determine which properties can be included? Yes
because this also settled that the court where the petition for LOA can actually
resolve provisionally only. It is allowed to determine title provisionally therefore if it
has the power it can determine whether it can be included in the properties to be
administered. However in Sanchez vs CA 279 SCra 647, if there is dispute as to title
the parties, administrator, the opposing parties shall resort to ordinary action to
determine final determination of the conflicting claims as the probate court has no
authority to do so. That is why it can only determine provisionally. It is only for the
inclusion in the list to be administered. Please read the case of Sanchez vs CA.
Can the widow or incapacitated children be entitled to allowance? Yes, but take
note that the allowance for support is only limited to minors or incapacitated
children. In short, everyone is allowed to claim support whether or not minor or
incapacitated or gainfully employed in the provision of the rule. This is now routed in
the principle that all children whether minor or not should be given support
particularly support to right to education even beyond the age of majority while the
estate proceeding is going on.
Grandchildren are not entitled to support from the deceased estate. The law
clearly only allows support to widow and children and doest extend to grandchildren
regardless of their minority and incapacity. We are only talking support not after the
estate proceeding.
Sales, Mortgages and payment of debts. RULE 89. Tomorrow na. Read more
rules.
 PART 4
I was talking about if Im not mistaken last night on the allowance unto the widow
and the children of the family of the decedent with emphasis that the grandchildren
are not actually entitled to what we call provisional support, while the petition for
administration are pending my dear students :p
I told you noh last night that in terms of sales, mortgages and payment of debts my
dear students, that when a property of the estate or i would say, specific properties of
the estate are supposed to be sold for example for payment of certain liabilities of the
estate, the sale would not be valid not unless there is a court approval, because
you know for a fact this is a logical consequence that simply because you are an
administrator or executor of the estate, your powers are only limited to powers of
administration, so if these are powers which involve strict dominion or ownership for
example, this can still be done but there has to be a court approval for example of the
probate court, or the court where the petition for letters of administration are
pending. But, there is one catch here, in the case of Pedro inscanlar vs CA 281 scra
176, while the approval of the probate court is necessary when specific properties
are sold but not when only ideal and indivisible shares of an heir are disposed
of, this is the decision of the SC on the case earlier stated. Meaning to say if what will
be sold is only the ideal and indivisible share of an heir, there is no need for a
court approval.
The same with sale, mortgage of specific estate property, needs likewise approval. So
its not only sales, even mortgages but you have to be very specific of specific estate
properties need approval from the court and this can be sold or mortgaged, that is
why when an administrator wishes to sell a property, he has to file a motion or
petition and he has to prove that the sale is pursuant to any of these particular
purposes, for the Payment of debts to pay the obligation of the estate, and the
debts are now due and demandable, the administrator can sell the property but there
has to be court approval, if a part of the real property cannot be sold or otherwise
encumbered without injury to those interested in the remainder, the disposition
maybe of the whole of the property or as much as necessary or beneficial under the
circumstances. Now, if one of the heirs, legatees, or devisees, or one of the creditors
does not like the sale and he wants to prevent the sale of that particular property, can
he do so? And if he can do so, what is supposed to be done legally under the
circumstances. The rule is, you can prevent the sale by filing a BOND. Persons
interested may prevent the sale, mortgage, or encumbrance by giving a BOND in an
amount to be fixed by the court, conditioned to pay the obligations of the estate. Such
BOND shall be for the security of the CREDITORS as well as the EXECUTORS or
ADMINISTRATORS. So if you want that the sale will not push through because you
disagree with the intended sale of the property, you are allowed to do so, but to
prevent the sale, mortgage or encumbrance of that particular property you have to
file a BOND in the amount to be fixed by the court. Take note that in one case, OROLA
vs Pontivedra 470 scra 352, the mortgage of property of an estate without
authority of the court, is VOID. The same holds true for sale and therefore even if the
property was sold at public auction, the purchaser thereof acquires no title to the
property because at the outset, the sale of the property was null and void from the
very beginning. In fact, even the sale of the property at public auction including if
what was resorted to was an extrajudicial foreclosure, being null and void, this can be
attacked collaterally. That is the consequence of sale or mortgage done of the
specific property of the estate without court approval.
