PART IISPECIAL PROCEEDINGS

GENERAL PROVISIONS[RULE 72]SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES Sec. 1. Subject matter of special proceedings.

Rules of special proceedings are provided for in the ff cases:

(1) Settlement of estate of deceased persons; (2) Escheat; (3) Guardianship and custody of children; (4) Trustees; (5) Adoption; (6) Rescission and revocation of adoption; (7) Hospitalization of insane persons; (8) Habeas corpus; (9) Change of name; (10) Voluntary dissolution of corporations; (11) Judicial approval of voluntary recognition of minor natural children; (12) Constitution of family home; (13) Declaration of absence and death; (14) Cancellation or correction of entries in the civil registry.

Notes:

Special Proceedings (SPs), defined: This is a remedy by which a party seeks to establish a status, a right, or a particular fact. (Rule 1, Sec. 3c). It is also an application to establish any remedy other than an ordinary suit in a court of justice. Ordinary Action v. Special Proceeding Ordinary Action: A formal demand of ones right in a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies according to definite established rules. Special Proceedings: (See definition above) usually, no formal pleadings are required, unless the statute so provides. The remedy is granted upon an application or motion

ACTIONSPECIAL PROCEEDINGS

To protect or enforce a right, or to prevent or redress a wrongTo establish a status, right, or a particular fact

Initiated by ComplaintInitiated by Petition

Definite PartiesDefinite petitioner, no definite adverse party

Answer is filedOpposition is filed

Handled by court of general jurisdictionHeard by court of limited jurisdiction

AdversarialNot adversarial

Statute of Limitations appliesNo statute of limitations

15-day appeal period30-day appeal period

Governed by: Ordinary RulesSupplemented by: Special rulesGoverned by: Special RulesSupplemented by: Ordinary rules

SPs are NOT limited to the cases enumerated in Section 1. List is NOT EXCLUSIVE. It includes cases the purpose of which is to establish the status or right of a party or a particular fact. Other Special Proceedings: Petition for declaration of marriage, Liquidation of an insolvent corporation, Corporate rehabilitation, Recognition/enforcement/setting aside/vacation/modification of arbitration awards and proceedings ArbitrationCases covered by the Interim Rules of Intra-corporate controversies GR: They are considered as Ordinary Civil Actions They seek to recover damages for a violation of a right. EXC: Petitions for Rehabilitation is still a Special Proceeding They seek to establish a status or fact Action for Reconveyance is an Ordinary Civil Action where matters relating to the settlement of estate cannot be adjudicated

Sec. 2. Applicability of rules of civil actions.

In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.

SETTLEMENT OF ESTATE OF DECEASED PERSONS [RULE 73]VENUE AND PROCESSES Sec. 1. Where estate of deceased person settled.

IF the decedent is an inhabitant of the RP: at the time of his death, whether a citizen or an alien his will shall be proved, OR letters of administration granted, AND his estate settled: in the CFI in the province in which he resides at the time of his death, and IF he is an inhabitant of a foreign country: the CFI of any province in which he had estate.

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

The jurisdiction assumed by a court: so far as it depends on the place of residence of the decedent, OR of the location of his estate, shall not be contested in a suit or proceeding, EXCEPT: in an appeal from the court in the original case or when the want of jurisdiction appears on the record.

Notes:

Settlement of Estate, defined: Intended to settle the entire estate of the deceased. The fact of death is to be established and recognized by the heirs so they could exercise their right to participate in the settlement and liquidation of the estate of the deceased.

Settlement of Estate is a Proceeding IN REM: Binding against the whole world. SP for Settlement of Estate may be: Extrajudicial: Rule 74 Section 1 Judicial: Testate: if the decedent left a will Intestate: In default of a valid will or when not all of the estate is disposed of by will.Note: Probate of a will is MANDATORY. Testate proceedings take precedence over intestate proceedings.

Effect if Intestate Proceedings have commenced Prior to the Discovery of a Will Uriarte v. CFI: Probate shall commence even if an administrator had already been appointed. This is however, understood to be w/o prejudice that the proceeding shall continue as intestacy (should the will be rejected or disproved. The conversation of an intestate proceeding to a testate one is entirely a matter of form and lies within the sound discretion of the court. The intestate proceeding may also be consolidated with the testate proceeding. Letters of Administration, if already granted shall be revoked and all powers thereunder shall cease. The letters of administration shall NOT ipso facto be nullified upon the discovery of a will. The will must be first proved and allowed.

Venue Inhabitant of the RP: Where he resided at the time of his death Inhabitant of a Foreign Country: Where he had his estate Note: Question of venue is to be decided by the FIRST COURT, to the exclusion of others. Uriarte v. CA: Venue may be waived. Institution may be filed other than where the decedent resided or where the estate is situated.

Fule v. CA: Residence ones personal, actual or physical habitation, his actual residence of place of abode. Simply requires physical presence unlike in domicile where intent to stay is also required. No length of time required. However, it must be more than temporary.

Probate Courts as Courts of LIMITED jurisdiction: It may ONLY rule upon issues in relation to the settlement of the estate: Administration Liquidation Distribution

Probate Courts Powers: Order probate, appointment of administrators/executors/guardians/trustees, grant letters of administration, hear and approve claims against he estate, direct the delivery of the estate to those entitled. Extension of probate courts jurisdiction 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 (Heirs of Sandejas v. Lina, February 5, 2001)

Probate Court: Lack of Jurisdiction to Adjudicate Title GR: Probate court cannot determine or pass upon questions of ownership It may not pass upon collateral matters not related to the settlement of the estate which may be commenced in a separate action. EXCEPTIONS: 1. Interested parties who are all heirs consent for the probate court to pass upon title and 3rd parties are not prejudiced Reason: in essence, it is a procedural question involving a mode of practice which may be waived. Consent may be express or implied2. 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. Since the probate courts findings are not conclusive, being prima facie, a separate proceeding may be necessary to establish the ownership of the property. Since it is merely provisional, it may not be a subject of execution Order of inclusion or exclusion is merely INTERLOCUTORY3. Question is one of collation or advancement

It is the policy of law to terminate proceedings for settlement with the least loss of time. This is especially true with small estates which the rules provide for a summary procedure. This is one of the reasons why issues of ownership must be ventilated in a separate action

Purchaser as Forced Intervenor in the Intestate Proceedings: He should answer the amended petition for the annulment of the sale. Lease Subject to the Approval of the Court: An order of the probate court which deprives a lessee of the estate w/o having the lease contract terminated or annulled in a separate civil action is NULL and VOID. The courts approval of a partition does not automatically terminate the lease contract, when the lessee is not a party to the partition.

Principle of Exclusionary Rule: Jurisdiction to the Exclusion of Others. The court first taking cognizance of the settlement of the estate shall exercise jurisdiction to the exclusion of other courts Applies to both testate and intestate proceedings The probate court acquires jurisdiction UPON: Filing for the petition for settlement of estate. EXC. Estoppel by lachesNote: Subsequent acts such as entering into extrajudicial partition or filing another petition for settlement SHALL NOT deprive the first court of jurisdiction.

Other Questions Which the Probate Court Can Determine1. Jurisdiction to determine the heirs (separate action is NOT proper)2. Jurisdiction to Distribute Estate (determining the proportion or parts which each distributee is entitled)3. Jurisdiction to award attorneys fees4. Status of the heirs 5. Recognition of a natural child 6. Validity of disinheritance7. Status of a woman who claims to be a lawful wife8. Validity of waiver of hereditary rights 9. Property regime of a married couple10. Matters incidental or collateral related to the settlement of the estate

Remedy if Venue is improperly laid GR: Ordinary appeal and NOT certiorari or mandamus UNLESS: want of jurisdiction appears on the records

Sec. 2. Where 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. or if both spouses have died, of either.

Note: In the settlement proceedings of the estate of the deceased spouse the ENTIRE conjugal property of the marriage and not just belonging to deceased is under administration.

Sec. 3. Process.

In the exercise of probate jurisdiction, CFI may: issue warrants and processes necessary to compel the attendance of witnesses or to carry into effect their orders and judgments, and all other powers granted them by law.

