spec pro reviewer (midterm)

8/12/2019 Spec Pro Reviewer (Midterm)

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SPECIAL PROCEEDINGS | MIDTERM 2014| 1

Blue Sapphire, Dabon, Rejuso, Lulu, Paglinawan, Tapia, Nardo, Lim

Preliminary matters

Definition of terms: What is the difference between special proceedings from an ordinaryaction and special civil action?

As to nature:

SP In a special proceeding, it is a remedy to establish a status, a right, or a particular fact(settlement of the estate of a deceased person, right of a property a government wishes totake, correction of entry as long as allowed by law)

Ordinary action collection of sum of money, damages, specific performance; basically, thepurpose is for a party to reinforce or protect a right, or the prevention or redress of a wrongcommitted against him

Special Civil Action example: certiorari; purpose is to correct any abuse of discretionamounting to lack or excess of jurisdiction committed by a court or a quasi-judicial body.

Prov Rem prevention of a wrong committed against you: preliminary injunction

As to rules governing the actions:

Ordinary civil actions ordinary rules supplemented by special rules. Sometimes there arerules that are special only to the kind of ordinary action and applied only suppletorily

Special Civil Action governed by special rules supplemented by ordinary rules. Example:how is an action which is a special proceeding commenced? By filing a petition because if it isan ordinary action, it should be through a complaint. A special civil action could either be acomplaint or petition.

- How special is a special civil action? It is only a comment that is asked of therespondent to file within 5 days or depending on the discretion of the court whichcould be longer

- What about special proceedings? Upon filing, the court will determine if the petition issufficient in form and substance. If found sufficient, it will ask the civil registrar orSolGen to file a comment. Usually who is impleaded is only the civil registrar or NSOand not the SolGen. What is required? It should be published in a newspaper ofgeneral circulation to acquire jurisdiction over all persons interested. If the respondentdecides to oppose, he should file a petition for opposition before the jurisdictionalfacts are heard. What should be published is not the petition itself, but only the orderof the court setting the decision for the judicial hearing. When the case is called, thecourt will determine whether it has jurisdiction. To acquire jurisdiction, they mustprove that there was publication.

o Special rules supplemented by ordinary rules: After initial hearing, case willbe set for reception of evidence, just like any ordinary action. When the courtrules on evidence, the court follows ordinary rules on evidence. In spec pro,

since usually there is only one party, after presentation of evidence, the courtwill now order that the petition is deemed admitted for decision.

. There is only one party involve d in special proceedings. After the formal offer of itsexhibits and its admission, the court will now order that the petition be submitted for decisionand the case is now decided based on the evidence presented by the petitioner. Whereas, inan ordinary action, it must be based on the evidence of both parties. The same may be truewith special civil actions, especially when there is a private party. Unless when the oneinvolved as the respondent is the court or a quasi-judicial body, in which case, the case isdecided based on the evidence presented by the petitioner.

How else do you differentiate? In Ordinary Civil Actions, usually involves at least two parties,the plaintiff and the defendant. Sometimes, it even complicates and results to third party

plaintiff against a third party defendant. Not to mention, cross claim (cross-claimplaintiff/defendant), and intervention.


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In a Special Civil Action, the same, it usually involves two parties at least. On the other hand,in a Special Proceeding, it is usually initiated by the petitioner and may involve only thepetitioner. In a case for example of Petition for Correction of Entries to Change Gender fromM to F, who is your opponent or the adverse party? Since it involves correction of a PublicDocument then one should implead the agency or the officer who has obligation to correct theentries in said document under his/its custody, like your Local Civil Registrar and the National

Statistics Office. In which case, it may change with finality the entry.

However, they are only nominal respondents ; they are not personally interested in you.Unless of course you are really a male who wants to have your gender changed to Femalebecause it will now involve public interest. More often than not, it only involves the interest ofthe petitioner. In one case however, the petitioner wanted to change the name of his father inhis birth certificate since though it appears from such document that the father is Juan, in truthand in fact according to the mother, the father is Pedro. There is a problem, that would havebeen fine if Juan and Pedro would refer to the same person but in this case, Pedro and Juanare two different identities. The mother put Juan instead of Pedro since it was the former whowas willing to answer fo r the fathers responsibility instead, it would somehow avoid socialembarrassment. Now, Pedro already wants to claim his child and it would also be impossiblefor Juan to have fathered the child since he just met the mother after the delivery of the

newborn.So, naturally in this case, it is not only the Civil Registrar who would be made as arespondent, there is high probability that Juan would oppose since he was initially named asthe father. There is also a need to implead Pedro in this case. Now, what happens if Juan hasa wife and other heirs who were never impleaded? As legal heirs, may they petition to nullifythe judgment? Is that it? No. This is the very purpose of PUBLICATION wherein all interestedparties are deemed to have constructive notice which is the means of the court in acquiring

jurisdiction over them. All interested parties are presumed to know that there is this petitionwhich is ordinarily non-adversarial.

