Written Report in Special Procedures

(Rule 72 – 90)
 WRITTEN REPORT IN SPECIAL PROCEEDINGS

RULE 72 SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES

Section 1. Subject matter of special proceedings.

What are covered by special proceedings?

a. Settlement of estate of deceased h. Habeas corpus

persons i. Change of name
b. Escheat j. Voluntary dissolution of
c. Guardianship and custody of corporations
children k. Judicial approval of voluntary
d. Trustees recognition of minor natural children
e. Adoption l. Constitution of family home
f. Rescission and revocation of m. Declaration of absence and death
adoption n. Cancellation or correction of entries
g. Hospitalization of insane persons in the civil registry

This list is not exclusive. Any petition which has for its main purpose the establishment of a
status, right, or a particular fact many be included as a special proceeding.

Section 2. Applicability of rules of civil actions.

Rules for ordinary actions have suppletory applications to the rules of Special Proceedings, if the
former will not conflict with the latter.

Applicable rules of Civil Procedure:

1. Rule 2: Cause of Action 5. Rule 7: Parts of a Pleading

2. Rule 3: Parties to Civil Action 6. Rule 8: Manner of Making
3. Rule 4: Venue of Actions Allegations in a Pleading
4. Rule 6: Kinds of Pleadings 7. Rule 9: Effect of Failure to Plead
 8. Rule 13: Filing and Service of 12. Rules 23 to 29: Modes of Discovery
Pleadings, Judgments and other 13. Rule 30: Trial
papers 14. Rule 32: Trial by Commissioners
9. Rule 15: Motions 15. Rule 33: Demurrer to Evidence
10. Rule 16: Motion to Dismiss 16. Rule 37: New Trial or
11. Rule 21: Subpoena Reconsideration

Ordinary Civil Action Special Civil Action Special Proceeding

As to Nature
Generally, adversarial in Some are adversarial in Generally, non-adversarial
nature. There are definite nature while some are merely because it is directed against
parties. remedial in nature, e.g. the whole world, as majority
interpleader. of special proceedings are in
rem.
As to Purpose
One by which a party sues another for the enforcement or Remedy by which a party
protection of a right or the prevention or redress of a wrong. seeks to establish a status, a
right, or a particular fact.
A civil action may either be ordinary or special.
As to Governing Rules
Rules of ordinary civil Primarily by ordinary rules Special rules but ordinary
actions but subject to specific rules rules apply as far as
practicable
As to Applicability of Pleadings
Parties are generally allowed Like in ordinary civil action, Law on pleadings generally
to file an answer, law on pleadings are not applicable
counterclaim, cross-claim, generally applicable subject
and third-party complaint only to specific rules
prescribed
As to Parties Involved
Two or more Two or more May involve only one
As to How Initiated
By complaint Some are initiated by By petition
complaint while some are
initiated by petition
As to Appeal
 15 days + Notice of Appeal;
but Record on Appeal may be
filed.
Based on a cause of action
30 days + Record on Appeal
As to the Cause of Action
Some special civil actions
have no cause of action
30 days + Notice of Appeal +
Record on Appeal.
Not based on a cause of
action, except Habeas
Corpus

Settlement of estate of deceased persons

1.
2. Death 6. Filing of claims against the estate
3. Production of will 7. Payments of debts of the estate
4. Allowance or disallowance of the 8. Partition and distribution of the
will estate
5. Issuance of letters of testamentary or 9. Closure
letters of administration

Modes of settlement of estate of a deceased person / presumed dead

1. Partition
2. Extrajudicial settlement
3. Summary settlement of estate of small value
4. Probate of will
5. Petition for letters of testamentary
6. Petition for letters of administration in case of intestacy

TWO KINDS OF SETTLEMENT

Extrajudicial Settlement Judicial Settlement
A proceeding where the decedent had left no Testate or intestate proceeding instituted in
will and no debts, and the heirs adjudicate the the country where decent had his resident at
estate among themselves.
 the time of his death.

a. Summary settlement (> P10,000)

b. Regular settlement

RULE 73 VENUE AND PROCESS

Section 1. Where estate of deceased persons settled.

This section relates to the matter of venue of estate proceedings when it refers to the decedent’s
place or residence or location of the decedent’s estate.

Venue

Inhabitant of the Philippines (citizen or alien) Court of the province or city where the
at the time of his death deceased resides at the time of death
Inhabitant of foreign country Court of any province wherein he had his
estate

Jurisdiction

Metro Manila MTC: gross value does not exceed P400,000

RTC: more than P400,000
Outside Metro Manila MTC: gross value does not exceed P300,000
RTC: more than P300,000

Jurisdiction over the subject matter is determined b the material allegations in the petition.

Rule of Preferential Jurisdiction

General Rule: The court first taking cognizance of the settlement of the estate of the decedent
shall exercise jurisdiction to the exclusion of other courts.

Exception: Estoppel by Laches

When probate court acquires jurisdiction

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 extrajudicial partition of the estate or by filing another petition for
settlement in a proper court.

Contesting the jurisdiction of the court in settlement of estate proceedings

Appeal (Rule 109) Lack of jurisdiction does not appear on the

record
Certiorari Lack of jurisdiction appears on the record

Extent of probate courts’ jurisdiction

1. Liquidation of the estate

2. Administration of the estate
3. Distribution of the estate

Section 2. Where the estate settled upon dissolution of marriage.

When the marriage is dissolved by the death of the husband or wife, the community property
shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or
intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership
shall be liquidated in the testate or intestate proceedings of either.

Only the probate court can competently rule on whether the properties are conjugal and form part
of, the estate.

A creditor cannot sue the surviving spouse of a decedent in an ordinary proceeding for collection
for sum of money chargeable against the conjugal property. The proper remedy is for the creditor
to file a claim in the settlement of estate of the decedent.