IF a person does not perform an order of judgment rendered by the said court: it may issue a warrant for the apprehension and imprisonment of such person UNTIL he performs such order/judgment, OR is released.

Notes:GR: Probate Court may NOT issue Writs of Execution Reason: Adjudication of claims against the estate may be satisfied w/o a need of executor processes. EXCEPTIONS:1. To satisfy distributive shares of the devisees, legatees, and heirs in possession of decedents assets;2. To enforce payment of expenses in partition;3. To satisfy costs when a person is cited for examination in probate proceedings.4. To satisfy the claim in summary settlement proceedings of creditors or heirs who appear w/in 2 years from the distribution.Sec. 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. Notes:

No Independent Action for Declaration of Presumption of Death The disputable presumption may arise and may be invoked within an action or in a special proceeding Independently of such action it cannot be invokedPeriods: GR: After the absence of 7 years, presumed dead For purposes of Succession: 10 years If age is above 75: 5 years A person on board a vessel lost or airplane missing 4 years A person in the armed forces who took part in the war 4 years A person who has been in danger of death under other circumstances 4 years Presumption of Death Must Yield to Preponderance of Evidence A person may be presumed dead depending on the circumstances even w/o waiting for the period to expire to be presumed dead

[RULE 74]SUMMARY SETTLEMENT OF ESTATES

Sec. 1. Extrajudicial settlement by agreement between heirs.

IF the: decedent left no will and no debts and heirs are all of age, or minors are represented by their judicial/legal representatives duly authorized, the parties may, without securing letters of administration, divide the estate among themselves: as they see fit by means of a public instrument filed in the office of the RD, and should they disagree: they may do so in an ordinary action of partition.

IF there is ONLY 1 heir, he may: adjudicate to himself the entire estate by means of an affidavit (Affidavit of Self-Adjudication) filed in the office of the RD.

The parties to an extrajudicial settlement (by public instrument or action of partition) or the sole heir (by affidavit) shall file: simultaneously with and as a condition precedent to the filing of: public instrument/stipulation in the action for partition/affidavita bond with: the said RD in an amount equivalent to the value of the personal property involved (as certified under oath by the parties) and conditioned upon the payment of any just claim that may be filed under Sec 4 of this rule.

It shall be presumed that the decedent left no debts: IF no creditor files a petition for letters of administration w/in 2 yrs after the death of the decedent.

The fact of the extrajudicial settlement or administration: shall be published in a newspaper of general circulation; but no extrajudicial settlement shall be binding upon any person who: has not participated therein or had no notice thereof.

Notes:

GR: Settlement of the estate should be through JUDICIAL administration EXCEPTIONS:1. Extrajudicial Settlement (Sec 1) 2. Summary settlement of estates of small value (sec 2) Note: In BOTH cases: An administrator/executor need not be appointed.

Different Modes of Settlement of Estate of the Deceased1. Extrajudicial Settlement of estate (Sec 1 Rule 74)2. Partition (rule 69)3. Summary Settlement of estates of Small Value (Sec 3 Rule 74)4. Probate of will (rule 75 to 79)5. Petition for letters of Administration in cases of intestacy (rule 79)

Judicial Administration is NOT favored When a person dies w/o leaving pending obligations to be paid, his heirs are not bound to submit the property to a judicial administration since it is unnecessary There must be good reason to warrant judicial administration Good Reason depends on the circumstances of each case Dispute among heirs is not a good reason Multiplicity of suits is not a good reason To have legal capacity to appear is not a good reason

Requisites of Extra-judicial Settlement:

SubstantiveProcedural

1. Decedent left NO will and NO debts2. The heirs are all of age or are represented by guardians1. Division must be in a public instrument OR affidavit of adjudications (if sole heir)2. Filed w/ the proper RD3. Publication of notice of such settlement once a week for 3 consecutive weeks4. Bond filed equivalent to the value of the personal property (conditioned on the payment of just claims under sec 4 rule 74)

Note: Bond is only required when there is personal property. If what is involved is real property then it shall be subject to a lien in favor of creditors for 2 full years (cannot be substituted by a bond)

Partition although oral is valid and binding There is no law that requires partition to be in writing Sec 1 of Rule 74 which requires a partition be put in a public document and registered is for the purpose of protecting creditors If there are no creditors or their rights are not affected there is no need to follow such requirement Oral partition is not covered by the Statute of Frauds since there is no conveyance of property, rather there is merely a confirmation of title already vested

Compromise Agreement regarding the partition is, upon perfection of such contract, binding even w/o previous authority of the court.

No debts left it is sufficient that the debts are paid at the time the extrajudicial settlement is entered into There is also a presumption that the decedent left no debts: if no creditor files a petition for letters of administration w/in 2 years from the death of the decedent.

EXTRAJUDICIAL SettlementSUMMARY Settlement

Does not require court intervention;Requires summary judicial adjudication

Value of estate is immaterial;Gross estate must NE 10K

Allowed only in intestate succession;Allowed in both intestate and testate

Proper only where there are no outstanding debts of the estate at the time of settlementAllowed even if there are debts; the court will make provision for payment

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)May be instituted by ANY interested party even a creditor of an estate w/o the consent of all heirs

Amount of bond = amount of the personal propertyAmount of bond = determined by the court

Sec. 2. Summary settlement of estates of small value.

When the gross value of the estate of a deceased person, whether he died testate or intestate: does NE 10K pesos, and that fact is made to appear to the CFI having jurisdiction of the estate BY the petition of an interested person AND upon hearing,: which shall be held NOT LESS than 1 mo NOR MORE than 3 mos FROM the date of the last publication of a notice: which shall be published once a week for 3 consecutive weeks in a newspaper of general circulation in the provinceand AFTER such other notice to interested persons as the court may direct, the court may proceed summarily: without the appointment of an executor or administrator, and without delay, to grant, if proper, allowance of the will, if any there be, to determine who are the persons legally entitled to participate in the estate, and to apportion and divide it among them AFTER the payment of such debts of the estate as the court shall find to be due;

and such persons: in their own right, if they are of lawful age/capacity, or by their guardians or trustees legally appointed and qualifiedshall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively.

The court shall: make such order as may be just respecting the costs of the proceedings, and all orders and judgments made or rendered in the course thereof: shall be recorded in the office of the clerk, and the order of partition or award, IF it involves real estate: shall be recorded in the proper register's office.

Notes:

The Gross Value of the estate must NE 10K In accordance w/ BP 129 the summary settlement of estates of small value is within the jurisdiction of the MTCs

Sec. 3. Bond to be filed by distributees.

The court, BEFORE allowing a partition in accordance with the provisions of the preceding section, may require the distributees: IF property other than real is to be distributed, to file a bond: in an amount to be fixed by court, conditioned for the payment of any just claim which may be filed under the next succeeding section.

Sec. 4. Liability of distributees and estate.

IF it shall appear at any time w/in 2 years AFTER the settlement and distribution of an estate in accordance with the provisions of either of the first 2 sections of this rule: that an heir or other person has been unduly deprived of his lawful participation in the estate, such heir or such other person may: compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation.

And IF w/in the same time of 2 years, it shall appear: that there are debts outstanding against the estate which have not been paid, or that an heir or other person has been unduly deprived of his lawful participation payable in money, the court having jurisdiction of the estate may BY order for that purpose, AFTER hearing: settle the amount of such debts or lawful participation and order how much and in what manner each distributee shall contribute in the payment thereof, and may issue execution, if circumstances require, against the bond provided in the preceding section or against the real estate belonging to the deceased, or both. Such bond and such real estate shall: remain charged with a liability to creditors, heirs, or other persons for the full period of 2 years AFTER such distribution, notwithstanding any transfers of real estate that may have been made.