When we speak of Ordinary action, it is initiated by? COMPLAINT. If it is a Special Civil Action, it could be by COMPLAINT or Petition. How about in Spcecial Proceedings? Itshould be always by a Petition or an Application .

CAUSE OF ACTIONIs there a cause of action in a complaint? Yes.In a Special Civil Action? No. There is none. Look at Damages, there is no award in Certiorarifor Damages. The question only lies on the presence or absence of grave abuse of discretion.How about in Special Proceedings? There is no cause of action practically because it is non-adversarial except in a Petition for habeas corpus. In habeas corpus, there is always arespondent, the one who has custody of the body of the subject. That is a cause of actionagainst the detainer especially in the custody over minor children. Example, a case is filedagainst the Grandparents for custody of the children, that is habeas corpus. That would be apreliminary writ being asked while hearing the case for custody. Habeas corpus is used, or itcould be a writ of amparo or writ of habeas data

What is the response for a Complaint in ordinary civil actions? ANSWER.How about in a petition for a special civil action? COMMENT.How about in a Special Proceeding, what would you file, if a party would respond? Only anOPPOSITION.

What if the Local Civil Registrar for example was not able to file an opposition? Would itpreclude the State from participating thru the Solgen? NO, it will not bar the statesparticipation. As a matter of fact, the court would seek the participation of theProsecutor/Solgen as the lawyer of the state.In an ordinary action, if they fail to file an answer, defendant is prohibited from participating foras long as they are still in default.In a Special Proc, bisan pa ug di ka mufile ug opposition, the SOLGEN is not barred fromparticipating in the proceedings. Muapil siya gihapon during the hearing, in fact, pangitaonman gyud ang prosecutor (delegated authority of the Solgen to represent the state) in somecases. However in other cases, usually ang oppositors ana are the co-heirs who are against


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the distribution or against the petition for he may not be one of the heirs. Or, it could be thecreditors like in a liquidation of a corporation. Escheat, you have the one possessing theproperty against the government.

What else are subject to Special Proc? Aside from the settlement of estate, what else? Thesubject matter, what do we cover in Special Proceedings? Lets have this, Guardianship and

Custody of Children, only opposition is needed here not an answer. This has nothing to dowith the solgen, this could be between parents.

However in Adoption, the state is interested therefore the solgen should be notified andfurnished with the copy of the petition. Usually, solgen delegates the authority to theprosecutor. If there is an opposition for example, it could come from the natural father of thechild sought to be adopted. The oppositor could also be the legitimate children of the adoptingparents who are filing the petition.

What else? Hospitalization of an insane patient. This needs a petition and one cannot justdirectly admit a person in a mental institution.

You have habeas corpus, change of name, voluntary dissolution of corporations (e.g. due to

bankruptcy), judicial approval of voluntary recognition of minor natural children, judicialconstitution of the family home (Teachers comment: under the new rules, di na kinahanglandiba under the new rules? Kinahanglan pa ba na? Depende sa value of the property. But dina man na kinahanglan ug judicial approval so di na kinahanglan mupetition), declaration ofabsence and death, petition of declaration of death (Teachers comment: the easiest way toremarry is to petition for the declaration of presumptive death), cancellation/correction of anentry of the civil registry, liquidation proceedings, intracorporate controversies, corporaterehabilitation, recognition and enforcement of arbitrational proceedings. While the laterenumerations are not found under the Rules of Court, it is found under the Corporation Code.

Our assignment is on Rule 73 which is the venue and jurisdiction over settlement of the estateof a decedent. One is a special proceeding for settlement of estate, it may be by a will, andyou call it testate proceeding or it may be without a will or intestate. If a petition is without awill or intestate, you are asking for letters of administration. In a testate proceeding, whathappened there is more on the allowance of the will. You have to prove the validity of the willleft by the decedent. In a proceeding where a will is left, it is a testate proceeding which thepurpose of is to distribute the estate based on the rules of succession. It is important whetherthe decedent left a will or not because that would be the basis for determining what petition tofile. One thing for sure, it is jurisdictional that you have to prove the death of the decedent.There cannot be a subject matter if the person is not dead. There cannot be an estate, whichis a person of itself, with legal personality of its own, without the owner of which beingestablished as already dead. The problem is if there is no proof at all that he died. You canonly make presumptions that he died. With respect to presumption of death, the rules arefound in civil code 390, 391 and 392. When is one presumed to be dead? If he disappears inordinary circumstances for 10 years. However, that presumption is never conclusive, neverfinal. He can re-appear anytime. Under qualified absence or extraordinary disappearance, it's4 years from disappearance although he is presumed dead on the date that he disappearedand you have examples enumerated in the Civil Code, i think article 391, as regards tocircumstances under which a person may be considered dead, one of which is when he'sgone missing after a vessel he is onboard sank, or maybe a plane crash, or war, andanalogous circumstances like what happened for example in Tacloban. In the meantime,there are properties to be managed. Basically the purpose of the settlement is to administerand manage if not to liquidate the properties so that the heirs can enjoy that and debts bepaid when due. What you do is to file a petition for settlement of estate. You can initiate thatalready from the time he disappears but the distribution takes effect only after 4 yearsbecause there's always a chance that he will reappear.