Section 3. Process.
If a person does not perform an order or judgment rendered by a court in the exercise of its
probate jurisdiction, it may issue a warrant for the apprehension and imprisonment of such
person until he performs such order or judgment, or is released.

Instances probate courts issues a writ of execution:

1. Partition expenses
2. Examination costs
3. Contributive shares
4. Surety’s liability on bonds

Section 4. Presumption of death.

For purposes of settlement of his estate, a person shall be presumed dead if absent and unheard
from for the periods fixed in the Civil Code. But if such person proves to be alive, he shall be
entitled to the balance of his estate after payment of all his debts. The balance may be recovered
by motion in the same proceeding.
In case of reappearance, the returning absentee recovery of his estate is subject to the following
conditions:

1. All his debts must have been paid

2. He shall recovery his property in the condition in which it may be found together with the
price of any property that may have been alienated or the property acquired therewith
3. He is not entitled to the fruits for the rent

RULE 74: SUMMARY SETTLEMENT OF ESTATES

Section 1. Extrajudicial settlement by agreement between heirs.

General rule: The settlement of estate of the decedent should be judicially administered through
executors or administered.
Exceptions:

a. Extrajudicial settlement
b. Summary settlement of estates of small value

The salient distinctions between these two methods of settlement are as follows:

Extrajudicial settlement Summary settlement

Does not require court intervention
Value is immaterial
Only in intestate succession
Proper only when no outstanding debts at
time of settlement
Only at the instance and by agreement of all
heirs
Bond is equal to the value of personal
property as established by instrument of
adjudication
Involves judicial adjudication although in
summary proceeding
Applies only where gross estate value does
not exceed P10,000 (amount is jurisdictional)
Allowed both in testate and intestate
Available even if there are debts (court will
make provisions for payment thereof)
May be instituted by any interested party and
even by a creditor without consent of all the
heirs
Bond determined by the court

Requisites of a valid extrajudicial settlement

a.

a. Decedent died intestate

b. No outstanding debts of the estate at time of the settlement
c. Heirs are all of age or the minors are represented by their judicial guardian or legal
representatives
d. Settlement made in a public instrument, stipulation or affidavit duly filed with the register
of deeds
e. The fact of such extrajudicial settlement must be published in a newspaper

Extrajudicial settlement presupposes concurrence among all heirs to the partition of the estate as
provided in the instrument.
  If they cannot agree on the manner of the partition they may institute an action for
partition unless same is prohibited by an agreement, by the donor or testator, or by law.
 If despite such action they subsequently arrive at an agreement, they may enter into the
corresponding stipulation and register the same with the register of deeds.

Where case is proper for extrajudicial settlement, a dissenting heir cannot insist on instituting
administration proceedings which would be superfluous and unnecessary unless he can establish
good reasons for not resorting to an action for partition.

Public instrument is now required for registration. If the settlement is in a private instrument, it is
believed that the same is still valid and reformation of the instrument may be compelled

While the rule provides that the decedent must have not left any debts, it is sufficient if any debts
he may have left have been paid at the time the extrajudicial settlement is entered into.

 It is presumed that decedent left no debts if no creditor files a petition for letters of
administration within 2 years after death of decedent. (rebuttable presumption)

A bond is required only when personalty is involved in the extrajudicial partition, real estate is
subject to a lien in favour of creditors, heirs or other persons for the full period of two years from
such distribution and such lien cannot be substituted by a bond.

Value of personal property which must be covered by bond is determined from sworn declaration
of the parties in the instrument of settlement or affidavit of adjudication, or if not mentioned
therein in tan affidavit stating such valuation which the register of deeds shall require them to
execute.

Minor distributee in an extrajudicial settlement should be represented therein by a judicial

guardian

 If property adjudicated to him is not worth more than P2,000 he may be represented by
his legal guardian

Section 2. Summary settlement of estates of small value.

Section 3. Bond to be filed by distributees.

Summary settlement of estates of small value is now within the jurisdiction of inferior courts.

The amount of bond to be filed by the distributees of personal property in summary settlement is
determined by the court.

As a rule, probate court cannot pass upon issue of title in summary proceedings when one of
heirs asserts an adverse claim to the property involved therein

 Where it is clear that the property really belongs to the decedent, probate court may
determine in a summary settlement who are the parties entitled thereto since in such a
proceedings it is directed to act summarily and without delay.

Section 4. Liability of distributes and estate.

Section 5. Period for claim of minor or incapacitated person.

The 2-year lien upon the real property distributed by extrajudicial or summary settlement shall be
annotated on the title issued to the distributees and, after the lapse of the period, may be
cancelled by the register of deeds without need of a court order.

 Lien cannot be discharged nor the annotation cancelled within the 2-year period even if
the distributes offer to post a bond to answer for the contingent claims for which the lien
is established

The discovery of unpaid debts after the extrajudicial settlement has been effected does not ipso
facto invalidate the partition.

 In such a case, the creditor may ask for administration of enough property of the estate
sufficient to pay the debt, but the heirs can prevent such administration by paying the
obligation
 Or the creditor can file an ordinary action against the distributees for his claim.
Where estate has been summarily settled, unpaid creditor may, within 2-year period, file a
motion in the court wherein such summary settlement was had for the payment of his credit.

 After the lapse of the period, an ordinary action may be instituted against the distributees
within the statute of limitations, but not against the bond.

An extrajudicial settlement, despite the publication thereof in a newspaper, shall not be binding
on any person who has not participated therein or who had no notice thereof.

Summary settlement is likewise not binding upon heirs or creditors who were not parties therein
or who had no notice thereof.

Said heirs or creditors may vindicate their rights either by proceeding against the estate, the
distributees or against the bond within the 2-year period, or even thereafter but within the statute
of limitations, but, this time, they can no longer proceed against the bond.

