1

SPECIAL PROCEEDINGS
(Part One)

3. Special proceedings.- These refer to the

remedy by which a party seeks to establish a
status, a right, or a particular fact. (Id.)

INTRODUCTION

4. The rules on evidence.The rules on

evidence provides for the means sanctioned
by the Rules of Court of ascertaining in a
judicial proceeding the truth respecting a
matter of fact. (Rule 128, Section 1).

Our laws are generally classified into

substantive law, and adjective or remedial law.
Substantive laws are comprised of the
Constitution and the statutes enacted by
Congress.
Substantive
laws
define
and
prescribe the rights and duties of the State,
viz-a-viz, the persons within its territory and
the rights and duties of persons towards the
State and towards one another.
.
Adjective or remedial law, on the other hand,
refers to the Rules of Court and the other
issuances of the Supreme Court pursuant to its
rule-making power under Article VIII, Section
5(5), of the 1987 Constitution. Remedial law
provides for the procedure and mode of how
the rights and duties defined under substantive
laws are enforced, applied and interpreted.
However, there are certain laws passed by the
law-making branch which are procedural in
nature, like for instance the Land Registration
Act, which is procedural in character.
The Rules of Court
The Rules of Court is the principal
source which governs the procedure to be
observed in court actions, civil, criminal, and
special proceedings.
It also prescribes the
rules on evidence and admission to the practice
of law in the Philippines.
Branches of the Rules of Court
The Rules of Court is divided into five main
branches. These are:
1. The rules governing civil action.- A civil
action is one by which a person sues another
for enforcement or protection of a right, or
prevention or redress of a wrong. A civil action
may either be ordinary or special. But both are
governed by the rules for ordinary civil action,
subject to the specific rules prescribed for
special civil action. (Rule 1, Section 3-a).
2 The rules on criminal action.- A criminal
action is one by which the State prosecutes a
person for an act or omission punishable by
law. (Id.)

5. The rules which prescribe the procedure for

admission to the practice of law in the
Philippines, and the canons of judicial and legal
ethics.
6.
Provisional remedies, also known as
ancillary or auxiliary remedies are writs and
processes available during the pendency of a
principal action which may be resorted to by a
litigant to preserve and protect certain rights
and interest therein pending
rendition of
judgment, and for purposes of the ultimate
effects of a final judgment in the case.
(Regalado, Remedial Law Compendium.Vol. 1,
2005 Ed., p. 671.)
7.
Special civil actions refer to (1)
interpleader; (2)declaratory relief; (3) review
of judgment and final orders or resolutions of
the
Commission
on
Election
and
the
Commission on Audit;
(4) certiorari,
prohibition and mandamus; (5) quo warranto;
(6) expropriation;
(7) foreclosure of real
estate mortgage; (8) partition; (9) forcible
entry and unlawful detainer; and (10)
contempt.
These civil actions are termed
special because of their nature which requires
a summary or otherwise different procedure.
(Moran, Rules of Court, Vol. 1, pp. 120 121.)
`
Subject matters of special proceedings
(Rule 72, Section 1)
1. Settlement of estate of deceased
persons
2. Escheat
3. Guardianship
4. Trustees
5. Adoption
6. Medical commitment
7. Change of name
8. Cancellation or correction of entries
in the civil registry 9. Declaration of absence
NOTES.
(1).
Voluntary dissolution of
corporation pursuant to Sections 117 -122 of

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the Corporation Code (BP Blg. 68) has been
transferred to the SEC.; and ( 2.) family
homes are deemed constituted in the dwelling
house and lot from the time it is occupied as a
family residence and continues to be such so
long as any of its beneficiaries reside therein.
(Art. 153, Family Code).
Other
laws
proceedings

applicable

to

special

1.

The summary judicial proceedings under

Arts. 238 253, Family Code;

2.

The proceedings under PD 603 , The

Child and Youth Welfare Code

3.

Rep. Act No. 7610, The Child Act

4.

Rep. Act 7658, The Child Employment

Act

5. The Inter Country Adoption Act under

Rep. Act No. 8043
Courts which have original jurisdiction
over special proceedings:
1. The Family Courts has original
exclusive
jurisdiction
over
the
following cases:
a. Petitions for guardianship, custody of
children and habeas corpus in relation
to custody of children;
b. Petitions for adoption and rescission
thereof;
c.
Petitions
for
support
and/or
acknowledgment
d.
Summary judicial proceedings
brought under the Family Code
e. Petitions covered by PD 603.
f.
Petitions covered by Rep Acts Nos.
7610 and 7658
2. All other special proceeding cases which do
not come under any of the above enumerations
fall under the jurisdiction of the RTC or the first
level courts, as the case may, depending on
the amount involved.
Application of the Rules of Court and
other laws to special proceedings
Under Section 2, Rule 72 of the Revised
Rules on Special Proceedings, in the absence of
special provisions, the rules provided for
ordinary actions shall be, as far as practicable,

applicable to special proceedings. However,

the following pre-conditions must be present:
(1) there is a problematic situation; (2) there
is no specific provision in the Rules on special
proceedings which may be applied to the
problematic situation; (3) the general rules on
ordinary action, if practicable, may be applied
on the problematic situation.
But where no specific provision either in
the rules on special proceedings or in the
ordinary action which may govern the
situation, recourse may be made to Article 9 of
the Civil Code in relation to Rule 135, Sections
5 and 6 of the Rules of Court.
Article 9 provides that no judge or court
shall decline to render judgment by reason of
silence, obscurity or insufficiency of the laws.
Rule 135, Section 5, on the other hand,
provides the inherent powers of the courts.
Paragraph (g) of which states: To amend and
control its processes or orders so as to make
them conformable to law and justice.
Section 6 of the same Rule provides
inter alia xxx if the procedure to be followed in
the exercise of such jurisdiction is not
specifically pointed out by law or by these rules
to be conformable to the spirit of said law or
rules.
SUCCESSION
Concept of succession
Succession is one of the modes of
acquiring ownership. It is a mode by virtue of
which the property, rights, and obligations to
the extent of the value of the inheritance of a
person are transmitted through the death of a
person to another or others by his will or by
operation of law. (Art. 774, Civil Code). The
rights to succession are transmitted from the
moment of death (Art. 777 Civil Code)
Succession may be testamentary, legal or
intestate, or mixed.
For purposes of settlement of his estate,
a person shall be presumed dead if absent and
unheard from the periods fixed in the Civil
Code. But if such person proves to be alive, he
shall be entitled to the balance of his estate
after payment of all his debts. The balance
may be recovered by motion in the same
proceeding.

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Article 390 of the Civil Code states:
After an absence of seven years, it being
unknown whether the absentee still lives, he
shall be presumed dead for all purposes,
except for those of succession. The absentee
shall not be presumed dead for the purpose of
opening his succession till after an absence of
ten years. If he disappeared after the age of
seventy-five years, an absence of five years
shall be sufficient in order that his succession
may be opened.

Why is settlement of the estate of

deceased persons considered a specal
proceeding?

According to Article 391, The following shall

be presumed dead for all purposes, including
the division of the estate among the heirs:

1. Extrajudicial settlement. refers to

settlement of the estate of a deceased person
without resorting to a court proceeding.