Notes:

Remedies of Aggrieved Parties After the Settlement of Estate:1. Within 2 years claim against the bond or the real estate;2. Rescission in case of preterition of compulsory heir in partition tainted with bad faith (NCC Art. 1104);3. Reconveyance of real property;4. Action to annul deed of extrajudicial settlement on the ground of fraud

Rule Barring Distributees or Heirs from Objecting after the Expiration of 2 Years is NOT applicable to Those who had no Knowledge of Settlement Sampio v. CA: The rule is applicable ONLY:1. To persons who have participated or taken part or had notice of the extrajudicial partition and2. When the provisions of section 1 of Rule 74 have been strictly complied withPrescriptive Periods: Action to Annul a Deed of extrajudicial settlement on the ground of fraud may be filed: w/in 4 years from discovery of the fraud Discovery is from the registration of the instrument to the RD. (since in rem proceeding so constructive notice to the world) Action for Reconveyance based on implied trust may be filed: w/in 10 years from the date of registration of the deed or title if the registration was made in bad faith period is counted from the discovery of the fraud and PROVIDED that the property has not passed to an innocent purchaser for value

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

IF on the date of the expiration of the period of 2 years prescribed in the preceding section the person authorized to file a claim: is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim w/in 1 year AFTER such disability is removed.

[RULE 75]PRODUCTION OF WILL; ALLOWANCE OF WILL NECESSARY Sec. 1. Allowances necessary; Conclusive as to execution.

No will shall pass either real or personal estate: UNLESS it is proved and allowed in the proper court. SUBJECT to the right of appeal, such allowance of the will shall be conclusive as to its due execution.

Notes:

Probate, defined: It is the act or proving in court a document purporting to be the last will and testament of a certain deceased person for the purpose of its official recognition, registration and carrying out its provision in so far as they are in accordance with law.

Note: Until a will is admitted to probate, it shall have no effect and no right can be claimed thereunder.

Nature of Probate Proceedings1. It is a Proceeding In rem binding on the whole world 2. It is Mandatory It is anomalous that the estate of a person who dies testate should be settled in an intestate proceeding. The law enjoins the probate of the will and public policy requires it, because unless the will is probated, the right of person to dispose of his property by will may be rendered nugatory. EXC: Property may pass even w/o probate on the basis of Art 1080 NCC which provides that when the testator has made an act inter vivos or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs. 3. Imprescriptible4. The doctrine of estoppel does NOT apply. (Reason: since probate is mandatory no matter what the circumstances are)

Probate Does Not Look Into Intrinsic Validity GR: Probate courts are limited only to pass upon the extrinsic validity of the will EXC: The probate court may pass upon the intrinsic validity based on the principle of practical considerations. When the probate of will might become an idle ceremony if on its face it appears to be intrinsically void. Note: The exception does not apply when the meat of the controversy is not the intrinsic validity. It only applies when the intrinsic invalidity is apparent on the face of the will.

Effect of Probate Decree: The decree shall render conclusive the due execution of the will. It cannot be impugned on any grounds except on fraud.

What is the Extent of Due Execution:1. The will was executed in accordance with the strict formalities of the law 2. The testator was of sound and disposing mind at the time of the execution of the will 3. Consent is not vitiated by any duress, fear or threats4. The will was not procured by any under influence from the beneficiary or by some other person for his benefit5. The signature of the testator is genuine

How Extrinsic Validity Determined Substantial Compliance is Sufficient: when the purpose of the law has been satisfied Ratio: solemnities are intended to protect the testator form all kind of fraud and trickery but never to be so rigid as to destroy the testamentary privilege. Formal Imperfections to be Brushed Aside

Probate Courts as Courts of LIMITED jurisdiction: It may ONLY rule upon issues related to the settlement of the estate: Administration Liquidation Distribution It has no jurisdiction to adjudicated title on property See notes p 2-3 for the exceptions to the rule on limited jurisdiction

Exclusionary Rule in Probate Proceedings When a probate court first takes cognizance and jurisdiction over the settlement of the estate it shall continue to exercise such power to the exclusion of other courts.

Sec. 2. Custodian of will to deliver.

The person who has custody of a will shall: w/in 20 days after he knows of the death of the testator, deliver the will to the court having jurisdiction, OR to the executor named in the will.

Notes: Failure to attach original of will to petition is not critical where the will itself was adduced in evidence. It is not necessary to attach the original will to petition for probate.

Sec. 3. Executor to present will and accept or refuse trust.

A person named as executor in a will shall w/in 20 days: AFTER he knows of the death of the testator AFTER knows that he is named executor IF he obtained such knowledge after the death of the testatorpresent such will to the court having jurisdiction: UNLESS the will has reached the court in any other manner, and shall, within such period, signify to the court in writing: his acceptance of the trust OR his refusal to accept it.

Sec. 4. Custodian and executor subject to fine for neglect.

A person who neglects any of the duties required in the 2 last preceding sections: w/out excuse satisfactory to the court shall be fined NE 2K pesos.

Sec. 5. Person retaining will may be committed.

A person having custody of a will AFTER the death of the testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the court having jurisdiction, may be committed to prison and there kept UNTIL he delivers the will.

[RULE 76]ALLOWANCE OR DISALLOWANCE OF WILL

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

Any executor/devisee/legatee named in a will OR any other person interested in the estate, may: at any time after the death of the testator petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed. The testator himself may during his lifetime: petition the court for the allowance of his will.

Notes:Who May Petition for the Allowance of a Will:1. Any creditor as preparatory step for filing his claim therein;2. Devisee or legatee 3. Person interested in the estate (heirs) Interested Party: one who would be benefitted by the estate such as an heir or one who has a claim against the estate such as a creditor. One who is only indirectly interested in a will may not interfere in its probate.4. Executor5. Testator himself during his lifetime.

Who may be a Party in a Probate - GR: Any person having a direct and material interest in the will or estateProbate Proceedings are NOT Subject to Prescription: Such petition may be filed at any time and is required by public policy

Jurisdiction How Acquired Filing a petition for probate Delivery of the will is also sufficient even if no petition for probate is filed (Ratio: Because upon the will being deposited, the court could motu proprio take steps for proving the will)

Note: Attaching a mere copy of the will is sufficient: It has been the practice of some courts to permit attachment of a mere copy of the will w/o prejudice to producing the original at the hearing or when the court so required. This is a precautionary measure to avoid the will being lost or destroyed.

IF Petition For Probate is Filed BY:A Third PersonThe Testator Himself

Notice published once a week for 3 consecutive weeksNewspaper publication not required

Personal notice given to designated or known heirs, legatees and deviseesPersonal notice sent only to testators compulsory heirs

Sec. 2. Contents of petition.

A petition for the allowance of a will must show, so far as known to the petitioner:

(a) The jurisdictional facts; (b) The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent; (c) The probable value and character of the property of the estate; (d) The name of the person for whom letters are prayed; (e) IF the 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.

Notes:Jurisdictional Facts Alleged in Probate Proceedings1. Person died leaving a will;2. In case of a resident, that he resided within the territorial jurisdiction of the court; (in the case of non-resident, that he left an estate within such territorial jurisdiction)

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

When a will is delivered to, OR a petition for the allowance of a will is filed in, the court having jurisdiction, such court: shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published 3 weeks successively, previous to the time appointed, in a newspaper of general circulation in the province. But no newspaper publication shall be made: where the petition for probate has been filed by the testator himself.

Notes:

Probate of the Will is a Proceeding In Rem Notice of publication as a prerequisite to the allowance of a will, it is constructive notice to the whole world, and when probate is granted the judgment is binding upon everybody, even against the State. If there is no notice proceeding for settlement is VOID

Note: 3 weeks successively is NOT strictly 21 days. It is sufficient that publication has been made once a week successively 3 times, even if less than 21 days intervened between the first and last publication.

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

The court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed: TO the designated or other known heirs, legatees, and devisees of the testator resident in the RP AT their places of residence, and deposited in the post office with the postage thereon prepaid at least 20 days before the hearing, if such places of residence be known.

A copy of the notice must in like manner be mailed: to the person named as executor, IF he NOT be petitioner; also, to any person named as co-executor not petitioning, IF their places of residence be known.

Personal service of copies of the notice at least 10 days BEFORE the day of hearing shall be equivalent to mailing.