Which court do you file the petition, either probate of will/allowance of will or a petition forletters of administration/settlement of intestate estate of the decedent; you consider hisresidence upon his death. If resident of the Philippines, it will be RTC and there is no question


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as to the value. If non-resident, you have to ascertain the location of the properties and theirgross value. It used to be, as of 1999, where the property is 100k or less, outside metromanila, MTC of the place where property is located. It has been increased to 200k, and then 5years thereafter, the expanded jurisdiction of the first level court in so far as settlement ofestate. It is now 300k or less outside metro manila. In metro manila, 400k. If it exceeds, RTCshall have jurisdiction. Take note that it is only venue. It can be waived if the parties did not

object. The court shall remain to have jurisdiction basta siya MTC or RTC. If amount is 400kand filed before MTC, that is no longer venue. That is jurisdictional. It should have been filedwith RTC. If 300k and the property is located in Cebu City and the parties considered venuein Lapu-lapu City and they participated, the venue is considered waived. However shouldthere be questions later on that the venue is improperly laid and it is obvious in the record thatit is improperly laid, the remedy is certiorari. You ask for the dismissal for lack of jurisdiction. Ifit is not clear, especially when there are several locations of the properties, you have to waituntil after termination of the proceeding then you can always appeal the issue of jurisdictionwhen the case is elevated in the appellate court.

As regards to the dissolution of the marriage caused by the death of one of the spouses, thepartnership affairs has to be liquidated. Where at? Intestate (no will)/testate (with will)proceeding of the deceased spouse. If both died, it can be in the intestate (no will)/testate

(with will) proceeding of either, but not separate. They have to be consolidated. If separateproceedings have been instituted, they can be consolidated in the same court.

Going back to the residence of decedent upon death, what will be the basis? There are 2concepts. Domicile, animus revertendi, for as long as there is intention to return to the place,that place is considered his residence even if he was gone for a long time by reason of work,employment or education. In animus manendi, there is transfer of residence and he intends toremain or stay in that place. It is to be considered his actual residence. To settle the seemingconflict, you follow the ruling in the case of Oni(?) vs. Court of Appeals, the prevailingprinciple regarding on residence in determining jurisdiction, it must be the decedent's actualplace of abode. What happened in this case, the decedent used to reside in Bulacan, got sosickly that he needs to be in the place near the hospital. He transferred to Quezon City wherehe died. If there is no intention to return back to where he used to live, place of residence is

where he resided at with intention to remain there until his death. The court there has jurisdiction over the settlement of his estate.

Assuming the court has jurisdiction, what is then RTC/MTC acting as probate court, what isthe extent of jurisdiction? The purpose of settlement is the administration of estate,management for the purpose of what is left of the estate, what the obligations are; only thebalance will be distributed. Then after administration, liquidation minus debts, thendistribution. Can you adjudicate who the heirs are of the decedent? Nanggawas ang mgaillegitimate children, can you? Yes. You cannot fully distribute if you do not know the heirs.Generally, the court is a court of general jurisdiction, but as probate court, jurisdiction islimited.

Can you also make a declaration on the recognition of the natural child in the probate court?Yes. Validity of disinheritance effected by testator in last will and testament, which can alwaysbe contested by the heir, can also be entertained. The status of the wife, as legal wife. Thevalidity of the waiver of the hereditary rights? Yes. The status of each heir? Yes. Whetherproperty in inventory is conjugal or exclusive of deceased spouse? Yes. All matters incidentalto settlement and distribution of estate. But then again what about on the issue of ownership,can the court determine whether the property included in the inventory is part of the estate?No. Because its jurisdiction is limited. Only on administration, liquidation and distribution ofestate can be entertained. However, take note of exception, if court does that, it is notconclusive but provisional. Only for the purpose of inventory . What properties belong to theestate? without prejudice to final determination in a separate action later on to recover if notannul the declaration. Second, if all parties submitted the issue of ownership to the jurisdictionof the probate court provided rights of third parties are not prejudiced. If the question is merelycollation or advancement, question of ownership may be entertained.