(1) A person
during a sea voyage,
missing, who has not
years since the loss
plane;

2. Judicial settlement. Settlement of

the estate of the deceased through court
proceeding:

on board a vessel lost

or aero plane which is
been heard of for four
of the vessel or aero

(2) A person in the armed forces who

has taken part in war, and has been missing for
four years;
(3) A person who has been in danger of
death under other circumstances and his
existence has not been known for four years.
Nonetheless,
where
due
to
circumstances a person was already considered
death, it is not necessary to wait for the period
of four years to expire before he is presumed
dead, because the presumption of death must
yield to preponderance of evidence.
However, ownership is not automatically
transferred to the heirs by the mere fact of
death of the decedent.
Certain procedural
steps must still be undertaken and observed
before ownership is transferred. The procedure
is known as the Settlement of the Estate of
Deceased Persons
Settlement
means
the
identification,
administration, liquidation, (determination of
the persons entitled to participate in the
inheritance), and distribution. The estate of
the deceased person shall be settled either
judicially or extra-judicially.
Judicial settlement is classified as: (1)
testate settlement, where the deceased left a
will, or (2) intestate settlement where the
deceased left no will.

Petitioner seeks to establish his status of being

an heir, his right to participate in the
settlement and liquidation of the estate, and
the fact of death of the owner of the estate.
What are the types of settlement of the
estate of deceased persons?

(a) Summary settlement of estate of

small value;
(b) Testate settlement if the deceased
left a last will;
(c)
Intestate settlement where the
deceased left no will;
(d)
Action for partition where the
deceased left no will; no debt; the heirs could
not agree on how to divide the estate; all the
heirs are of legal age and the minors are
represented by their legal guardians

*****
EXTRA JUDICIAL SETTLEMENT
OF ESTATE OF DECEASED PERSONS
Extrajudicial Settlement, how made.
The estate of a deceased person may be
settled extra-judicially by agreement among all
the heirs in a public instrument, or in case
there is only one heir, by means of an affidavit
of self-adjudication, filed with the office of the
register of deeds where the estate is located;
provided that, the decedent left no will and no
debts, and the heirs are all of legal age. If an
heir is a minor or an incompetent, he shall be
represented by his or her judicial or legal
representatives duly authorized for the
purpose. If the heirs cannot agree, they may
resort to an ordinary action for partition.

C O M M E N T S

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What is the nature of an extrajudicial
settlement of the estate of a deceased
person?
An extrajudicial settlement is a contract,
and it is a well-entrenched doctrine that the
law does not relieve a party from the effects of
a valid contract.
In the construction or
interpretation of an instrument the intention of
the parties is primordial and should be pursued
What are the modes of extrajudicial
settlement of the estate of a deceased
person?
1. Where there are two or more heirs,
by agreement of all the heirs in a public
instrument filed with the office of the register
of deeds where the estate is located; or
2. Where there is only one heir, by
means of an affidavit of self adjudication also
filed with the office of the register of deeds
where the estate is located.
What are the requisites of an extra
judicial settlement of the estate of a
deceased person?
1. The decedent died without leaving a
will and had no debt at the time of his death;
2. That the heirs are all of legal age, the
minors or incompetents, if there are any, are
represented
by
their
judicial
or
legal
representatives duly authorized for that
purpose;
3. The heirs agree to divide the entire
estate among themselves as they see fit;
4. If there are two or more heirs their
agreement must be reduced in a public
instrument filed with the office of the proper
register of deeds; or where the decedent is
survived by only one heir, he may adjudicate
the entire estate to himself by means of an
affidavit of adjudication also filed with the
office of the proper register of deeds;
5. If the surviving heirs could not agree
on how the entire estate should be divided
among themselves, they may do so in an
ordinary action for partition. But even during
the pendency of such action, the heirs may, by
stipulation, agree on how the entire estate
should be divided among themselves;

Venue, Bond and Publication. Simultaneous with the filing of the public
instrument or the affidavit of selfadjudication in the office of the register of
deeds, the heirs shall post a bond, in an
amount equivalent to the value of the
personal property involved, as certified
under oath by the parties concerned and
conditioned upon the payment of any just
claim that may be filed under Section 1 of
this rule.
After which, the fact of
extrajudicial
settlement,
particularly
describing the properties and the parties
involved, shall be published once a week
for
three
consecutive
weeks in
a
newspaper of general circulation in the
place where the decedent resided at the
time of death or where the estate is
located, if the decedent was not a resident
of the Philippines. Only those persons who
have participated in, or had prior notice
of, the settlement shall be bound by the
extrajudicial agreement.
C O M M E N T S
The parties to such extrajudicial
settlement, whether by public instrument, or
by stipulation in apending action for partition,
or
by
affidavit
of
self-adjudication,
simultaneous with the filing of the instrument,
shall post a bond with the register of deeds, in
an amount equivalent to the value of the
personal property involved as certified under
oath by the party concerned and conditioned to
the payment of any claim filed under section 1
of Rule 74.
The fact of the extra judicial settlement
shall be published once a week for three
consecutive weeks in a newspaper of general
circulation in the province where the deceased
was a resident at the time of his death, or
where the estate is located if he was not a
resident of the Philippines
Why is extra judicial settlement preferred
over judicial settlement?
The reason is that judicial settlement is
always long and expensive. If all the
heirs
can agree among themselves how to divide and
partition the estate, judicial settlement would
be superfluous and unnecessary.

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There must be a good reason to warrant
judicial settlement. For example, such good
reason could be that some persons pretending
to be heirs should be excluded in the
settlement.

deeds and new certificates of title were issued

to the distributees.

Suppose the heirs in an extra judicial

settlement of the estate of the deceased
made an oral partition of the entire estate,
or the private instrument of partition was
not registered in the register of deeds, is
the partition made by the heirs of the
entire estate valid and binding?

An action for partition, being a real

action, should be filed in the Regional Trial
Court or Metropolitan/Municipal Trial Court,
depending on the assessed value of the
property, and the location of the subject of the
action or any part thereof.

Yes. The partition of the estate of a

deceased among his heir, although made orally
or made in a private instrument which was not
registered, is valid and binding on the heirs
participating in the oral partition, or signatories
in the private instrument. No law requires that
partition among the heirs must be in a public
instrument and registered to be valid and
binding. The need that a partition should be
contained in a public instrument, registered
and published has for its purpose the
protection
of
creditors
and
the
heirs
themselves against late claims.
The partition of inherited properties
need not be embodied in a public document in
order to be valid and binding as regards the
heirs
who
participated
therein.
The
requirement of Article 1358 of the Civil Code,
that acts which have for their object the
creation,
transmission,
modification
or
extinguishment of real rights over immovable
properties, must appear in a public instrument,
is only for convenience, and non-compliance
therewith does not affect the validity or
enforceability of the acts of the parties among
themselves.
Neither does the Statute of Fraud under
Article 1403 of the Civil Code apply, because
partition among the heirs is not legally deemed
a conveyance of real property, considering that
it involves, not a transfer of property from one
to another, but a mere confirmation or
ratification of title or right to the property that
an heir is renouncing in favor of another heir
who accepts and receives the inheritance.
When is fraud deemed discovered?
Fraud is deemed discovered on the date
the instrument was filed in the register of

Where is the venue of an action for

partition?

