Special Proceedings PDF

ATENEO CENTRAL BAR OPERATIONS 2007
Remedial Law
SUMMER REVIEWER
SPECIAL PROCEEDINGS
SPECIAL PROCEEDING
This is a remedy by which a party seeks to establish
a status, a right, or a particular fact. (Rule 1, Sec. 3c)
RULE 72
SUBJECT MATTER AND APPLICABILITY OF
GENERAL RULES
Section 1. Subject matter of special proceedings
Section 2. Applicability of rules of civil actions
SUBJECT MATTER OF SPECIAL PROCEEDINGS
a. Settlement of estate of deceased persons
b. Escheat
c. Guardianship and custody of children
d. Trustees
e. Adoption
f. Rescission and revocation of adoption
g. Hospitalization of insane patient
h. Habeas corpus
i. Change of name
j. Voluntary dissolution of corporations
k. Judicial approval of voluntary recognition of
minor natural children;
l. Constitution of family home
m. Declaration of absence and death
n. Cancellation of correction of entries in civil
registry
OTHER SPECIAL PROCEEDINGS
a. liquidation proceedings
b. intra-corporate controversies
c. corporate rehabilitation
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d. recognition are
and
of arbitration
proceedings
e. vacation,
setting
aside,
correction or
modification of an arbitral award
f. any application with a court for arbitration
assistance and supervision
ACTION
To protect or enforce a
SPECIAL
PROCEEDINGS
To establish a status,
right, or to prevent or
redress a wrong
Initiated by Complaint
Definite Parties
Answer is filed
Handled by court of
general jurisdiction
Adversarial
Statute of Limitations
applies
15-day appeal period
right, or a particular fact

Initiated by Petition
Definite petitioner, no
definite adverse party
Opposition is filed
Heard by court of limited
jurisdiction
Not adversarial
No statute of limitations
30-day appeal period
JURISDICTION AND VENUE

a. Settlement of estate of deceased persons
i. RTC Gross value of the estate exceeds
P300,000/P400,000
ii. MTC Gross value of the estate does not
exceed P300,000/P400,000
If resident place where deceased
resided at time of death
If non-resident place where deceased
had estate
Heirs of Sandejas v. Lina, February 5, 2001 (2001)
Probate jurisdiction extends to matters incidental
and collateral to the exercise of a probate courts
recognized powers such as selling, mortgaging or
otherwise encumbering realty belonging to the estate.
b. Escheat
i. Ordinary escheat proceedings: RTC
If resident place where deceased last
resided
If non-resident place where he had
estate
ii. Reversion of land to State for violation of
Constitution / Laws: RTC where land lies in
whole or in part
iii. Unclaimed deposits (for 10 years): RTC of
province where bank is located
all banks located in 1 province where
court is located may be made parties
defendant in 1 action.
c. Guardianship and custody of children: Family
Court
If
resident
place
where
minor/incompetent resides
If
non-resident
place
where
minor/incompetent has property
Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G.
Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan
Remedial Law Summer Reviewer

d. Trustees
i. RTC Gross value of the estate exceeds
P300,000/P400,000
ii. MTC Gross value of the estate does
exceed P300,000/P400,000
If will allowed in the Philippines court
where will was allowed
If will allowed outside the Philippines
court in place where property is situated
e. Adoption: Regional Trial Court
If domestic adoption place where
adopter resides
If inter-country adoption court who has
jurisdiction over the adoptee
f. Rescission and revocation
Regional Trial Court
of
adoption:
g. Hospitalization of insane patient: RTC in place

where person alleged to be insane is found
h. Habeas corpus
i. SC (original, concurrent with RTC)
ii. CA (original, concurrent with RTC)
iii. RTC (within its respective region)
iv. MTC (in absence of RTC judges in
province/city)
i. Change of name
i. Judicial (Rules of Court): RTC in place
where petitioner resides
ii. Administrative (RA 9048):
Civil registar where entry is located or if
applicant migrated: civil registar in place
where he resides
Consul General: if applicant resides
abroad
j. Voluntary dissolution of corporations: SEC
k. Constitution of family home: under the Family
Code, it is deemed constituted on a house and
lot from the time it is occupied as a family
residence
l. Declaration of absence
and
death: RTC in
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place whereare needed
absentee
resided before his
disappearance
m. Cancellation of correction of entries in civil
registry
i. Judicial (Rules of Court): RTC in place
where the civil registry is located
ii. Administrative (RA 1948):
Civil registar where entry is located or if

applicant migrated: civil registar in place
where he resides
Consul General: if applicant resides
abroad
SETTLEMENT OF ESTATE OF DECEASED

PERSONS
DIFFERENT MODES OF SETTLEMENT OF
ESTATE OF DECEASED PERSON:
1. Extrajudicial Settlement of Estate (Rule 74,
Sec. 1)
2. Summary Settlement of Estate of Small Value
3. Partition (Rule 69)
4. Probate of Will (Rule 75 to 79)
5. Petition for Letters of Administration in case of
Intestacy
RULE 73
VENUE AND PROCESS
Section 1. Where estate of deceased person
settled
Section 2. Where estate settled upon dissolution
of marriage
Section 3. Process
Section 4. Presumption of death
According to Circular No. 21-99 (15 April 1999), the
new jurisdictional amounts as adjudged under RA
7691 will be as follows:
File in the RTC:
Before 14
April 1999
In Metro
Manila
Outside
Manila
>P200,000
14 April
1999 31
December
2003
>P400,000
>P400,000
>P100,000
>P200,000
>P300,000
Beginning
Year 2004
P200,000
14 April
1999 31
December
2003
P400,000
P400,000
P100,000
P200,000
P300,000
File in the MTC:

Before 14
April 1999
In M.
Manila
Outside
Manila
Beginning
Year 2004
Page 133 of 289

NOTE: MTC jurisdiction is exclusive of interest,
damages of whatever kind, attorneys fees, litigation
expenses and costs.
RESIDENCE
This means his personal, actual or physical
habitation, his actual residence or place of abode
(Fule v. CA, L-40502, Nov. 29, 1976)
Extent of Jurisdiction of Probate Courts
Probate courts are courts of limited jurisdiction. It
may only determine and rule upon issues relating to
the settlement of the estate, namely:
1. Administration of the estate
2. Liquidation of the estate
3. Distribution of the estate
WHEN PROBATE PASSES UPON QUESTION OF
TITLE TO PROPERTY:
a. Interested parties who are all heirs consents
and 3rd parties not prejudiced (Bernardo v. CA,
Feb. 28, 1963);
b. Otherwise, only in a provisional manner, to
determine whether property should be included
in the inventory, without prejudice to the final
determination of title in a separate action.
c. Question is one of collation or advancement
GENERAL RULE
Probate court cannot issue writs of execution.
EXCEPTION: When probate courts can issues writs
of execution:
a. To satisfy distributive shares of the devisees,
legatees, and heirs in possession of
decedents assets;
b. To enforce payment of expenses in partition;
c. To satisfy costs when a person is cited for
examination in probate proceedings.
d. To satisfy the claim in summary settlement
proceedings of creditors or heirs who appear
within 2 years from the distribution.
PRINCIPLE OF EXCLUSIONARY RULE
The Court first taking cognizance of the settlement of
the estate of the decedent
shall
jurisdiction
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The probate court acquires jurisdiction from the
moment the petition for the settlement of estate is
filed with said court. It cannot be divested of such
jurisdiction by the subsequent acts of the parties as
by entering into an extrajudicial partition of the estate;
or by filing another petition for settlement in a proper
court of concurrent venue.
EXCEPTION: Estoppel by laches

Vda. De Manalo v. CA 349 SCRA 135 (2001)
In the determination of the nature of an action or
proceeding, the averments and the character of the
relief sought in the complaint/petition shall be
controlling. In this case, the petition contains
sufficient jurisdictional facts required in a petition for
settlement of estate. Indeed, the petition contained
certain averments that may be typical of an ordinary
civil action and the oppositors took advantage of the
said defect.
But oppositors may not be allowed to defeat the
purpose of an essentially valid petition by raising
matters that are irrelevant and immaterial to said
petition. The jurisdiction of a court as well as the
concomitant nature of the action is determined by the
averments in the complaint and not by the defenses
contained in the answer.
RULE 74
SUMMARY SETTLEMENT OF ESTATES
Section 1. Extrajudicial settlement by agreement
between heirs
Section 2. Summary settlement of estates of
small value
Section 3. Bond to be filed by distributees
Section 4. Liability of distributees and estate
Section 5. Period for claim of minor or
incapacitated person
GENERAL RULE
When a person dies, his estate is submitted to a
judicial settlement proceeding.
EXCEPTION: When estate need not be judicially
administered through an administrator or executor:
a. Extrajudicial settlement;
b. Summary settlement of estate of small value
(not exceeding P10,000)
EXTRAJUDICIAL SETTLEMENT
a. Does not require court intervention;
b. Value of estate is immaterial;
c. Allowed only in intestate succession;
d. Proper only where there are no outstanding
debts of the estate at the time of settlement;
e. Can be resorted to only at the instance and by
agreement of all heirs. (If heirs do not agree,
they may resort to an action for partition)
Page 134 of 289

REQUISITES OF A VALID EXTRAJUDICIAL
SETTLEMENT:
Substantive:
a. Decedent dies intestate;
b. No outstanding debts of the estate at the time
of the settlement;
c. Heirs are all of age or the minors are
represented by their judicial guardians or legal
representatives;
Procedural
a. Settlement is made in a public instrument duly
filed with the register of deeds or by affidavit of
adjudication in the case of a sole heir;
b. Filed with the Register of Deeds;
c. Fact of settlement must be published in a
newspaper of general circulation once a week
for 3 consecutive weeks;
d. Bond filed equivalent to the value of the
personal property.
When bond filed is required?
Bond filed is required only when personal property is
involved. If real, it is subject to a lien in favor of
creditor for full period of 2 years from such
distribution and such lien cannot be substituted by a
bond.
Is a public instrument necessary for validity?
No. Private instrument/document or oral agreement
of partition is valid among the heirs who participated
in the EJS. The requirement in Rule 74 Sec. 1 that it
must be in a public instrument is NOT constitutive of
the validity but is merely evidentiary (Hernandez v.
Andal). Reformation, in this case can be compelled.
Debts:
While the Rules provide that the decedent must not
have left any debts, it is sufficient if any debts he may
have left have been paid at the time of the EJS.
Philippines Economic Zone Authority v.
Fernandez et. al., G.R. No. 138971 (2001)
Persons unduly deprived of their lawful
participation in a settlement may assert their claim
only within the 2-year period after the settlement and
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does not apply, however,
toseethose
who had no part in
or had no notice of the settlement. 4, Rule 74, is not
meant to be a statute of limitations. An extrajudicial
partition, being merely an ex parte proceeding, would
not affect third persons who had no knowledge
thereof. By its registration in the manner provided by
law, a transaction may be known actually or
constructively.
SUMMARY SETTLEMENT OF ESTATES WITH

SMALL VALUE:
a. Involves judicial adjudication in a summary
proceedings;
b. Applies only when gross estate does not
exceed P10,000 (Amount is jurisdictional);
c. Allowed in both testate and intestate estates;
d. Available even if there are debts as the court
will make provisions for the payment thereof.
2 YEAR LIEN, REQUISITES:
a. persons have taken part or have notice of
extrajudicial partition;
b. compliance with the provisions of Rule 74,
Sec. 1
REMEDIES OF AGGRIEVED PARTIES AFTER
SETTLEMENT OF ESTATE:
a. Within 2 years claim against the bond or the
real estate;
b. Rescission in case of preterition of compulsory
heir in partition tainted with bad faith (NCC Art.
1104);
c. Reconveyance of real property;
d. Action to annul deed of extrajudicial settlement
on the ground of fraud which should be filed
within 4 years from discovery
An heir deprived of his share may file an action for
reconveyance based on an implied or constructive
trust which prescribes in 10 years.
If on the date of the expiration of the 2-year period,
the creditor or heir is:
a. minor or incapacitated
b. in prison
c. outside of the Philippines
He may present his claim within one year after such
disability is removed (Rule 75, Sec. 5).
RULE 75
PRODUCTION OF WILL; ALLOWANCE OF WILL
NECESSARY
Section 1. Allowances necessary; Conclusive as
to execution
Section 2. Custodian of will to deliver
Section 3. Executor to present will and accept or
refuse trust
Section 4. Custodian and executor subject to fine
for neglect
Page 135 of 289

be
of non-resident, that he left an estate within

such territorial jurisdiction).
PROBATE OF WILL
It is a juridical act whereby an instrument is adjudged
valid and is ordered to be recorded. No will shall pass
property unless probated.
DIFFERENCES
BETWEEN
PETITION
FOR
PROBATE FILED BY THIRD PERSONS, AND BY
TESTATOR HIMSELF
Section 5.
committed
Person
retaining
will
may
Filed by third person

CUSTODIAN
He is a person chosen in advance and entrusted with
the custody of the will. It does not refer to a mere
possessor of the will.
He must deliver the will to the court or to the executor
within 20 days after he learns of the death of the
testator (Rule 75, Sec. 2).
Notice published once a

week for 3 consecutive
weeks
Personal notice given to
designated/known heirs,
legatees and devisees
Filed by testator
himself
Newspaper publication
not required
Personal notice sent only
to testators compulsory
heirs
Section 2. Contents of petition

NATURE OF PROBATE PROCEEDINGS:
a. In rem
b. Mandatory
c. Imprescriptible
d. Estoppel does not apply
US v. Guimco, G.R. No. 12184 (1917)
The act penalized in 4 (where the custodian and
executor are subjected to a fine for neglect not
exceeding P2,000) is a special statutory offense and
is properly prosecuted upon complaint or information
as other criminal offenses created by law.
RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
Section 1. Who may petition for the allowance of
will
WHO MAY PETITION FOR THE ALLOWANCE OF
A WILL:
a. Any creditor as preparatory step for filing his
claim therein;
b. Devisee or legatee
c. Person interested in the estate (heirs)
d. Executor
e. Testator himself during his lifetime.
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WHO MAY BE A PARTY
INseeAthisPROBATE?
Generally, any person having a direct and material
interest in the will or estate
JURISDICTIONAL FACTS ALLEGED IN PETITION