The action to annul a deed of extrajudicial settlement on the ground of fraud should be filed
within four years from the discovery of fraud.

If special proceedings are pending or there is a need to file one, for the determination of heirship,
that issue should be determined in said special proceedings. Where those special proceedings had
been finally terminated and the putative heir had lost his right to be declared therein as a co-heir,
an ordinary civil action can be timely filed for his declaration as an heir.

RULE 75 PRODUCTION OF WILL; ALLOWANCE OF WILL NECESSARY

Section 1. Allowance necessary.

The probate of a will refers to its due execution and settles only formal or intrinsic validity of the
will.

 Whether the testator being of sound mind freely executed the will in accordance with the
formalities prescribed by law.
  It does not affect or pertain to the intrinsic validity of the provisions thereof which
determination normally comes after allowance of the will.

Such allowance in a final judgment is conclusive on that issue and cannot be assailed in another
proceeding, except on the ground of fraud in the procurement of the decree.

The doctrine of estoppel does not apply in probate proceedings since the presentation and the
probate of a will are required by public policy and they involve public interest.

 In exceptional cases, as where the defect is apparent on its face, the probate court may
determine the intrinsic validity of the will even before its formal validity is established, as
the probate of a will may become a useless ceremony if the will is intrinsically invalid.

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.

Section 5. Person retaining will may be committed.

If the custodian of the will delivers it to the executor named therein, such executor must in, turn,
deliver that will to the court within 20 days therefrom and signify whether he accepts the trust.

Delivery of the will is made to the clerk of court of the RTC having jurisdiction over the estate.

Testate proceedings take precedence over intestate proceedings for the same estate. If during the
pendency of intestate proceedings, a will of the decedent is discovered, proceedings for the
probate of the will shall replace the intestate proceedings even if an administrator had already
been appointed therein. Should the will be not allowed to probate, then the proceedings shall be
continued as an intestacy.

 Doubts should be resolved in favour of testacy, especially where the will evinces the
intent of the testator to dispose of his whole estate.
It is not proper for the probate court to make a finding in an intestate proceeding that a will
discovered after the intestate proceeding have been revoked.

 The court should order the filing of a petition for the probate of said will by the party
interested therein.

Rule 76 ALLOWANCE OR DISALLOWANCE OF WILL

Section 1. Who may petition for the allowance of will.

Petition for probate of the will is not subject to bar by the statute of limitations and does not
prescribe, as such petition may be filed “at any time” and is required by public policy.

Section 2. Contents of petition.

The jurisdictional facts required to be alleged in the petition for probate are:

a. That a person died leaving a will

b. In the case of a resident, that he died in his residence within the territorial jurisdiction of
the court, or in the case of a non-resident, that he left an estate within such territorial
jurisdiction, and
c. That the will has been delivered to the court.

A creditor of the decedent may file a petition for the settlement of the latter’s estate as a
preparatory step for the filing of the former’s claim therein, but an heir who has assigned or
renounced his hereditary rights has no legal interest as would authorize him to initiate such
proceedings.

Section 3. Court to appoint time for proving will. Notice thereof to be published.

Section 4. Heirs, devisees, legatees, and executors to be notified by mail or personally.

The probate of a will is a proceeding in rem and the publication provided for by this Rule is a
jurisdictional requirement. The personal service of notice upon the heirs is a matter of procedural
convenience and not a jurisdictional requisite.
  However, where the names of the heirs and their residences are known, notice of the
hearing of the petition in accordance with Sec. 4, Rule 76 must be forwarded to them and
such requirement cannot be satisfied by mere publication.

The requirement of three successive weeks of publication in Sec. 3 does not mean that three full
weeks or 21 days should intervene between the first publication and the date of hearing. It is
sufficient that publication has been made once a week successively three times, even if less than
21 days intervened between the first publication and the hearing.

Where the testator himself petitions for the probate of his will in his lifetime, no publication is
required and notice is required only for his compulsory heirs. Such notice should, under these
circumstances, be considered a jurisdictional requisite.

Section 5. Proof at hearing.

Section 11. Subscribing witnesses produced or accounted for where will contested.

Section 12. Proof where testator petitions for allowance of holographic will.

Sec. 5 provides for the requisite proof where the petition for the probate of the will, notarial or
holographic, is not contested. In the absence of any opposition to such probate, the evidence for
the petitioner may be received ex parte.

 In the case of a holographic will, and there is no contest, only one witness is required and
in his absence, expert evidence may be resorted to. If the testator of the holographic will
himself testifies, he need merely affirm his handwriting and signature.

In the case of a contested notarial will, it is the duty of the petitioner to produce all the available
attesting witnesses and the notary public, but he is not concluded by the testimony witnesses,
even if adverse, as the court may still admit the will to probate on the basis of other satisfactory
evidence.
  This is an exception to the rule that a party is generally bound by the testimony or
evidence that he presents, because here, unlike ordinary actions, he has no choice in the
evidence as he is duty-bound to account for all attesting witnesses.
 It has been held that the testimony of the notary before whom the will was acknowledged
will prevail over that of the two attesting witnesses who claim undue execution of the
will.

In the case of a holographic will, it is not mandatory that witnesses be first presented before
expert testimony may be resorted to, unlike notarial wills wherein the attesting witnesses must be
presented or accounted for.

 This is so because holographic wills are not required to be witnessed and the existence of
a qualified witness may be beyond the control or knowledge of the proponent of the will.

Section 6. Proof of lost or destroyed will.

This section provides the requisite quantum of evidence to prove a lost or destroyed notarial will
in the absence of contest, and constitutes an exception to the rule on secondary evidence in Sec.
5, Rule 130.