IF the testator asks for the allowance of his own will: notice shall be sent ONLY to his compulsory heirs.

Notes:Persons to be given notice:1. Designated or known heirs, legatees and devisees and 2. Executor and co-executor if not the petitionerNote: Requirement is not satisfied by mere publication of notice of hearing. Notice to the designated persons is required.

Modes of Notification1. If by mail: 20 days before hearing 2. If through personal service: 10 days before hearing

Sec. 5. Proof at hearing. What sufficient in absence of contest.

At the hearing compliance with the provisions of the last 2 preceding sections: must be shown BEFORE the introduction of testimony in support of the will. All such testimony shall: be taken under oath AND reduced to writing. IF no person appears to contest the allowance of the will, the court may: grant allowance thereof on the testimony of 1 of the subscribing witnesses only IF such witness testify that the will was executed as required by law. In the case of a holographic will, it shall be necessary: that at least one 1 who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. In the absence of any such competent witness, AND IF the court deem it necessary: expert testimony may be resorted to. Notes:

Evidence Required in Support of a Will 1. Notarial Wills Testimony of at least 1 of the subscribing witnesses that the will was executed as required by law If all of such witnesses are outside the province - Deposition is allowed (Sec 7) If such witness are dead, insane, or none of them resides in the RP The court may admit testimony of other witnesses to prove the due execution of the will. It may admit proof of the handwriting of the testator and the subscribing witnesses. (Sec 8)2. Holographic Wills Testimony of 1 witness who knows the handwriting and signature of the testator. In the absence thereof, testimony of an expert witness.

In Holographic Wills: GR: Holographic will if destroyed CANNOT be probated EXC: If there exists a photostatic copy

Sec. 6. Proof of lost or destroyed will. Certificate thereupon.

NO will shall be proved as a lost or destroyed will UNLESS:1. the execution and validity of the same be established, AND 2. the will: is proved to have been in existence at the time of death of the testator, OR is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, OR3. its provisions are clearly and distinctly proved by at least 2 credible witnesses.

When a lost will is proved, the provisions thereof: must be distinctly stated and certified by the judge, under the seal of the court, and the certificate: must be filed and recorded as other wills are filed and recorded.

Note: This section applies to a lost or destroyed notarial will and NOT to a holographic will.

Note: Fact #s 1, 2 and 3: Must be proved in order for a lost and destroyed will may be allowed. Facts # 1 and 3: Constitute secondary evidence in lieu of the original will provided the loss of the will is proved. Fact # 2: Required to be proved to preclude the inference that the testator destroyed his own will.

Sec. 7. Proof when witnesses do not reside in province.

IF it appears at the time fixed for the hearing: that none of the subscribing witnesses resides in the province, but that the deposition of one or more of them can be taken elsewherethe court: may on motion, direct it to be taken, and may authorize a photographic copy of the will TO be made AND TO be presented to the witness on his examination, WHO may be asked the same questions with respect:to it AND to the handwriting of the testator and others, as would be pertinent and competent if the original will were present.

Sec. 8. Proof when witnesses dead or insane or do not reside in the Philippines.

IF it appears at the time fixed for the hearing: that the subscribing witnesses are dead or insane, OR that none of them resides in the RP the court may admit the testimony of other witnesses to prove: the sanity of the testator, and the due execution of the will; and as evidence of the execution of the will, it may admit: proof of the handwriting of the testator and of the subscribing witnesses, or of any of them.

Notes:

Weight of Testimonial Evidence A will may be allowed even if some witnesses do not remember having attested to it, if other evidence satisfactorily show due execution. The failure of the witness to identify his signature does not bar probate. Note: In weighing the testimony of the attesting witnesses to a will, the statement of a competent attorney charged w/ the responsibility of seeing to the proper execution of the will is entitled to greater weight than the testimony of a person casually called to participate in the act.

Note: Test of w/n the will was signed in the presence of one another Not actually seeing it but w/n he was in a position to see it by the mere casting of the eyes.

Sec. 9. Grounds for disallowing will.

The will shall be disallowed in any of the ff. cases: (a) If not executed and attested as required by law; (b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; (c) If it was executed under duress, or the influence of fear, or threats; (d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; (e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto.

Notes:

Substantial Compliance Rule, defined: If the will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud is obviated, said will should be admitted to probate It is allowed when the purpose of the law has been satisfied since the solemnities are intended to protect the testator from all kinds of fraud and trickery.

In Holographic Wills: The law does not require a particular location where the date should be placed. For as long as it is dated, it complies w/ the requirement. GR: The date should contain the day, month and year EXC: when there is no fraud, undue influence, or bad faith, the authenticity is established and the only question is the validity of the date substantial compliance may be applied. Ground for Disallowance of Wills are EXCLUSIVE. Hence, the ONLY issues to be resolved are:1. w/n the instrument was indeed the decedents will2. w/n the will was executed in accordance w/ the formalities prescribed by law 3. w/n the decedent had the necessary testamentary capacity at the time the will was executed 4. w/n the execution of the will and the signing were voluntarily made

Solemnities Include: Notarial wills: subscription, attestation and acknowledgement Holographic wills: entirely written, signed and dated by the hand of the testator himself.

Separate Will may be Probated Jointly: When the two wills contain essentially the same provisions and pertain to properties which in all probability are conjugal in nature, practical considerations dictate their joint probate.

Sec. 10. Contestant to file grounds of contest.

Anyone appearing to contest the will must: State in writing his grounds for opposing its allowance, and Serve a copy thereof on the petitioner and other parties interested in the estate.

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

IF the will is contested: all the subscribing witnesses AND the notary in the case of wills executed under the NCC, if present in the Philippines and not insane, must be produced and examined, AND the death, absence, or insanity of any of them must be satisfactory shown to the court.

IF all or some of such witnesses are present in the RP BUT outside the province where the will has been filed: their deposition must be taken.

IF any or all of them: testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may, nevertheless, be allowed: IF the court is satisfied FROM the testimony of other witnesses and FROM all the evidence presented that the will was executed and attested in the manner required by law.

IF a holographic will is contested, the same shall be allowed: IF at least 3 witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator; in the absence of any competent witness, AND if the court deem it necessary, expert testimony may be resorted to.

Note:

In holographic wills: when the authenticity of the will is not being questioned - There is no necessity of presenting the 3 witnesses.

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

Where the testator himself petitions for the probate of his holographic will AND no contest in filed: the fact that he affirms that the holographic will and the signature are in his own handwriting, shall be sufficient evidence of the genuineness and due execution thereof.

IF the holographic will is contested: the burden of disproving the genuineness and due execution thereof shall be on the contestant.The testator may, in his turn, present such additional proof as may be necessary to rebut the evidence for the contestant.

Sec. 13. Certificate of allowance attached to proved will. To be recorded in the Office of Register of Deeds.

IF the court is satisfied, upon proof taken and filed: that the will was duly executed, and that the testator at the time of its execution was of sound and disposing mind, and not acting under duress, menace, and undue influence, or fraud, a certificate of its allowance: signed by the judge, and attested by the seal of the court shall be attached to the will and filed and recorded by the clerk. Attested copies of the will devising real estate and of certificate of allowance thereof: shall be recorded in the RD of the province in which the lands lie.

[RULE 77]ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER Sec. 1. Will proved outside Philippines may be allowed here.

Wills proved and allowed in a foreign country: according to the laws of such country may be allowed, filed, and recorded by the proper CFI in the RP. Notes:

The Rule Talks About the Reprobate of the Will: It is a requirement that the will proved and allowed in a foreign country must be re-probated in the RP. If the decedent owns properties in different countries separate proceedings must be had to cover the same.

2 Types of Administration of Estate 1. Principal Administration: That which is granted in the jurisdiction of the decedents domicile (Domiciliary Administration)2. Ancillary Administration: That instituted where the decedent left his estate

Evidence Necessary for the Reprobate of Allowance of Wills Which Have Been Granted Outside the RP:1. The due execution of the will in accordance with the foreign laws 2. The testator had his domicile in the foreign country and not in the RP3. The will has been admitted to probate in such country 4. The fact that the foreign tribunal is a probate court 5. The laws of a foreign country on procedure and allowance of wills.