FOR PROBATE:
a. Person died leaving a will;
b. In case of a resident, that he resided within the
territorial jurisdiction of the court; (in the case
CONTENTS OF PETITION FOR PROBATE:

a. Jurisdictional facts;
b. Names, ages and residences of heirs,
legatees, and devisees;
c. Probable value and character of property of
estate;
d. Name of person for whom letters are prayed;
and
e. If will has not been delivered to the court, the
name of the person having custody of it.
But no defect in the petition shall render void the
allowance of the will, or the issuance of letters
testamentary or of administration with the will
annexed.
Section 3. Court to appoint time for proving will
Section 4. Heirs, devisees, legatees, and
executors to be notified by mail or personally
When does court acquire jurisdiction?
Upon PUBLICATION for 3 weeks successively of the
order setting the case for hearing AND sending of
NOTICES (20 days before hearing by mail, 10 days
before by personal notice) to all persons interested.
Section 5. Proof at hearing
EVIDENCE IN SUPPORT OF PROBATE OF
UNCONTESTED WILL
a. Notarial Wills testimony of at least 1 of the
subscribing witnesses; deposition allowed if
witnesses outside the province (Sec. 7)
b. Holographic Wills testimony of 1 witness
who knows the handwriting and signature of
the testator. In the absence thereof, testimony
of an expert witness.
Page 136 of 289

Section 6. Proof of lost or destroyed will
HOW WILL IS PROVEN AS LOST OR
DESTROYED:
a. Prove that will:
i. Was in existence at time of testators
death, OR
ii. Was
fraudulently
or
accidentally
destroyed in testators lifetime without his
knowledge;
b. Provisions of will must be clearly and distinctly
proven by at least 2 credible witnesses
Section 7. Proof when witnesses do not reside in
province
Section 8. Proof when witnesses dead or insane
or do not reside in the Philippines
Section 9. Grounds for disallowing will
GROUNDS FOR DISALLOWING WILL:
a. Not executed and attested as required by law;
b. Testator was mentally incapacitated to make a
will or insane at the time of execution;
c. Executed under duress, influence of fear, or
threats;
d. Procured by undue and improper influence and
pressure on the part of the beneficiary or of
some other person for his/her benefit;
e. Signature of testator was procured by
fraud/trick and she/he did not intend instrument
to be will.
GENERAL RULE: HOLOGRAPHIC WILL
If destroyed, cannot be probated.
EXCEPTION: If there exists a Photostatic or Xerox
copy thereof (Gan v. Yap, 104 PHIL 509)
Section 10. Contestant to file grounds of contest
Section 11. Subscribing witnesses produced or
accounted for where will contested
EVIDENCE IN SUPPORT OF PROBATE OF
CONTESTED WILL
a. Notarial Wills All subscribing witnesses and
notary public before whom the will is
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Court is satisfied
the
testimony of other
witnesses and from all the evidence presented
that the will was executed and attested in the
manner required by law EVEN IF any of the
witnesses testify against, do not remember, or
of doubtful credibility.
b. Holographic Wills testimony of 3 witnesses
(mandatory, Codoy v. Calugay, Aug. 12, 1999)
who knows the handwriting and signature of
the testator. In the absence thereof, testimony

of an expert witness.
Section 12. Proof where testator petitions for
allowance of holographic will
Section 13. Certificate of allowance attached to
proved will
RULE 77
ALLOWANCE OF WILL PROVED OUTSIDE OF
PHILIPPINES AND ADMINISTRATION OF ESTATE
THEREUNDER
Section 1. Will proved outside Philippines may be
allowed here
Section 2. Notice of hearing for allowance
Section 3. When will allowed, and effect thereof
Section 4. Estate, how administered
IN RE-PROBATE OF WILL PROVEN ABROAD,
PROPONENT MUST PROVE:
a. Testator was domiciled in the foreign country;
b. Will has been admitted to probate in such
country;
c. Foreign country was, under the laws of such
country, a probate court with jurisdiction;
d. Law on foreign probate procedure and proof of
compliance therewith;
e. Legal requirements in said country for valid
execution of will.
RULE 78
LETTERS TESTAMENTARY AND OF
ADMINISTRATION, WHEN AND TO WHOM
ISSUED
Section 1. Who are incompetent to serve as
executors or administrators
THE FOLLOWING ARE DISQUALIFIED FROM
SERVING
AS
EXECUTORS
OR
ADMINISTRATORS:
a. A minor;
b. A non-resident (of Phils.)
c. A person unfit in the opinion of the court to
execute the duties of his trust by reason of:
i. drunkenness;
ii. improvidence;
iii. want of understanding and integrity;
iv. conviction of an offense involving moral
turpitude.
Page 137 of 289

Section 2. Executor of executor not to administer
estate
Section 3. Married women may serve
REQUISITES FOR A PERSON TO BE APPOINTED
EXECUTOR OR ADMINISTRATOR:
a. Accepts the trust
b. Gives a BOND
c. Competent
Executor
Nominated by the
testator and appointed by
the court
Must present will to the

court within 20 days after
knowledge of death or of
such appointment,
unless the will has
reached the court in any
manner
Testator may provide that
he may serve without a
bond (Court may still
require but conditioned
only in payment of debts)
Compensation may be
provided for by testator
otherwise, compensation
under Rule 85, Sec. 7
Administrator
Appointed by the court in
case the testator did not
appoint and executor or if
the executor refused or if
the will was disallowed or
there is no will (intestacy)
No such duty
ORDER OF PREFERENCE IN GRANTING

LETTERS OF ADMINISTRATION:
a. The surviving spouse or the next of kin or both
in the discretion of the court, or to such person
as such surviving spouse or next of kin request
to have appointed, if competent and willing to
serve (SURVIVING SPOUSE OR NOMINEE)
b. If above be incompetent or unwilling or they
neglect for 30 days after death to apply for
administration, any one or more of the
PRINCIPAL CREDITORS, if competent and
willing to serve
c. If above be incompetent or unwilling, it may be
granted to such other person as the court may
select (STRANGER).
The underlying assumption is that those who will reap
the benefits of a wise, speedy and economical
administration of the estate or on the other hand,
suffer the consequences of waste, improvidence or
mismanagement, have the higher interest and most
influential motive to administer the estate correctly.
Must always post bond

RULE 79
OPPOSING ISSUANCE OF LETTERS
TESTAMENTAY, PETITION AND CONTEST FOR
LETTERS OF ADMINISTRATION
Governed by Rule 85,
Sec. 7
Section 4. Letters testamentary issued when will

allowed
Section 5. Where some coexecutors disqualified
others may act
Section 6. When and to whom letters of
administration granted
LETTERS TESTAMENTARY
It is the authority issued to an executor named in the
will to administer the estate.
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It is the authority issued
the
court to a competent
person to administer the estate of the deceased who
died intestate.
LETTERS OF ADMINISTRATION WITH A WILL

ANNEXED
It is the authority issued by the court to a competent
person to administer the estate if the executor named
in the will refused to accept the office.
Section 1. Opposition to issuance of letters

testamentary;
Simultaneous
petition
for
administration
Section 2. Contents of petition for letters of
administration
Section 3. Court to set time for hearing. Notice
thereof
Section
4.
Opposition
to
petition
for
administration
Section 5. Hearing and order for letters to issue
Section 6. When letters of administration granted
to any applicant
CONTENTS OF PETITION FOR ISSUANCE OF
LETTERS OF ADMINISTRATION:
b. Names, ages and residences of heirs, and
creditors;
c. Probable value and character of property of
estate; and
d. Name of person for whom letters are prayed.
NOTE: Essentially the same as contents of petition
for probate, except: (1) latter has an additional
Page 138 of 289

requirement (the last; see Rule 76); and (2) in the
latter, no need to name creditors in the petition.
GROUNDS FOR OPPOSITION:
a. In Letters Testamentary:
i. Incompetence
b. In Letters of Administration:
i. Incompetence
ii. Preferential right of the heir under Rule 78
RULE 80
SPECIAL ADMINISTRATOR
Section 1. Appointment of special administrator
Section 2. Powers and duties of special
administrator
Section 3. When powers of special administrator
cease; Transfer of effects; Pending suits
SPECIAL ADMINISTRATOR
He is appointed when there is a delay in granting
letters testamentary or of administration by any
cause, including an appeal from the allowance or
disallowance of the will.
ORDER OF APPOINTMENT DISCRETIONARY
The preference accorded by Rule 78 refers to the
appointment of a regular administrator.
Is the Order of Special Administrator appealable?
No, such is an interlocutory order.
Administrator
May be subject of appeal
One of the obligations is
to pay the debts of the
estate
Appointed when
deceased died intestate
or did not appoint an
executor in the will or will
was disallowed
Special Administrator
Not subject of appeal
Cannot pay debts of the
estate
Appointed when there is
delay in granting letters
testamentary or
administration
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RULE 81
BONDS OF EXECUTORS AND ADMINISTRATORS
Section 1. Bond to be given before issuance of
letters; Amount; Conditions
Section 2. Bond of executor where directed in
will. When further bond required
Section 3. Bonds of joint executors

administrators
Section 4. Bond of special administrator
and
UNDERTAKINGS
OF
BOND
OF
EXECUTOR/ADMINISTRATOR:
a. Make and return a complete inventory of the
property of the estate which has come to his
possession or knowledge, or the possession of
any person for him, within 3 months;
b. To administer the property of the estate
according to the Rules (if administrator) or
according to the will (if executor);
c. To render an account within 1 year and at any
other time required by the court; and
d. Perform all orders of the court.
RULE 82
REVOCATION OF ADMINISTRATION, DEATH,
RESIGNATION, AND REMOVAL OF EXECUTORS
AND ADMINISTRATORS
Section 1. Administration revoked if will
discovered; Proceedings thereupon
Section 2. Court may remove or accept
resignation of executor or administrator;
Proceedings upon death, resignation, or removal
Section 3. Acts before revocation, resignation, or
removal to be valid
Section 4. Powers of new executor or
administrator
GROUNDS FOR REMOVAL OF EXECUTORS OR
ADMINISTRATORS:
a. Neglects to render account and settle the
estate according to law;
b. Failure to perform order or judgment of the
court or duty prescribed by the rules;
c. Absconds;
d. Becomes insane;
e. Incapable or unsuitable to discharge trust.
Acts before revocation
Lawful acts of an administrator or executor before the
revocation, resignation or removal are valid unless
proven otherwise.
RULE 83
INVENTORY AND APPRAISAL; PROVISION FOR
SUPPORT OF FAMILY
Page 139 of 289

Section 1. Inventory and appraisal to be returned
within three months
Section 2. Certain articles not to be inventoried
Section 3. Allowance to widow and family
a. On the written application of executor or

administrator
b. Court having jurisdiction of the estate may
c. Order any such surviving partner or partners
to:
Inventory and appraisal must be made within 3
months from the grant of letters.
PROPERTIES NOT TO BE INCLUDED IN
INVENTORY AS ASSETS OF THE ESTATE:
a. Wearing apparel of surviving spouse and minor
children;
b. Marriage bed and bedding; AND
c. Provisions and articles which will necessarily
be consumed in the subsistence of the
deceaseds family.
WHO ARE ENTITLED TO ALLOWANCE DURING
PROCEEDINGS?
a. Legitimate surviving spouse
b. Children of the decedent (need not be minors,
grandchildren sorry)
RULE 84
GENERAL POWERS AND DUTIES OF
EXECUTORS
Section 1. Executor or administrator to have
access to partnership books and property; How
right enforced
Section 2. Executor or administrator to keep
buildings in repair
Section 3. Executor or administrator to retain
whole estate to pay debts, and to administer
estate not willed
GENERAL
POWERS
AND
DUTIES
OF
EXECUTORS AND ADMINISTRATORS:
a. Have access to partnership books and
property;
b. Maintain in tenantable repair the houses and
other structures and fences belonging to the
estate and deliver the same to the heirs and
devisees when directed to do so by the court;
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AND
c. Right to the possession and management of
the real and personal estate so long as it is
necessary for the payment of debt and
expenses of administration.
HOW
RIGHT
PARTNERSHIP
ENFORCED:
TO
HAVE
ACCESS
TO
BOOKS
AND
PROPERTY
i. Freely permit the exercise of the rights

ii. Exhibit the books, papers, and property
d. Court may also punish any partner failing to do
so for contempt
RULE 85
ACCOUNTABILITY AND COMPENSATION OF
EXECUTORS AND ADMINISTRATORS
Section 1. Executor or administrator chargeable
with all estate and income
Section 2. Not to profit by increase or lose by
decrease in value
Section 3. When not accountable for debts due
estate
Section 4. Accountable for income from realty
used by him
Section 5. Accountable if he neglects or delays to
raise or pay money
GENERAL RULE
The executor or administrator is accountable for the
whole estate of the deceased
EXCEPTION: He is not accountable for properties
which never came to his possession
EXCEPTION TO THE EXCEPTION: When through
untruthfulness to the trust or his own fault or for lack
of necessary action, the executor or administrator
failed to recover part of the estate which came to his
knowledge
Section 6. When allowed money paid as costs
Section 7. What expenses and fees allowed
executor or administrator
NOT PROPER EXPENSES OF ADMINISTRATION
WHICH ARE NOT CHARGEABLE TO ESTATE:
a. Services rendered by administrator which are
not beneficial to the estate in favor of an heir;
b. Premiums for her/his bond;
c. Expenses for repair of property of the estate
being used and occupied by him;
d. Expenses for keeping ordinary records and
receipts involved in his administration;
e. Losses incurred in conduct of business with
use of funds of the estate.
Page 140 of 289

OPTIONS
OF
ATTORNEY
TO
COLLECT
ATTORNEYS FEES FROM ESTATE:
a. Sue administrator/executor in the latters
personal capacity (who may then include any
fees so paid in his account); OR
b. File a petition in the testate/intestate
proceedings asking the court, after notice to all
interested persons, to allow his claim and to
direct the executor/administrator to pay it as an
expense of administration.
Section 8. When executor or administrator to
render account
Section 9. Examination on oath with respect to
account
Section 10. Account to be settled on notice
Section 11. Surety on bond may be party to
accounting
RULE 86
CLAIMS AGAINST ESTATE
Section 1. Notice to creditors to be issued by
court
Section 2. Time within which claims shall be filed
NOTICE FOR FILING OF CLAIMS:
a. Published once a week for 3 successive week
in newspaper of general circulation;
b. Posted:
i. In 4 public places in PROVINCE of last
residence of decedent;
ii. In 2 public places in MUNICIPALITY of
decedents last residence.
CLAIMS WHICH MUST BE FILED WITH THE
PROBATE COURT:
a. All claims for money against decedent arising
from contract;
b. Claims for funeral expenses and for the last
illness;
c. Judgment for money.
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TIME FOR FILING
CLAIMS:
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Must be filed withinarethe
time specified by the court in
its notice, which period shall not be less than 6
months nor more than 12 months from the date of the
first publication of the notice.
HOWEVER, at any time before an order of

distribution is entered, a creditor who failed to file his
claim on time may, upon showing good cause, ask
the court to allow him to file his claim. The court may
then allow him to file such claim within a time which

shall not exceed 1 month.
ALTERNATIVE REMEDIES AVAILABLE TO
MORTGAGE CREDITOR UPON DEATH OF
MORTGAGOR:
a. Abandon security and prosecute claim in
probate court;
b. Foreclose mortgage judicially; and recover
deficiency thru claim in probate court;
c. Rely solely on mortgage or security and
foreclose the same within statute of limitations,
without the right to recover the deficiency
PNB v. CA, et. al., G.R. No. 121597 (2001)
Rule 89 7 (f) provides that if the court grants
authority to mortgage property of the estate, it shall
be valid as if the deed had been executed by the
deceased in his lifetime. Thus, Rule 86 7 also
applies as to the remedies of the mortgagee. Case
law now holds that this rule grants to the mortgagee 3
distinct, independent and mutually exclusive
remedies that can be alternatively pursued by the
mortgage creditor for the satisfaction of his credit in
case the mortgagor dies, among them:
(1) to waive the mortgage and claim the entire
debt from the estate of the mortgagor as an ordinary
claim;
(2) to foreclose the mortgage judicially and prove
any deficiency as an ordinary claim; and
(3) to rely on the mortgage exclusively,
foreclosing the same at any time before it is barred
by prescription without right to file a claim for any
deficiency.
The plain result of adopting the last mode of
foreclosure is that the creditor waives his right to
recover any deficiency from the estate. The 3rd mode
includes extrajudicial foreclosure sales; the result of
extrajudicial foreclosure is that the creditor waives
any further deficiency claim.
Section 3. Publication of notice to creditors
Publish the notice for 3 consecutive weeks in a
newspaper of general circulation in the province and
post the same in 4 public places in the province and
in 2 public places in the municipality where the
decedent last resided.
Section 4. Filing copy of printed notice
Section 5. Claims which must be filed under
notice. If not filed, barred; exceptions
Olave v. Carlos, 208 Phil 678 (1983)
Page 141 of 289