The witnesses required here, who need not be attesting witnesses (although testimony of the
latter would be entitled to greater weight) must clearly establish:

a. The due execution and formal validity of the will

b. The existence of the will at the time of the death of the testator or its fraudulent or
accidental destruction in the lifetime of the testator and without his knowledge, and
c. The provisions of said will, to be testified to by at least two credible witnesses.

If however, the probate of such lost or destroyed notarial will is contested, then Sec. 11 of this
Rule has to be complied with, that is, all the subscribing witnesses and the notary public must be
accounted for and, if available, their testimony must be secured, and all the facts stated in Sec. 6
must be established by them or by two credible witnesses.
Where a lost will is shown to have been in the possession of the testator when last seen or that
the testator had ready access to the will and it cannot be found after his death, the presumption is
that he destroyed or cancelled it and not that it was destroyed by other persons without his
knowledge or authority.

This section applies to a lost or destroyed notarial will and not a holographic will. A lost or
destroyed holographic will cannot be proved by the bare testimony of witnesses who have seen
and/or read such will as the probate thereof requires identification of the handwriting and
signature of the testator presupposing the availability of the holographic will in court.

 The SC however intimated that perhaps it may be proved by photographic, photostatic or

carbon copies or similar means, it was definitely held that the lost holographic will could
be proved by photostatic or Xerox copies thereof.

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.

In the case of a notarial will where none of the attesting witnesses are available, the court may
admit other witnesses and admit proof of the handwriting of the testator and the attesting
witnesses.

Section 9. Grounds for disallowing will.

Section 10. Contestant to file grounds of contest.

Section 13. Certificate of allowance attached to prove will.

Certificate of allowance - when issued:

1. will was duly executed

2. testator was of sound and disposing mind at the time of execution
3. testator was not acting under duress, menace and undue influence

Certificate of Allowance must be:

 1. signed by the Judge
2. attested by the seal of the court
3. attached to the 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.

A will allowed to probate in a foreign country must be probate again in the Philippines. The
venue for the petition for reprobate is the same as that provided in Rule 73.

 If the decedent had properties in different countries, separate administration proceedings

must be had in said countries, the proceeding in his last domicile being the principal
administration and any other administration proceeding being termed the ancillary
administration.
 These two proceedings are separate and independent of each other, but a Philippine court
may grant ancillary letters to the domiciliary representative, if the relatives of the
decedent mentioned in the order of preference are unsuitable for the trust. The court may
in the exercise of its sound discretion also appoint some other person.

At the proceedings for reprobate in the Philippines, the proponent must prove

a. That the testator was domiciled in the foreign country

b. That the will has been admitted to probate in such country
c. That the foreign court was under the laws of said foreign a probate court with jurisdiction
over the proceedings
d. The law on probate procedure in said foreign country and proof of compliance therewith,
and
e. The legal requirements in said foreign country for the valid execution of the will.
In the absence of proof of the foreign law, it is presumed that it is same as that in the Philippines.

Section 4. Estate, how administered.

The local administrator has power only over the property of the decedent in the Philippines.

 However, such property of a foreigner in the Philippines shall be disposed of in

accordance with his national law, especially on the matter of the order of succession, the
amount of successional rights and the intrinsic validity of the provisions thereof.

Any surplus of the estate in the hands of the Philippine ancillary administrator shall be remitted
to the domiciliary jurisdiction, but the SC has also noted that it would be advisable for Philippine
courts to retain in custodia legis a sufficient amount to protect Philippine claimants with
contingent claims, such as when there are pending cases for payment thereof or for the
determination of the status or right of one who claims as an heir to the estate, since said
administrator also represents the interests of Philippine creditors, heirs or legatees.

Rule 78 LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO

WHOM ISSUED

Section 1. Who are incompetent to serve as executors or administrators.

Section 3. Married women may serve.

An executor is the person named in the will to administer the decedent’s estate and carry out the
provisions thereof.

 An administrator is the person appointed by the court to administer the estate where the
decedent died intestate, or where the will was void and not allowed to probate, or where
no executor was named in the will, or the executor named therein is incompetent or
refuses to serve as such.
A corporation or association authorized to conduct the business of a trust company in the
Philippines may be appointed as an executor or administrator of an estate in the same manner as
an individual

Section 2. Executor of executor not to administer estate.

Section 4. Letters testamentary issued when will allowed.

Section 5. Where some coexecutors disqualified others may act.

More than one executor may be issued letters testamentary in accordance with the nomination in
the will. Also, while as a rule the court appoints only one administrator for intestate estates, more
than one administrator may also be appointed by the court.

The general practice is that co-executors or co-administrators will exercise joint supervision over
the entire estate, but the court for justifiable reasons may charge a co-administrator with powers
over a particular portion of the estate for administration by him independent of his
coadministrator, but he must act in close cooperation with the latter.

Section 6. When and to whom letters of administration granted.

This is the order of preference in the appointment of an administrator but the same may be
disregarded for valid cause.

 A full-dress hearing to determine the competence of the person named as administrator

should be conducted. The directive of the testator in his will is not conclusive as
supervening circumstances may have rendered unfit the person named to the trust.

In the appointment of the administrator of the estate of a deceased person, the principal
consideration is the interest in the said estate of the one to be appointed as administrator.

 The underlying assumption for this rule 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.
 However, the order of preference does not rule out the appointment of coadministrators
and the same may be resorted to by the probate court in the exercise of sound discretion.
 Thus appointment of co-administrators has been upheld for various reasons
1. To have the benefit of their judgment and, perhaps, at all times to have different interests
represented
2. Where justice and equity demand that opposing parties or factions be represented in the
management of the estate
3. Where the estate is large or, from any cause, an intricate and perplexing one to settle
4. To have all interested persons satisfied and the representatives – to work in harmony for
the best interests of the estate, and
5. When a person entitled to the administration of an estate desires to have another
competent person associated with him in the office.