What are the Effects of Allowance of a Will under This Rule?1. The will shall be treated as if originally proved and allowed in RP courts 2. Letters testamentary or administration with the will annexed shall extend to all estates of the RP3. After payment of just debts and expenses of administration, the residue of the estate shall be disposed of as provided by law in cases of estates in the RP belonging to persons who are inhabitants of another state or country.

In Re-Probate of a Will Proven Abroad, Proponent Must prove: Testator was domiciled in the foreign country; Will has been admitted to probate in such country; Foreign country was, under the laws of such country, a probate court with jurisdiction; Law on foreign probate procedure and proof of compliance therewith; Legal requirements in said country for valid execution of will.

Sec. 2. Notice of hearing for allowance.

When a copy of such will AND of the order or decree of the allowance thereof, both duly authenticated: are filed with a petition for allowance in the RP by the executor or other person interested, in the court having jurisdictionsuch court shall: fix a time and place for the hearing, AND cause notice thereof to be given as in case of an original will presented for allowance.

Notes:

Requisites of Ancillary Administration 1. There must be a will 2. There must be filing of:a. Copy of the will executed in foreign country b. Order or decree of foreign court allowing such willc. Authentication of requisites a and b above d. Petition for allowance of the will. 3. Notice of time and place of the will4. Hearing and 5. Certificate of Allowance

The Court shall Give Notice as in the Case of an Original Will Presented for Probate This rule means that w/ regard to notices, the will probated abroad should be treated as if it were an original will or a will that is presented for probate for the first time.

Sec. 3. When will allowed, and effect thereof.

IF it appears at the hearing: that the will should be allowed in the RP, the court shall so allow it, and a certificate of its allowance: signed by the judge, and attested by the seal of the court, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court. Sec. 4. Estate, how administered.

When a will is thus allowed, the court shall: grant letters testamentary, or letters of administration with the will annexed, and such letters testamentary or of administration, shall: extend to all the estate of the testator in the RP.

Such estate, AFTER the payment of just debts and expenses of administration: shall be disposed of according to such will, so far as such will may operate upon it; and the residue, if any: shall be disposed of as is provided by law in cases of estates in the RP belonging to persons who are inhabitants of another state or country.

Notes:

Territorial Limits of Administration GR: Administration extends only to the assets of the decedent found within the state or country where it was granted Meaning: An administration appointed in one state or country has no power over property in another state or country

Need for Ancillary Administration The Ancillary Administration is proper whenever a person dies living in a country other than that of his domicile, property to be administered in the nature of assets of the decedent, liable for his individual debts or to be disturbed among his heirs.

[RULE 78]LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM ISSUEDSec. 1. Who are incompetent to serve as executors or administrators.

No person is competent to serve as executor or administrator who: (a) Is a minor; (b) Is not a resident of the Philippines; and (c) Is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude.

Who Can Administer the Estate?1. Executor One named by the testator in his will for the administration of his property after his death

2. Administrator, regular or special, (Rule 80)One appointed by the court in accordance with the rules of governing statutes to administer and settle the intestate estate

3. Administrator with a will annexed (Rule 79 Sec 1)One appointed by the court in cases when, although there is a will, the will does not appoint any executor, or if appointed, said person is either incapacitate or unwilling to serve as such

ExecutorAdministrator

Nominated by the testator and appointed by the courtAppointed by the intestate court in case the testator:a. Dies w/o leaving a will b. Did not name any executor even if there was a will orc. If there be one named, he is incompetent or refuses the trust or fails to give a bond, or the will is subsequently declared null and void

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 mannerNo such duty

Testator may provide that he may serve without a bond (Court may still require but conditioned only in payment of debts)Must always post bond

Compensation may be provided for by testator otherwise, compensation under Rule 85, Sec. 7Governed by Rule 85, Sec. 7

Note: An Executor and Administration must be COMPETENT

Negative Factors: Disqualifies One From Being an Administrator/Executor1. Minors2. Non-Residents3. Drunkenness State of Intoxication: The effect produced upon the mind or body by drinking intoxicating liquors to such an extent that the normal condition of the subject is changed and his capacity for rational action and conduct is substantially lessened. It is something more gross than occasional intoxication. It is only when their habits of drink are carried so far as to cloud the brain and weaken their respect for honesty and integrity will the disqualification apply. It must be excessive, inveterate, and continued use of intoxicants, to such an extent as to render the subject of the habit unsafe against to entrust with the care of property or the transaction of business. 4. Improvidence When the want of care and foresight in the management of property or lack of business capacity which would likely to render the estate and effects of the intestate unsafe Symptoms: Carelessness, indifference, prodigality, wastefulness or negligence in reference to care of management and preservation of property Gambling habits might establish improvidence 5. Want of Understanding Lack of intelligence, not mere weakness of the mind Weakness of mind must be such as would subject one to sinister influence or coercion against the interest of the objection 6. Want of Integrity There must be soundness of moral privilege and character as shown by a persons dealing with others Probity, honesty and uprightness in business relations with others An accusation of want of integrity must be grave in its nature and must be established by proof which would approach a certainty required for conviction in a criminal prosecution 7. Conviction of an Offense Involving Moral Turpitude An act of baseness, vileness or depravity in the private and social duties which a man owes his fellow men

Note: The Court CANNOT Add New Causes of Disqualification

Note: Antagonism to those interested in an estate may be taken into consideration when determining the fitness of the person to be appointed

Sec. 2. Executor of executor not to administer estate.

The executor of an executor shall NOT, as such, administer the estate of the first testator.

Sec. 3. Married women may serve.

A married woman: may serve as executrix or administratrix, and the marriage of a single woman: shall NOT affect her authority so to serve under a previous appointment.

Sec. 4. Letters testamentary issued when will allowed.

When a will has been proved and allowed, the court: shall issue letters testamentary thereon TO the person named as executor therein, IF: he is competent, accepts the trust, and gives bond as required by these rules.

Notes:

Letters TestamentaryIt is the authority issued to an executor named in the will to administer the estate.

Letter of AdministrationIt is the authority issued by the court to a competent person to administer the estate of the deceased who died intestate.

Letters of Administration w/ 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.

Sec. 5. Where some coexecutors disqualified others may act.

When ALL of the executors named in a will cannot act: because of incompetency, refusal to accept the trust, or failure to give bond, on the part of one or more of them, letters testamentary may issue to: such of them as are competent, accept and give bond, and they may perform the duties and discharge the trust required by the will.

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

IF: no executor is named in the will, OR the executor or executors are incompetent, refuse the trust, or fail to give bond, OR a person dies intestate, administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or To such person as such surviving husband or wife, or next of kin, requests to have appointed: if competent and willing to serve;

(b) IF such surviving husband or wife, as the case may be, or next of kin, or the person selected by them: be incompetent or unwilling, or IF the husband or widow, or next of kin: neglects for 30 days after the death of the person: to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, IF competent and willing to serve;

(c) IF there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.

Notes:

Order of Preference 1. Surviving husband or wife2. Next of Kin 3. Principal Creditors 4. Such Other person as the court may select

GR: The court CANNOT set aside the order of preference in Sec 6 EXC: When the persons who have the preferential right to be appointed under the rule are not competent or are unwilling to serve the courts may select such other person.

Note: The Order of Appointment of Regular Administrator is final and appealable. (Pending appeal, the old administrator has the right to continue as such)

Basis for the Preferential Right: The assumption is that those who will reap the benefits of a wise, speedy and economical administration of the estate, have the higher interest and motive to administer the estate correctly.

Mere Failure to Apply for Letters of Administration Does Not Automatically Remove Preference: There must be a very strong case to justify the exclusion of the widow from administration.

Herrera: The 30-day Period May be Waived. The provision merely provides that the said letter as an alternative may be granted to one or more of the principal creditors.