Claims referred to under this section refer to
claims for the recovery of money and which are not
secured by a lien against the property of the estate.
Claims which should not be filed under the
Statute of Non-claims (ACTIONS WHICH DO NOT
SURVIVE)
1. Money claims, debts incurred by deceased
during his lifetime arising from contract:
a. express or implied;
b. due or not due;
c. absolute or contingent;
2. Claims for funeral expenses;
3. For the last illness of the decedent; and
4. Judgment for money against decedent.
ABSOLUTE CLAIM
It is such a claim as, if contested between living
persons, would be proper subject of immediate legal
action and would supply a basis of a judgment for a
sum certain.
CONTINGENT CLAIM
It is a conditional claim or claim that is subject to the
happening of a future uncertain event.
Claims not yet due or contingent may be approved at
their present value.
A claim that is extinguished by death should be
distinguished from an action which does not survive.
A claim is extinguished by reason of death if the
action is personal to either parties such as in cases of
legal separation, annulment or declaration of nullity.
Section 6. Solidary obligation of decedent
Juacian v. Querol, 38 Phil 707 (1918)
Claim should be filed against decedent as if he
were the only debtor without prejudice on th part of
the estate to recover contribution from the other
debtor.
Joint Obligation of decedent
The claim must be confined to the portion belonging
to the decedent.
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Section 7. Mortgage debt due from estate

ALTERNATIVE REMEDIS OF THE CREDITOR
HOLDING A CLAIM SECURED BY A MORTGAGE
OR OTHER COLLATERAL SECURITY
1. Abandon the security and prosecute his claim
against the estate and share in the general
distribution of the assets of the estate;
2. Foreclose his mortgage or realize upon his

security by action in court making the executor
or administrator a party defendant and if there
is judgment for DEFICIENCY, he may file a
claim (contingent) against the estate within the
statute of non-claims;
3. Rely solely on his mortgage and foreclose
(judicial or extrajudicial) the same at anytime
within the period of the statute of limitations but
he cannot be admitted as creditor and shall not
receive in the distribution of the other assets of
the estate.
NOTE:
These remedies are alternative, the
availment of one bars the availment of other
remedies.
Section 8. Claim of executor or administrator
against an estate
One of the instances where a special administrator is
appointed.
Section 9. How to file a claim. Contents thereof;
Notice to executor or administrator
HOW TO FILE A CLAIM:
1. deliver the claim with the necessary vouchers
to the clerk or court;
2. serve a copy thereof on the executor or
administrator;
3. if the claim is due, it must be supported by
affidavit stating the amount due and the fact
that there has been no offsets;
4. if the claim is not due or contingent, it must
be accompanied by affidavit stating the
particulars thereof.
Section 10. Answer of executor or administrator;
Offsets
Executor may file answer within 15 days from service
of claim.
Answer must set forth claims which decedent has
against claimant or else it will forever be barred.
Section 11. Disposition of admitted claim
If executor or administrator admits claim, the heir,
legatee or devisee may oppose it.
Section 12. Trial of contested claim
The court may refer the claim to a commissioner.
Page 142 of 289

Section 13. Judgment appealable
Judgment against executor and administrator shall
not create any lien upon the property of the estate or
does not constitute a specific lien which may be
registered on such property.
Judgment of a probate court
disapproving a claim is appealable.
approving
or
NOTE: The mode of appeal is record on appeal and

must be filed within 30 DAYS from notice of
judgment.
Section 14. Costs
RULE 87
ACTIONS BY AND AGAINST EXECUTORS AND
ADMINISTRATORS
Section 1. Actions which may and which may not
be brought against executor or administrator
ACTIONS WHICH MAY BE COMMENCED
DIRECTLY AGAINST THE EXECUTOR OR
ADMINISTRATOR:
1. recovery of real or personal property or any
interest therein from the estate;
2. enforcement of a lien thereon;
3. action to recover damages for any injury to
person or property, real or personal (tortuous
acts).
These are actions that survive the death of the
decedent.
Romualdez v. Tiglao, 105 SCRA 762 (1981)
An action for revival of money judgment may be
filed against the administrator to pre-empt
prescription of judgment.
Section 2. Executor or administrator may bring or
defend actions which survive
Section 3. Heir may not sue until have share
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assigned
Section 5. Mortgage due estate may be

foreclosed
Section 6. Proceedings when property concealed,
embezzled, or fraudulently conveyed
PURPOSE:
To elicit information or to secure
evidence form those persons suspected as having
possessed or having knowledge of properties
belonging to deceased, or of having concealed,
embezzled or conveyed away any properties of the
deceased.
GENERAL RULE:
The probate court has no
authority to decide whether or not the properties
belong to the estate or to the person being examined
since probate courts are courts of limited jurisdiction.
Bernardo v. CA, GR No. 82483 (1990)
EXCEPTIONS:
1. Provisional determination of ownership for
inclusion in the inventory or
2. When the parties are all heirs and they
voluntarily submitted the issue to the probate court
and the determination of which will not prejudice the
rights of 3rd person.
Section 7. Person entrusted with estate
compelled to render account
Section 8. Embezzlement before letters issued
The responsible person shall be liable to an action in
favor of the executor or administrator of the estate for
double the value of the property sold, embezzled, or
alienated, to be recovered for the benefit of the
estate.
Section 9. Property fraudulently conveyed by
deceased may be recovered; When executor or
administrator must bring action
This provision applies when there is a deficiency of
assets in the hands of the executor or administrator
for the payment of the debts and expenses for
administration.
Section 10. When creditor may bring actions;
Lien for costs
Before distribution is made or before any residue is

known, the heirs and devisees have no cause of
action against the executor or administrator for
recovery of the property left by the decedent.
Section 4. Executor
compound with debtor
or
administrator
may
REQUISITES BEFORE ACTION MAY BE FILED BY

CREDITORS
1. there is a DEFICIENCY of assets in the hands
of an executor or administrator for the payment
of debts and expenses of administration;
2. the deceased in his lifetime had made or
attempted to make a FRAUDULENT
CONVEYANCE of his property or had so
Page 143 of 289

3.
4.
5.
6.
7.
conveyed such property that by law the

conveyance would be void as against his
creditors;
the subject of the attempted conveyance would
be liable to ATTACHMENT in his lifetime;
the executor or administrator has shown NO
DESIRE TO FILE action the action or failed to
institute the same within a reasonable time;
LEAVE is granted by the court to the creditor
to file the action;
a BOND is filed by the creditor;
the action by the creditor is in the NAME of the
executor or administrator.
NOTE:
However, the last three requisites are
unnecessary where the grantee is the executor or
administrator himself, in which event the action
should be in the name of all creditors.
RULE 88
PAYMENT OF THE DEBTS OF THE ESTATE
Section 1. Debts paid in full if estate sufficient
Writ of execution is
satisfy debts. Court
MORTAGE of the
proceeds of which
expenses.
not the proper procedure to

must ORDER THE SALE OR
properties of decedent, the
will satisfy the debts and
Is execution a proper remedy to satisfy an

approved claim?
NO, because:
1. Payment approving a claim does not create a
lien upon a property of the estate;
2. Special procedure is for the court to order the
sale to satisfy the claim.
Section 2. Part of estate from which debt paid
when provision made by will
If the testator makes a provision in his will or
designates the estate to be appropriated for the
payment of his debts that will be followed. But if it is
no sufficient, such part
of the
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that purpose.
Section 3. Personalty first chargeable for debts,
then realty
2 INSTANCES WHEN REALTY IS LIABLE FOR
DEBTS AND EXPENSES:
1. when the personal estate of the decedent is

not sufficient for that purpose;
2. where the sale of such personalty would be to
the detriment of the participants of the estate.
ORDER OF PAYMENT OF DEBTS:
a. From portion of property designated in the will;
b. From personal property not disposed of by will;
c. From real property not disposed of by will.
Section 4. Estate
contingent claims
to be
retained
to
meet
If the court is satisfied that contingent claim duly filed

is valid, it may order the executor or administrator to
retain in his hands sufficient estate to pay a portion
equal to the dividend of the creditors.
REQUISITES:
1. Contingent claim is duly filed;
2. Court is satisfied that the claim is valid; and
3. The claim has become absolute.
Section 5. How contingent claim becoming
absolute in two years allowed and paid; Action
against distributes later
If such contingent claim becomes absolute and is
presented to the court or to the executor or
administrator, within two years from the time limited
for other creditors to present their claims, it may be
allowed by the court.
Jaucian v. Querol, supra
If the contingent claim matures after the
expiration of the two years, the creditors may sue the
distributees, who are liable in proportion to the shares
in the estate respectively received by them.
De Bautista v. De Guzman, 125 SCRA 682 (1983)
It has been ruled that the only instance wherein a
creditor can file an action against a distributee of the
debtors assets is under Section 5, Rule 88 of the
Rules of Court. The contingent claims must first have
been established and allowed in the probate court
before the creditors can file an action directly against
the distributees.
Section 6. Court to fix contributive shares where
devisees, legatees, or heirs have been in
possession
Section 7. Order of payment if estate is insolvent
If estate is insolvent, as in liabilities are more than
assets, Sec. 7 in relation to Arts. 1059 and 2239 to
Page 144 of 289

2251 of the Civil Code (Concurrence and Preference
of Credits) must apply.
Section 8. Dividends to be paid in proportion to
claims
Section 9. Estate of insolvent non-resident, how
disposed of
In case administration is taken in the Philippines of
the estate of a person who was at the time of his debt
an inhabitant of another country, and who died
INSOLVENT, his estate in the Philippines shall be so
disposed of that his creditors in and outside the
Philippines may receive an equal share, in proportion
to their respective credits.
Section 10. When and how claim proved outside
the Philippines against insolvent residents estate
paid
Claims proven outside the Philippines where the
executor had knowledge and opportunity to contest
its allowance therein may be added to the list of
claims in the Philippines against the estate of an
INSOLVENT RESIDENT and the estate will be
distributed equally among those creditors.
However, the benefit of Section 9 and 10 cannot be
extended to the creditors in another country if the
property of such deceased person there found is not
equally apportioned to the creditors residing in the
Philippines. (Principle of Reciprocity)
Section 11. Order for payment of debts
Section 12. Orders relating to payment of debts
where appeal is taken
Section 13. When subsequent distribution of
assets ordered
Section 14. Creditors to be paid in accordance
with terms of order
Section 15. Time for paying debts and legacies
fixed, or extended after notice, within what
periods
Need not exceed 1 year in the first instance. But
court may extend on application of executor or
administrator and after hearing
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and a notice thereof.
Extension must not exceed six months for single

extension. Whole period allowed to the original
executor or administrator shall not exceed 2 years.
Section 16. Successor of dead executor or
administrator may have time extended on notice
within certain period
Successor of deceased executor or administrator

may be given an extension not to exceed 6 months.
RULE 89
SALES, MORTGAGES, ANG OTHER
ENCUMBRANCES OF PROPERTY OF DECEDENT
Section 1. Order of sale of personalty
The court may order the whole or part of the
PERSONAL estate to be sold if necessary:
1. to pay debts and expenses of administration;
2. to pay legacies; or
3. to cover expenses or for the preservation of
the estate.
Section 2. When court may authorize sale,
mortgage, or other encumbrance of realty to pay
debts and legacies through personalty not
exhausted
1. If personal estate is NOT SUFFICIENT to pay
debts, expenses of administration and
legacies;
2. If sale of personal estate may injure the
business or interest of those interested in the
estate;
3. If testator has NOT made sufficient provision
for payment of such debts, expenses and
legacies;
4. If deceased was in his lifetime under contract,
binding in law to deed real property to
beneficiary (Section 8);
5. If the deceased during his lifetime held real
property in trust for another person (Section 9).
REQUISITES:
1. application of executor or administrator;
2. written notice to person interested; and
3. hearing.
NOTE:
Assets in the hands of executor or
administrator will not be reduced to prevent a creditor
from receiving his full debt or diminish his dividends.
Without notice and hearing the sale, mortgage or
encumbrance is void. Notice is mandatory. Noncompliance therewith under the sale is null and void.
Maneclang v. Baun, 208 SCRA 179 (1992)
The reason behind this requirement is that the
heirs are the presumptive owner.
Since they
succeed to all the rights and obligation of the
deceased from the moment of the latters death, they
Page 145 of 289

are the person directly affected by the sale or
mortgage and therefore cannot be deprived of the
property, except in the manner provided by law.
Section 3. Persons interested may prevent such
sale, etc., by giving bond
Section 4. When court may authorize sale of
estate as beneficial t interested person; Disposal
of proceeds
mortgage, or other encumbrance of estate to pay
debts and legacies in other countries
When it appears from records and proceedings of a
probate court of another country that the estate of the
deceased in foreign country is not sufficient to pay
debts and expenses.
mortgage, or other encumbrance or realty
acquired on execution or foreclosure
Section 7. Regulations for granting authority to
sell, mortgage, or otherwise encumber estate
Application for authority to sell, mortgage, or
encumber property of the estate may be denied by
the court if:
1. the disposition is not for any of the reasons
specified by the rules; OR
2. under Section 3 of Rule 89, any person
interested in the estate gives a bond
conditioned to pay the debts, expenses of
administration and legacies.
Section 8. When a court may authorize
conveyance or realty which deceased contracted
to convey; Notice; Effect of deed
Section 9. When court may authorize conveyance
of lands which deceased held in trust
RULE 90
DISTRIBUTION AND PARTITION OF THE ESTATE
Section 1. When order for distribution of residue
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made
LIQUIDATION
This means the determination of all assets of the
estate and payment of all debts and expenses.
GENERAL RULE: ORDER OF DISTRIBUTION shall
be made AFTER PAYMENTS of all debts, funeral
expenses, expenses of administration, allowance of
widow and inheritance tax is effected.
EXCEPTION: If the distributes or any of them gives

a bond conditioned for the payment of said obligation,
the ORDER OF DISTRIBUTION may be made even
BEFORE PAYMENTS of all debts, etc.
IN THESE PROCEEDINGS, THE COURT SHALL:
1. collate;
2. determine heirs; and
3. determine share of each heir.
A separate action for the declaration of heirs is not
necessary.
When is title vested? From FINALITY of order of
distribution.
An order which determined the distributive shares of
heirs is appealable. If not appealed, it becomes final.
Timbol v. Cano, 1 SCRA 1271 (1961)
The probate court loses jurisdiction over the
settlement proceedings only upon payment of all
debts and expenses of the obligor and delivery of the
entire estate to all the heirs.
CONDITIONS PRECEDENT TO BE COMPLIED
WITH FOR THE ISSUANCE OF AN ORDER OF
DISTRIBUTION
1. Showing that the executor, administrator or
person interested in the estate applied for
such; and
2. The requirements as to notice and hearing
upon such application have been fulfilled.
PROHIBITION AGAINST
OTHER COURTS
INTERFERENCE
BY
Timbol v. Cano, 1 SCRA 1271 (1961)