May a person who has not participated in

the extrajudicial settlement be bound
thereby
simply
by
reason
of
its
publication?
An
extrajudicial
settlement,
despite
its
publication thereof, is not be binding on any
person who has not participated therein or who
has no notice thereof.
However, the extrajudicial settlement of the
estate even though not published, being a
partition of inherited property, the heirs to
whom specific portion of the property was
assigned acquires ownership of such portion
and could validly transfer ownership over it to
another.
Suppose the heir unlawfully deprived of
his lawful participation is a minor, what is
his remedy to vindicate his right?
He may present his claim within one
year after his disability has been removed, if
the initial two-year period provided in section 4
of Rule 74 has expired. The same rule applies
where the heir deprived of his lawful share is
mentally incapacitated, or is in prison, or
outside the Philippines.
Supposed after the estate has been
distributed to the heirs, a person appears
and proves that the deceased has an
outstanding debts to the former, how
should the court proceed to protect the
lawful claims of the third person?
The court shall hear and settle the claim, and if
legal it should charge each distributees of his
share in the payment and liquidation of the
obligation in proportion to what was awarded
to each of them.
May an heir or creditor who has not
participated
in
the
extra-judicial
settlement of a decedents estate be
bound thereby?

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On account of the nature of the
proceedings, an extra-judicial settlement of the
estate of a deceased person is not binding
upon the heirs or creditors who are not parties
therein or had no knowledge thereof.
The parties may vindicate their rights
either by proceeding against the estate, the
distributees or against the bond within the twoyear period prescribed in Section 4 of Rule 74,
or even thereafter provided the period for
prescription of actions has not expired. But
this time the aggrieve heir or creditor can no
longer proceed against the bond.
The provisions of Section 4 of Rule 74,
is applicable only (1) to persons who have
participated or taken part, or had notice of the
extra judicial partition, and in addition, (2)
when the provisions of said section have been
strictly complied with, that is, all heirs of the
decedent have taken part in the extra judicial
settlement or are represented by themselves
or through guardians.
Section 4 is not a
statute of limitation and a bar of action against
third persons. It is only a bar against the
parties who have taken part in the extra
judicial proceedings, but not against third
persons not parties thereto.
Suppose after the
two-year period
prescribed under Section 4 of Rule 74 has
elapsed, an heir who has been unduly
deprived in the partition of his lawful
share or participation in the estate of the
deceased, appeared.
How should such
heir act to protect his right under the
circumstances?
The said heir should initiate the proper
court action before the court having jurisdiction
to rescind or annul the partition, pursuant to
Article 1098 of the Civil Code, which provides,
A partition, judicial or extra judicial, may be
rescinded on account of lesion, when any one
of the co-heirs received things whose value is
less, by at least one-fourth, than the share to
which he is entitled, considering the value of
the things at the time they were adjudicated.
And the action for rescission on account of
lesion shall prescribe after four years from the
time the partition is made.
Supposed prior to his death, D sold one
of his three parcels of land to P.
Subsequently, D died. His three heirs,

H-1, H2 and H-3, not aware of the

said earlier sale, executed an extra
judicial settlement and partition of the
estate of D. The land sold to P was
awarded to H-1, who took possession of
the property and registered the same
under his name. P, on the other hand,
was also not aware of the death of D.
Four years later P appeared and
discovered that the land sold to him by
D was awarded to and now registered in
the name of H-1. What move should P
undertake to protect his right?
P should initiate a court action for
reconveyance before the court which has
jurisdiction within ten years from the date the
property was registered or the transfer
certificate of title was issued in the name of H1. Assuming that there was no bad faith on
the part of H-1. If there was bad faith, the
action of P prescribes in thirty (30) years.
Assuming that P succeeded in his court
action for reconveyance against H-1,
hence the latter lost his share in the
estate of D.
What course of action
should H-1 pursue to repair his loss?
H-1 may bring an action against his co-heirs
to annul their earlier partition and to make
another partition of the estate of the deceased.
The loss of H-1 should be shared by his coheirs, because according to Article 1092 of the
Civil Code, After the partition has been made,
the co-heirs shall be reciprocally bound to
warrant the title to, and the quality of, each
property adjudicated.
Suppose the party aggrieved by the extra
judicial settlement and partition of the
estate of the deceased is a minor or an
incompetent, within what period should
such minor or incompetent initiate his
claim, assuming that the two-year period
has elapsed?
If on the date of the expiration of the
period of two (2) years prescribed for a person
authorized to file a claim is a minor or mentally
incapacitated, or is in prison or outside the
Philippines, he may present his claim within
one (1) year after such disability is removed.

*****
JUDICIAL SETTLEMENT OF ESTATE
OF DECEASED PERSONS
INTRODUCTION:
Succession is a mode of acquisition by
virtue of which the properties, rights and
obligation to the extent of the value of the
inheritance, of a person are transmitted
through his death to another or others, either
by his will or be operation of law. Succession
is testamentary if made by will executed in the
form required by law, or legal or intestate
where the deceased died leaving no will and,
thus, succession is effected by operation of
law, or mixed where it is effected partly by will
and partly by operation of law.
Although the rights to succession are
transmitted from the moment of death, what
are transmitted are merely the rights. The
actual transfer of the properties and the
obligations left by the deceased does not take
place simply because of death, but by the
observance of certain procedural requisites.
RULE 75 - JUDICIAL SETTLEMENT
Section 1. Modes of judicial settlement.
If the decedent left a will, the estate shall
be settled through testate proceedings.
Otherwise, it shall be settled through
intestate
proceedings.
Testate
proceedings shall always prevail over
intestate settlement.
C O M M

E N T S

What court has jurisdiction over probate

proceedings?
Either the Regional Trial Court or the
Metropolitan/Municipal
Trial
Court
has
jurisdiction
over
probate
proceedings,
depending on the amount of the estate subject
of the settlement. Probate is here understood
in its generic sense, that is, it includes both
testate and intestate settlement.
The Regional Trial Court has originalexclusive jurisdiction over testate and intestate
settlement where the gross value of the estate
exceeds PhP100,000.00, or in Metro-Manila,
PhP200,000.00. Otherwise, the Metropolitan

or the Municipal Trial Court has exclusiveoriginal jurisdiction over probate proceedings,
testate or intestate.
What is the scope of the jurisdiction of
probate courts?
As a rule probate courts have limited,
special and exclusive jurisdiction on probate
matters, which have to do only with the
settlement of the estate of deceased persons,
testate or intestate.
The probate court,
generally, has no jurisdiction to determine
questions of ownership which may arise in the
course of the settlement proceedings.
However, not covered by this general
rule are:
(1) where all the heirs of the
deceased consented to submit the issue of
ownership to the probate court and no interest
of third person is prejudiced; (2) where, in a
provisional manner, the court determines what
property should be included or excluded from
the inventory, without prejudice to the final
determine of the issue of title in a separate
action;
(3) where the question is one of
collation or advancement which is to be
determined in the distribution of the net
remainder of the estate; and (4) to determine
whether the property is conjugal.
What is a will?
A will has been defined as a personal,
solemn, revocable and free act by which a
capacitated person disposes of his properties,
rights, and directs compliance with his
obligations, to take effect after his death.
A will is an act whereby a person is
permitted, with the formalities prescribed by
law, to control to a certain degree the
disposition of his estate, to take effect after his
death.
The probate of a will is mandatory.
What are the types of wills recognized in
the Philippines?
1. Notarial wills Those which are executed in
the form prescribed in Articles 805 and 806 of
the Civil Code and acknowledged before a
notary public by the testator and his
instrumental witnesses.