Co-Administrators May be Appointed for the Benefit of the Estate and Those Interested Therein For the benefit of the state and those interested therein, more than one administrator may be appointed this is legally permissible and sanctioned in practice.The Appointment of Co-Administrators Has Been Upheld by for Various Reasons:1. To have the benefit of their judgment and for the purpose of having different interests represented at all times. 2. Where justice and equity demand that opposing parties or factions be represented in the management of the estate of the deceased 3. When 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 state 5. When a person entitled to the administration of an estate desires another competent person associated with him in office.

Scope of Limit of Administration GR: Extends ONY to the assets of the decedent found within the state or country where it was granted (The administrator in one state has no power over property in another state)

[RULE 79]OPPOSING ISSUANCE OF LETTERS TESTAMENTARY. PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION

Sec. 1. Opposition to issuance of letters testamentary; Simultaneous petition for administration.

Any person interested in a will may: state in writing the grounds why letters testamentary should not issue to the persons named therein executors, or any of them, and the court, AFTER hearing UPON notice, shall: pass upon the sufficiency of such grounds.

A petition may, at the same time, be filed for letters of administration with the will annexed.

Notes:

Main IssueDetermination of the person who is rightfully entitled to administration

Person to Oppose The Issuance of LettersAny person interested in the will

Ground for OppositionIncompetence

Sec. 2. Contents of petition for letters of administration.

A petition for letters of administration: must be filed by an interested person and must show, so far as known to the petitioner:

(a) The jurisdictional facts; (b) The names, ages, and residences of the heirs, and the names and residences of the creditors, of the decedent (c) The probable value and character of the property of the estate; (d) The name of the person for whom letters of administration are prayed.

But NO defect on the petition shall render void the issuance of letters of administration.

Notes:

The Jurisdictional Facts: Death of the testator, his residence at the time of death, if he is an inhabitant of a foreign country, his having left his estate in such province.

Interested Party, defined: one who would be benefitted by the estate such as an heir or one who has a claim against the estate such as a creditor.

Lack of Interest of the person opposing is NOT jurisdictional The petition however may still be objected to on the ground of lack of legal capacity to institute the proceedings Failure to move for dismissal will amount to a waiver on such ground One will be estopped under the omnibus motion rule

Note: Defects in the petition may be cured by failure to make timely objection.

Sec. 3. Court to set time for hearing. Notice thereof.

When a petition for letters of administration is filed in the court having jurisdiction, such court: shall fix a time and place for hearing the petition, and shall cause notice thereof to be given: to the known heirs and creditors of the decedent, and to any other persons believed to have an interest in the estate, in the manner provided in Sections 3 and 4 of Rule 76.

Notes:

Section 3, Rule 79 is JURISDICTIONAL Publication for 3 weeks and notice to heirs creditors and other persons having an interest is required before hearing Eusebio v. Valmores: When no notice as required by Sec 3 has been given to persons believed to have an interest in the estate, the proceeding is void and should be annulled. The requirement as to notice is essential to the validity of the proceedings in order that no person may be deprived of his right to property without due process of law.

Sec. 4. Opposition to petition for administration.

Any interested person may, BY filing a written opposition: contest the petition on the ground: of the incompetency of the person for whom letters are prayed therein, OR of the contestant's own right to the administration, and may pray that letters issue to himself, or to any competent person or persons named in the opposition.

Notes:

Grounds for Opposition:In Letters TestamentaryIncompetence

In Letters of Administration*Incompetence*Preferential right of the heir under Rule 78

Sec. 5. Hearing and order for letters to issue.

At the hearing of the petition, it must first be shown: that notice has been given as hereinabove required, and thereafter the court shall: hear the proofs of the parties in support of their respective allegations, AND IF satisfied that the decedent left no will, OR that there is no competent and willing executor, it shall order the issuance of letters of administration to the party best entitled thereto.

Notes:

Letters of Administrations Shall Issue IF it is Proven:1. Notice as required in Sec 3 was given 2. The decedent left no will; or if there is no competent and willing executor.

Sec. 6. When letters of administration granted to any applicant.

Letters of administration may be granted: to any qualified applicant, though it appears that there are other competent persons having better right to the administration, IF such persons fail to appear when notified and claim the issuance of letters to themselves.

[RULE 80]SPECIAL ADMINISTRATOR Sec. 1. Appointment of special administrator.

When there is delay in granting letters testamentary or of administration: BY any cause including an appeal from the allowance or disallowance of a will, the court may: appoint a special administrator to take possession and charge of the estate of the deceased UNTIL the questions causing the delay are decided and executors or administrators appointed.

Notes:

Special Administrator, defined: A representative of decedent appointed by the probate court to care for and preserve his estate until an executor or general administrator is appointed

AdministratorSpecial Administrator (SA)

Appointed when deceased died intestate or did not appoint an executor in the will or will was disallowedAppointed when there is delay in granting letters testamentary or administration

One of the obligations is to pay the debts of the estateCannot pay debts of the estate

Appointment May be subject of appealNot subject of appeal (it is an interlocutory order)

When May a Probate Court Appoint a SA:1. Delay in granting letters by any cause including an appeal in the probate of the will 2. Executor is a claimant of the estate he represents (Sec 8, Rule 86)Note: In #2: The administrator shall have the same powers as that of a general administrator

Appointment of a SA lies entirely in the sound discretion of the court. It needs to be emphasized that in the issuance of such appointment, it is only temporary and subsists only until a regular administrator is appointed. Discretion however must be sound and not whimsical or contrary to reason, justice, equity or legal principleNote: Preference in Sec 6 Rule 79 refers to the appointment of a regular administrator and NOT a SA

Note: Notice through Publication is a JURISDICTIONAL requirement even in the appointment of a SA (Sec 3, Rule 79)

Causes in Appointing a SA The basis for appointing is broad enough to include any cause or reason for the delay in granting the letters Ex. Contest as to the will is being carried on in the court; There is an appeal pending for the removal of the one appointed; The parties cannot agree among themselves

Purpose of Appointing a SA: To preserve the estate until it can pass to the hands of a person fully authorized and competent to administer it for the benefit of those interested therein

Sec. 2. Powers and duties of special administrator.

Such special administrator shall: take possession and charge of goods, chattels, rights, credits, and estate of the deceased and (1) preserve the same for the executor or administrator afterwards appointed, and (2) for that purpose may commence and maintain suits as administrator. (3)He may sell: (4) ONLY such perishable and other property as the court orders sold. A special administrator shall: NOT be liable to pay any debts of the deceased UNLESS so ordered by the court. (5)

Notes:

There are 5 powers and duties of a SA contemplated in Sec 2 (see numbering above) The SA has also the duty to submit an inventory and to render an accounting of his administration as required in the terms of his bond (Sec 4, Rule 81)

Note: SAs as officers of the court are subject to the supervision and control of the probate court Sec. 3. When powers of special administrator cease; Transfer of effects; Pending suits.

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

When Does the Power of the SA Cease? After the questions causing the delay are resolved and letters are granted to regular executor or administrator

Nature of Order Appointing a SA An order of such appointment is interlocutory in nature, a mere incident to the judicial proceedings (Hence, not subject to an appeal) The court making the appointment retains control over it and make modify, rescind or revoke the same on sufficient grounds at any time before final judgment

Note: The administrator whose appointment is challenged by an appeal may also be the same person appointed as SA pending such appeal

De Gala v. Gonzales: While a SA may commence and maintain suits, he CANNOT be sued by a creditor for the patent of the debts of the deceased. Such suit must AWAIT the appointment of a regular administrator.

[RULE 81]BONDS OF EXECUTORS AND ADMINISTRATORS Sec. 1. Bond to be given before issuance of letters; Amount; Conditions.

BEFORE: an executor or administrator enters upon the execution of his trust, and letters testamentary or of administration issue, he shall give a bond, in such sum as the court directs, conditioned as follows:

(a) To make and return to the court, w/in 3 months, a true and complete inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge or to the possession of any other person for him;

(b) To administer according to these rules, and, IF an executor, according to the will of the testator,: all goods, chattels, rights, credits, and estate which shall at any time come to his possession or to the possession of any other person for him, andfrom the proceeds: to pay and discharge all debts, legacies, and charges on the same, or such dividends thereon as shall be decreed by the court;

(c) To render a true and just account of his administration to the court: w/in 1 year, and at any other time when required by the court;

(d) To perform all orders of the court by him to be performed.