As long as the order of distribution of the estate
has not been complied with, the probate proceedings
cannot be deemed closed and terminated, because a
judicial partition is not final and conclusive and does
not prevent the heirs form bringing an action to obtain
his share, provided the prescriptive period therefore
has not elapsed. The better practice, however, for the
heir who has not received his share, is to demand his
share through proper motion in the same probate or
administrative proceedings, or for the reopening of
the probate or administrative proceedings if it had
already been closed, and not through an independent
action, which may thus reverse a decision or order of
the probate or intestate court already final and
executed and re-shuffle properties long ago
distributed and disposed of.
Page 146 of 289

REMEDY OF HEIR WHO HAS NOT RECEIVED HIS
SHARE OF THE ESTATE:
a. If excluded from the proceedings: move for
reopening of the proceedings before the order
declaring the same closed has become final
and executory (after 30 days);
b. If not excluded, but only has not yet
received his distributive share under the
project of partition: remedy is not to move
for reopening (since proceedings are only
deemed closed upon actual distribution), but to
file a motion for execution within the
reglementary period (5 years).
Section 2. Questions as to advancement to be
determined
Section 3. By whom expenses of partition paid
One of the instances where writ of execution may be
issued.
Section 4. Recording the order of partition of
estate
RULE 91
ESCHEATS
the Civil Code, the STATE is the LAST HEIR of the

decedent.
Who files? Solicitor General or his representative in
behalf of the Philippines.
Where to file? RTC of last residence or of location
of this estate in the Philippines if he is a non-resident.
Section 2. Order for hearing
IF PETITION IS SUFFICIENT IN FORM AND
SUBSTANCE THE COURT SHALL:
1. Make an ORDER OF HEARING hearing
shall not be more than 6 MONTHS AFTER
ENTYR OF ORDER;
2. Direct the publication of a copy of the order
at least once a week for 6 CONSECUTIVE
WEEKS.
REQUISITES:
1. publication of the order;
2. person died intestate;
3. he is seized of real or personal property in
the Philippines;
4. he left no heir or person entitled to such
property;
5. there is no sufficient cause to the contrary.
Section 3. Hearing and judgment
Section 1. When and by whom petition filed

ESCHEAT
This is a proceeding whereby the real and personal
property of a deceased person in the Philippines,
who dies without leaving any will or legal heirs,
become the property of the State upon his death.
REQUISITES FOR PETITION FOR ESCHEAT
a. Person died intestate;
b. Person died leaving no heirs; AND
c. Person died leaving properties in
Philippines
the
3 INSTANCES OF ESCHEATS
1. When a person dies intestate leaving no heir
but leaving property
in the
(Section
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1);
2. Reversion Proceedings Sale in violation of
the Constitutional provision; and
3. Unclaimed Balances Act (dormant accounts for
10 years shall be escheated).
What is the basis of the states right to receive
property in escheat? Order of succession under
DISPOSITION OF ESCHEATED PROPERTY:

a. If real property to municipalities or cities
located;
b. If personal property
(1) To city or municipality where decedent last
resided in Phils;
(2) If decedent never resided in Phils, then to
municipality or city where located.
The court, at the instance of an interested party, or
on its own motion, may order the establishment of a
PERMANENT TRUST, so that only the income from
the property shall be used.
Section 4. When and by whom claim to estate
filed
Any devisee, legatee, heir, widow/er, or other person
entitled to the estate may file a claim with the court
WITHIN 5 YEARS FROM DATE OF JUDGMENT,
otherwise forever barred.
Section 5. Other actions for escheat
Page 147 of 289

Actions for reversion of property alienated in violation
of Constitution or any statute.
These shall be governed by Rule 91. However, the
action must be instituted in the province where the
land lies in whole or in part.
KINDS OF GUARDIANS:
A. According to scope:
1. General over the person of the ward or over
his property
2. Limited over the property only.
PERIOD: Within 5 years from the date of judgment;

(under Art. 1014 of the Civil Code, THE 5-YEAR
PERIOD IS RECKONED FROM THE DATE THE
PROPERTY WAS DELIVERED TO THE STATE and
further provides that if the property had been sold,
the municipality or city shall be accountable only for
such part of the proceeds as may not have been
lawfully spent.)
B. According to Constitution:
1. General Guardian;
2. Legal
Guardian
without
judicial
appointment;
3. Guardian Ad Litem appointed by courts of
justice to prosecute or defend a minor, insane
or person declared to be incompetent, in an
action in court.
By whom: person with interest
Section 2. Meaning of word incompetent
Can court convert escheat proceedings into

ordinary special proceedings or vice-versa?
NO. This is not allowed for the two actions have
different requirements in acquiring jurisdiction. In
special proceedings, publication is once a week for 3
weeks while in escheat, once a week for 6 weeks.
INCOMPETENT includes:
1. those suffering from penalty of civil interdiction;
2. hospitalized lepers;
3. prodigals;
4. deaf and dumb who are unable to read and
write;
5. those of unsound mind though they have lucid
intervals;
6. persons not of unsound mind but by reason of
age, disease, weak mind, and other similar
causes cannot, without outside aid, take care
of themselves or manage their property.
NOTE: Escheat under the Unclaimed Balance Law

must be filed in RTC of the place where the dormant
deposits are found.
GUARDIANSHIP
Guardianship of minors is now governed by the
Rule on Guardianship of Minors (A.M. No. 03-0205-SC) which took effect on May 1, 2003. While,
guardianship of incompetents is still governed by
the provisions of the Rules of Court on
Guardianship (Rule 92 to Rule 97)
RULE 92
VENUE
Section 1. Where to institute proceedings
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INCOMPETENTS RTC of his residence or where

his property is located in case of non-residents (Sec.
1)
MINORS Family Court of his residence or where
his property is located in case of non-resident (Sec.
3, A.M. No. 03-02-05-SC)
Residence means domicile.
Section 3. Transfer of Venue
RULE 93
APPOINTMENT OF GUARDIANS
Section 1. Who may petition for appointment of
guardian for resident
MINOR
(a) any relative; or
(b) other person on
behalf of a minor; or
(c) the minor himself if 14
years of age or over;
or
(d) the Secretary of

Social Welfare and
Development AND by
the Secretary of
Health in case of an
insane minor who
INCOMPETENT
(a) any relative; or
(b) friend; or
(c) other person on
behalf of the resident
incompetent who has
no parents or lawful
guardian; or
(d) the Director of Health
in favor of an insane
person who should
be hospitalized or in
favor of an isolated
leper (Sec. 1); or
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needs to be
hospitalized (Sec. 2 of
A.M. No. 03-02-05SC)
letters of guardianship
are prayed. (Sec. 7 of
A.M. No. 03-02-05SC)
(e) any one interested in
the estate of a nonresident incompetent
(Sec. 6)
The father and the mother shall jointly exercise legal

guardianship over the person and property of their
minor without the necessity of a court appointment.
In such case, this Rule shall be suppletory to the
provisions of the Family Code on Guardianship.
Section 2. Contents of Petition
MINOR
(a) The jurisdictional
facts;
(b) the name, age and
residence of the
prospective ward;
(c) the ground rendering

the appointment
necessary or
convenient;
(d) the death of the
parents of the minor
or the termination,
deprivation or
suspension of their
parental authority;
(e) the remarriage of the
minors surviving
parent;
INCOMPETENT
(a) The jurisdictional
facts;
(b) The incompetency
rendering the
appointment
necessary or
convenient;
(c) the probable value
and character of his
estate;
(d) the names, ages,
and residences of the
relatives of the
incompetent, and of
the persons having
him in their care;
(e) the name of the
person for whom
letters of
guardianship are
prayed. (Section 2 of
Rule 93)
(f) any one interested in
the estate of a nonresident incompetent
(Section 6)
(f) the names, ages, and

residences of relative
within the 4th civil
degree of minor, and
of persons having him
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in their care and
custody;
(g) the probable value,
character and location
of the property of the
minor; and
(h) the name, age and
residence of the
person from whom
The petition involving MINORS is required to be

VERIFIED and accompanied by CERTIFICATION
AGAINST FORUM SHOPPING while that involving
INCOMPETENT must be VERIFIED only. However,
no defect in the petition or verification shall render
void the issuance of letters of guardianship.
Section 3. Court to set time for hearing; Notice
thereof
Notice of date and place of hearing to be given to all
persons named in the petition residing in the
province, and to the minor himself if over 14 (NOTE:
not 14 or over).
There is NO requirement for PUBLICATION only
NOTICE except in case of non-resident minor or
incompetent.
However, service of NOTICE upon minor if above 14
years of age or upon incompetent is mandatory and
jurisdictional.
If the person is insane, service of notice upon the
Director of Hospital where he is hospitalized is
sufficient.
Section 4. Opposition to petition
GROUNDS:
1. Majority of alleged minor;
2. Competency of alleged incompetent;
3. Unsuitability of the persons for whom letters
are prayed.
PROCEDURE OF GUARDIANSHIP PROCEEDINGS
1. filing of petition;
2. court shall set the case for hearing;
3. cause notices to be served to the persons
mentioned in the petition, including the minor, if
above 14 years of age;
4. court shall receive evidence;
5. declaration of the propriety of the petition;
6. issue letters of guardianship.
Section 5. Hearing and order for letters to issue
Section 6. When and how guardian for
nonresident appointed; Notice
Any relative, friend or any one interested in the estate
of a person liable to be put under guardianship may
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file a petition for guardianship over the property of
such person.
Notice shall
otherwise.
be
given
through
publication
or
Bond may be proceeded against in the same or

separate proceeding for the use and benefit of the
ward, or of any other person legally interested in the
estate.
Section 7. Parents as Guardians

Section 8. Service of Judgment
Civil registrar of the place where the minor or
incompetent resides or where the property is situated
shall be served with a copy of the judgment.
RULE 95
SELLING AND ENCUMBERING PROPERTY OF
WARD
Section 1. Petition of guardian for leave to sell or
encumber estate
RULE 94
BONDS OF GUARDIAN
Section 1. Bond to be given before issuance of
letters; Amounts; Conditions
Before an appointed guardian enters upon the
execution of his trust, he shall give a BOND.
CONDITIONS:
1. To make and return to the court, within three
(3) months, a true and complete INVENTORY
of all the estate, real and personal, of his ward
which shall come to his possession or
knowledge or to the possession or knowledge
of any other person for him;
2. To faithfully EXECUTE THE DUTIES of his
trust, to manage and dispose of the estate
according to these rules for the best interests
of the ward, and to provide for the proper care,
custody, and education of the ward;
3. To render a true and just ACCOUNT of all the
estate of the ward in his hands, and of all
proceeds or interest derived therefrom, and of
the management and disposition of the same,
at the time designated by these rules and such
other times as the court directs; and at the
expiration of his trust to settle his accounts with
the court and deliver and pay over all the
estate, effects, and
moneys
remaining in his
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the person lawfully entitled thereto;
4. To PERFORM all orders of the court by him to
be performed.
Section 2. When new bond may be required and
old sureties discharged
Section 3. Bonds to be filed; Actions thereon
GROUNDS:
1. when income of estate is insufficient to
maintain the ward and his family; or
2. when income of estate is insufficient to
maintain and educate ward when a minor; or
3. when it appears that it is for the benefit of the
ward.
REQUIREMENTS:
1. petition must be verified;
2. notice must be give to the next of kin; and
3. hearing so that they may show cause why
petition should not be granted.
Section 2. Order to show cause thereupon
NEXT OF KIN
This pertains to those relatives who are entitled to
share in the estate of the ward under the Law on
Intestate Succession including those who inherit per
stirpes or by right of representation.
Notice to next of kin and interested persons is
JURISDICTIONAL.
Lindain v. CA, GR No. 95305 (1992)
Sale of the wards realty by the guardian without
authority from the court is VOID. Under the law, a
parent acting merely as legal administrator of the
property of his/her children, does NOT have the
power to dispose, or alienate, the property of said
minor without judicial approval.
Section 3. Hearing on return of order; Costs
Section 4. Contents of order for sale
encumbrance, and how long effective
The Order of Sale must specify the grounds.
Page 150 of 289
or

Duration of the order for sale and encumbrance
of property: Within 1 year from the granting of the
order. It is presumed that if the property was not sold
within 1 year, the ward has sufficient income.
RULE 97
TERMINATION OF GUARDIANSHIP
The authority to sell or encumber shall not extend

beyond 1 year unless renewed by the court.
Section 1. Petition that competency of ward be

adjudged and proceedings thereupon
Section 5. Court may order investment of

proceeds and direct management of estate
Petition shall be verified by oath and shall state that

such person is then competent.
RULE 96
GENERAL POWERS AND DUTIES OF
GUARDIANS
Section 1. To what guardianship shall extend
Section 2. Guardian to pay debts of ward
Section 3. Guardian to settle accounts, collect
debts and appear in actions for ward
Section 4. Estate to be managed frugally and
proceeds applied to maintenance of ward
Section 5. Guardian may be authorized to join in
partition proceedings after hearing
Section 6. Proceeding when persons suspected
of embezzling or concealing property of ward
Section 7. Inventories and accounts of guardians,
and appraisement of estate
Section 8. When guardians accounts presented
for settlement, expenses and compensation
allowed
GENERAL
POWERS
AND
DUTIES
OF
GUARDIANS:
1. have the care and custody of the person of the
ward, and the management of the estate only,
as the case may be (Sec. 1);
2. pay the debts of the ward (Sec. 2);
3. settle accounts, collect debts and appear in
actions for ward (Sec. 3);
4. manage the estate of the ward frugally, and
apply the proceeds to maintenance of the ward
(Sec. 4);
5. render verified inventory within 3 months after
his appointment and annually thereafter upon
application of interested
(Sec. 7); and
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6. render to court
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of the property for 1 year from his appointment
and every year thereafter (Sec. 8).
Every guardian, other than the wards parents, shall
be allowed the amount of his reasonable expenses,
and compensation which shall not exceed 15% of the
NET income of the estate.
GROUNDS FOR TERMINATION