There are certain conditions for granting authority to sell, mortgage or
encumbrance of property, 1. Executor or administrator must file a written petition
setting fort the following in your petition, the debts due, expenses of
administration, legatees, the value of the personal estate, the condition of the
estate to be sold,mortgaged or encumbered and such other facts as will show
that the sale, mortgage or encumbrance is necessary or beneficial to the estate,
2. The court shall then cause notice to the persons interested, stating the nature of
the petition, the reason for the sale, time and place of hearing and the court may
cause further notice by publication or otherwise, 3. The court may direct the executor
or administrator to give an additional bond to account for the proceeds of the sale,
mortgage and encumbrance and then the court may then grant the petition to sell,
mortgage or encumbrance in proper cases as part of the estate as it deems necessary.
Pursuant to these particular rule, it is therefore clear that is not only done by mere
motion, it should be done by way of a petition and you have to allege what what i
have just enumerated a while ago. This is not only for sale, this is also for mortgages
and other encumbrances involving specific properties of the estate.
What kind of modes of sale may be authorized? Any mode, it may be private or public,
it doesnt matter. The property can be sold publicly or privately. What is considered
is whether that mode of sale is most beneficial to all the parties concerned. This is
always the primordial consideration my dear students. In fact in reality, once there is
an order granting one of the specific properties to be sold, actually procedurally
speaking if you want to register a sale, aside from the fact that you have to register
the deed of absolute sale or that particular encumbrance which was entered into, it is
also necessary that the court order shall likewise be registered in the office of the
register of deeds in the city or province where the property is located. Registration is
necessary to effect transfer of property. It also includes the registration of the court
order. Registration of the court order grants the buyer preference to the property
when there is someone contesting his claim.
RULE 87
Actions by and against executors and administrators
Sec. 1 provides that no action upon a claim for the recovery of money, debt, or
interest therein shall be commenced against the executor or administrator
meaning, one cannot file an action for collection or recovery of money, debt or
interest thereon against the administrator or executor.
Actions that survive
(actions which can be commenced against the administrator or executor)
1. actions to recover personal or real property
2. action to enforce a lien
3. action to recover damages for an injury to person or property whether real or
personal.
It is a settled rule that actions which survive can be brought or can be defended by
the administrator or executor.
Civil actions for tort or quasi-delict do not fall within the class of claims to be filed
under the notice to creditors required under rule 86 of Rules of court as these actions
being civil in nature, survive the death of the decedent and maybe commenced
against the administrator pursuant to rule 87 sec 1 of the rules of court.
Statute of non claims where all those who have claims against the estate must file
it not later than 12 months nor earlier than 6 months from the first notice of
publication.
What about if these are actions which will survive and unfortunately the victim was
not able to file his claim (victim of a quasi delict) the heirs of the victim failed to file
their claim within the period of the so called statute of non claim as provided by the
rules,
Question, can he do anything?
Answer: he can, he can file a claim against the executor or administrator, meaning,
these are the claims which need not be filed as one of the claims against the estate
because under the rules, as long as the action survive, you can file the action against
the administrator or executor of the estate so you are amply protected there.
I repeat, Civil actions for torts or quasi delict, like what i said, these are not claims
which should be filed within the statute of non claims, they are not within the
category because if you were not able to file your claim within the 6 12 months
from the first notice of publication you are barred but there is 1 instance where if you
can show a justifiable cause you might be granted another 1 month to file your claim,
but dont worry because if the action survives, your remedy there is not to file that
claim against the estate but file a case against the executor or administrator, this
holds true to all actions that survive.
What are the claims that do not survive?
1. Money claims filed in the estate proceedings. thats why you have to file your
money claims against the estate because you cannot file that against the
administrator or executor
2. Claims arising from contracts, whether express or implied, whether due or not due
or contingent.
3. Claims for funeral expenses.
4. Claims for expenses of the sickness of the decedent.
5. Judgment for money against the decedent which should be presented in the form of
claims against the estate.
- these are supposed to be presented as claims against the estate.
If the deceased, according to one decision of the supreme court, was a mortgage or
assignee of the right of the mortgagee, the mortgage maybe foreclosed by the
executor or administrator, pursuant to rule 87 sec. 5.