8
2. Holographic will - Refers to one which is
entirely written, dated and signed by the hand
of the testator. It is subject to no other form
and may be made in or out of the Philippines,
and which need not be witnessed.
Why is probate of a will, whether notarial
o holographic, mandatory?
Because article 838 of the Civil Code
mandates, No will shall pass either real or
personal property unless proved and allowed in
accordance with the Rules of Court.
What is the effect of probate of a will?
Subject to the right of appeal, the probate or
allowance of a will is conclusive only as to its
due execution.
Hence, the sole issue in
probate of a will is focused only on its extrinsic
validity, that is, (1) its due execution; (2) the
testamentary capacity of the testator; and (3)
the compliance with the requisites and
solemnities prescribed by law. The probate
court at this stage of the proceeding is not
called upon to look into the intrinsic validity of
the will, meaning, the validity or efficacy of the
dispositions made in the will by the testator,
which shall the subject of subsequent and
separate proceedings after the will has been
probated or allowed by the court.
Does the rule that in probate of a will the
court is not called upon to look into its
intrinsic validity, absolute and accept no
exception?
No. Where on its face it clearly appears that
the will is a complete nullity, as where there is
a clear preterition of heir, the probate court
may at once rule upon the intrinsic validity of
such will, without passing on its extrinsic
validity.
This exception is based on the
practical consideration, of what would be the
used to taking up the extrinsic validity of such
will when at the end of the proceedings such
will would be declared null and void on account
of such preterition.
Section 2. How initiated; venue. - Testate
proceedings shall be initiated by filing a
petition for the probate of the will, or in
intestate proceedings with the filing of a
petition for letters of administration. If
the decedent was a resident of the
Philippines, it shall be filed in the proper
court where the decedent resided at the

time of his death; or if a non-resident,

where the decedent left an estate. The
court that first takes cognizance shall
exercise jurisdiction to the exclusion of
other courts.
C O M M E N T S
Concept of venue in probate proceedings.
Venue is the place where a court action
must be instituted, tried and decided.
It
should be distinguished from the concept of
jurisdiction which refers to the power of the
court to hear and determine a case. Venue is
fixed by procedural law while jurisdiction is
conferred by substantive law.
The venue for the settlement of the estate of a
deceased person is determined by the place
where he was residing at the time of his death,
or by the place where his estate or any part
thereof is located, where he was a non-resident
of the Philippines at the time of his death.
What does the term residing, as used in
judicial settlement of the estate of
deceased persons, connote?
Residing as this term is understood in
settlement of the estate of deceased persons,
means the personal, actual and physical
habitation of a person; his actual place of
abode. It signifies physical presence in a place
and actual stay thereat with a certain degree
of permanence. Residence is not synonymous
with domicile or legal residence
The term
reside denotes personal, not legal abode.
In the context of venue, residence
means more than a persons actual place of
abode; it further requires that he resides
therein with some degree of continuity and
consistency.
What are the factors which must be
considered in determining the residence
of the deceased at the time of his death?
1. The deceased has the capacity and
freedom of choice;
2. His personal, actual and physical
presence at the place chose; and
3. His intention to stay therein with
some degree of continuity and consistency.

9
PROBLEM: Pedro Santos was a proprietor
and operator of a bakery business in
Angeles City. He used the ground floor of
his house in conducting his bakery
business, and the second floor as his ad
his familys living quarters. As the health
of Pedro deteriorated due to old age, his
son Miguel invited him to live in Miguels
house in Quezon City, which is just tenminute drive to the hospital where Pedro
was advised to report once a week for
medical chick-up. Because of the rigors of
commuting between Angeles City and
Quezon City, Pedro accepted the invitation
of his son Miguel. Thus, Pedro and his
wife transferred to Quezon and stayed in
the house of Miguel.
Three months
afterwards, Pedro suffered a serious
stroke which caused his death, before he
could be brought to the hospital. Pedro
was a man of means and left substantial
estate.
QUESTION:
Where should his
estate be settled, in the RTC of Quezon
City where he was actually staying at the
time of his death, or in the RTC of Angeles
City where he had his residence before his
demise?
In the case of Jao vs. Court of Appeals,
the Supreme Court held:
In determining
residence at the time of death, the following
factors must be considered, namely, the
decedent had: (a) capacity to choose and
freedom of choice; (b) physical presence at the
place chosen; and (c) intention to stay therein
permanently.
According to the Supreme Court in the same
case of Jao, the
term resides connotes
actual residence as distinguished from legal
residence or domicile.
Resides should be
viewed or understood in its popular sense,
meaning, the personal, actual or physical
habitation of a person, actual residence or
place of abode. It signifies physical presence
in a place and actual stay thereat. The term
means merely residence, that is, personal
residence, not legal residence or domicile.
Residence simply requires bodily presence as
an inhabitant in a given place, while domicile
requires bodily presence in that place and also
an intention to make it ones domicile. No
particular length of time of residence is
required though; however, the residence must
be more than temporary.

As thus defined, residence, in the

context of venue provisions, means nothing
more than a persons actual residence or place
of abode, provided he resides therein with
continuity and consistency. Hence, the venue
for the settlement of the intestate estate of
Pedro was held to be in the RTC of Quezon City.
Where should the estate of a deceased
person be settled: (1) where he was a
resident of the Philippines at the time of
his death; and (2) where he was a
resident of a foreign country at the time of
his death?
1.
If he were a resident of the
Philippines at the time of his death, regardless
of whether he was a citizen or an alien, his
estate should be settled either in the Regional
Trial Court or Metropolitan/Municipal Trial
Court, depending on the gross value of his
estate, which has jurisdiction over the place of
his residence at the time of his death.
2. If he were a resident of a foreign
country, his estate should be settled in the
Regional Trial Court or Metropolitan/Municipal
Trial Court, as the case may be, which has
jurisdiction over the place where his estate or
any part thereof is located.
N.B.:
The court which first assumes
jurisdiction over the settlement proceedings
excludes the others.
Suppose an error was committed in fixing
the venue, but despite such error the
proceedings continued to its conclusion.
May the results of the proceedings be
assailed later on the ground of improper
venue?
If the ground of the motion is only
improper venue, the results of the proceedings
cannot be annulled on that sole ground,
because venue is not an element of jurisdiction
in settlement of estates of deceased persons.
Moreover venue is deemed waived if not timely
raised.
Where and when should conjugal estate
be settled upon dissolution of marriage?
When the marriage is dissolved by the
death of the husband or the wife the
community property shall be inventories,
administered, and liquidated, and the debts

10
thereof be paid in the settlement of the estate
of the deceased spouse, or if both are
deceased, in the settlement proceedings of
either.
May an action for recovery of money
chargeable against the conjugal partershi
be brought against the surviving spuse?
No action may be maintained against
the surviving spouse for recovery of debt
chargeable against the conjugal partnership.
The claim should be filed in the settlement
proceedings of the estate of the deceased
spouse.
Neither may the surviving spouse enter
into a contract novating the contract entered
into by both of them during the life time of the
deceased spouse.
May the probate court determine who are
the lawful heirs of the deceased?
A declaration of heirship cannot be
made in an ordinary civil action, such as in an
action for reconveyance. Such declaration of
heirship should be made in a special
proceeding, where establishment of a status or
right of a party or of a particular fact is the
only matter involved.
But an action for
quieting of title is a special proceeding
governed by Rule 63 of the Rules of Court on
declaratory relief and similar remedies. Land
registration cases are special proceedings
because the concept of a cause of action in
ordinary civil actions does not apply.
The probate court has the power to
determine questions who are the heirs of the
deceased entitled to participate in the
inheritance.
Section 3. Summary settlement. Subject
to the law on jurisdiction of courts,
whenever the gross value of the estate
does not exceed one million
(PhP1,000,000.00) pesos, or two millions
(PhP2,000,000.00) pesos in Metro Manila
and other highly urbanized cities, the
intestate proceedings shall be summary,
which shall be initiated by the filing of a
petition before the proper court. (This was
proposed in the revision of the rules on Apecial
Proceedings.)