MINOR
INCOMPETENT
(a) The ward has come of (a) Competency of the
age; or
ward
has
been
judicially determined;
or
(b) The ward has died; or
(b) Guardianship is no
longer necessary; or
(c) Death of guardian (c) Death of guardian; or
(Sec. 25, A.M. No. 0302-05-SC)
(d) Death of ward.
Section 2. When guardian removed or allowed to
resign
GROUNDS FOR REMOVAL OF A GUARDIAN:
1. insanity;
2. incapability or unsuitability to discharge
functions;
3. wastage or mismanagement of the property of
the ward; and
4. failure to render an account or make a return
within 30 days after it was due.
The abovementioned grounds are EXCLUSIVE .
Section 3. Other termination of guardianship
Section 4. Record to be kept by Justice of the
Peace or Municipal Judge
Section 5. Service of Judgment
SALIENT FEATURES AND SPECIAL RULES
FOUND IN THE RULE ON GUARDIANSHIP OF
MINORS (A.M. No. 03-02-05-SC, effective May 1,
2003)
A. Grounds for Petition (Sec. 4)
1. continued absence, or incapacity or death of
his parents;
2. suspension, termination or deprivation of
parental authority;
3. remarriage of his surviving parent, if the latter
is found unsuitable to exercise parental
authority;
Page 151 of 289

4. when the best interest of the minor so requires.
B. Considerations in Appointing Guardians (Sec.
5)
1. moral character;
2. physical, mental and psychological condition;
3. financial status;
4. relationship of trust with the minor;
5. availability to exercise the powers and duties of
a guardian for the full period of the
guardianship;
6. lack of conflict of interest with the minor; and
7. ability to manage the property of the minor
C. Who may be appointed guardian of the person
or property, or both, of a minor (Sec. 6)
In default of parents or a court appointed
guardian, the court may appoint a guardian of a
minor, observing as far as practicable, the
following ORDER OF PREFERENCE:
1. the SURVIVING GRANDPARENT and In case
several grandparents survive, the court shall
select any of them taking Into account all
relevant considerations;
2. the OLDEST BROTHER OR SISTER of the
minor over twenty-one years of age, unless
unfit or disqualified;
3. the ACTUAL CUSTODIAN of the minor over
twenty-one years of age, unless unfit or
disqualified; and
4. any OTHER PERSON, who in the sound
discretion of the court, would serve the best
interests of the minor.
D. Case Study Report (Sec. 9)
The court shall order a social worker to conduct a
case study of the minor and all prospective
guardians and submit report and recommendation
to the court for its guidance before the scheduled
hearing.
E. Bond of parents as guardian of property of
minor (Sec. 16)
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If the market value

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property
or the annual
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income of the child exceeds P50,000, the parent
concerned shall furnish a bond in such amount as
the court may determine, but in no case less than
10% of the value of such property or income, to
guarantee the performance of the obligations
prescribed for general guardians.
A verified petition for approval of the bond shall be

filed in the Family Court of the place where the
child resides or, if the child resides in a foreign
country, in the Family Court of the place where
the property or any part thereof is situated.
The petition shall be docketed as a summary
special proceeding in which all incidents and
issues regarding the performance of the
obligations of a general guardian shall be heard
and resolved.
F. Removal or Resignation of Guardian (Sec. 24)
No motion for removal or resignation shall be
granted unless the guardian has submitted the
proper accounting of the property of the ward and
the court has approved the same.
G. Grounds for termination of Guardianship (Sec.
25)
The court motu proprio or upon verified motion of
any person allowed to file a petition for
guardianship may terminate the guardianship on
the ground that the ward has COME OF AGE or
has DIED. The guardian shall notify the court of
such fact within 10 days of its occurrence.
RULE 98
TRUSTEES
EXECUTOR/
ADMINISTRATOR
Accounts are not
under oath and
except for initial
and final
submission of
accounts, they
shall be filed only
at such times as
may be required
by the court.
Court that has
jurisdiction may be
MTC or RTC.
GUARDIAN
TRUSTEE
Accounts must
be under oath
and filed
annually.
Accounts
must be
under oath
and filed
annually.
Court which
has jurisdiction
is RTC
(incompetent)
or Family Court
(minor).
Court which
has
jurisdiction is
MTC or RTC
if appointed to
carry into
effect
provisions of
a will; if
trustee dies,
Page 152 of 289

May sell,
encumber or
mortgage property
if it is necessary
for the purpose of
paying debts,
expenses of
administration or
legacies, or for the
preservation or
property or if sale
will be beneficial
to the heirs,
legatees or
devisees.
Order of sale has
no time limit
Appointed by the
court to settle
estate of
decedent.
May sell or
encumber
property of
ward if income
of estate is
insufficient to
maintain ward
and his family
and educate
the minor; the
sale or
encumbrance
is for the
benefit of ward
upon order of
the court.
Order of sale is
valid for only 1
year after grant
of the same.
Appointed as
guardian.
Not exempted
Must always
from filing bond
file a bond.
even if such
exemption is
provided in the will
(bond is only
conditioned upon
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Services of
executor or
administrator are
terminated upon
payment of debts
and the estate and
distribution of
property to heirs.
Guardianship
is terminated
upon
attainment of
age of majority
of the minor or
upon gaining
competency in
resigns or
removed in a
contractual
trust, RTC
has
jurisdiction in
the
appointment
of new
trustee.
May sell or
encumber
property of
estate held in
trust if
necessary for
expedient
upon order of
the court.
Order of sale
has no time
limit
Appointed to
carry into
effect the
provisions of
a will or
written
instrument
(contractual
trust).
May be
exempted
from filing
bond if
provided in
the will or if
beneficiaries
requested
exemption.
Trusteeship is
terminated
upon turning
over the
property to
beneficiary
after
expiration of
Must pay the

debts of the
estate.
the case of an
incompetent
(need court
order for the
latter).
trust (period
may be
provided for in
the will or
trust
contract).
Must pay the

debts of the
ward.
No obligations
to pay debts
of beneficiary
or trustor.
Section 1. When trustee appointed

VENUE FOR PETITIONS FOR APPOINTMENT OF
TRUSTEES:
a. If trustee is necessary to carry into effect the
provisions of a will, then in the RTC in which
the will was allowed (assuming allowed in the
Philippines);
b. Otherwise, then in the RTC of any province in
which some property affected by the trust is
situated
A TRUSTEE IS NECESSARY TO CARRY INTO
EFFECT:
1. A will where the testator omitted to appoint a
trustee in the Philippines (Testamentary
Trust); and
2. Other written instruments where the trustee
therein declines, resigns, dies, or is removed
before accomplishment of trust (Contractual
Trust).
Section 2. Appointment and powers of trustee
under will, executor or former trustee need not
administer trust
No persons succeeding to a trust as executor or
administrator of a former trustee shall be required to
accept such trust.
Section 3. Appointment and powers of new
trustee under written instrument
Section 4. Proceedings where trustee appointed
abroad
When land in the Philippines is held in trust for a
resident by a trustee who derives his authority from
abroad, such trustee must petition the RTC where the
land is situated, otherwise, the trust will be vacant
and a new trustee will be appointed.
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When a trust is created abroad for property in the
Philippines, judicial approval is still needed though
trustor is alive.
Section 5. Trustee must file bond
Neglect of trustees to file a bond will be interpreted
by the court as resignation or decline to accept the
trust.
HOWEVER, HE MAY BE EXEMPTED FROM BOND
WHEN REQUESTED BY:
1. Testator;
2. All persons beneficially interested in the trust.
However, the court may cancel such exemption
anytime.
3. Hearing.
Who may petition? Parties beneficially interested.
GROUNDS
1. removal appears essential in the interest of
petitioners;
2. insanity;
3. incapability of discharging trust;
4. unsuitability.
Section 9. Proceedings for sale or encumbrance
of trust estate
Rules on Sale and Encumbrance of Trust Estate shall
conform as nearly as may be to the provisions on
Sale and Encumbrance by Guardians.
Section 6. Conditions included in bond

THE FOLLOWING CONDITIONS SHALL BE
DEEMED TO BE A PART OF THE BOND
WHETHER WRITTEN THEREIN OR NOT:
1. That the trustee will make and return to the
court, at such time as it may order, a true
inventory of all the real and personal estate
belonging to him as trustee, which at the time
of the making of such inventory shall have
come to his possession or knowledge;
2. That he will manage and dispose of all such
estate, and faithfully discharge his trust in
relation thereto, according to law and the will of
the testator or the provisions of the instrument
or order under which he is appointed;
3. That he will render upon oath at least once a
year until his trust is fulfilled, unless he is
excused therefrom in any year by the court, a
true account of the property in his hands and of
the management and disposition thereof, and
will render such other accounts as the court
may order;
4. That at the expiration of his trust he will settle
his accounts in court and pay over and deliver
all the estate remaining
in a his hands, or due
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Section 7. Appraisal; Compensation of trustee
Section 8. Removal or resignation of trustee
REQUISITES
1. Petition filed by parties beneficially interested;
2. Notice to trustee; and
ADOPTION
The provisions of the Rules of Court on Adoption
have been amended by the Domestic Adoption
Act of 1998 and Inter-country Adoption Act of
1995.
Sec. 6 of Rule 99 was amended by
Administrative Circular No. 03-04-04 while Sec. 7
of Rule 99 was amended by Administrative
Circular No. 02-1-19-SC. Effective August 22,
2002, there is a new Rule on Adoption.
NATURE AND CONCEPT OF ADOPTION
Adoption is a juridical act, a proceeding IN REM,
which creates between two persons a relationship
similar to that which results from legitimate paternity
and filiation.
PURPOSE OF ADOPTION
The promotion of the welfare of the child and the
enhancement of his opportunities for a useful and
happy life, and every intendment is sustained to
promote that objective.
WHAT DOES THE COURT DETERMINE IN
ADOPTION CASES?
1. capacity of the adopters;
2. whether the adoption would be for the best
interest of the child.
Teotico v. Del Val, L-18753 (1956)
Adoption is strictly personal between the adopter
and the adopted.
JUDICIAL
ADOPTION
EXTRAJUDICIAL
ADOPTION
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Proper in domestic
adoption.
Under the jurisdiction of
the Family Court (where
adopter resides).
Trial custody is in the

Philippines for 6 months
(but court may reduce
period or exempt parties
from trial custody).
Petition for adoption may
include prayer for change
of name, rectification of
simulated birth or
declaration that child is a
foundling, abandoned,
dependent or neglected
child.
Legitimate or illegitimate
child of a spouse or even
a person who is of legal
age may be adopted.
Income tax returns,
police clearance,
character reference,
family picture, birth
certificate of adopter are
not required to be
annexed in the petition.
Petition must be
published for 3
successive weeks in a
newspaper of general
circulation in the province
or city where court is
situated.
Application is through a
petition with the FC.
Proper in inter-country
adoption.
Under the jurisdiction of
the Inter-Country
Adoption Board (but a
petition may also be filed
with the Family Court
[where adoptee resides]
which will turn it over to
ICAB).
Trial custody is in the
country of adopter and is
mandatory before a
decree of adoption is
issued (expenses are
borne by the adopter).
Petition for adoption only.
Only a child legally

available for domestic
adoption may be the
subject of inter-country
adoption.
Income tax returns,
police clearance,
character reference,
family picture, birth
certificate of adopter are
required to be annexed
in the petition.
No publication
requirement.
Application may be
through agency in
foreign country and then
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to ICAB.
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Decree of adoption are needed to seeDecree
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RULES ON DOMESTIC ADOPTION

(Secs. 1-25, A.M. No. 02-6-02)
WHO MAY ADOPT (Sec. 4)

1. Any Filipino Citizen
(a) Of legal age;
(b) In possession of full civil capacity and legal
rights;
(c) Of good moral character;
(d) Has not been convicted of any crime
involving moral turpitude;
(e) Emotionally and psychologically capable of
caring for children;
(f) In a position to support and care for his/her
children in keeping with the means of the
family; and
(g) At least 16 years older that the adoptee.
EXCEPTIONS:
(1) If the adopter is the biological parent of
the adoptee
(2) If the adopter is the spouse of the
adoptees parent
(3) If the adopter is the sibling of the
adoptee (Article IV, 7 of the IRR)
2. Any alien possessing the same qualifications
above; provided:
(a) That his/her country has diplomatic
relations with the Philippines;
(b) That he/she has been living in the
Philippines for at least 3 continuous years
prior to the filing of the application for
adoption;
(c) Maintains residence until the adoption
decree is entered;
(d) Certified to have legal capacity to adopt; by
his/her country; and
(e) That his/her government allows the adoptee
to enter his/her country as his/her adopted
son/daughter.
3. The guardian with respect to the ward after the
termination of the guardianship and clearance
of his financial accountabilities.
The requirement of 16 YEARS DIFFERENCE
between the adopter and the adoptee is NOT
applicable if the adopter is:
(a) the biological parent of the adoptee;
(b) the spouse of the adoptees parents.
The requirement on residency and certification
of aliens qualification to adopt may be
WAIVED for the following:
(a) The adopter is a former Filipino citizen who
seeks to adopt a relative within the 4th civil
degree of consanguinity or affinity;
Page 155 of 289

(b) One who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse;
(c) One who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
relative within the 4th civil degree of
consanguinity or affinity or the Filipino
spouse.
WHO MAY BE ADOPTED (Sec. 5)
1. Any person below eighteen (18) years of age
who has been judicially declared available for
adoption OR voluntarily committed to DSWD;
2. The legitimate child of one spouse by the other
spouse;
3. An illegitimate child by a qualified adopter to
raise the status of the former to that of
legitimacy;
4. A person of legal age regardless of civil status,
if, prior to the adoption, said person has been
consistently considered and treated by the
adopters as their own child since minority;
5. A child whose adoption has been previously
rescinded;
6. A child whose biological or adoptive parents
have died;
7. A child not otherwise disqualified by law or
these rules.
A child legally available for adoption refers to a
child who has been voluntarily committed to the
DSWD or to a duly licensed and accredited childplacing or child caring agency, freed of the parental
authority of his biological parents.
2 WAYS TO COMMIT A CHILD
1. Administrative/Voluntary In this case, the
parent or guardian of the child voluntarily
committed him to the DSWD or any duly
licensed child placement or child caring
agency. The child must be surrendered in
writing.
Such written instrument must be
notarized and signed in the presence of an
authorized representative of the department
after counseling has been made to encourage
the parents to keep the child. (Sec. 5, A.M. No.
02-1-19-SC)
2. Judicial/Involuntary
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the procedure is
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A.M. No. 02-1-19-SC.
3. Any child placement or child caring agencies.