As a summary, Only claims which do not survive should form part of the claims
against the estate wherein you must file this claim within the statute of non claims
There is a principle of DOUBLE VALUE RULE. And this is reference to the proceedings
when property is concealed, embezzled or fraudulently conveyed. Before the
DOUBLE VALUE RULE when a person is suspected of having concealed, embezzled or
having conveyed away any of the money or chattels of the deceased or such person
possesses or knows of a document which contains evidence of or tends to disclose the
right of the deceased to real or personal estate or the last will or testament of the
deceased, the court in this instance, may cite such suspected person to appear or to
answer and may examine him under oath. So if a person concealed, embezzled or
fraudulently conveyed any property of the estate, the court has all the power to cite
him to appear before the court and to answer these particular allegations and may
examine that person under oath.
The DOUBLE VALUE RULE as provided under rule 87 sec.8 of the rules of court
provides, that a person who before the granting of letters testamentary or
administration embezzles or alienates any money, goods, chattels or effects of the
deceased shall be liable to an action in favor of the executor or administrator of the
estate for DOUBLE THE VALUE of the property misappropriated to be recovered for
the benefit of the estate. This situation applies where the Embezzlement causes loss
to the estate, that is the principle of the DOUBLE VALUE RULE.
A person entrusted by the executor or administrator with property of the deceased
maybe compelled to render a full account before the court. A person who embezzles
or alienates property of the deceased before issuance of letters testamentary or
administration is liable for DOUBLE THE VALUE of the property embezzled. RULE 87
sec 8 of revised rules of court.
Question:
What are the remedies for fraudulent conveyance by the deceased during his
lifetime?
Answer:
In case of fraudulent conveyance, the executor or administrator may file an
action as when there is a deficiency of assets to pay the debts, but the deceased
during his lifetime conveyed property with intent to defraud his creditors, the
conveyance would by law be void as against creditors and is subject of the attempted
conveyance would be liable to attachment by any of them in his lifetime and as to
creditors, pay the cost and expenses thereof or give security as the court deems
equitable.
In case of fraudulent conveyance, a creditor may file an action upon the filing of
a bond approved by the court to indemnify the executor or administrator subject to
the following requirements:
1. Deficiency of assets in the hands of the executor or administrator for the
payment of debts and expenses of administration.
2. Deceased in his lifetime made or attempted to make fraudulent conveyance
of his real or personal property, right or interest therein, debt or credit with intent to
defraud his creditors or to avoid any right, debt or duty and had so conveyed such
right, debt or credit that by law the conveyance would be void as against his
creditors.
3. Subject of the attempted conveyance would be liable to attachment by any of
them in his lifetime the executor or administrator have shown to have no desire to
file the action or fail to institute the same within a reasonable time, leave of court and
BOND in the name of the executor or administrator. Simply put, if there are
fraudulent conveyances made by the deceased during his lifetime, an action can be
filed by the administrator or executor provided he complies with the rules provided
earlier.
STATUTE OF NON CLAIMS
 If there are claims that do not survive, it has to be filed within the period as
provided for otherwise barred, except actions that survive because these can be filed
against the administrator or executor.
Immediately after granting letters testamentary or administration, the court shall
issue a notice requiring all persons having money claims against the decedent to file
their claims in the office of the clerk of court.
In the notice to file money claims, the court shall state the time for the filing of
the claims which shall not be more than 12 months nor less than 6 months after
the date of the first publication of the notice. (the purpose here is to insure the
speedy settlement of the estate for the benefit of the creditors and those entitled,
thats why there is a limit as to when to file claims)
However, as long as there was no order of distribution yet which was issued
by the court, the court may, for cause shown and on such terms as are equitable,
allow a claim to be filed within a time not exceeding 1 month. But this extension of
1month is only proper when the court did not issue yet an order of distribution. But
be that as it may, you have to justify before the court why is it that you were not
able to file the claim within a period of not more than 12 months and not
earlier than 6 months. One cannot raise lack of notice because publication equals
notice to the whole world. (in rem proceeding)
Question:
Can the court extend the period.
Answer:
It may, in the case of DANAN vs buencamino 110 scra 352, SC said that rule 86
sec2, gives the probate court discretion to allow claims presented beyonf the period
fixed, provided that they are filed within 1 month from the expiration of the period
but in no case beyond the date of entry of the order ( When to count the extension of
the 1 month period) these claims must be filed within 1 month from the expiration of
the period. (12-6months) but in no case beyond the date of entry of the order of
distribution. Thus, in this case, a contingent claim filed within both periods is
allowed. (claims here need not only be due and demandle, even contingent claims)
The SC in the case of echaus vs blanco 179 scra 74, the pendency of the case before
the regular courts is a good excuse for DELAY of CLAIMS. The period prescribed in
the notice to creditors is not exclusive that money claims against the estate maybe
allowed anytime before an order of distribution is entered at the discretion of the
court for cause and upon terms which are equitable and the pendency of the case
involving the deceased and another person before the regular courts is considered a
GOOD EXCUSE for the DELAY of CLAIMS.