Diba we said that if youre not a resident you determine jurisdiction or venue where to file


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case in the place where property is located. The problem is when properties are located indifferent provinces, so RTC if value is more than 400k, 300k as the case may be. So itspossible to file it in any court where property is located. There could be several heirs withconflicting claims Im the true heir, hes not an heir!. Which one should assume jurisdiction?

Any of these RTCs/MTCs where properties are located. Pero the moment one court firstacquired jurisdiction, it will be to the exclusion of the rest. Subsequent questions should be

filed in the court which took first cognizance of the settlement proceeding. That is theexclusionary rule under rule 73 sec1. Jurisdiction cannot be divested by subsequent act ofparties such as entering into extrajudicial settlement or partition settlement.

If theres a will you need not file a petition. It is enough that you deliver the copy of the will tothe court. The moment it is delivered, the court acquired jurisdiction even if no petition is filed.If theres a pending settlement of estate, what will take precedence or priority should be theprobate of the will. You have to prove first the validity of the will. If it is valid, you follow the willof the testator. If invalid, you resume the settlement of the intestate, you go by the rules ofsuccession in the distribution of estate.

Can you petition for mandamus instead, if you insist this court must take cognizance, if thereis question of improper venue? No. Where it is not clear WON court has jurisdiction, you have

to wait until the termination of the case and then assign that as one of the errors in the judgment. Pero if obvious gani, and in the records of the case, indeed the court has no jurisdiction, what will be the remedy? Certiorari.

Does a probate court have jurisdiction over counterclaim and damages? No. jurisdiction islimited.

Can an alien have his will probated here in the Phil? Yes.Ex. (actual case) Alien who died in the Phil, with condominium here. His will was alreadyprobated in Texas. He can still have it to be re-probated, prove that it was executed by himand valid per order of court in Texas, with authentication to that effect by Phil embassy therethat it was really the document secured in the court there and it will be also presented beforemy court. It can be probated, as long as he has estate which could be real or personal in the

Philippines. Consider the amount and place where property is located.

Can the probate court issue a writ of execution? There is no executor, no administrator.GR: cannot.Exception: share of the devisees, legatees, heirs when they already entered the estate, andto enforce payment of expenses of partition rule 90 sec3

After distribution- partition (subdivision, certification from DAR/DA, Registry of Deeds)If only one heir shouldered, must be reimbursed by other heirs. If they do not pay, ask for writof execution directing them to share expenses of partitionFinally, you can ask for writ in order to satisfy the cause when person is cited for examinationin a probate proceeding. Expenses for the witnesses who testified. Rule 142 sec 13.

Rule 74What shall be done to the estate of the decedent when he dies? How is his estate settled?Ways of settling:GR: by judicial settlement- magastos and proceedings take longEXC:Extrajudicial settlement by agreement among all heirs

Adjudication of the estate of the decedent by the sole heir by executing affidavit ofadjudication.Summary settlement of estate of small value- sec 2 rule 74.

KINDS OF SETTLEMENT OF ESTATE:1. Summary settlement of estate of small value;2. Extra judicial settlement;3. Judicial settlement through letters testamentary or letters of administration with or withouta will.


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GENERAL RULE: If a person dies, his estate is submitted to a judicial settlement proceeding.EXCEPTIONS: The heir/s may resort to:

a. extrajudicial settlement of estateb. summary settlement of estate

MODES OF EXTRA JUDICIAL SETTLEMENT

1. Extra judicial settlement by agreement of the heirs under Rule 74 Section 1;2. Action for partition in case of disagreement of the heirs;3. Affidavit of self-adjudication by an heir or extra judicial settlement by one heir filed with the

registry of deeds under Rule 74, Section 1.

Adjudication of a sole heir- execute an affidavit of adjudication

o what do you need/ requirements? adjudication of the affidavit

o who are heirs? Legitimate or illegitimate Ascendant or descendant Surviving spouse (mao nalang ang heir wala nai laen)

Collateral relatives (only if there are no more ascendants anddescendants hurot tanan sa storm surge)

o What if it is a common-law wife or husband? Can they settle the estate of thespouse by executing an affidavit of adjudication by sole heir?

No. it is defined by law that the surviving spouse should be alegitimate surviving spouse. (not common-law)

They are only considered as co-owner but not as sole heir- you need to have a cultural community membership certification

o meaning di siya member sa indigenous people or cultural community.- You have to put up a bond

Adjudication of sole heir is applied only when:- the decedent died and has no liabilities- died without a last will and testament

If naa siyay utang, would it bar him from executing an affidavit of adjudication of sole heir?- he can still adjudicate provided only after he pays all the obligations of the estate.

o It does not bar the heir as long as he pays the obligations before settlementof the estate through adjudication of sole heir.

When the estate is comprised of personal properties there should be a bond- why only on personal properties?

o Because they can be easily be disposed of and consumed and other heirsmay claim over the estate at least the bond may answer for that.