The term “next of kin” has been defined as those persons who are entitled under the statute of
distribution to the decedent’s property.

 Generally, the nearest of kin, whose interest is more preponderant, is preferred in the
choice of administrator. Among members of a class, the strongest ground for preference
is the amount or preponderance of interest. As between next of kin, the nearest of kin is
to be preferred.

A party indebted to the decedent’s estate cannot compatibly perform the duties of an
administrator and should not be appointed as such. Where such fact of indebtedness was only
subsequently discovered after the administrator had been duly appointed, he should not be
removed, absent any other lawful ground.

An administrator is not supposed to represent the interests of any particular party and his acts are
deemed to be objectively for the protection of the rights of everybody concerned with the estate
of the decedent.
  On the other hand, however, it is evidently implicit in Sec. 6, fixing the priority among
those to whom letters of administration should be granted, that the criterion in the
selection of the administrator is not his impartiality alone, but more importantly, the
extent of his interest in the estate, so much so that the one assumed to have greater
interest is preferred to another who has less.

Clerks of court and other court personnel of the probate courts should not be appointed as
administrators or receivers of estates of deceased persons so as not to compromise their
objectivity and impartiality in the performance of their regular functions.

Rule 79 OPPOSING ISSUANCE OF LETTERS TESTAMENTARY. PETITION AND

CONTEST FOR LETTERS OF ADMINISTRATION

Section 1. Opposition to issuance of letters testamentary. Simultaneous petition for

administration.

Section 2. Contents of petition for letters of administration.

When a petition for probate of the will has been filed, Sec. 1 authorizes a person interested in the
estate not only to challenge the qualifications of the person nominated therein as executor but, at
the same time and in anticipation of such disqualification, to file a petition for administration
with the will annexed.

 The court will thus have two petitions pending before it nut in the event the nomination
of the executor is approved by the court with the issuance of letters testamentary to him,
the petition for administration with the will annexed must necessarily be denied.

Testate proceedings take precedence over intestate proceedings. Hence if intestate proceedings
had been filed and a will is discovered, probate proceedings may be instituted in a separate
proceeding or by appropriate motion in the same court. Should the probate be denied, the
proceeding shall continue as an intestacy.

In order to be a party, a person must have material and direct and not one that is only indirect or
contingent interest. Hence, where the right of a claimant is dependent on the disallowance of the
second will and the incapability to inherit of the legatees instituted by the testator in the first will,
such contingent interest does not make the claimant an interested party.

Where an heir has validly assigned all his rights to the estate before the institution of settlement
proceedings thereover, he no longer has the requisite interest to participate therein.

 Where the assignment is made during the pendency of the settlement proceedings, it
requires the approval of the court for its validity.
 However, it has been held that in this situation, even if that assignment has been
approved by the court, such approval is not deemed final until the proceeding over the
estate is closed, as such approval can still be vacated, hence the assignor remains as an
interested party in the proceeding

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.

Sec. 6 (b), Rule 78, provides that the preference given to the surviving spouse or next of kin may
be disregarded by the court where said persons neglect to apply for letters of administration for
30 days after decedent’s death. Sec. 6 of this Rule reiterates such provision.

Rule 80 SPECIAL ADMINISTRATOR

Section 1. Appointment of special administrator.

This section authorizes the appointment of a special administrator. The other instance when
special administrator may be appointed is when the regular administrator or executor has a claim
against the estate, in which case a special administrator shall be appointed by the court with
respect to such claim.
Clerks of court and court employees should not be appointed special administrators as their
objectivity and impartiality may be compromised by extraneous considerations.

The order of preference in the appointment of regular administrators does not apply to the
appointment of a special administrator, but such order of preference may be followed by the
judge in the exercise of sound discretion.

The grounds for the removal of the regular administrator do not apply strictly to the special
administrator as he may be removed by the court on other grounds in its discretion.

The order appointing a special administrator is an interlocutory order and is not appealable.

Section 2. Powers and duties of special adminsitrator.

Section 3. When powers of special administrator cease.

The special administrator also has the duty to submit an inventory and to render and accounting
of his administration as required by the terms of his bond.

While a special administrator may commence and maintain suits under Sec. 2 he cannot be sued
by a creditor for the payment of a debt of the deceased. Such suit must await the appointment of
a regular administrator.

 However, it was subsequently held that a special administrator may be made a defendant
in a suit against the estate where the creditor would suffer the adverse effects of the
running of the statute of limitations against them if the appointment is delayed.
 A mortgagee may bring an action for the foreclosure of a mortgage of a property of the
estate against a special administrator, otherwise the very purpose for which the mortgage
was constituted will be defeated.

Rule 81 BOND OF EXECUTORS AND ADMINISTRATORS

Section 1. Bond to be given issuance of letters. Amount. Conditions.

Section 2. Bond of executor where directed in will.

 The bond posted by administrators and executors is intended as an indemnity to the creditors,
the heirs and the estate. The court shall fix the amount thereof and hold it accountable for
breach of duty on the part of the administrator or executor. The enforcement of such liability
may be sought by motion in the administration proceedings or in a separate civil action.

Under Sec. 2 even if the testator has directed in his will that his executor serve without bond,
the court may still require him to file a bond conditioned only to pay the debts of the testator;
and thereafter, based on the circumstances, the court may require further bond from said
executor to answer for breaches in his administration.

Section 3. Bonds of joint executors and administrators.

Section 4. Bond of special administrator.

Some restrictions on the power of an administrator or executor:

1. cannot acquire by purchase, even at public or judicial auction, either in person or

mediation of another, the property under administration
2. cannot speculate with fund under the administration
3. cannot lease the property for more than one year

Rule 82 REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND

REMOVAL OF EXECUTORS OR ADMINISTRATORS

Section 1. Administration revoked if will discovered. Proceedings thereupon.