In the filing of the claim, the claim maybe filed with the clerk of court with the
necessary vouchers and supporting affidavits serving a copy thereof on the executor
or administrator.
If the claim is not yet due, it must be supported by affidavits stating the particulars
thereof. When the affidavit is made by a person other than the claimant, he must set
fort the reason why it was not made by the claimant.
Money claims against the estate does not require certification of non forum shopping
because it not considered as a initiatory pleading.
Take note, that claims which are not filed within the period mentioned earlier are
barred forever, EXCEPT, you may however set fort that claims as COUNTER
CLAIM in any action that the executor or administrator may bring against the
claimant.
Where an executor or administrator commences an action or prosecutes an action
already commenced by the deceased in his lifetime, a debtor may set fort in an action
by the executor or administrator against him by answer the claims he has against the
decedent instead of presenting them independently as a claim against the estate and
mutual claims maybe set off against each other in such action, claims that are not yet
due maybe approved at their present.
Take note that any claim admitted by the executor or administrator shall
immediately be submitted by the clerk of court to the court who may approve the
same without hearing, but, the court may order that known heirs, legatees or
devisees be notified and heard. If an heir, legatee or devisee opposes the claim, the
court may allow the opposing party 15 days to answer the claim. Upon the filing of an
answer or upon expiration of time for filing the same, the clerk of court shall set the
claim for trial with notice to both parties. The court may refer the claim to a
commissioner. (rule 32 trial by a commissioner)
 PART 5
Since the cases weve been discussing are the cases with multiple appeals the
judgement of the court approving or disapproving a claim is appealed. I would like a
gain to put emphasis likewise that you can also appeal the appointment of a special
administrator. You can even also appeal the appointment of an arbiter (?)
So if there are multiple appeals there should be notice of appeal and record on
appeal and can be filed within 30 days from receipt of the order subject of that
particular appeal.
We are now on payment of debts of the estate. You have to consider whether the
assets of the estate is sufficient to pay the debts or whether the estate is insolvent.
First rule if the assets of estate are sufficient- these are the rules for payment of debts
1. If the testator makes provision by his will or designates his estate for the payment
of his debts meaning to say the will contains stipulations for payment of his debts. Of
course payment shall be made according to the provision of the will. Take note if the
will contain provisions on how payment of dates of the estate shall be made. If there
are provision, you make the payment according to what appeared in the provisions in
the will. If the estate designated in the will is not sufficient, such part of the estate as
is not disposed of by wil,l shall be appropriated for that purpose, that is the second
rule. Third rule, The personal estate not disposed of by will shall be first chargeable
with the payment of debts and expenses. So meaning to say priority even in terms of
execution you can recall, the first that should be executed if the losing party diba,
defendant does not make a choice, the sheriff shall first appropriate or execute the
personal properties, the same here the personal estate not disposed of by will shall
first be chargeable with the payment of debts ande expenses. Next rule, if the
personal estate is not sufficient or the sale would be detrimental to participants of the
estate, then the real estate not disposed of by will shall be sold or encumbered for
that purpose. So personal muna shall be sold, then if not sufficient, we go to the real
properties involved by the estate. Any deficiency shall be met by contributions from
devices, legatees and heirs who have entered into possession of portions of the estate
before debts and expenses were made. So youve noticed no that the priority wpuld
always be the payment of the debt to the creditors of the estate. Thats why if the
remaining estate is not sufficient to pay off the debts of the estate, then those
legatees, heirs and devicees who have received their share already even before the
payment of debts were paid can still be compelled to pay for the payment of debts of
the estate. The executor or administrator shall retain sufficient estate to pay
contingent claims when the same become absolute.
So remember, diba even in terms of claimants, everybody can claim within the
Statute of Nonclaims rule even if the debt is still contingent. Thats why the rule here
requires that the executor or administrator shall retain sufficient estate no, to pay for
the contingent claims when the same becomes due and demandable. That is the rule
for payment of debts when the estate is sufficient.