- Bond is filed in the registrar of cebu city.

The bond should be equal to the value of the personal property.- determined by the court or ascertained by the parties

the sole adjudicator must be of legal age- if he is a minor he must be represented by a guardian appointed by the court for that

purpose.

There has to be a survey plan for the technical description of the real properties.Monuments of title

- like tax declarations- certificate of title- receipts- proof of ownership- certification provided by the agrarian


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taxes on the property should be paid ( estate taxes)the inheritance tax

- return should be filed within 6 months from the death of the decedent- the BIR has to be informed of the death of the decedent within 30 days from the

death of the decedent

how much taxes should be paid by the estate to the governmentthere has to be publication

- publish the affidavit of adjudication or the extrajudicial agreement- publish the notice to creditors

the publication should be made once a week for 3 consecutive weeks, of newspapers ofgeneral circulation, of the place where the bulk of the properties of the decedent are located.

EXTRAJUDICIAL SETTLEMENT OF THE ESTATE- you are among the heirs you prove the fact of death of the decedent.- It should be made in a public instrument.

o What if not notarized or not under oath but signed by all the heirs and thewitnesses meaning it is a private document?

the agreement is valid among the parties

problem with this one only valid but it can be easily contested by theparties unlike if it is made in a public document it will enjoy thepresumption of regularity

disadvantage: compelled for the reformationo where do you file this public instrument?

Extra-judicial then you file it with the registry of deeds where theproperty is located.

There may be an agreement to settle the estate extra judicially but they cannot agree on thesharing. What is the remedy?

no choice you have to go to court for judicial partition because settlement is one thing and actual partition and determination of the sharing

is another thingo apply rule 69 the judicial partitions and without prejudice to the heirs who did

not participate so what ever is the decision of the partition of the estate. Whether you are omitted or share is not proportionate

What is the guarantee of the protection of the creditors of the estate- real property- lien on the property, annotated on the title of the real property.- Personal property- then you execute a bond

The requirement on payment of taxesPublicationThat no debts are left or at least the debts are paid for extra judicial agreement was executed.

- presumed by law that the decedent did not leave any debts if there is no letters ofadministration filed by a creditor within 2 years from the death of the decedent.

o Without prejudice if the creditor did not know of the settlement and then itmay go beyond the 2 year period.

Is it possible that the heirs instead will submit the settlement judicially instead of extra- judicially? So first they have the extra-judicial settlement and then later on they did not agreeon the sharing can they instead submit to judicial settlement?

It is only allowed if the heirs insist It is not mandatory o some of the heirs insist and have the estate settled judicially.

If there is already been a settlement of the estate (judicially) can the parties agree instead thatthey would extra-judicially settle the estate setting aside the judicial settlement?

yes they can. Without prejudice because they can agree on the settlement but the actual sharing

they cannot agree.


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Requisites:Extra-judicial

- the decedent left no will- and no debts

o if there are debts then it should be paid at the time that the judicialsettlements are entered into

- the disputable presumption that the decedent has no debts if no creditor files apetition for letters of administration within 2 years after the death of the decedent.- They are all of age

Procedural requirement:

division of estate must be in a public instrumentfiled with proper Registry of Deedspublication of notice of petition once a week for three consecutive weeksbond filed equivalent to the value of personal property

section 2 rule 74- possible there is a will left by the decedent.- There may not be a will- There may be some debts upon his death

Which court should have jurisdiction over the summary petition for settlement of estate ofsmall value?

the value of the estate subject of the summary settlement does not exceed 10k MTC

o MTC where the Resident of the Philippines at the time of his death.o The MTC of the property where the property is located.

When you file a petition you may ask for the appointment of an administrator. The probate ofwill there may be an executor or there may be none, you may ask for an administrator.Especially when there are no debts.

- the executor will execute the distribution of the estate according to the will of thedecedent.

- Administrator is also to distribute the estate of the decedent after the debts are paid.

Procedural requirements:1. Where the decedent died whether, testate or intestate;2. Gross value of the estate does not exceed P10,000.003. By the petition of an interested person and4. Publication of notice once a week for 3 consecutive weeks in a newspaper of general

circulation in the province of residence of decedent and other notice to interestedpersons;

5. After hearing held not less than one (1) month nor more than three (3) months from thedate of the last publication of notice;

6. The court may proceed summarily, without the appointment of an executor or administrator,and without delay, grant:a. Allowance of the will, if any;b. Determine who are the persons legally entitled to participate in the estate, and

> the filing of the bondc. Apportion and divide it among them after the payment of such debts of the estate.

IMPORTANT: Requisites to pursue a summary settlement of a deceased person:1. Application must contain allegation of gross value of estate.2. Date for hearing shall be set by court which shall:

a. be held not less than one month nor more than three months from date of lastpublication of notice;

b. order of hearing be published, once a week for three consecutive weeks in anewspaper of general circulation.