VENUE (Sec. 4b): Family Court of the province or
city in which the parent or guardian resides or where
the child is found.
WHO SHALL BE SUMMONED (Sec. 4c)
1. Parent or guardian of the child;
2. Office of the public prosecutor.
WHEN MAY SUMMONS NOT BE ISSUED (Sec. 4d)
1. If it appears from the petition that both parents
of the child are dead; or
2. That neither parent can be found in the
province or city where the court is located and
the child has no guardian residing therein.
In case no summons is issued, the court has the duty
of appointing a guardian ad litem and shall proceed
with the hearing of the case with due notice to the
provincial or city prosecutor.
There is no answer here. Only hearing is required.
CHILDS RIGHT TO COUNSEL (Sec. 4g)
The court, upon request of the child capable of
forming his own views or upon request of his
guardian ad litem, shall appoint a lawyer to represent
him in the proceedings.
DUTY OF THE PUBLIC PROSECUTOR (Sec. 4h)
The provincial or city prosecutor shall appear for the
State and ascertain if there has been due notice to all
parties concerned and that there is justification for the
declaration of dependency, abandonment or neglect.
JUDGMENT (Sec. 4j)
If, after hearing, the court shall find the child to be
dependent, abandoned, or neglected, it shall render
judgment committing him to the care and custody of
the DSWD or any child placement or child caring
agency.
However, if the court finds, that the abandonment or
neglect of the child may be remedied, the child may
be allowed to stay in his home under the care and
custody of his parent, subject to the supervision of
the DSWD.
End of A.M. No. 02-1-19-SC
RE: PROPOSED RULES ON COMMITMENT OF

CHILDREN (A.M. No. 02-1-19-SC)
WHO MAY FILE (Sec. 4a)
1. The Secretary of the DSWD;
2. His authorized representative;
GENERAL RULE:
Husband and wife shall jointly adopt.
EXCEPTIONS:
Page 156 of 289

1. If one spouse seeks to adopt the legitimate
son/daughter of the other;
2. If one spouse seeks to adopt his/her own
illegitimate son/daughter;
3. If the spouses are legally separated from each
other.
VENUE (Sec. 6):
Family Court
prospective adoptive parents reside.
where
the
CONTENTS OF THE PETITION (Sec. 7)

1. If the adopter is a Filipino citizen, the petition
shall allege the following:
(a) The jurisdictional facts;
(b) That the petitioner is of legal age, in
possession of full civil capacity and legal
rights; is of good moral character; has not
been convicted of any crime involving moral
turpitude; is emotionally and psychologically
capable of caring for children; is at least 16
years older than the adoptee, unless the
adopter is the biological parent of the
adoptee or is the spouse of the adoptees
parent; and is in a position to support and
care for his children in keeping with the
means of the family and has undergone
pre-adoption services as required by Sec. 4
of RA No. 8552.
2. If the adopter is an alien, the petition shall
allege the following:
(a) The jurisdictional facts;
(b) Sub-paragraph 1(b) above;
(c) That his country has diplomatic relations
with the Republic of the Philippines;
(d) That he has been certified by his diplomatic
or consular office or any appropriate
government agency to have the legal
capacity to adopt in his country and his
government allows the adoptee to enter his
country as his adopted child and reside
there permanently as an adopted child; and
(e) That he has been living in the Philippines
for at least 3 continuous years prior to the
filing of the petition and he maintains such
residence until the adoption decree is
entered.
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The requirement of certification of the aliens

qualification to adopt in his country and his
residency may be waived if the alien:
(1) is a former Filipino citizen who seeks to
adopt a relative within the 4th degree of
consanguinity or affinity; or
(2) seeks to adopt the legitimate child of his
Filipino spouse; or
(3) is married to a Filipino citizen and seeks to

adopt jointly with his spouse a relative
within the 4th degree of consanguinity or
affinity of the Filipino spouse.
3. If the adopter is the legal guardian of the
adoptee, the petition shall allege that
guardianship had been terminated and the
guardian
had
cleared
his
financial
accountabilities.
4. If the adopter is married, the spouse shall be a
co-petitioner for joint adoption except if:
(a) one spouse seeks to adopt the legitimate
child of the other; or
(b) if one spouse seeks to adopt his own
illegitimate child and the other spouse
signified written consent thereto; or
(c) if the spouses are legally separated from
each other.
5. If the adoptee is a foundling, the petition shall
allege the entries which should appear in his
birth certificate, such as name of child, date of
birth, place of birth, if known; sex, name and
citizenship of adoptive mother and father, and
the date and place of their marriage.
6. If the petition prays for a change of name, it
shall also state the cause or reason for the
change of name.
In all petitions, it shall be alleged:
(a) The first name, surname or names, age and
residence of the adoptee as shown by his
record of birth, baptismal or foundling
certificate and school records;
(b) That the adoptee is not disqualified by law
to be adopted;
(c) The probable value and character of the
estate of the adoptee;
(d) The first name, surname or names by which
the adoptee is to be known and registered
in the Civil Registry.
Petition shall be verified and specifically state at the
heading of the initiatory pleading whether the petition
contains an application for a change of name,
rectification of simulated birth, voluntary or
involuntary commitment of children, or declaration of
child as abandoned, dependent or neglected.
A certification of non-forum shopping shall be
included pursuant to Section 5, Rule 7 of the 1997
Rules of Civil Procedure.
Page 157 of 289

ANNEXES TO THE PETITION (Sec. 11)
1. Birth, baptismal or founding certificate, as
the case may be, and school records
showing the name, age and residence of the
adoptee;
2. Affidavit of consent of the following:
(a) The adoptee, if ten (10) years of age or
over;
(b) The biological parents of the child, if
known, or the legal guardian, or the childreplacement
agency,
child-caring
agency, or the proper government
instrumentality which has legal custody
of the child;
(c) The legitimate and adopted children of
the adopter and of the adoptee, if any,
who are ten (10) years of age or over;
(d) The illegitimate children of the adopter
living with him who are ten (10)years of
age or over; and
(e) The spouse, if any, of the adopter or
adoptee.
3. Child study report on the adoptee and his
biological parents;
4. If the petitioner is an alien, certification by his
diplomatic or consular office or any
appropriate government agency that he has
the legal capacity to adopt to his country and
that his government allows the adoptee to
enter his country as his own adopted child
unless exempted under Section 4(2);
5. Home study report on the adopters. If the
adopter is an alien or residing abroad but
qualified to adopt, the home study report by
the Inter-Country Adoption Board; and
6. Decree of annulment, nullity or legal
separation of the adopter as well as that of
the biological parents of the adoptee, if any.
the adoptee has been known which shall

be stated in the caption;
(2) The purpose of the petition;
(3) The complete name which the adoptee will
use in the petition is granted
(4) The date and place of hearing which shall
be set within six (6) months from the date
of issuance of the order and shall direct that
a copy thereof be published before the date
of hearing at least once a week for three
successive weeks in a newspaper of
general circulation in the province or city
where the court is situated; Provided, that
in case of application for change of name,
the date set for hearing shall not be within
four (4) months after the last publication
of the notice nor within thirty (30) days prior
to an election. The newspaper shall be
selected by raffle under the supervision of
the Executive judge.
(5) A directive to the social worker of the court,
the social service office of the local
government unit or any child-placing or
child-caring agency, or the Department to
prepare and submit child and home study
reports before the hearing if such reports
had not been attached to the petition due to
unavailability at the time of the filling of the
latter; and
(6) A directive to the social worker of the court
to conduct counseling sessions with the
biological parents on the matter of adoption
of the adoptee and submit her report before
the date of hearing.
B. CHILD & HOME STUDY REPORTS (Sec .13)
- social worker verifies with the Civil Registry
the real identity and the name of adoptee
and the fact that he is legally available for
adoption
- social worker may make recommendations
to the court if he finds some grounds to
deny the petition.
PROCEDURE
A. ORDER OF HEARING (Sec 12)
- Must be published at least once a week for
3 CONSECUTIVE WEEKS.
- At the discretion of the court, copies of the
order of hearing shall be furnished to the
office of the Sol.Gen. through the provincial
or city prosecutor,
the
DSWD and the
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KNOWN.
- If a change in the name of the adoptee is
prayed for in the petition, notice to the
Sol.Gen. shall be MANDATORY.
C. HEARING (Sec 14)

- To held within 6 MONTHS from the date of
issuance of the order
EXCEPT in case of APPLICATION FOR
CHANGE OF NAME which hearing must not
be within 4 MONTHS after LAST
PUBLICATION nor within 30 DAYS prior to
election
Contents of Order:
(1) The registered name of the adoptee in the
birth certificate and the names by which
The petitioner and the adoptee must

personally appear and the former must testify
in court.
Page 158 of 289

4. Adopters shall have reciprocal tights of
succession without distinction from legitimate
filiation.
D. SUPERVISED TRIAL CUSTODY (STC)

(Sec.15)
Before issuance of the decree of adoption, the
court shall give the adopter trial custody of the
adoptee for a period of at least six (6) months.
Reason:
so the parties will adjust
psychologically and emotionally to each other
and establish a bonding relationship.
The trial custody shall be monitored by the
social worker of the court, the Department, or
the social service of the local government unit,
or the child-placement or child-caring agency
which submitted and prepared the case
studies.
During said period, temporary parental
authority shall be vested in the adopter.
NOTE: Court may reduce or exempt parties
from Supervised Trial Custody.
GENERAL RULE:
Alien
complete 6 MONTHS STC
adopter
All hearings and records are confidential. (Sec. 18)
INTER-COUNTRY ADOPTION
Where to file Petition (Sec. 28)
1. A verified petition to adopt a Filipino child
may be filed by a foreign national or Filipino
citizen permanently residing abroad with the
Family Court having jurisdiction over the
place where the child resides or may be
found.
2. It may be filed directly with the Inter Country
Adoption Board.
WHO MAY ADOPT
1. Any
alien or Filipino citizen permanently
residing abroad who is at least twenty-seven
(27)years of age;
2. Other requirements same as with RA 8552
must
EXCEPTION:
Same as Exemptions from
requirements of residency and certification
E. DECREE OF ADOPTION
If issued, this will take effect as of the date of
filing of the original petition.
In case of change of name, the decree shall be
submitted to the Civil Registrar where the court
issuing the same is situated.
An amended birth certificate shall be issued.
The original birth certificate shall be stamped
cancelled and shall be sealed in the Civil
Registry records.
NOTE: The new birth certificate to be issued
to the adoptee shall
not bear
any notation that
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EFFECTS OF ADOPTION
1. Adopter will exercise parental authority;
2. All legal ties between biological parents and
the adoptee shall be severed, except when
biological parent is spouse of adopter;
3. Adoptee shall be considered legitimate child of
adopter for all intents and purposes;
WHO MAY BE ADOPTED (Sec. 29)

Only a child legally available for domestic adoption
may be the subject of inter-country adoption.
A child under the Inter-Country Adoption Act is
defined as any person below fifteen (15) years of
age.
CONTENTS OF PETITION (Sec. 30)
PETITIONER MUST ALLEGE:
(a) His age and the age of the child to be
adopted, showing that he is at least twentyseven (27) years of age and at least sixteen
(16) years older than the child to be adopted at
the time of application, unless the petitioner is
the parent by nature of the child to be adopted
or the spouse of such parent, in which case
the age difference does not apply;
(b) If married, the name of the spouse who must
be joined as co-petitioner except when the
adoptee is a legitimate child of his spouse;
(c) That he has the capacity to act and assume all
rights and responsibilities of parental authority
under his national laws, and has undergone
the appropriate counseling from an accredited
counselor in his country;
(d) That he has not been convicted of a crime
involving moral turpitude,
(e) That he is eligible to adopt under his national
law,
Page 159 of 289

(f) That he can provide the proper care and
support and instill the necessary moral values
and example to all his children, including the
child to be adopted,
(g) That he agrees to uphold the basic rights of the
child, as embodied under Philippine laws and
the U.N. Convention on the Rights of the Child,
and to abide by the rules and regulations
issued to implement the provisions of Republic
Act No. 8043,
(h) That he comes from a country with which the
Philippines has diplomatic relations and whose
government maintains a similarly authorized
and accredited agency and that adoption of a
Filipino child is allowed under his national laws;
and
(i) That he possesses all the qualifications and
none of the disqualifications provided in this
Rule, in Republic Act. No. 8043 and in all other
applicable Philippine laws.
ANNEXES (Sec. 31)
(a) Birth certificate of petitioner;
(b) Marriage contract, if married, and, if applicable,
the divorce decree, or judgment dissolving the
marriage;
(c) Sworn statement of consent of petitioners
biological or adopted children above ten (10)
years of age;
(d) Physical, medical and psychological evaluation
of the petitioner certified by a duly licensed
physician and psychologist;
(e) Income tax returns or any authentic document
showing the current financial capability of the
petitioner;
(f) Police clearance of petitioner issued within six
(6) months before the filing of the petitioner;
(g) Character
reference
from
the
local
church/minister, the petitioners employer and
a member of the immediate community who
have known the petitioner for at least five (5)
years;
(h) Full body postcard-size pictures of the
petitioner and his immediate family taken at
least six (6) months before the filing of the
petition
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RESCISSION OF ADOPTION
Under the Domestic Adoption of 1998, the
ADOPTER CAN NO LONGER RESCIND the
adoption, he can he adoptee in accordance with the
provisions of the Civil Code.
RESCISSION relates only as to the date of judgment.