What about if the estate is insolvent? These are the rules: the executor or
administrator shall pay the debts in accordance with the preference of credit
established by the civil code. Ill ask you, you are now on review, what is your rule on
the payment and preference of debts. Did you take them up in your credit
transactions. Because if the estate is insolvent meaning to say the liabilities are more
than its assets. So if the liabilities are more than its assets, you really have to apply
the rules on preference of credit. Because here, if the liabilities are more than the
estate because the estate is insolvent. When the law says insolvent it does not follow
that there are no longer properties. There are still properties but the properties are
more than the assets. How do you consider here preference of credits. What is the
first thing that you have to consider in applying the rule on preference of credits?
Determine muna if it pertains to real property, It pertains to personal property and
all other properties. Because the preferences there vary depending on whether it
pertains to real property or it concerns personal property, or if it concerns all other
properties. I would just like to emphasize that if the estate is insolvent, payment of
the debts of the debts of the estate shall be made in accordance with the rule on
preference of credits in the provisions of the civil code. Two, no creditor of any one
class shall receive any payment until those of the proceeding class are paid. Thats the
second rule. If there are no longer assets sufficient to pay the credits of any one class
of creditors, each creditor within such class shall be paid a dividend in proportion to
his claim. This is precisely the reason why this is set. Because like what I told you, the
rule kasi that will govern is always preference of credits. Like what I said, in
preference of credits, it varies depending on what property is involved. Is it real or is
it personal or is it all other properties. Thats why that is justified in the second and
third rule.
Where the deceased is not a resident, his estate in the Philippines shall be
disposed of in such a way that creditors in the Philippines and elsewhere may receive
an equal share in proportion to their respective credits. This is for a non-resident
deceased. Claims duly proved against the estate of an insolvent resident of the
Philippines the other one was non-resident, so the priority there are the creditors
who are from the Philippines The executor and administrator have the opportunity
to contest such complaints shall be included in the certified list of proved against the
deceased. The owners of such claims shall be entitled to a just distribution of the
estate In accordance with the preceding rules if the property of such deceased person
in another country is likewise equally apportioned to the creditors residing in the
Philippines and other creditors according to their respective Claims. However, that
whether there are sufficient assets to pay off the debts of the estate or if the estate is
insolvent, payment of the debts shall always be pursuant to the order of payment
made by the court. You cannot pay not unless there is a court order requiring the
executor or administrator to pay off the debts.
When should these debts be paid? The executor or administrator shall pay the
debts and legacies of the deceased within a period of time fixed by the court which
shall not exceed one year. But the court may on motion of the executor or
administrator after hearing extend the time as the circumstances of the estate require
to a period not exceeding six months for a single extension. But the whole period
allowed to the executor or administrator shall not exceed two years. That is the time
of payment shall be made to legacies and debts of deceased. Sec 15, Rule 89.
Under rule 90 sec.1, the properties of the estate shall only be distributed to
heirs after payment of debts, funeral charges, allowance of the widow, inheritance tax
if any, and other expenses on the application of the executor or administrator except
when authorized by law. In special proceedings cases is the concept of collation, and
settlement of estate be it petition or probate of will, or if there is no will, petition for
letters of administration. Collation is defined as the act by virtue of which
descendants or other forced heirs who intervene in the division of an inheritance of
the decedent, bring into the common mass of the estate the property which they
received from him so that the division may be made according to the law and will of
the decedent. Every compulsory heir who succeeds with other compulsory heirs must
bring into the mass of the estate any property or right which he may have received
from decedent during his lifetime, either by donation or any other gratuitous title in
order that it may be computed in the determination of legitime of each heir and in the
account in the partition. So meaning to say in collation, if you received properties
during the lifetime of your father, and the father died, even sale daw should be
brought to the estate, should be collated for the purpose of computation as to how
much legitime is due to an heir. So meaning to say, if you are given a property by way
of donation, that can be part na of your share or the law here says that it may be even
by gratuitous title. Collation is only required of compulsory heirs succeeding with
other compulsory heirs and involves property or rights received by donation or
gratuitous title during the lifetime of the decedent. The purpose is to attain equality
among the compulsory heirs in so far as possible, for it is presumed that the intention
of the testator or predecessor in interest, making a donation or gratuitous transfer to
a forced heir is to give him something in advance on account of his share in the estate.