3. Notice shall be served upon such interested persons as the court may direct.


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Is the summary hearing binding upon creditors who are not parties? No knowledge of thesettlement?

bond fixed by the court upon payment of the things will answer to creditors undersection 4 rule 74, 2 years from the settlement of the estate

what will be the remedy? within 2 years

you can claim against the bond or under the real estate payable in money Only availed of against the bond if there is undue deprivation of the lawfulparticipation in the estate.

o They will write to the court that they did not have the chance of participation. Only within 2 years after the settlement and distribution of the estate. The bond and the real estate shall remain charged on the liability within 2 years.

o Except when there is fraud Within 4 years from the discovery of the fraud Or when at the time of the settlement the heir is incapacitated by

reason of minority within 1 year Or the heir is insane or in jail or abroad so how can he participate

within 1 year

The 2 year period is applicable only for those who participated.

Aside from going against the bond. There is the petition from relief from judgment fraud accident mistake excusable negligence

o period is 60 days from learning of the judgment and not more than 6 monthsfrom the time judgment was entered as final and executory.

Concurring na ang 60 days and 6 months

Another remedy is the intervention within the reglementary period.

Can they ask for the reopening of the case in order to include the properties that wereomitted?

- No, the remedy is to file a separate action for settlement of estate.

What about if an heir was omitted? They knew that he is an heir but he was not included inthe settlement, what would be the remedy?

- File a motion for the reopening, mao ni siya. Reopening by intervention within thereglementary period. Kung ikaw creditor, you still have 2 years to establish your claimagainst the estate by way of making a claim against the bond or real properties.

Who is allowed to intervene?

1. A person who is either has legal interest in the matter in litigation,2. Has such legal interest in the success in either of the parties or interest against both.3. He is so situated as to be adversely affected by the distribution or disposition of

property in custody of the court because he may also claim as owner of the property.

When can you intervene?

- Anytime before rendition of judgment by the trial court as long as within thereglementary period of two years in the settlement of the estate.

Third remedy:

- You can file an action to annul settlement within the reglementary period which is 2years and not the prescriptive period.


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Another one is rescission in case of preterition of the compulsory heir in partition tainted withbad faith. (Art. 1104 of CC) it would be an ordinary cause of action.

And then you have a petition to annul a deed of extrajudicial settlement on the ground offraud. You have 4 years from discovery within which to file otherwise your action isdismissible on the ground of laches or prescription. That would be an ordinary action.

To summarize, extrajudicial settlement no court intervention. In summary settlement, itrequires summary judicial adjudication. The value in extrajudicial is not material but

jurisdictional in summary settlement, should not be more than 10K. In extrajudicial settlement,no outstanding obligation upon settlement of estate by the parties. In summary settlement ofestate, there may be debts because the court may have to make provisions in the payment ofdebts.

- In extrajudicial, it is resorted to only in the instance of or by agreement of all the heirs.In summary settlement, it may be at the instance of any interested party withoutconsent of the all heirs, it may also be by the creditor by asking letters ofadministration in the settlement of estate of the decedent.

- The amount of bond, so far as personal property: equal to the value as determined by

parties concerned in extrajudicial settlement. In summary settlement, the value isdetermined by the court which is usually based to the value of the personal property.- Administration is not necessary if there are no debts by the decedent. Take note of

the liability of the distributees of the estate within 2 years.

Extrajudicial settlement.

- Take note of Sec. 4 in the filing of a motion to reopen, only for purposes of payingdebts of creditors who may not have participated in the settlement of the estate onlywhen there is fraud. (Rule 74)

- Even if its a judicial settlement, there may be extrajudicial partition of the estatewithout prejudice to the final determination to the settlement of the whole estate.

Probate or allowance of last will and testament- an act of proving before the competent courtthe due execution of the will by a person possessing testamentary capacity as well as theapproval of the court where last will and testament is allowed.You prove the authenticity and validity of last will and testament to attain judicial recognition ofthe existence of last will and testament, that it is capable of registration in Registry of Deeds,you can carry out the provisions as stated in last will and testament in accordance with law.Sec1. No transfer of right or title unless last will and testament used as a manner oftransferring is probated and allowed.

Character of probate proceeding1. Mandatory even if there is only one heir.2. In rem proceeding. Conclusiveness of jurisdiction as to the extrinsic validity of last will andtestament, to the parties and against the whole world even to those who did not participate.Not the intrinsic validity however, because it is personam, not within the competence of theprobate court as a general rule.Requirement of publication of the initial hearing-date, time and place of initial hearing to notifythe public3. Imprescriptible. Can be filed any time after death of the testator unless during his lifetimehe caused the allowance of the will. Any person interested may petitionIf the petition for allowance was dismissed when petitioner did not appear in initial hearing,can it be re-filed? Yes. Res judicata does not apply on probate proceeding as the policy of thestate is to protect the will of decedent who is given some kind of control in the distribution ofhis estate. Also estoppel does not apply. Can be re-filed.