Notes:

Administrators Bond is a STATUTORY BOND: Conditions prescribed by statute forms part of the bond agreement

Luzon Surety v. Quebrar: The terms and effectivity of bond does not depend on the payment of the premium and does not expire until the administration is closed. As long as the probate court retains jurisdiction over the estate, the bond contemplates a continuing liability.

Sec. 2. Bond of executor where directed in will. When further bond required.

IF the testator in his will directs that the executor serve: w/out bond OR with only his individual bond, he may be allowed by the court to give bond: in such sum and with such surety as the court approves conditioned only to pay the debts of the testator; BUT the court may require of the executor a further bond in case: a change in his circumstances, or for other sufficient cause, with the conditions named in the last preceding section

Sec. 3. Bonds of joint executors and administrators.

When two or more persons are appointed executors or administrators, the court may take: a separate bond from each, or a joint bond from all.

Sec. 4. Bond of special administrator.

A special administrator BEFORE entering upon the duties of his trust shall give a bond: in such sum as the court directs, conditioned that:1. he will make and return a true inventory of the goods, chattels, rights, credits, and estate of the deceased which come to his possession or knowledge, and that 2. he will truly account for such as are received by him when required by the court, and 3. will deliver the same: to the person appointed executor or administrator, or to such other person as may be authorized to receive them.

[RULE 82]REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS AND ADMINISTRATORS Sec. 1. Administration revoked if will discovered; Proceedings thereupon.

IF AFTER: letters of administration have been granted on the estate of a decedent as if he had died intestate, his will is proved and allowed by the court, the letters of administration: shall be revoked and all powers thereunder cease, and the administrator shall: forthwith surrender the letters to the court, and render his account within such time as the court directs. Proceedings for the issuance of letters testamentary or of administration under the will shall be as hereinbefore provided.

Notes:

Rule on Precedence of Probate of Will The probate of the will is mandatory and therefore takes precedence over intestate proceedings. Thus if in the course of the intestate proceedings it is found out that the decedent had left a will, probate should replace the intestate proceedings. Probate should replace even if an administrator is already appointed. Here, the court will discontinue or suspend the proceedings. After the will is probated, the intestate proceedings shall be terminated. This is however, understood to be w/o prejudice that the proceeding shall continue as an intestacy

Note: Generally, consolidation and joint hearing of the two cases would be proper if they do not involve settlement of the estate of a decedent.

Conversion of an Intestate into Testate Proceeding Conversion is entirely a matter of form and lies within the sound discretion of the court. In no manner does it prejudice the substantial rights of any of the heirs or creditors.

Duty of the Administration Upon Revocation of the Letters1. Surrender the letters to the court 2. Render his account within such times as the court may direct

Note: The mere discovery of the will does not ipso facto nullify the letters of administration already issued or even authorize their revocation UNTIL the will has been proved and allowed.

Sec. 2. Court may remove or accept resignation of executor or administrator; Proceedings upon death, resignation, or removal.

IF an executor or administrator: neglects: (1) to render his account and settle the estate according to law, or (2) to perform an order or judgment of the court, or (3) a duty expressly provided by these rules, or (4) absconds, or (5) becomes insane, or otherwise incapable or unsuitable to discharge the trust, the court may: remove him, or, in its discretion, may permit him to resign. When an executor or administrator dies, resigns, or is removed: the remaining executor or administrator may administer the trust alone, UNLESS the court grants letters to someone to act with him. IF there is no remaining executor or administrator: administration may be granted to any suitable person.

The Purpose of Administration: For the liquidation of the estate and the distribution of the residue among the heirs. Liquidation: Determination of all the assets and payment of all the debts and expenses Hence, approval of the project of partition does not necessarily terminate administration

Degree of Care Expected of Administrator Administrator, he occupies a position of the highest trust and confidence He is required to exercise reasonable diligence and act in entire good faith in the performance of that trust. Grounds for Removal of an Administrator: 5 items mentioned in the codal (see numbering above)

Grounds are NOT exclusive: The court is invested with ample discretion in the removal of an administrator for as long as there is evidence of an act or omission on the part of the administrator not conformable to or in disregard of the rules or the orders of the court which it deems sufficient or substantial to warrant the removal of the administrator. There must be evidence to justify removal Examples: Disbursing funds of the estate w/o judicial approval False representation in securing appointment When he holds an interest adverse to the estate or shows conduct of unfitness to discharge the trust. Note: Temporary absence from the state does not disqualify one to be an administrator of the estate. Note: An order of removal is APPEALABLE

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

The lawful acts of an executor or administrator: before the revocation of his letters testamentary or of administration, or before his resignation or removal, shall have the like validity as if there had been no such revocation, resignation, or removal. Note: Acts done in good faith prior to revocation of the letters of administrator shall be protected.

Sec. 4. Powers of new executor or administrator. Renewal of license to sell real estate.

The person to whom letters testamentary or of administration are granted: after the revocation of former letters, or the death, resignation, or removal of a former executor or administrator, shall: have the like powers to collect and settle the estate not administered that the former executor/administrator had, and may prosecute or defend actions commenced by or against the former executor/administrator, and have execution on judgments recovered in the name of such former execution or administrator.

An authority granted by the court to the former executor or administrator for the sale or mortgage of real estate: may be renewed in favor of such person without further notice or hearing.

[RULE 83]INVENTORY AND APPRAISAL;PROVISION FOR SUPPORT OF FAMILY Sec. 1. Inventory and appraisal to be returned within three months.

W/in 3 months after his appointment every executor or administrator shall: return to the court a true inventory and appraisal of all the real and personal estate of the deceased which has come into his possession or knowledge. In the appraisement of such estate, the court may: order one or more of the inheritance tax appraisers to give his or their assistance.

The 3 Month Period is NOT Mandatory After the filing of the petition for the issuance of letters of administration and the publication of the notice of hearing the probate court acquires jurisdiction and retains that jurisdiction UNTIL the proceeding is closed. However, an administrators unexplained delay in filing the inventory may be a ground for his removal

The Administrator is NOT Chargeable with the Administration of the Estate Which Has Not Come to his Possession He is however, accountable for the true and complete inventory of all the property belonging to the state which has come to his knowledge

The Court which Acquires Jurisdiction Over the Property has Supervision and Control over the said Properties It is its inherent duty to see to it that the inventory submitted by the administrator contains all the properties, rights, credits which the law requires the administrator to set out in his inventory.

The Court has the Power to Determine whether the Properties Belong prima facie to the Intestate Approval of the inventory is not conclusive determination of what assets constituted the deceaseds estate and of the valuation thereof. Such determination is only provisional and a prima facie finding of the issue of ownership. Property Claimed by a Third Person May be Included in the Inventory. The determination does not preclude the claimants from maintaining an ordinary civil action for the determination of title. Sec. 2. Certain articles not to be inventoried.

The wearing apparel of the surviving husband or wife and minor children, the marriage bed and bedding, and such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased, under the direction of the court:shall not: be considered as assets, nor administered as such, and shall not be included in the inventory.

Sec. 3. Allowance to widow and family.

The widow AND minor or incapacitated children of a deceased person: during the settlement of the estate, shall receive therefrom, under the direction of the court, such allowance as are provided by law.

Allowance, defined: The monetary advances which are subject to collation and are likewise deductible form their share in the estate of the decedent.

Allowances for Support Under this Section Should NOT be Limited to the minor or incapacitated Children of the Deceased. Art 133 Family Code: During the liquidation of the conjugal partnership, the deceaseds legitimate spouse and children, REGARDLESS of age, civil status or gainful employment are entitled to provision support from the funds of the estate It is limited however to the legitimate spouses and children grandchildren are not entitled to the same allowance.

Note: When the liabilities exceed the assets of the estate, his widow and children are NOT entitled to support pending the liquidation on the ground that such support, having the character of an advance payment to be deducted from the respective share of each heir.