It is only when the newly-discovered will has been admitted to probate that the letters of
administration may be revoked by the probate court.

Section 2. Court may be remove or accept resignation of executor or administrator. Proceeding

upon death, resignation, or removal.

Section 3. Acts before revocation, resignation, or removal to be valid.

Section 4. Powers of new executor or administrator. Renewal of license to sell real estate.
The mere fact that it was subsequently discovered that the duly appointed administrator was
indebted to the decedent is not a ground for his removal, absent any other circumstance
indicative of bad faith or lack of integrity on his part.

The fact that the administratix was later held to be without the right to intervene in the settlement
of the estate as an heir is not a ground for her removal as such adminsitratix since even a stranger
can be appointed as such.

Rule 83 INVENTORY AND APPRAISAL. PROVISION FOR SUPPORT OF FAMILY

Section 1. Inventory and appraisal to be returned within three months.

The 3 month period provided herein is not mandatory and the court retains jurisdiction even if
the inventory is filed after said period, but such delay, if not satisfactorily explained, may be a
ground for the removal of the administrator under Sec. 2, Rule 82.

Section 2. Certain article not to be inventoried.

Section 3. Allowance to widow and family.

Property claimed by third persons may be included in the inventory as part of the assets of the
estate and the probate court may order such inclusion, but such order of the probate court is only
a prima facie determination and does not preclude the claimants from maintaining an ordinary
civil action for the determination of title.

Sec. 3 allows support to be given to the surviving spouse and the “minor or incapacitated
children” of the decedent during the settlement of the estate.

 The allowances for support are subject to collation and deductible from the share in the
inheritance of said heirs insofar as they exceed the fruits or rents pertaining to them.

Rule 84 GENERAL POWERS AND DUTIES OF EXECUTORS AND

ADMINISTRATORS
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.

An administrator or executor has all the powers necessary for the administration of the estate and
which powers he can exercise without leave of court. The constitution of a lease over property of
the estate is an act of administration and leave of court is not required.

 Any interested party who desires to impugn the same must do so in an ordinary civil
action as the probate court has no jurisdiction over the lessee.

If the lease contract exceeds one year, the same is no longer considered a mere act of
administration, and leave of court should ordinarily be required.

 A view is held, however, that the aforesaid provisions on agency should not apply to
leases entered into by an executor or administrator, under the theory that they represent
not only the estate but also the parties interested therein, that they are required to file a
bond and that their acts are subject to specific provisions of law and orders of the probate
court, which circumstances are not true with respect to agents.

Regarding sale, mortgage or other encumbrance on property of the estate, the same are regulated
by Rule 89.

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.

Section 6. When allowed money paid as cost.

These sections provide for the accountability of administrators or executors with respect to their
omissions or for acts performed by them in the administration of the estate.

Section 7. What expenses and fees allowed executor or administrator.

The administrator or executor is entitled to charge in his accounts all expenses of administration
incurred by him.

Not proper expenses of administration, therefore not chargeable against the estate:

a. Services rendered by administrator in favor of an heir which services were not

beneficial to the estate
b. Premiums for his bond
c. Expenses for the repair of property of the estate being occupied and used by him
d. Expenses for the keeping of ordinary records and receipts involved in his
administration work.
e. Losses incurred in the conduct of business with the use of the funds of the estate.

Where an attorney renders services to the administrator or executor personally to aid in the
execution of his trust, the administrator or executor is liable for the fees, but he can move for
reimbursement and charge such fees as expenses of administration where the same is reasonable
and proved beneficial to the estate.

Where however attorney’s services were rendered in a litigation involving such administrator or
executor in his capacity as trustee of the estate and for the protection of the interest of such
estate, the attorney’s fee is chargeable to the estate.
To recover attorney’s fees, the attorney may either bring an independent action personally
against the executor or administrator or file a petition in the administration proceedings for the
probate court to allow the same and to direct the payment of his fee as an expense of
administration.

The compensation of the executor shall primarily be that fixed in the will and if there is no such
provision or he renounces the same, then it will be as provided in Sec. 7.

Section 8. When executor or administrator to render account.

Section 9. Examinations on oath with respect to account.

Section 10. Account to be settled on notice.

Section 11. Surety on bond may be party to accounting.

Even if the final accounts of the executrix had already been approved but said executrix
subsequently received funds of the estate, she must account for the same; and this duty cannot be
waived by the act of the heirs in receiving dividends from said funds without requiring said
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.

The period fixed by Sec. 2 for filing of claims is sometimes referred to as the “statute of
nonclaims” and supersedes the ordinary statute of limitations.

 The period for filing of such claim starts to run from the date of the first publication of
notice referred to in Sec.1 and runs even against the State.

Sec.2 means that the filing of claims contemplated therein should be during a period of 6 months
starting from the 6th month after the date of the first publication of the notice own to the 12th
month. Within the range of said period, the probate court is permitted to set the period for filing
of claims and the period once fixed by the court is mandatory.

The court for good cause shown may grant a 1 month period for a creditor to file a claim which
he failed to file during the original period granted for filing of claims. Such motion for leave to
file a claim beyond original period may be file at any time during the administration proceedings
provided no order of distribution has yet been entered.

 Sec.2 should not be interpreted to mean that 1 month period commences to run from the
expiration of the original period for filing claims.
 What it means is that said claims must be filed within a time not exceeding 1 month from
the order of the court allowing the filing of such particular claim.

Section 3. Publication of notice to creditors.

Section 4. Filing of copy of printed notice.

A notice to creditors to file their claims is not proper if only a special administrator has been
appointed, he is generally not empowered to pay debts of the deceased and his bond unlike that
of a regular administrator is not conditioned upon the payment of such debts.

The publication of the notice to the creditors is constructive notice to all, hence a creditor cannot
be permitted to file his claim beyond the period fixed in said notice on the bare ground that he
had no knowledge of the administration proceedings, since the proceeding for filing claims is in
rem.