In probate of last will and testament, which is a priority, if heirs do not know there is last willand testament, went to court for intestate proceeding. While case is pending, last will andtestament discovered, intestate proceeding has no effect. They can be consolidated. If last


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will and testament disallowed, you continue the intestate proceeding.

Duty of the custodian of last will and testament.Custodian- not necessarily the executor. One who is in possession of last will and testamentDuty of custodian upon death of testatorWithin 20days after knowledge of death (not after death), deliver it to court having jurisdiction.

If executor at the same time, he must signify acceptance or non-acceptance of having beennamed as executor. Even without petition, you deliver last will and testament. Court will thenimmediately fix time and date of initial publication and order the publication to notify parties asto the allowance of last will and testament delivered.

If custodian refused to deliver? He can be sanctioned by court- fine of 2k.if refuses notwithstanding order of court to deliver, be held in contempt- nature of theproceeding is criminal. Can be put to jail until he agrees to produce the last will andtestament.

The proceeding on the allowance and disallowance of the will

Assuming there is the existence of a will, notarial or holographic; therell be the hearing of thecase.Who can petition? During lifetime of testator, there can be allowance. Petitioner is the testatorhimself. Advantage: chance to correct if there are any mistake or error in so far as intrinsicrequirements; be assured itll be successfully allowed after death. Also less duress or fraudmay be exerted on the person of testator. The court will see for itself if executed by testatorfree from any means vitiating the will of testator.Upon death of testator, manner of probate: anyone may file in the court of competent

jurisdiction, place where the last residence, if resident of Phil or the location of the property, ifnon-resident.Petitioners: devisee given with real property in last will and testament, legatee given withpersonal property in the will, executor named in last will and testament, any person withinterest (heirs of the testator, creditors of the testator)as regards heirs, compulsory heirs (legitimate children & descendant, legitimate parent &ascendants like parents, grandparents, widow/widower, acknowledged natural, illegitimatechildren, natural parent of illegitimate decedent, collateral relatives within 5 th civil degree-nearest excludes the farthest. Order of succession be followedVoluntary heirs (devisees, legatees)

As regards creditor- not just anyone who claims as creditor during lifetime. Must establish hisclaim in accordance with the laws in appropriate proceeding. That was the decision in thecase of Torres v. Morales.

What should be alleged in the petition?Jurisdictional facts:1. Fact of death of the testator especially in case of presumptive death.2. That court has jurisdiction over the petition (decedent died in the Phil, resident of Phil ifdied in province where the court which hears the case, or if non-resident, with property in theprovince where court is located).3. That you notify other heirs [state heirs and corresponding addresses (designated/knownheirs, devisees, legatees, executor)]That there was publication- publish not the petition but the order of the court setting time,place and date of initial hearing in newspaper of general circulation (could be local newspaperin the province where he last resided or if nonresident, where property is located) once aweek for 3 consecutive weeks.

Publication is not required if testator himself is the petitioner during his lifetime. What isrequired is the notification to all compulsory heirs.

When do you file the petition for probate or allowance? Any time after death of testator.Imprescriptible. Estoppel does not apply even if dismissed for lack of interest. Can be re-filed.Res judicata likewise does not apply. It can be re-filed..


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If not all are notified because addresses are unknown, but you know that there are heirs, isthat fatal to your petition that might result to dismissal of your case? No as long as no damagecaused to anyone. Publication is enough. Probate is in rem proceeding. Publication isindispensible. Notice may be dispensed with, only when you do not know the address. Only aprocedural requirement.

When addresses are known, when should they be notified?By registered mail, at least 20 days before initial hearingBy personal service, at least 10days before initial hearing

Any person interested may appear and interpose opposition.During the initial hearing, lawyer of petitioner should present documents to establish courts

jurisdiction: petition sufficient in substance and form; order of court setting time, date andplace of hearing; notice of the hearing to all parties concerned; application for publication tobe issued by editor/publisher of the publication; newspaper clippings; last will and testament;death certificate

Any deficiency in those requirements does not avoid the proceeding.

If there is no oppositor, one may be given time to oppose. If not present, you may ask fordeclaration of general default. Those who want to interpose may do so with leave of courtbecause there was already publication, they were notified. After all documents are admitted,case will set for the reception of evidence, if no oppositor, no problem

If notarial will, to prove due execution, testamentary capacity, at least 18 years old, of soundmind, execution in accordance with law, with subscribing witnesses, signatures in thepresence of each other, understands the language, all should be present even if uncontestedwill.