Upon receipt of the petition, the

court
shall
immediately
order
the
publication of the notice of hearing once
in a newspaper of general circulation and
the service of notice upon all known heirs
and creditors at least ten (10) days prior
to the hearing. The hearing shall be held
not later than thirty (30) days after
publication.
To avoid delay, the court
shall no longer appoint an administrator
and delegate the reception of evidence to
the branch clerk of court who is a lawyer.
The court shall then determine the proper
distributees after payment of the debts of
the estate. The petition shall be resolved
not later than one hundred twenty (120)
days from the filing of the petition.
C O M M E N T S
When may summary settlement be availed
of?
When the following requisites concur,
summary settlement of the estate of a
deceased person is proper, to wit:
1. The deceased died intestate, that is,
without leaving a will;
2. The gross value of the intestate
estate does not exceed PhP1,000,000.00, or
PhP2,000,000.00 in Metro Manila and other
highly urbanized city.
N.B.: Where the deceased died leaving
a will, summary settlement is not available,
because probate of such will is mandatory.
What court has jurisdiction to
cognizance of summary settlement?

take

1. The Municipal Trial Court, where the

gross value of the intestate estate does not
exceed PhP200,000.00;
2. The Metropolitan Trial Court, where
the gross value of the intestate estate does not
exceed PhP400,000.00;
3. The Regional Trial court, if the gross
value of the intestate estate is over
PhP200,000.00
but
does
not
exceed
PhP1,000,000.00, or in Metro Manila and other
highly urbanized cities, where the gross value
of the intestate estate is over PhP400,000.00
but does not exceed PhP2,000,000.00.

11
N.B.:
(a) This is based on the opening
phrase of Section 3 of this Rule:
Subject to the law on
jurisdiction of courts ...
(b) The Metropolitan/Municipal Trial
Court has original exclusive
jurisdiction
in
probate
proceedings, testate of intestate,
where the gross value of the
estate
does
not
exceed
PhP100,000.00, or in Metro
Manila PhP200,000.00.
State the procedural
summary settlement.

steps

taken

in

1. Summary proceeding is initiated by

filing a petition before the proper court.
2.
The court, upon receipt of the
petition, sets the same for hearing on a fixed
date, orders the publication of the notice of
hearing once in a newspaper of general
circulation and the service of such notice on all
known heirs and creditors at least ten (10)
prior to the date of hearing, which should be
held not later than thirty (30) days after the
publication.
3. On the date set for hearing, the court
receives the evidence of compliance with the
publication and service of notice requirements
and the material allegations of the petition, and
the opposition, if any.
4. For reception of evidence, the court
may delegate the process to its branch clerk of
court who should be a lawyer.
5.
Following the conclusion of the
reception of the evidence, the court then
liquidate the debts and obligations of the
deceased, determine who are the proper
distributees, and resolve the petition not later
than one hundred twenty (120) days from the
filing of the petition.
May an heir or creditor who has no notice
of the summary settlement and has not
participated therein be bound be the
results thereof?
On account of the summary nature of
the proceedings, the summary settlement of
the intestate estate of a deceased person is not

binding upon the heirs or creditors who are not

parties therein or have knowledge thereof.
The party aggrieved by the summary
settlement may vindicate his right against the
distributees within the two-year period
provided Section 4 of Rule 74, or even
thereafter, provided the period of prescription
has not expired.
Suppose the heir who has been deprived
of his lawful participation is a minor, what
is his remedy to vindicate his right?
He may present his claim within one
year after his disability has been removed,
assuming that the initial two-year period has
expired. The same rule applies if the aggrieved
party is incapacitate, a prisoner, or outside of
the Philippines.
Supposed after the estate has been
distributed, a person appears and proves
that the deceased has an outstanding
debts to the former, how should such
person vindicate his lawful claim?
Assuming that such creditor has not
participated in the settlement or has no
knowledge thereof, the probate court shall hear
the claim, and if found valid, it should charge
each distributee of his share in the payment
and liquidation of the obligation in proportion
to what was awarded to each of them.
May the court pass upon the issue of title
in a summary settlement of estate where
one of the heirs asserts adverse claim on
the property subject of the summary
proceedings?
Where it is clear that the property
belonged to the decedent, the probate court
may determine in the summary settlement who
are the parties entitled to the estate, since in
such proceeding the court is directed to
proceed summarily and without delay. But its
pronouncement on such matter shall be
without prejudice to the right of the heir
concerned to initiate the proper action to
protect his interest.

12

*****
R U L E 76 - TESTATE PROCEEDINGS
Section 1.
Probate of a will,
mandatory;
Conclusive
as
to
its
execution. No will shall pass either real or
personal estate unless it is proved and
allowed in the proper court. Subject to
the right of appeal, such allowance of the
will shall be conclusive as to its due
execution.
Section 2. Custodian of will, to
deliver. The person who has custody of a
will shall, within twenty (20) days after
he knows of the death of the testator,
deliver the will to the court having
jurisdiction, or to the executor named in
the will.
Section 3. Executor to present will
and accept or refuse the trust. A person
named as executor in a will, shall within
twenty (20) days after he knows of the
death of the testator, or within twenty
(20) days after he knows that he is named
executor if he obtained such knowledge
after the death of the testator, present
such will to he court having jurisdiction,
unless the will reached the court in any
other manner, and shall, within such
period, signify to the court in writing his
acceptance of the trust or his refusal to
accept it.
Section 4. Custodian and executor subject
to fine for neglect. A person who neglects
any of the duties required in the two
preceding sections without excuse
satisfactory to the court shall be fined not
exceeding two thousand pesos.
Section 5. Person retaining will
may be committed. A person having
custody of a will after the death of the
testator who neglects without reasonable
cause to deliver the same, when ordered
so to do, to the court having jurisdiction,
may be committed to prison and there
kept until he delivers the will.
C O M M E N T S
NOTE: Failure to attached the original
of the will to the petition is not fatal, if the will
is to be produced in evidence.
It is not

necessary for the original of the will to be

attached to the petition for probate.
Suppose a person died leaving a will but
left no outstanding obligations. No one
among the persons named in the will
raised any issue about its extrinsic and
intrinsic validity, and because of the
expenses needed to probate such will, the
persons named therein agreed to partition
the estate by and among themselves
strictly in accordance with its intrinsic
provisions without first securing its
probate. May they validly do so?
No. First, because law provides that no
will shall pass either real or personal estate
unless it is probated and allowed in the proper
court.
Second, because the probate of a will,
which is a proceeding in rem, cannot be
dispensed with and substituted by any other
proceeding, judicial or extra-judicial.
Suppose the custodian of the will or the
executor neglected to deliver the will to
the court having jurisdiction
for more
than five years, may he plead the statute
of limitation to escape the penalties
prescribed in Sections 4 and 5 of Rule 75?
No, because the provisions of Sections 4
and 5 of Rule 75 have been designed for the
protection of the testators expressed wishes,
which should be respected and protected as a
consequence of his right to dispose his estate
even after his death. As the probate of a will is
required by public policy, the State could not
have intended to defeat the same by applying
thereto the Statute of Limitation. A deceased
person still retains cetain rights on how his
estate should be disposed, which cannot be
lost by the inaction of those charged to enforce
such rights after he has passed away.