So that is daw the intention of every testator when he gives properties during his
lifetime to a compulsory heir either by donation or gratuitous title. So it is considered
as an advance of his share when he dies later. the case of Visconde vs CA 286 SCRA
217,
 Accountability and compensation of executors and administrators. First rule.
Administrator is not liable or cannot profit from the increase or suffer loss from the
decrease of the estare. If the executor or administrator uses or occupies any part of
the real estate, he shall account for it as may be agreed upon between the executor or
administrator and the parties interested or adjusted by the court with their assent. If
the parties do not agree, the amount may be ascertained by the court _______shall be
considered as well. When an executor or administrator incurs unreasonable delay in
collecting the debts or selling the estate of the deceased or neglects to pay over the
money he has in hand and the value of the estate is lessened or unnecessary cost is
approved or the persons interested suffers loss, the damage sustained may be
charged against the executor or administrator and he shall be liable on that. So its
not easy to become an executor or administrator, you must always comply with your
duties on time. An executor or administrator shall be allowed the necessary expenses
in the care, management, and settlement of the estate and for his services 4.00 per
day for the time actually employed or a commission upon the value of so much of the
estate as comes into his possession as is finally disposed. Of the payment of debts,
expenses, legatees distribution to the heirs and legatees, may commission parin siya-
These are 2% of the first 5,000 pesos, 1% of more than 5,000 but not more than
30,000, % of more than 30,000 but not more than a 100,000, and 1/4th of more
than 100k. That is the commission of the executor or administrator if the properties
are actually sold. However in exceptional cases where the estate is large and the
settlement is attended with great difficulty requiring a high degree of capacity on the
part of the executor or administrator, a greater sum may be allowed by the court.
Pwede, mas greater sya kasi more difficult and complicate because estate is big. If
Objection to the same is allowed to be taken, the objection will be examined on
appeal. When a deceased by will made some other provision for the compensation of
the executor, it shall be a full satisfaction for services rendered unless the written
instrument file in the court, the executor renounces all claims of compensation
provided. Meaning to say the law allows the testator to provide in the will that if in
case an executor is appointed his services shall be paid in accordance with what is
provided in the said will which accdg to law will govern against the rules. 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. What about if the executor or administrator is a lawyer. He shall not
charge against the estate any professional fees for legal services rendered but may
employ the services of an attorney. As a general rule, it is the executor or
administrator who will be primarily liable for attorneys fee due to the lawyer who
rendered legal services for the executor or administrator in relation to the settlement
of the estate. The executor or administrator may seek reimbursement from the estate
for the sums paid in attorneys fees if the intention that the services of the lawyer
redounded to the benefit of the estate. At the end of the day, it is always dependent
on whether the services rendered by the lawyer redounded to the benefit of the
estate. If yes, you can get from the estate. If not, you have to pay that as executor or
administrator but it is always easy to tell the court that it always redounded to the
benefit of the estate thats subject to rebuttal. If the administrator or executor refuses
to pay the attorneys fees, IN the case of salonga hernandez vs pascual and CA,
GR127165, May 2, 2006, the SC ruled that if the exec or admin refuses to pay the
attorneys fees. The lawyer has two recourse: One, the lawyer may file an action
against the former but in his personal capacity of the exec or admin, second, the
lawyer may file a petition in the estate or intestate proceeding asking the court to
direct payment of attorneys fees as an expense of administration. If the second mode
is resorted to, it is essential that notice to all the heirs and all interested parties be
made so as to enable these persons to inquire into the value of the services of the
lawyer and on the necessity of his employment.
Is the executor or administrator mandated by the rules to render an account?
The answer is yes. But the question is when? It is within one year from appointment.
IN fact failure to render the same will be a ground for the revocation of his
appointment as an administrator so within one year from his appointment. The only
exception here is when the court directs otherwise by reason of extension of time
within which to present claims against the estate, pay the debts, or dispose of the
assets of the estate. The heirs, legatees, and creditors of the estate, and the executors
or administrator may be examined under oath on any matter related to the
administration account. 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 or by
advertisements in newspapers as the court may direct. A person liable as surety in
respect to such account may upon application be admitted as party to such
proceedings. So meaning to say befor the court no accepts the accounting made by
the administrator or executor there has to be notice to the heirs and other interested
persons either personally of through advertisement in newspapers. Maybe because
some would like to be given a chance to question that why is it used for this and that.