As the period for the filing of claims starts to run from the first publication of the notice to
creditors, unless such publication is effected by the administrator or the executor, the result
would be to correspondingly extend the time for the presentation of claims.

Where a claimant with a claim under a judgment for money against the deceased files a petition
for the issuance of letters of administration over the estate of the decedent within the 10 year
period from the finality of its judgment, and after said 10 year period filed a claim against the
estate of the deceased under administration, said claim retroacts to the date of the filing of the
petition for letters of administration and therefore has not prescribed.

Section 5. Claims which must be filed under the notice. If not filed, barred; exceptions.

Section 6. Solidary obligation of decedent.

Section 7. Mortgage debt due from estate.

Section 8. Claim of executor or administrator against an estate.

Section 9. How to file a claim. Contents thereof. Notice to executor or administrator.

Section 10. Answer of executor or administrator. Offsets.

Section 11. Disposition of admitted claim.

Section 12. Trial of contested claim.

Section 13. Judgment appealable.

Section 14. Costs.

If there is no instrument evidencing the debt of the decedent and no writing is offered as proof
thereof, the claim cannot be proved. This appears to be sustained by the Dead Man Statute
(disqualifies parties surviving parties under the circumstances from testifying to any matter of
fact occurring before the death of the decedent).

 It is assumed however that said provision does not apply to money claims for funeral
expenses or for the last sickness of the deceased as these are claims arising after death.

A probate court has no jurisdiction to entertain a claim in favour of the estate against a third
person as the same should be the subject of an ordinary action generally to be prosecuted by the
executor or administrator under 87.2.
  Exception is 86.10 which authorized executor or administrator to interpose any
counterclaim in offset of a claim against the estate. Such counterclaim regardless of its
basis is treated like a compulsory counterclaim since its failure to file it shall bar the
claim forever.

RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

Section 1. Actions which may and which may not be brought against executor or administrator.

An administrator or executor may be sued in either his personal or representative capacity.

 Actions authorized under this rule are brought against him in his representative capacity.
 The general rule is that if the action would result in a direct charge upon the estate the
executor or administrator is to be sued in representative capacity.
 For violation of or noncompliance with duties of the trust such executor or administrator
shall be sued in his personal capacity.

Section 2. Executor or administrator may bring or defend actions which survive.

While the heirs have no standing in court to sue for the recovery of property of the estate
represented by an executor or administrator it has been held that the heirs may maintain such
action if the executor or adminsintrator is unwilling to bring suit, when he is alleged to have
participated in the act complained of.

 3.10 – he would be in a position of an unwilling co-plaintiff.

Section 3. Heir may not sue until shall assigned.

Section 4. Executor or administrator may compound with debtor.

Section 5. Mortgage due estate may be foreclosed.

The prohibition in sec 3 applies only to heirs and devisees and not to be a done inter vivos who
may sue the administrator for the delivery of the property donated or a reserve who can sue to
recover the property which the deceased was bound to reserve.

Where in his lifetime a final judgment had been rendered in favour of the deceased said
judgment shall be enforced by execution on motion of the executor or administrator.

Section 6. Proceedings when property concealed, embezzled, or fraudulently conveyed.

Section 7. Person entrusted with estate compelled to render account.

Section 8. Embezzlement before letters issued.

These proceedings are merely in the nature of fact-finding inquiries. If in the proceedings
authorized under this section the persons alleged to have converted the property of the estate
assert title thereto, the probate court cannot determine the issue of title. The executor or
administrator must file an ordinary action in court for the recovery of the properties or damages
thereto.

Section 9. Property fraudulently conveyed by deceased may be recovered.

Section 10. When creditor may bring action. Lien for costs.

These sections contemplate fraudulent transfers or fictitious contracts of the decedent in fraud of
creditors. The executor or administrator may, on his own initiative or on motion of the creditors
and as directed by the court institute an action for the recovery of said property, but since said
action is for the benefit of the creditors the court may direct the creditors to defray

part of the costs and expenses of the suit.

 If the executor or administrator still fails to bring such action, any of the creditors may
bring suit in his own name, with leave of court, upon the filing of an indemnity bond for
such costs and expenses as may arise from suit.
  Where, the action is against the executor or administrator himself, the suit shall be in the
names of all the creditors and leave of court and the indemnity bond shall not be required.

RULE 88 PAYMENT OF THE DEBTS OF THE ESTATE

Provisions of section 15 for the payment of debts and legacies is directory and extensions of the
period may be granted by the court taking into account the circumstances attending the
distribution of the estate.

The payment of the debts of the estate as a general rule, must be taken (a) from the portion or
property designated in the will (b) from the personal property and (c) from the real property in
that order. The court on petition of the interested parties may modify such order of disposition.

A legacy is not a debt of the estate, hence the probate court cannot issue a writ of execution for
the payment or satisfaction thereof.

On the other hand section 6 authorizes execution against the contributive shares of the devisees,
legatees and heirs in possession of the decedent’s assets to satisfy the debts of the estate.

These two sections provide for the payment of contingent claims. If the contingent claim
becomes absolute and is presented to the courts as an absolute claim within two years from the
time allowed for the presentation of claims, it will be paid in the same manner as the other
absolute claims. After said period, the creditor may proceed against the distributees, provided
said contingent claims had been seasonably filed in and allowed by the probate court. The
property reserved for the payment of such contingent claims may therefore be retained by the
administrator or executor only within said two-year period a thereafter the same shall be included
among assets for distribution to the heirs.

Under these provisions, the preference of credits has been specifically incorporated in the rule, to
be followed in the payment of debts where the estate is not sufficient therefor.

RULE 89 SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY OF

DECEDENT
The court may allow only the sale of personal property for the purposes in section 1 and not
encumbrance thereof.