Hence, vested rights prior to rescission should be
respected.
Who files? (Sec. 19)
1. ADOPTEE
(a) Over 18 years of age or
(b) If minor with assistance of DSWD
2. GUARDIAN or COUNSEL, if over 18 but
incapacitated.
Lahom v. Sibulo, G.R. No. 143989 (2003)
The new law withdrew the right of an adopter to
rescind the adoption decree and gave to the adopted
child the sole right to sever the legal ties created by
adoption.
GROUNDS (Sec. 19)
1. Repeated physical violation and verbal
maltreatment by the adopter despite having
undergone counseling;
2. Attempt on the life of the adoptee;
3. Sexual assault or violence; or
4. Abandonment or failure to comply with parental
obligations
VENUE (Sec. 20)
FAMILY COURT of the city or province where the
adoptee resides.
PERIOD WITHIN WHICH TO FILE VERIFIED
PETITION (Sec. 21)
Within 5 YEARS from reaching age of majority or
after recovery from incompetency.
Adverse party shall file his ANSWER within 15 days
from receipt of order of court requiring him to answer.
(Sec. 22)
EFFECTS OF JUDGMENT OF RESCISSION
1. Parental authority of biological parent or legal
custody of DSWD will be resorted;
2. Reciprocal rights of adoptee and adopter will
be extinguished;
3. Vested rights acquired prior to judicial
rescission shall be respected;
4. Successional rights shall revert to its status
prior to adoption, as of the date of judgment of
judicial rescission;
5. Adoptee shall use the name stated in his
original birth or founding certificate;
6. Civil registrar will reinstate his original birth or
founding certificate.
Unlike in revocation of guardianship, revocation of
adoption is a separate proceeding from the adoption.
Page 160 of 289

Reaches the record;
concerned with errors
committed by a court.
RULE 101
PROCEEDINGS FOR HOSPITALIZATION OF
INSANE PERSONS
Section 1. Venue; Petition for commitment
Venue: RTC of province where the person alleged to
be insane in found.
Who files a petition for commitment of an insane
person? Director of Health with assistance of city or
provincial fiscal
REQUISITES
1. Director of Health is of the opinion that the
commitment of the person alleged to be insane
is for public welfare or for the welfare of said
person;
2. Such person or the one having charge of his is
opposed to his being taken to a hospital or
asylum.
Direct attack.
Failure of respondent to
file comment will not be
punished by contempt
and will not even be
declared in default.
Court and prevailing
party are named as
respondents.
Reaches the body but

not the record; inquiry on
the
legality
of
the
detention.
Collateral attack.
Failure to file return
constitutes
contempt
(indirect).
Respondent
detainer.
is
the
WRIT OF HABEAS CORPUS

The writ of habeas corpus is a writ directed to the
person detaining another, commanding him to
produce the body of the prisoner at a designated time
and place, with the day and cause of his caption and
detention, to do, submit to, and receive whatever the
court or judge awarding the writ shall consider in that
behalf.
Section 1. To what habeas corpus extends
CASES PETITION SHOULD BE FILED: IN ALL

CASES WHERE IN THE OPINION OF THE
SECRETARY OF HEALTH, SUCH CONFINEMENT
IS:
a. for the public welfare
b. for the welfare of a person who in the
Secretarys judgment is insane, and such
person or the one having charge of him is
opposed to his being taken to a hospital or
other placed for the insane.
THE WRIT OF HABEAS CORPUS MAY BE

OBTAINED IN TWO INSTANCES:
1. cases of illegal confinement or detention by
which a person is deprived of his liberty; and
2. cases by which the rightful custody of the
person is withheld from the person entitled
thereto.

Section 3. Hearing and judgment
Section 4. Discharge of insane
Section 5. Assistance of fiscal in the proceeding
WHEN THE WRIT MAY BE AVAILED OF AS A

CONSEQUENCE OF A JUDICIAL PROCEEDING:
1. There has been a deprivation of a
constitutional right resulting in restraint of
person;
2. The court had no jurisdiction to impose the
sentence;
3. An excessive penalty has been imposed, the
sentence being void as to the excess;
4. Where the law is amended, as when the
penalty is lowered.
Director of Health may file this petition in the RTC

which ordered the commitment, when he is of the
opinion that the person is permanently or temporarily
cured or my be released without danger.
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RULE 102
HABEAS CORPUS
CERTIORARI,
PROHIBITION AND
MANDAMUS
Special civil action under
Rule 65.
HABEAS CORPUS
Special proceeding.
Actual physical restraint is not required; any restraint

which will prejudice freedom of action is sufficient.
NATURE
Alimpoos v. CA, 106 SCRA 159 (1981)
Petition for habeas corpus is LIKE A
PROCEEDING IN REM because it is an inquisition
by the government, at the suggestion and instance of
an individual, most probably, but still in the name and
capacity of the sovereign. It is also instituted for the
Page 161 of 289

purpose of fixing the status of a person and that there
can be no judgment entered against anybody since
there is no real plaintiff and defendant.
PURPOSE
Moncupa v. Enrile, 141 SCRA 233 (1986)
The essential object and purpose of the writ of
habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary,
and to relieve a person therefrom if such restraint is
illegal.
Villavicencio v. Lukban, 39 Phil 778 (1919)
And any further rights of the parties are left
untouched by decision on the writ, whose principal
purpose is to set the individual at liberty.
GROUNDS FOR SUSPENSION OF THE WRIT
UNDER THE CONSTITUTION:
1. invasion, when public safety requires;
2. rebellion, when public safety requires.
IN CASES OF ILLEGAL CONFINEMENT OR
DETENTION
GENERAL RULE
The release, whether permanent or temporary, of a
detained person renders the petition for habeas
corpus moot and academic.
EXCEPTION: When there are restraints attached to
his release which precludes freedom of action, in
which case the court can still inquire into the nature
of his involuntary restraint. (Villavicencio v. Lukban,
supra)
VOLUNTARY RESTRAINT
GENERAL RULE
Writ not available if restraint is voluntary.
Habeas Corpus can never be a substitute for appeal.

Galvez, et.al. v. CA, et.al., 237 SCRA 685 (1994)
Whether the petition for the writ of habeas
corpus may be properly filed together with the
petition for certiorari and mandamus.
The Court ruled that the writs of habeas corpus
and certiorari may be ancillary to each other where
necessary to give effect to the supervisory powers of
the higher courts. A writ of habeas corpus reaches
the body and the jurisdictional matters, but not the
record. A writ of certiorari reaches the record but not
the body. Hence, a writ of habeas corpus may be
used with the writ of certiorari for the purpose of
review. However, habeas corpus does not lie where
the petitioner has the remedy of appeal or certiorari
because it will not be permitted to perform the
functions of a writ of error or appeal for the purpose
of reviewing mere errors or irregularities in the
proceedings of a court having jurisdiction over the
person and the subject matter.
The person on bail is not entitled to habeas corpus
because his detention is legal and technical.
Section 2. Who may grant the writ
The RTC, CA and SC have concurrent jurisdiction to
issue writs of habeas corpus. The MTC can issue
the writ in case there is no available RTC judge.
Hierarchy of courts is not observed.
Sandiganbayan may issue writs of habeas corpus
only if it is in aid of its appellate jurisdiction.
COLLEGIATE COURT
Enforceable throughout
the Philippines.
Returnable to any court.
EXCEPTION: Writ will lie to enable the parents (or

person having substituted parental authority) to
recover custody of a minor child although she is in
the custody of a 3rd person on her own volition.
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TIFF (Uncompressed)
Voluntariness is viewed
from decompressor
the point of view of the
person entitled to custody.
WHEN PETITION FOR HABEAS CORPUS NOT

PROPER:
1. for asserting or vindicating denial of right to
bail;
2. for correcting errors in appreciation of
facts/appreciation of law.
RTC
Enforceable only within
their respective judicial
region.
Returnable only to itself
JURISDICITON IN CASES OF HABEAS CORPUS

WITH RESPECT TO CUSTODY OF MINORS
Although the Family Court where the petitioner
resides or where the minor may be found has
exclusive and original jurisdiction to hear petitions for
habeas corpus with respect to custody of minors, the
Supreme Court and the Court of Appeals can take
cognizance of such petition in order that it can be
enforceable within the Philippines. However, the
return can be heard in the FC/RTC (if there is no FC
in the judicial region) and there is no need to file a
Page 162 of 289

separate petition for custody because the issue can
be ventilated in the petition for writ.
REQUISITES FOR THE ISSUANCE OF THE WRIT
IN CASES WHERE THE RIGHTFUL CUSTODY
OVER THE PERSON OF A MINOR IS WITHHELD
FROM THE PERSON ENTITLED THERETO:
1. that the petitioner has the right to the custody
over the minor;
2. that the rightful custody of the minor is being
withheld from the petitioner by the respondent;
3. that it is to the best interest of the minor
concerned to be in the custody of the petitioner
and not that of respondent. (Sombong v. CA,
January 31, 1996)
Section 3. Requisites of application therefor
VERIFIED PETITION MUST SET FORTH:
1. that the person in whose behalf the application
is made is imprisoned or restrained of his
liberty;
2. The officer or name of the person by whom he
is imprisoned or restrained;
3. Place where he is imprisoned or restrained, if
known;
4. Copy of the commitment or cause of the
detention, if it can be procured without
impairing the efficiency of the remedy (if no
legal authority for imprisonment, such fact shall
appear).
Section 4. When writ not allowed or discharge
authorized
1. If the person is in custody of an officer under
process issued by a court or by virtue of a
judgment or order of a court of record which
has jurisdiction to issue the process, render
the judgment or make the order
2. If jurisdiction appears after the writ is
allowed;
3. If the person is charged with or convicted of
an offense in the Philippines
Supervening Events May Bar Release
Even if the arrest of a person
illegal, supervening
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are needed or
to seedischarge
this picture.
What is to be inquired into is the legality of detention
as of, at the earliest, the filing of the application for
the writ of habeas corpus. (Velasco vs. CA, July 7,
1995).
Section 5. When the writ must be granted and
issued
PRELIMINARY CITATION
Where a person detained under governmental
authority and the illegality of his detention is not
patent from the petition for the writ, the court may
issue a citation to the government officer having the
person in her/his custody to show cause why the writ
should not issue.
PEREMPTORY WRIT
It is issued when the cause of detention appears to
patently illegal and the non-compliance therewith is
punishable
Elepante v. Madayag, G.R. No. 92586 (1991)
An appeal in Habeas Corpus proceedings should
be perfected (i.e. by filing Notice of Appeal) within 48
hours, compliance with which is mandatory and
jurisdictional. In counting the 48 hours, the date on
which the decision was promulgated is not counted,
and the period starts to run the following day.
NOTE: Please try to read the PROPOSED RULE
ON CUSTODY OF MINORS AND WRIT OF
HABEAS CORPUS IN RELATION TO CUSTODY OF
MINORS which shall apply to petitions for custody of
minors and writs of habeas corpus in relation to
minors. (A.M. No. 03-04-04-SC, effective 15 May,
2003)
Tung Chin Hui v. Rodriquez, G.R. No. 141767
(2001)
Ps confinement is in accord with 37 (a) of the
Philippine Immigration Act of 1940, as amended,
which reads as follows: 37. (a) The following aliens
shall be arrested upon the warrant of the
Commissioner of Immigration or of another officer
designated by him for the purpose and deported
upon the warrant of the Commissioner of Immigration
after a determination by the Board of Commissioners
of the existence of the ground for deportation as
charged against the alien: xxx (7) Any alien who
remains in the Philippines in violation of any limitation
or condition under which he was admitted as a nonimmigrant.
Section 6. To whom writ directed, and what to
require
DIRECTED TO OFFICER AND COMMANDS HIM
TO:
1. Produce the body of person before the court ;
and
2. Show cause of the imprisonment or restraint.
Page 163 of 289

Section 7. How prisoner designated and writ
served
Section 8. How writ executed and returned
1. Convey the person so imprisoned before the
judge, unless from sickness or infirmity such
person cannot, without danger brought before
the court.
2. Make the return of the writ together with the
day and the cause of caption or restraint.
Section 14. When person lawfully imprisoned

recommitted, and when let to bail
Section 15. When prisoner discharged if no
appeal
If one is unlawfully imprisoned, court shall order his
discharge but such discharge shall not be effective
until a copy of the order has been served on the
officer or person detaining the prisoner. If person
detaining him does not appeal, the prisoner shall be
released.
Section 9. Defect of form

NO WRIT CAN BE DISOBEYED FOR DEFECT IN
FORM IF IT SUFFICIENTLY STATES:
1. Person In whose custody or under whose
restraint is held; and
2. Court or judge before whom he is to be
brought.
Section 10. Contents of return
(a) Whether he has or has not the party in his
custody or power , or under restraint;
(b) If he has the party in his custody or power or
under restraint, the authority and the true and
whole cause thereof, set forth at large, with a
copy of the writ, order, execution , or other
process, if any, upon which the party is held;
(c) If the party in his custody or power or is
restraint by him, and is not produced,
particularly the nature and gravity o f the
sickness or infirmity of such party by reason of
which he cannot, without danger, be brought
before the court or judge;
(d) If he has had the party in his custody or power,
or under restraint , and has transferred such
custody or restraint to another, particularly to
whom, at that time, for what cause , and by
what authority such transfer was made.
Section 11. Return to be signed and sworn to
Section 12. Hearing on return; Adjournments
Section 13. When the return evidence, and when
only a plea
If detention is by public QuickTime
authority,
and a the petitioner has
burden of proof to show
that
restraint was illegal.
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PERIOD OF APPEAL
Within 48 hours from notice of the judgment or final
order appealed from (Section 39 BP 129). Form of
appeal is NOTICE OF APPEAL.
Section 16. Penalty for refusing to issue writ, or
for disobeying the same
Section 17. Person discharged not to be again
imprisoned
We hold that such a reservation is repugnant to the
government of laws and not of men principle. Under
this principle, the moment a person is acquitted on a
criminal charge he can no longer be detained or rearrested for the same offense. (Moncupa vs. Enrile,
supra)
Section 18. When prisoner may be removed from
one custody to another
1. By legal process;
2. Prisoner is delivered to a inferior officer to
carry to jail;
3. By order of proper court or judge directing that
he be removed from one place to another
within the Philippines for trial;
4. In case of fire, epidemic, insurrection or other
necessary or public calamity.
Section 19. Record of writ, fees and costs
When does court acquire jurisdiction over person
of respondent?
The writ itself plays the role of summons in ordinary
actions; court acquires jurisdiction over the person of
the respondent BY MERE SERVICE OF WRIT.
If the detention is by reason of private authority, the

return is considered only a plea of the facts asserted
therein and the person responsible for the detention
has the burden of proof to establish that the
detention is legal and justified.
Page 164 of 289

RULE ON CUSTODY OF MINORS AND WRIT OF
HABAES CORPUS IN RELATION TO THE
CUSTODY OF MINORS (A.M. No.03-04-04-SC)
WHO MAY FILE PETITION?(Sec. 2)
A verified petition for the rightful custody of a minor
may be filed by any person claiming such right.
WHERE TO FILE PETITION?
Family courts in the province or city where the
petitioner resides or where the minor may be found.
CONTENTS OF A VERIFIED PETITION (Sec. 4)
1. The personal circumstances of the petitioner
and respondent;
2. The name, age and present whereabouts of
the minor and his or her relationship to the
petitioner or respondent;
3. The material operative facts constituting
deprivation of custody;
4. Such other matters which are relevant to the
custody of minor.
Motion to dismiss is not allowed except on the
ground of lack of jurisdiction over the subject matter
or over the parties.
Respondent must file verified answer within 5 days
from service of summons and copy of petition.
PROVISIONAL ORDER AWARDING CUSTODY
(Sec. 13)
As far as practicable, the following order of
preference shall be observed in the award of custody:
1. Both parents jointly;
2. Either parent, taking into account all relevant
considerations, especially the choice of the
minor over seven years of age and of sufficient
discernment unless the parent chosen is unfit;
3. The grandparent or if there are several
grandparents, grandparent chosen by the
minor over seven years of age and of sufficient
discernment, unless the grandparent chosen
is unfit or disqualified;
4. The eldest brother or sister over twenty one
(21) years of age unless he or she is unfit or
disqualified;
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5. The actual custodian
ofthisthe
minor over twenty
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one (21) years of age unless former is unfitor
disqualified; or
6. Any other person or institution the court may
deem suitable to provide proper care and
guidance for the minor.
TEMPORARY VISITATION RIGHTS (SEC. 15)