Note: The sale of the estate is unnecessary when the cash in possession of the administrator is sufficient for payment of the allowance of the heirs. The court may not order said sale especially when the heirs opposed it.

[RULE 84]GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS Sec. 1. Executor or administrator to have access to partnership books and property; How right enforced.

The executor or administrator of the estate of a deceased partner shall at all times have access to, and: may examine and take copies of, books and papers relating to the partnership business, and may examine and make invoices of the property belonging to such partnership; and the surviving partner or partners, on request: shall exhibit to him all such books, papers, and property in their hands or control.

On the written application of such executor or administrator, the court having jurisdiction of the estate: may order any such surviving partner or partners: to freely permit the exercise of the rights, and to exhibit the books, papers, and property, as in this section provided, and may punish any partner failing to do so for contempt.

Sec. 2. Executor or administrator to keep buildings in repair.

An executor or administrator shall: maintain in tenantable repair the houses and other structures and fences belonging to the estate, and deliver the same in such repair to the heirs or devisees when directed so to do by the court.

Sec. 3. Executor or administrator to retain whole estate to pay debts, and to administer estate not willed.

An executor or administrator shall have the right to the possession and management: of the real as well as the personal estate of the deceased so long as it is necessary for the payment of the debts and the expenses of administration. Notes:

Powers of the Executor or Administrator:1. Have access to and examine partnership books and property;2. Examine and make invoices of the property belonging to such partnership3. 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; 4. To make improvements on the properties with the courts approval (court approval is not necessary for necessary repairs)5. To posses and manage the estate but ONLY when necessary:a. For the payment of debts b. For payment of expenses of administration

Restrictions on the Power of the Executor or Administrator1. Cannot acquire by purchase even at public or judicial auction, either in person or mediation of another, the property under administration 2. Cannot borrow money w/o authority of the court 3. Cannot speculate with funds under administration 4. Cannot lease the property for more than one year 5. Cannot continue the business of the deceased unless authorized by the court 6. Cannot profit by the increase or decrease in the value of the property under administration.7. Cannot exercise the right of legal redemption over the portion of the property owned in common sold by one of the other co-owners

[RULE 85]ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS Sec. 1. Executor or administrator chargeable with all estate and income.

EXCEPT as otherwise expressly provided in the following sections, every executor or administrator is chargeable in his account: with the whole of the estate of the deceased which has come into his possession, at the value of the appraisement contained in the inventory; with all the interest, profit, and income of such estate; and with the proceeds of so much of the estate as is sold by him, at the price at which it was sold.

GR: The executor or administrator is accountable for the whole estate of the deceasedEXC: He is not accountable for properties which never came to his possession EXC to EXC: 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 state which came his knowledge

Sec. 2. Not to profit by increase or lose by decrease in value.

NO executor or administrator shall: profit by the increase, or suffer loss by the decrease or destruction, without his fault, of any part of the estate.

He must account for: the excess when he sells any part of the estate for more than appraisement, and IF any is sold for less than the appraisement: he is not responsible for the loss, IF the sale has been justly made.

IF he settles any claim against the estate for less than its nominal value: he is entitled to charge in his account ONLY the amount he actually paid on the settlement.

Note: The E or A shall not profit by the increase of the estate nor be liable for any decrease which the estate w/o his fault, might have sustained. Sec. 3. When not accountable for debts due estate.

NO executor or administrator shall be accountable for: debts due the deceased which remain uncollected without his fault.

Sec. 4. Accountable for income from realty used by him.

IF the executor or administrator uses or occupies any part of the real estate himself, he shall account for it as: may be agreed upon between him and the parties interested, or adjusted by the court with their assent; and if the parties do not agree upon the sum to be allowed: the same may be ascertained by the court, whose determination in this respect shall be final.

Sec. 5. Accountable if he neglects or delays to raise or pay money.

When an executor or administrator: neglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased, or neglects to pay over the money he has in his hands, AND: the value of the estate is thereby lessened or unnecessary cost or interest accrues, or the persons interested suffer loss, the same shall be deemed waste and: the damage sustained may be charged and allowed against him in his account, and he shall be liable therefor on his bond.

Requisites for the Executor of Administrator to be Accountable 1. The Executor or Administrator Neglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased Neglects to pay over the money he has in his hands AND2. The value of the estate is lessened OR3. Unnecessary cost or interest accrues OR4. The person interested suffered loss

Note: He is not accountable if debt remains uncollected w/o his fault

Sec. 6. When allowed money paid as costs.

The amount paid by an executor or administrator for costs awarded against him: shall be allowed in his administration account, UNLESS it appears that the action or proceeding in which the costs are taxed was prosecuted or resisted without just cause, and not in good faith.

Sec. 7. What expenses and fees allowed executor or administrator. Not to charge for services as attorney. Compensation provided by will controls unless renounced.

An executor or administrator shall be allowed: the necessary expenses in the care, management, and settlement of the estate, and for his services, 4 pesos per day for the time actually and necessarily employed, or a commission upon the value of so much of the estate as comes into his possession and is finally disposed of by him in the payment of debts, expenses, legacies, or distributive shares, or by delivery to heirs or devisees, of:2%of the first 5K of such value

1%of so much of such value as E 5K pesos and does NE 30K

%of so much of such value as E 30K and does NE 100K and

%of so much of such value as E 100K

But in any special case, where: the estate is large, and the settlement has been attended with great difficulty, and has required a high degree or capacity on the part of the executor or administrator, a greater sum may be allowed.

IF objection to the fees allowed be taken: the allowance may be re-examined on appeal.

IF there are two or more executors or administrators, the compensation: shall be apportioned among them by the court according to the services actually rendered by them respectively.

When the executor or administrator is an attorney: he shall NOT charge against the estate any professional fees for legal services rendered by him.

When the deceased by will makes some other provision for the compensation of his executor: that provision shall be a FULL satisfaction for his services UNLESS by a written instrument filed in the court he renounces all claim to the compensation provided by the will.

Expenses of Administration: Necessary for the management of the estate, for protecting it against destruction or deterioration and possibly, for the production of fruits. There are expenses and its management for purposes of liquidation, payment of debts and distribution of the residue among the persons entitle to thereto.

Compensation if There is No Provision in the Will1. P4.00 a day for the time actually and necessarily employed OR2. Commission 3. A greater sum may be allowed if:a. The estate is large b. The settlement has been attended with great difficulty c. The settlement has required a high degree of capacity of the executor or administrator. Note: Grant of a greater sum (#3) rests on the sound discretion of the court

The Executor or Administrator is Allowed the Necessary Expenses in the Care Management and Settlement of the EstateNecessary Expenses: Such expenses as are entailed for the preservation and productivity of the estate and for its management for purposes of liquidation, payment of debts, and distribution of the residue among persons entitledExamples: Expenses to preserve the family home and to maintain the familys social standing Expenses on the anniversary of the death of the deceased Expenses incurred by a presumptive hair for her appearance to oppose the probate of the will Expenses for the settlement of the estate Expenses incurred by the E or A to procure a bond Expenses for court documents Administrator May NOT Recover Attorneys Fees from Estate His compensation is fixed by the rule but such compensation is in the nature of the E or As commissions and never as attorneys fees Procedure for Collection of Attorneys Fees1. Request the administrator to make payment and file an action against him in his personal capacity and not as administrator should fail to pay 2. Petition in the testate or intestate proceeding asking the court, after notice to all persons interested, to allow his claim and direct the administrator to pay it as an expense of administration When an attorney renders services to the E or A personally to aid in the execution of his trust The E or A is liable for the fees but he move for reimbursement and charge such fees as expenses of administration

When the attorneys services were rendered in a litigation involving such E or A as trustee of the estate The attorneys fees are chargeable to the estate

Sec. 8. When executor or administrator to render account.

Every executor or administrator shall render an account of his administration: w/in 1 year FROM the time of receiving letters testamentary or of administration, UNLESS the court otherwise directs because of extensions of time for presenting claims against, or paying the debts of, the estate, or for disposing of the estate; and he s