*****
RULE 77
ALLOWANCE OF WILL PROVED OUTSIDE
OF
THE
PHILIPPINES
AND
ADMINISTRATION
OF
ESTATE
THEREUNDER
Section 1. Will proved outside
Philippines may be allowed here.
Wills

13
proved and allowed in a foreign country,
according to the laws of such country,
may be allowed, filed, and recorded by the
proper Regional Trial Court in the
Philippines.
C O M M E N T S

jurisdiction, such court shall fix a time and

place for the hearing, and cause notice
thereof to be given as in case of an
original will presented for allowance.

Venue for reprobate in the Philippines of

will probated in a foreign jurisdiction.

This section means that with regard to

notices, the will probated abroad should be
treated as if it were presented for the first time
for probate in the Philippines, and therefore,
compliance with Sections 3 and 4 of Rule 76,
which require publication and notice by mail or
by personal service to the known heirs,
legatees and devisees of the testator who are
residents in the Philippines and to the executor,
if he is not the petitioner, must be observed
and complied.

The petition for reprobate of wills

probated in a foreign country is the court which
has territorial jurisdiction over the province in
which the deceased had estate or part thereof.
What proofs must the petitioner for
reprobate of wills probated outside the
Philippines
adduced
to
secure
the
allowance of such Will in the Philippines?
The petitioner must prove the following:
1. The law of the foreign country on
procedure for allowance of Wills in the said
foreign country. The courts of the Philippines
cannot take judicial notice of such foreign law.
2. The due execution of the Will in
accordance with the foreign law.
3. The testator had his domicile in the
foreign country.
4.
The Will had been admitted to
probate in such foreign country.
5. The fact that the foreign tribunal is a
probate court.
6.
The intrinsic validity of the
testamentary
provisions
does
not
contravene the prohibitive laws of the
Philippines concerning persons, their
acts
or
properties,
or
rendered
ineffective
by
laws
or
judgment
promulgated, or by determination or
conventions agreed upon in a foreign
country (Art. 17, last par., Civil Code).
Section 2. Notice of hearing for
allowance. - When a copy of such will and
of the order or decree of the allowance
thereof, both duly authenticated, are filed
with a petition for allowance in the
Philippines, by the executor or other
person interested, in the court having

C O M M E N T

Section 3. When Will allowed, and

effect thereof.
If it appears at the
hearing that the Will should be allowed in
the Philippines, the court shall so allow it,
and a certificate of its allowance, signed
by the judge, and attested by the seal of
the court, to which shall be attached a
copy of the Will, shall be filed and
recorded by the clerk, and the Will shall
have the same effect as if originally
proved and allowed in such court.
Section 4.
Estate, how administered.
When a Will is thus allowed, the court
shall grant letters testamentary, or letters
of administration with the Will annexed,
and such letters testamentary or of
administration, shall extend to all the
estate of the testator in the Philippines.
Such estate, after the payment of just
debts and expenses of administration,
shall be disposed of as provided by law in
cases of estate in the Philippines
belonging to persons who are inhabitants
of another state or country.
C O M M E N T S
After the foreign Will has been allowed
how is the estate of the decedent
domiciled
in
in
another
country
administered and disposed.
1. The
court
shall
grant
letters
testamentary
or
letters
of
administration, in proper cases, to
persons entitled thereto.

14
2.
The letters shall cover only the
testators estate in the Philippines.
Such letters have no extra-territorial
effect.
3. Liquidation proceedings shall follow,
that is, payment of just debts and
expenses of administration.
4. The residue shall be disposed of as
provided by the law of the country of
the testator in cases of the estate in the
Philippines, particularly the order of
succession,
the
amount
of
the
successional rights and the intrinsic
validity of the provisions of the Will.

*****
R U L E 78 - LETTERS TESTAMENTARY
AND OF ADMINISTRATION WHEN AND TO
WHOM ISSUED
Section 1. Who are incompetent to
serve as executor or administrator. No
person is competent to serve as executor
or administrator who:
(a) Is a minor;
(b) Is not a resident of the
Philippines; and
(c) Is in the opinion of the court
unfit to execute the duties of the trust by
reason of drunkenness, improvidence,
want of understanding or integrity, or by
reason of conviction of an offense
involving moral turpitude;
(d)

The executor of an executor

shall not, as such, administer
the estate of the first
executor (Sec. 2, Rule 78).

C O M M E N T S
Differentiate letters testamentary from
letters of adminstration
Letters testamentary is granted by the
probate court to the executor named in the Will
who is qualified, accepts the trust and post a
bond, unless excused by the testator in the

Will, authorizing him to exercise his functions

as such without posting a bond.
Letters of administration is issued to a
person appointed by the probate court to
administer the estate where the testator did
not name an executor in his Will, or the
executor named by the testator is not qualified,
or refused to accept the trust, or does not post
a bond, unless expressly excused in the Will, or
the decedent died intestate.
Section 3. Married women may serve. A
married woman may serve as executor or
administrator, and the marriage of a
single woman shall not affect her
authority so to serve under a previous
appointment.
Section 4. Letters testamentary issued
when Will allowed. When a Will has been
proved and allowed, the court shall issue
letters testamentary to the person named
as executor therein, if he is competent,
accepts the trust, and gives a bond as
required by these rules.
Section 5.
Where some co-executors
disqualified others may act. When all the
executors named in a Will can not act
because of incompetency, refusal to
accept the trust, or failure to give bond,
on the part of one or more of them, letters
testamentary may issue to such of them
as are competent, accept and give bond,
and they may perform the duties and
discharge the trust required by the Will
Section 6. When and to whom letters of
administration granted. If no executor is
named in the Will, or the executor or
executors are incompetent, refuse the
trust, or fail to give bond, or a person dies
intestate, administration shall be granted:
(a) To the surviving husband or
wife, as the case may be, or next of kin, or
both, in the discretion of the court, or to
such person as such husband or wife, or
next of kin, requests to have appointed, if
competent and willing to serve;
(b) If such surviving husband or
wife, as the case may, or next of kin, or
the
person
selected
by
them,
be
incompetent or unwilling, or if the
husband or widow, or next of kin, neglects

15
for thirty (30) days after the death of the
person to apply for administration or to
request that administration be granted to
some other person, it may be granted to
one or more of the principal creditors if
competent and willing to serve;
(c)
If there is no such creditor
competent and willing to serve, it may be
granted to such other person as the court
may select.