SO that is the rationale of this particular rule.
Distribution and partition. Maybe after all have been made. Except as otherwise
provided under the rules, every executor or administrator is chargeable as follows:
with the whole of the estate of 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 as sold by him at
the price at which it was sold. The distribution of the estate can only be made after
strict compliance with the provisions of the rules of court. Hence the estate may be
distributed only if the debts, funeral expenses, expenses of administration, allowance
to the widow and inheritance tax if there are any have been paid. There has to be
payment of everything before distribution of the estate is made. In Estate settlement
proceedings, there is a procedure for the accounting of the expenses for which the
estate must answer. However the heirs or distributes of the properties may take
possession even before the settlement of account as long as they first file a bond
conditioned on the payment of the estates obligation. Conclusion. Yes. The shares
which correspond to the heir may be given to them even before settlement of the
debts of the estate but there is one condition sine quanon, they must first file a bond
which will answer to the estates obligation which might be due. Where there
remains an issue as to the expenses chargeable to the estate, partition is
inappropriate. So partition is therefore not yet proper when there are still issues as to
the expenses chargeable to the estate such as expenses made to the deceased
persons final illness and burial that were not yet finally settled. In one case the heirs
had to submit their fathers estate assessment because the determination of his
expenses cannot be done in an action for partition. That is the ruling here. IN one case
and this is in the case of COMMISSIONER OF INTERNAL REVENUE VS CA 328
SCRA666, SC construed the phrase judicial expenses of the testamentary or intestate
proceedings as not including the compensation paid to the trustee of the decedents
estate when it appeared that said trustee was appointed for the purpose of managing
the decedents real estate for the benefit of the testamentary heir. The same is true
with premiums paid on the bond filed by the administrator as an expense of
administration since the giving of a bond is in the nature of a qualification or the
office and not necessary in the settlement of the estate. So meaning to say diba before
an administrator will assume his obligations, one of the requirements is aside from
taking her oath, she has to post a bond, so she cannot charge the value or premium of
her bond as chargeable against the estate of the deceased. Why? Because in this case,
the bond is not an expense of the estate because it is in the nature of a requirement as
to his qualification to the office. Remember that the value of the estate is so much
demand likewise becomes so much if the bond becomes so much, the premium of the
bond becomes so much also. Can he charge it against the estate, no it is not
chargeable against the estate. No distribution shall be allowed until the payment of
the obligations has been made and provided it be first to a part of the estate that is
not affected by any controversy on the distinct uses, or any of them gives a bond in a
sum fixed by the court. That maybe you can get your advance share but you have to
first file a bond conditioned upon the payment of the estates obligation. Atat na atat
ka na you want to get it, you can do so even befor the settlement of all the obligations
of the estate but you have first to file a bond. The purpose of the bond is conditioned
for the payment of the obligations of the estate.
Distribution of residue of estate. Meaning to say after all there is still excess. The
court on the application of the executor or administrator or of a person interested in
the estate and after hearing upon notice, shall assign the residue of the estate to the
persons entitled to the estate naming them and the proportions or parts which each
are entitled and such persons may demand and recover their respective shares from
the executor or administrator or any person having the same in his possession. The
only instance in which a party interested in the probate proceeding may have the
final liquidation set aside is when he is left out by reason of circumstance beyond his
control or through mistake or inadvertence not imputable to negligence. Even then,
according to the SC the better practice to secure relief is for reopening of the same by
proper motion within the reglementary period instead of an independent action the
effect of which if successful would be for another judge to throw out the decision or
order already final and executed and reshuffle properties long ago distributed and
dispose off. This is a remedy in case there is already a final liquidation and one would
like to set aside the said final liquidation. Towards the end definitely of the
proceedings in a settlement of estate there has to be the last the project of partition
among the heirs but the project of partition should be presented to the court. The
project of partition is a proposal of the distribution of the hereditary estimates and
determines the persons entitled thereto. Expenses of partition may be made by the
executor or administrator when it appears to be 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 interests in the premises and
apportionment shall be settled and allowed by the court enforceable by execution.
Certified copies of final orders and judgement of the court relating to the estate
orpartition shall be registered in the office of the registry of deeds where the
property is located. So the project of partition made and approved by the court
should always be recorded in the office of the registry of deeds in the city or province
where the property is located.