The court shall provide in its order awarding
provisional custody appropriate visitation rights to the
non-custodian parent or parents unless the court
finds said parent or parents unfit or disqualified.
HOLD DEPARTURE ORDER (Sec. 16)
The minor child subject of the petition shall not be
brought out of the country without prior order from the
court while the petition is pending.
The Court, motu prorio or upon application under
oath, may issue and ex parte hold departure order.
PETITION OF WRIT OF HABEAS CORPUS (Sec.
20)
The petition shall be filed where the Family Court
where petitioner resides or where the minor may be
found
The petition shall be enforceable within its judicial
region to which the Family Court belongs.
The petition may however be filed with the regular
court in the absence of the presiding judge of the
Family Court, provided however that the regular court
shall refer the case to the Family Court as soon as
its presiding judge returns to duty.
The petition may also be filed with the SC, CA or
with any of its members and, if so granted the writ
may be made returnable to a Family Court or to any
regular court within the region where the petitioner
resides or where the minor may be found for hearing
and decision on the merits.
RULE 103
CHANGE OF NAME
Section 1. Venue
RTC of the province where the petitioner has been
residing for 3 years prior to the filing of the petition.
THE PETITION SHALL SET FORTH:
1. That petitioner is a bona fide resident of the
province for at least 3 years prior to the date of
the filing of the petition
2. Cause for which the change of name is sought
3. Name asked for (2)
4. All names and aliases of petitioner (Republic v.
Zosa)
Page 165 of 289

Petition shall be signed and verified by person
desiring the name change or some person in his
behalf
Requirements of verification are formal, NOT
jurisdictional requisite, and not a ground for
dismissing petition.
RULE 103
CHANGE OF NAME
Judicial (RTC)
Includes change in
surname
RA NO. 9048
CORRECTION OF
CLERICAL OR
TYPOGRAPHICAL ERROR
Extrajudicial (local civil
registrar or consul general in
case of non-resident citizen)
Covers clerical or
typographical error and
change of first name or
nickname

Section 4. Hearing
Section 5. Judgment
Section 6. Service of judgment
NOTICE OF HEARING
Notice of hearing published once a week for 3
consecutive weeks.
DATE OF HEARING
Cannot be held within 30 days before an election, or
within 4 months after last publication.
Last
publication
4 months
Hearing
30 days
Election
Hearing cannot be scheduled within these periods

TITLE OF PETITION
Must include name, aliases, and name asked for.
Example: In Re: Petition for Change of Name of X,
alias Y, to Z. X, Petitioner.
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PUBLICATION
Must reproduce title of the petition (see above), and
contain correct information as to:
a. Name or names of petitioner;
b. Cause for the change of name;
c. Name asked for.
Failure to comply with above requirements renders

proceedings null and void
RULE 104
VOLUNTARY DISSOLUTION OF CORPORATIONS
Section 1. Where, by whom and on what showing
application made
Section 2. Order thereupon for filing objections
Section 3. Hearing, dissolution, and disposition
of assets; Receiver
Section 4. What shall constitute record
NOTE: Repealed by Sections 118 and 119 of the
Corporation Code
RULE 105
JUDICIAL APPROVAL OF VOLUNTARY
RECOGNITION OF MINOR NATURAL CHILDREN
Section 1. Venue
Section 4. Opposition
Section 5. Judgment
Section 6. Service of judgment upon civil
registrar
RECOGNITION OF NATURAL CHILDREN (Art.
278, NCC)
Only evidence accepted
a. Record of birth
b. Will
c. Statement before court of record
d. Any authentic writing
RULE 106
CONSTITUTION OF FAMILY HOME
Section 1. Who may constitute
Section 3. Notice and publication
Section 4. Objection and date of hearing
Section 5. Order
Section 6. Registration of order
NOTE: Amended by Articles 152 and 153 of the
Family Code.
RULE 107
Page 166 of 289

ABSENTEES
Section 1. Appointment of representative
Section 2. Declaration of absence; who may
petition
CONTENTS OF PETITION FOR APPOINTMENT OF
REPRESENTATIVE, OR FOR DECLARATION OF
ABSENCE AND APPOINTMENT OF TRUSTEE OR
ADMINISTRATOR:
b. Names, ages, and residences of heirs
instituted in the will (a copy of which must be
presented) and of the intestate heirs;
c. Names and residences of creditors and other
persons with adverse interests over the
properties of the absentee;
d. Probable value, location and character of the
property of the absentee.
Section 4. Time of hearing; notice and publication
thereof
Section 6. Proof at hearing; order
Section 7. Who may be appointed
Section 8. Termination of administration
NOTICE OF HEARING
Published once a week for 3 consecutive weeks, and
personal notice sent to all known heirs, legatees,
devisees, creditors and other interested persons at
least 10 days before the hearing.
RULE 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
Section 1. Who may file petition
Any person interested in any act, event, order or
decree concerning the civil status of persons.
RTC of the province where the corresponding civil
registrar is located.
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REQUISITES OF ADVERSARIAL PROCEEDINGS:

1. Proper petition is filed where the Civil Registrar
and all parties interested are impleaded;
2. The order of hearing must be published once
a week for three consecutive weeks
3. Notice thereof must be given to the Civil
Registrar and all parties affected thereby;
4. The Civil Registrar and any person having or

claiming any interest under the entry whose
cancellation or correction is sought may,
within 15 days from notice of the petition or
from the last date of publication of such notice,
files his opposition thereto;
5. Full blown trial.
NOTE:
Proceedings for the correction of entries
should not be considered as establishing ones status
in a manner conclusively beyond dispute. The status
corrected would not have a superior quality for
evidentiary purposes.
There is no increase or
diminution of substantative right. (Chiao Ben Lim vs.
Zosa, L-40252, December 29, 1986)
Section 2. Entries subject to cancellation or
correction
1.
2.
3.
4.
5.
6.
Births;
Marriages;
Deaths;
Legal separations;
Judgments of annulments or marriage;
Judgments declararing marriages void from the
beginning;
7. Legitimations;
8. Adoptions;
9. Acknowledgments of natural children;
10.Naturalization;
11.Elections, loss or recovery of citizenship;
12.Civil interdiction;
13.Judicial determination of filiation;
14.Voluntary emancipation of a minor;
15.Change of name
Section 3. Parties
1. Civil registrar;
2. All persons who have or claim any interest
which would be affected thereby.
Section 4. Notice and publication
Order of hearing shall be published once a week for 3
consecutive weeks in a newspaper of general
circulation in the province and all persons named in
the petition shall be notified.
Within 15 days from notice of the petition or from date
of last publication.
Section 6. Expediting proceedings
Section 7. Order
Page 167 of 289

Civil registrar shall be given a copy of the judgment
and annotate the same on his record
PETITIONS FOR
CHANGE OF NAME
Petition to be filed in the

RTC where the petitioner
resides.
Solicitor General must be
notified by service of a
copy of the petition.
Petition is filed by person

desiring to change his
name.
Order of the hearing shall
be published once a
week for three
consecutive weeks
First name or last name

(there must be valid
around with respect to
the letter) may be
changed
Service of judgment shall
be upon the civil register
concerned
PETITIONS FOR THE

CORRECTION ,
CANCELLATION OF
ENTRIES
Verified petition filed in
the RTC where the
corresponding civil
registry is located.
Civil registrar concerned
is made a party to the
proceeding as a
respondent. The
Solicitor General must
also be notified by
service of a copy of the
petition.
Petition is filed by any
person interested in any
ACT, EVENT, ORDER
OR DECREE.
order shall be published
once a week for three
consecutive weeks and
court shall cause
reasonable notice to
person named in petition
Only typographical errors
may be changed.
Service of judgment shall

be upon the civil register
concerned
RA 9048 AN ACT AUTHORIZING THE CITY OR

MUNICIPAL CIVIL REGISTRAR OR THE CONSUL
GENERAL TO CORRECT A CLERICAL OR
TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR
CHANGE OF FIRST NAME OR NICKNAME IN THE
CIVIL REGISTER
WITHOUT NEED OF A
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JUDICIAL ORDER
SCOPE:
a. Clerical / typographical errors
b. Change of first name / nickname
CLERICAL OR TYPOGRAPHICAL ERROR
It is a mistake committed in the performance of
clerical work in writing, copying, transcripting or
typing an entry in the civil register that is harmless

and innocuous, such as misspelled name or
misspelled place of birth or the like, which is visible to
the eyes, or obvious to the understanding and can be
corrected or changed only by reference to other
existing record or records.
WHO MAY FILE PETITION:
Any person having direct and personal interest in the
correction or change
WHERE TO FILE PETITION:
1. With the local civil registry office of the city or
municipality where the record being sought to
be corrected or changed is kept.
2. If petitioner has already migrated to another
place in the country and it would not be
practical for such party to appear before the
local civil registrar keeping the documents to
be corrected or changed: With the local civil
registry of the place where the interested party
is presently residing or domiciled
3. If petitioner resides or domiciled in foreign
countries: With nearest Phil. Consulate
Petition may be availed of only once.
GROUNDS FOR CHANGE OF FIRST NAME:
1. First name is ridiculous, tainted with dishonor
or extremely difficult to write or pronounce
2. New first name or nickname has been
habitually and continuously used by the
petitioner and he has been publicly known by
that first name or nickname in the community
3. Change will avoid confusion
FORM AND CONTENTS OF PETITION:
a. In the form of an affidavit, subscribed and
sworn to before any authorized person
b. Set forth fact necessary to establish merits
c. Show affirmatively that petitioner is competent
to testify to the matters stated
d. State:
i. The particular erroneous entry which are
sought to be corrected
ii. The change sought to be made
e. Supported by:
i)
A certified true machine copy of the
certificate or of the page of the registry
book containing the entry or entries sought
to be corrected or changed
ii) At least 2 public or private documents
showing the correct entry or entries upon
which the correction or change shall be
based
iii) Other relevant documents
Page 168 of 289

Differences between RA 9048 and Rule 108
RA 9048
Administrative
proceeding
Affidavit is filed
Penalty clause
Publication requirement:
once a week for 2
consecutive weeks
Posting in conspicuous
place
Change of name is
based on 3 enumerated
grounds
RULE 108
Summary judicial
proceeding
Petition is filed
No penalty clause
Publication requirement:
3 consecutive weeks
No posting
Change of name is to
correct clerical /
innocuous errors
2. Order made in administration proceedings

relating to inclusion or exclusion of items of
property in the inventory of executor or
administrator;
3. Order appointing special administrator;
4. Order granting or denying a motion for new
trial or for reconsideration.
Section 2. Advance
proceedings
APPEAL IN ORDINARY
CIVIL ACTION
15 days
Notice of Appeal and
docket fees
No extension
distribution
in
special
APPEAL IN SPECIAL
PROCEEDINGS
30 days
Record on appeal and
docket fees
May
extend
on
territorious grounds
RULE 109
APPEALS IN SPECIAL PROCEEDINGS
Section 1. Orders or judgments from which
appeals may be taken
An interested person may appeal in special
proceedings from such order or judgment rendered
which:
1. Allows or disallows will;
2. Determines who are the lawful heirs of a
deceased person, or the distributive share of
the estate to which such person is entitled;
3. Allows or disallows, in whole or in part, any
claim against the estate of a deceased person,
or any claim presented on behalf of the estate
offset to a claim against it;
4. Settles the account of a executor,
administrator, trustee or guardian.
5. Constitutes, in the proceedings relating to the
settlement of the estate of a deceased person,
or the administration of a trustee or guardian,
a final determination of a trustee or guardian,
a final determination in the lower court of the
rights of the party appealing, EXCEPT that no
appeal shall be allowed from the appointment
of a special administrator; and
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6. Is the finalTIFF
order
or judgment
(Uncompressed)
decompressor rendered in the
case, and affects the substantial rights of the
person appealing, UNLESS it be an order
granting for denying a motion for a new trial or
for reconsideration.
ORDERS THAT ARE NOT APPEALABLE
1. Order directing administrator to take action to
recover amount due to the estate;
Page 169 of 289

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ATENEO CENTRAL BAR OPERATIONS 2007

right, or a particular fact

JURISDICTION AND VENUE

Remedial Law Summer Reviewer

g. Hospitalization of insane patient: RTC in place

Civil registar where entry is located or if

SETTLEMENT OF ESTATE OF DECEASED

File in the MTC:

Page 133 of 289

Remedial Law Summer Reviewer

EXCEPTION: Estoppel by laches

Page 134 of 289

Remedial Law Summer Reviewer

SUMMARY SETTLEMENT OF ESTATES WITH

Remedial Law Summer Reviewer

of non-resident, that he left an estate within

Filed by third person

Notice published once a

Section 2. Contents of petition

JURISDICTIONAL FACTS ALLEGED IN PETITION

CONTENTS OF PETITION FOR PROBATE:

Page 136 of 289

Remedial Law Summer Reviewer

the testator. In the absence thereof, testimony

Remedial Law Summer Reviewer

Must present will to the

ORDER OF PREFERENCE IN GRANTING

Must always post bond

Section 4. Letters testamentary issued when will

LETTERS OF ADMINISTRATION WITH A WILL

Section 1. Opposition to issuance of letters

Page 138 of 289

Remedial Law Summer Reviewer

Section 3. Bonds of joint executors

Page 139 of 289

Remedial Law Summer Reviewer

a. On the written application of executor or

i. Freely permit the exercise of the rights

Remedial Law Summer Reviewer

HOWEVER, at any time before an order of

then allow him to file such claim within a time which

Page 141 of 289

Remedial Law Summer Reviewer

Section 7. Mortgage debt due from estate

2. Foreclose his mortgage or realize upon his

Page 142 of 289

Remedial Law Summer Reviewer

NOTE: The mode of appeal is record on appeal and

Section 5. Mortgage due estate may be

are needed to see this picture.

Before distribution is made or before any residue is

REQUISITES BEFORE ACTION MAY BE FILED BY

Remedial Law Summer Reviewer

conveyed such property that by law the

not the proper procedure to

Is execution a proper remedy to satisfy an

1. when the personal estate of the decedent is

If the court is satisfied that contingent claim duly filed

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Extension must not exceed six months for single

Successor of deceased executor or administrator

Remedial Law Summer Reviewer

EXCEPTION: If the distributes or any of them gives