With respect to real property the court may permit the same to be sold, mortgaged or otherwise
encumbered under sections 2, 4, 5, 6.

o Under both sections 4 and 6, if it will not be for the convenience of or beneficial to the heirs
and not for payment of debts, administration expenses and legacies, real property
can only be allowed to be sold and not encumbered.

As a rule, unless the testator had made provisions to the contrary in his will, the personal
property of the estate must first be sold for the payment of debts, expenses of
administration or legacies. If the same is still insufficient, the real property may
be proceeded against. Nevertheless, personalty may always be sold at any time if
it is necessary for the preservation of its value.

The sale or encumbrance of real property may be allowed by the court if the petition therefore
avers: (a) that the personal estate is not sufficient to pay the debts, expenses of
administration and legacies or that the sale of such personalty may injure the
business or the interests of persons interested in the estate; (b) that the testator has
not otherwise made sufficient provisions for the payment of such debts, expenses
of administration and legacies; and (3) that such sale or encumbrance would be
beneficial to the parties interested in the estate.

 The averment as to the value of the personal estate is a requisite in the petition for sale of
real property, without such averment court has no jurisdiction to authorize sale of realty.
Sale of such is null and void.

Personal property may be sold, or the real property may be sold, mortgaged or otherwise
encumbered for the following reasons

 Payment of debts, expenses of administration and legacies in the Philippines;

 When such sale would be beneficial to the persons interested in the estate
  Payment of debts, expenses of administration and legacies involved in the settlement of
the estate of a decedent in a foreign country.

If the administrator or executor sells property of estate without the requisite authority of the
court, such sale is null and void. The same rule would apply to encumbrances of
real property without authority of the court.

Also such application for authority to sell or encumber property of the estate must be with notice
to the heirs, devisees and legatees. Otherwise, the sale is void. Such notice is
presumed to have been given absent proof to the contrary and order of the court
granting such authority cannot be assailed in a collateral proceeding.

Prohibitions

 Executors and administrators cannot purchase the property of the estate under
administration.
 Also justices, judges, prosecuting attorneys, clerks of court and other officers and
employees connected with the administration of justice cannot purchase the property and
rights in litigation or levied upon an execution before the court within whose jurisdiction
or territory they exercise their respective functions.
 Same prohibition applies to lawyers with respect to the property and rights which may be
the object of any litigation in which they may take part by virtue of their profession.

Any sale covered by this prohibition will be null and void.

The authority granted to the probate court by section 8 presupposes that there is no controversy
as to the contract contemplated therein and that the assets of the estate will not be
reduced to the extent of depriving the creditor of full payment of his claim or his
just dividend. If such objections obtain, the remedy of the person seeking the
execution of the contract is an ordinary and separate action to compel the same.

Under section 9 the court can authorize such conveyance only if there is no controversy and even
if creditors may be affected since unlike the situation in section 8, the properties
 contemplated do not form part of the estate of the deceased who merely held the
same in trust.

Notice of such application must be given to all interested parties, otherwise both the order of the
court and the conveyance made pursuant thereto are completely void.

RULE 90 DISTRIBUTION AND PARTITION OF THE ESTATE

Partial distribution of the decedent’s estate pending the final termination of the estate or intestate
proceeding should as much as possible be discouraged by the courts and except in extreme cases
such form of advances of inheritance should not be countenanced.

Before the court can issue an order of distribution, the debts, funeral charges, expenses of
administration, allowance to the widow and inheritance tax must first have been paid.

While it speaks only of allowance to the widow, it should also include the allowance to the
children of the deceased as the payment of such allowances during the pendency of the
administration proceedings. Legacies must have been paid (88.15), an advance or partial
distribution may be allowed provided the forgoing obligations are secured by a bond.

Under this section the probate court is specifically granted jurisdiction to determine who are the
lawful heirs of the deceased as well as their shares. Hence there is no further need to institute an
independent civil action to pass upon the status of a person who claims to be an heir.

 The order of distribution must also be at the same time a declaration of heirs since a
separate action for the declaration of heirs is not proper.
 If the proceedings have been closed the same may be reopened to pass upon the status of
one claiming to be an heir.

The heirs may also by agreement submit a project of partition to serve as a basis of the order
of distribution. The heirs who do not agree may submit a counter project of partition.

In approving a project for partition it is not necessary for the court to state the specific
property adjudicated to an heir but may award the same to the heirs in pro indiviso shares.
If they cannot agree on their respective specific participations they can thereafter resort to an
action for partition.

The judicial decree of distribution vests title in the distributees and any objection thereto
should be duly raised in a seasonable appeal, otherwise it will have binding effect like any
other judgment in rem.

After the institution of the testate or intestate proceedings, the assignment pendent lite by one
heir of his hereditary share requires the approval of the probate court.

The sale by a widow of land belonging to the conjugal partnership is valid with respect to her
one-half share therein even if the sale was made before partition, except where there are
numerous assets of the partnership as in that case the particular and corporeal share of the
widow cannot be determined until after the liquidation and partition thereof. 90.2, 90.3, 90.4

The probate court loses jurisdiction of an estate under administration only after payment of
all debts and the delivery of the remaining estate to the heirs.

 The finality of the approval of the project of partition does not terminate the probate
proceeding.

As long as the order of distribution has not been complied with, the probate proceedings
cannot be deemed terminated because a judicial partition is not final and conclusive and does
not prevent the heir from bringing an action to obtain his share within the prescriptive period.

The better practice for the heir who has not received his share is to demand the same through
a proper motion in the same probate or administration proceedings or for reopening of said
proceedings if already closed but still within the reglementary period for appeal and not
through an independent action.

Where the order closing the intestate proceeding was already final and executory the same
cannot be reopened on a motion therefor filed after the lapse of the reglementary period.