3. Where the estate is large or, from

any cause, an intricate and perplexing one to
settle;
4.
To have all interested persons
satisfied and the representatives to work in
harmony for the best interest of the estate;
5.
When a person entitled to the
administration of an estate desires to have
another competent person associated with him
in the office.

C O M M E N T S
Section 6 of Rule 78 provides the order
of preference in the appointment of an
administrator and categorically seeks out the
surviving spouse, the next of kin and the
creditors, and requires that the order of
preference be observed in appointing an
administrator. It would be a grave abuse of
discretion for the probate court to imperiously
set aside and insouciantly ignore that directive
without any valid and sufficient reason therefor.
Nonetheless, the order of preference set
out in Section 6 of Rule 78 in the appointment
of an administrator of an estate is not absolute
for
it
depend
attendant
facts
and
circumstances of each case, Jurisprudence has
long held that the selection of administrator
lies in the sound discretion of the trial court.
What does the term next of kin, as used in
Section 6 of Rule 79, signify?
The term next of kin as used in
Section 6 of Rule 76, has been defined as those
persons who are entitled under the statute of
distribution to the decedents property.
Why
is
the
appointment
administrators prepared?

of

co-

The appointment of co-administrators

has been upheld for various reasons, namely;
1.
To have the benefit of their
judgment and perhaps at all times to have
different interests represented;
2. Where justice and equity demand
that
opposing
parties
or
factions
be
represented in the management of the estate
of the deceased;

*****
R U L E 79 - OPPOSING ISSUANCE OF
LETTERS TESTAMENTARY, PETITION AND
CONTEST FOR LETTERS OF
ADMINISTRATION
Introductory Statement
As a rule judicial settlement of the
intestate estate of a decedent is not favored,
because the process is tedious, complicated
and expensive. However, there are instances
where judicial settlement of an intestate estate
cannot be avoided. These instances are:
1. Where the petition for probate of a
Will is denied. In which case, the proceeding is
converted and continued as a judicial
settlement of an intestate estate;
2. Where the decedent died without
leaving a Will and his estate is
saddled
with
outstanding
obligations;
3.
Although the estate has no
unpaid debts, if the heirs have good
reasons
to
resort
to
judicial
settlement of the intestate estate;
4.
Where the testator failed to
dispose in his Will his entire estate,
the undisposed portion shall be
settled
by
intestate
estate
proceedings.
Section 1.
Opposition to issuance of
letters
testamentary.
Simultaneous
petition for administration. Any person
interested in a Will may state in writing
the grounds why letters testamentary
should not issue to the person named
therein as executors, or any of them, and

16
the court, after hearing upon notice, shall
pass upon the sufficiency of such grounds.
A petition may, at the same time, be filed
for letters of administration with the Will
annexed.
C O M M E N T S
When a petition for probate of a Will has
been filed, Section 1 of Rule 79 authorizes a
person interested in the estate, not only to
challenge the qualifications of the person
nominated therein as executor, but at the same
time and in anticipation of such disqualification,
file a petition for administration with the Will
annexed. The court will, thus, have two
petitions pending before it. In the event the
nomination of the executor is approved by the
court with the issuance of letters testamentary
to him. the petition for administration with the
Will annexed must necessarily be denied.
Otherwise, letters of administration will issue to
qualified person.
Testate proceedings take precedence
over intestate proceedings.
Hence, if an
intestate proceedings has been commenced
but in the course thereof a will is discovered, a
separate testate proceedings should be
instituted by appropriate motion filed in the
same court. Should allowance of the will be
denied, the proceedings shall continue as an
intestacy.
Otherwise, the proceeding is
converted from intestate to testate proceeding.
Section 2. Contents of petition for letters
of administration. A petition for letters of
administration must be filed by an
interested person and must show, so far
as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residence
of the creditors of the decedent;
(c)
The probable value and
character of the property of the estate;
(d) The name of the person for
whom letters of administration are
prayed.
But no defect in the petition shall
render void the issuance of letters of
administration.

C O M M E N T S
What are the jurisdictional facts alluded to
under Section 1 of Rule 79?
The jurisdictional facts alluded to
are: (1) the death of the testator; and (2)
the estimated value and character of the
property of the estate.
NOTE:
What is being contested
under this Rule is not the extrinsic validity
of the Will, but the qualification of the
executor named therein.
Is lack of interest on the part of the peron
filing the petition a jurisdictional defect?
Lack of interest on the part of the
petitioner for probate of the Will or for letters
of administration does not fall within the
enumeration of jurisdictional facts. The fact
that the petitioners is not an interested person,
within the meaning contemplated of such term,
is therefore not a ground for dismissal on
jurisdictional ground, but rather such lack of
interest simply connotes lack of capacity to
institute the proceedings.
In order to be a party, a person must have
material and direct interest, not one that is
only indirect or contingent. Hence, when the
right of a claimant is dependent on the
disallowance of the second Will and the
incapacity of the legatees instituted by the
testator in his first Will to inherit, such
contingent interest does not make the claimant
an interested party.
Section 3. Court to set time for
hearing. Notice thereof. When a petition
for letters of administration is filed in the
court having jurisdiction, such court shall
fix a time and place for hearing the
petition, and shall cause notice thereof to
be given to the known heirs and creditors
of the decedent, and to any other persons
believe to have an interest in the estate,
in the manner provided in Sections 3 and
4 of Rule 76.

17
C O M M E N T S
Where no notice, as required by
Section 3 of Rule 79. has been given to
persons believed to have an interest in the
estate of the deceased person, the
proceeding for the settlement of the
estate is void and should be annulled. The
requirement as to such notice is essential
to the validity of the proceeding in order
that no person may be deprived of his
right to the property without due process
of law.
Section 4. Opposition to petition
for administration. Any interested person
may, by filing a written opposition,
contest the petition on the ground of
incompetency of the person for whom
letters are prayed therein, or on the
ground of the contestants own right to
the administration, and may pray that
letters issue to himself, or to any
competent person or persons named in
the opposition.
Section 5. Hearing and order for letters to
issue.
At the hearing of the petition. it
must first be shown that notice has been
given as herein-above required, and
thereafter the court shall hear the proofs
of the parties in support of their
respective allegations, and if satisfied that
the decedent left no Will, or that there is
no competent and willing executor, it shall
order
the
issuance
of
letters
of
administration to the party best entitled
thereto.
Section 6.
When letters of
administration granted to any applicant.
Letters of administration may be granted
to any qualified applicant, though it
appears that there are other competent
persons having better right to the
administration, if such person fail to
appear when notified and claim the
issuance of letters of administration.
SOME ADDITIONAL COMMENTS
As a rule the initial authority of the
probate court is restricted and limited to
the determination only of the extrinsic
validity of the will. The intrinsic validity of
the Will shall be considered after its
extrinsic validity has been settled.

The probate court cannot adjudged with

finality the issue of ownership and title to
properties subject of the settlement. Is
this rule inflexible and absolute, as to
accept no exception?
For the purpose of exclusion or
inclusion
in
the
inventory
of
the
properties of the estate under settlement
proceeding, the probate court may pass
upon the issue of ownership and title of
such property. But its pronouncement is
not conclusive.
The conflicting claims
should be the subject of a final
determination in an ordinary action filed
for that purpose.
What other powers does the probate court
have?
1. To determine who are the heirs;
2. To determine the share or part
of the inheritance to which each heir is
entitled, and to distribute the same
accordingly;
3. To determine the legality or
illegality of the testamentary
provisions;
4. To
determine
and
fix
the
attorneys fees;
5. To issue such processes as may
be necessary to carry out its
jurisdiction,
Suppose a person has been absent from
his domicile and no body knows nor has
any news of his whereabouts, when may
his estate be opened for succession?
For purposes of settlement of his estate, a
person shall be presumed dead if absent and
unheard from for ten years.
But if he disappeared at the age of 75, an
absence of five years shall be sufficient in order
that his succession may be opened.
The following shall also be presumed dead for
all purposes including the division of the estate
among the heirs:
1. A person on board a vessel lost
during a sea voyage, or an airplane
which is missing, who had not been

18
heard of for four years since the lost of
the vessel or airplane;
2. A person in the armed forces
who has taken part in war, and has
been missing for four years;
3.

A person who has been in

danger
of
death
under
other
circumstances and his existence has not
been known for four years.
May the presumption of death be the
subject of an action or special proceeding?
The presumption of death cannot be the
subject of an independent action or special
proceeding,
because
the
disputable
presumption is a rule of evidence which may be
invoked only in a pending action or special
proceeding.
If such were the case what remedy is
available to the heirs of the absent
person?
The heirs must initiate the proper
special proceeding for the settlement of the
estate of the absent person and allege in the
petition the circumstances surrounding his
disappearance and the period of his absence
without being heard from for the prescribed
number of years, and substantiate with
evidence such allegation.
From whence should the ten-year period
of absence be reckoned?
The ten-year period of absence should
be computed from the time the person
absented himself, unless news have been
received from him, in which case the period
shall begin from the last date on which the last
news concerning his existence was received.
When may a person be deemed absent?
In order that a person may be
considered absent the following requisites must
appear:
1. That the person disappeared from
his domicile;
2. That his whereabouts are unknown;

3. That he has been absent without

news for two years, if nobody was left to
administer his property, and for five years if
somebody was left to administer such
property;
4.
absence

There is a judicial declaration of

*****
RULE 80 - SPECIAL ADMINISTRATOR
Section 1.
Appointment of special
administrator. When there is delay in granting
letter testamentary or of administration by any
cause including an appeal from the allowance
or disallowance of a Will, the court may appoint
a special administrator to take possession and
charge of the estate of the deceased until the
questions causing the delay are decided and
executors or administrators appointed.
C O M M E N T S
What is the accepted concept of a special
administrator?
A special administrator has been defined
as the temporary representative of the
decedent appointed by the probate court to
care for and preserve his estate until an
executor or regular administrator is appointed.
When appointed, a special administrator is not
regarded as an agent or representative of the
parties suggesting the appointment.
The selection or removal of special
administrator is not governed by the rules
regarding the selection or removal of regular
administrator. The probate court may appoint
or remove special administrator based on
grounds other than those enumerated in the
Rules, at its discretion.
What justifies the appointment
special administrator?

of

Delay in granting letters testamentary

or of administration by any cause including
appeal from the order of the probate court
allowing or disallowing a Will, is what justifies
the appointment of a special administrator, who
is charged to care for and preserve the estate
of the deceased until the question causing the
delay is resolved and an executor or regular
administrator is appointed.

19
A special administrator may also be appointed
where the executor or regular administrator
has a claim against the estate he represents.
However, the powers and duties of the special
administrator under these circumstances is coterminus with the resolution of the claim of the
executor or regular administrator.
Is notice and publication jurisdictional in
the
appointment
of
a
special
administrator?
The Supreme Court held that notice by
publication of the petition for appointment of a
special
administrator
is
a
jurisdictional
requirement that must be observed in
accordance with the mandate of the Rules of
Court.
But suppose some of the properties of the
estate
are
perishable
goods,
will
the
pronouncement of the Supreme Court is the
case of De Guzman v. Angeles should still be
observed?
The Supreme Court did not squarely address
the issue where there is an urgent necessity,
such as dissipation of the estate, to appoint a
special administrator immediately without
notice. As held by the Supreme Court in the
case of De Guzman vs. Guadiz the object for
appointment of a special administrator is to
preserve the estate until it can pass into the
hands of a person fully authorized to preserve
it for the benefit of the heirs and creditors.
This objective will likely be defeated if notice by
publication is held to be jurisdictional even in
the appointment of special administrator.
Under such situation, it is believe that the
probate court should exercise its sound
judgment to carry out the basic objective of
the law and justice pursuant to the second
portion of Section 6 of Rule 135, which states,
xxx and if the procedure to be followed in the
exercise of such jurisdiction is not specifically
pointed out by law or by these rules, any
suitable process or mode of proceeding may be
adopted which appears conformable to the
spirit of said law or rules.

Should the order of preference in the

appointment of a regular administrator be
also observed in the appointment of a
special administrator?
The rule governing the order of
preference in the appointment of a regular
administrator doe not apply to the appointment
of a special administrator. But it is not a
reversible error if the probate court, in the
exercise of its sound discretion, applies such
order of preference in appointing a special
administrator.
The
appointment
of
a
special
administrator and the choice of the person who
should be appointed as such lies within the
sound discretion of the probate court. Such
discretion, however, must be sound, that is,
not whimsical, capricious, or contrary to
reason, justice, equity or legal principle.
Is it proper for the probate court to
appoint a special co-administrator?
No, it is not correct for the probate
court to designate a special co-administrator.
Only one special administrator may be
appointed, because the rules do not contain
any provision on special co-administrator, the
reason being that the appointment of special
administrator is merely temporary and subsists
only until an executor
or a regular
administrator is named.
Section 2. Powers and duties of
special administrator.
Such special
administrator shall take possession and
charge of the goods, chattels, rights,
credits and estate of the deceased and
preserve the same for the executor or
administrator appointed, and for that
purpose may commence and maintain
suits as administrator. He shall sell only
such perishable and other property as the
court orders sold. A special administrator
shall not be liable to pay any debts of the
deceased unless so ordered by the court.

20
C O M M E N T S
What are the functions and obligations of
a special administrator?
A special administrator has the following
powers and duties:
1. To take possession and charge of the
goods, chattels, rights, credits and estate of
the deceased;
2. To preserve them for the executor or
regular administrator afterwards appointed;
3. To commence and maintain suits as
administrator;
4. To sell such perishable and other
properties as may be ordered by the court;
5. To pay the debts of the deceased if
ordered by the court;
6.
To render an inventory of the
properties of the estate as may have come to
his hands or to his knowledge;
7.
To render an accounting of his
administration at the end thereof;
8. He may be made defendant in a suit
against the estate where the creditor would
suffer the adverse effects of the statute of
limitations;
9. A mortgagee may bring an action for
foreclosure of a mortgage on a property of the
estate against the special administrator.

Section 3.
When power of special
administrator cease. Transfer of effects.
Pending suits. When letters testamentary
or of administration are granted on the
estate of the deceased, the powers of the
special administrator shall cease, and he
shall forthwith deliver to the executor or
administrator the goods, chattels, money
and estate of the deceased in his hands.
The executor or administrator may
prosecute
to
final
judgment
suits
commenced by such special administrator.