If holographic, prove: dated, written, and signed by him. At least 1 witness is neededIn notarial will, the 3 instrumental witnesses are needed. Who can be instrumental witness?

Articles 820-21 of the civil code. Attestation clause

In holographic will, if allowed during testators lifetime, he simply affirm his si gnature.If already died, 1 witness familiar of his handwriting and signature be presented, or call anexpert witness.

If contested, notarial will, all instrumental witnesses and notary must be called to testify onextrinsic validity. If holographic, also 3 witnesses.

If all instrumental witnesses are no longer available- died already, went abroad, lives 20kmaway from court hearing the case, became insane- any witness can attest to the dueexecution of last will and testament. Otherwise, those residing outside the country or 20kmaway, you can have their deposition taken.EX. (actual case) already residing in Canada, requested DFA to coordinate with Philippineembassy in Canada for deposition taking, certified copy of last will and testament sent to beexamined by witness in Canada.

What if there are spouses, they have their own last will and testament. Is it possible to have joint hearing of their last will and testament? It is required. Be consolidated because this willbe practically dissolution of conjugal partnership or absolute community. Ang problema anaguys if 2 persons sharing 1 will, that is not allowed. That cannot be probated.

Possibility of having a lost/destroyed will be probated? If notarial will, needs 2 crediblewitnesses to establish: due execution and validity of last will and testament, lost/destroyedduring lifetime of testator; existence of will at time of his death; destruction of last will andtestament during lifetime of testator without his knowledge, it has to be w/o his knowledge.

Competent witnesses, meaning they have seen the execution or have some personalknowledge of the signature of the testator.


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If holographic will lost/destroyedGR: cannot be probated anymoreExc: can produce a photocopy of holographic will and can prove due execution by crediblewitnesses.

Grounds to disapprove a will (sec9 rule 76)

(a) If not executed and attested as required by law; Attestation (number of pages, language used, signed in every page, in the presenceof each other)(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of itsexecution;(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 thebeneficiary, 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 theinstrument should be his will at the time of fixing his signature thereto.

Who has the burden of proving the invalidity of last will and testament? The person whocontested the validly of last will and testament, not the petitioner.

Also take note: Read sec9 rule 76 in relation to article 839 of the civil code regarding thedisallowance of last will and testament

Judgment rendered is binding against the whole world but limited only on the extrinsic validityof the will. Extrinsic validity all that is needed to be established is that: there is indeed a lastwill and testament; complied prescribed to all formalities; testamentary capacity of testator;due execution of last will and testament

GR: no jurisdiction to ascertain issues relating to the ownership of the estate or propertiesmentioned in last will and testamentExc: limited jurisdiction for purposes of inventory and distribution- determination on intrinsicvalidity is not conclusive neither is it final yet especially to people not parties to probate

proceeding because on the intrinsic validity, that is in personam action. Only binds the partiesof the case. A separate action can be filed to raise issue of ownership

Another is filiation. Ex. Illegitimate child of t omitted as an heir in the last will and testament.GR: court cannot determine that. But it cannot be avoided that it may go on the validity of lastwill and testament; it will change the disposition of the estate and thereby nullifying the lastwill and testament. What happened there is you can go to intestate proceeding kungpreterition siya. pero kung ang issue lang gani kay, even if compulsory heir, kay disinherited,it will not affect validity of last will and testament but only in so far as the sharing can benullified if it was established that disinheritance was invalid.

Remedy of non-participants in the probate proceeding: file separate action to contest ruling ofthe probate court.

But if extrinsic, conclusive na siya. Kay in rem proceeding, it binds everybody.

If will established to be valid and authentic, there will be a certification issued by court thatindeed last will and testament is valid, attached to copy of last will and testament.

To transfer property in your name, file with Registry of Deeds a copy of letters of admin pluscopy of last will and testament. Which will be recorded the attested copy of will and thecertificate of allowance of the will in Registry of Deeds, issued with Transfer Certificate ofTitle. It is only then that there will be effective transfer of rights from testator.

What should be proved in reprobation?

The following need to be established:


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1. due execution of the will in accordance with foreign laws;

2. domicile of the testator in the foreign country and not in the Philippines;

3. that the will has been admitted to probate in such country;

4. that the foreign tribunal is a probate court;

5. the laws of a foreign country on procedure and allowance of the will in accordancetherewith and in the absence of proof of foreign law, processual presumption applies.

probation of will requirement that despite the fact that it was already probated abroad andwhat requirements or evidence that you have to prove for the reprobate the last will andtestament of the decedent?

that there is a will left by the decedent and it was probated in the foreign country the laws of the foreign country the will was already probated and was valid the execution of the will in accordance of the foreign laws decedent is a domicile of the foreign country

assuming there is already a probate of the will abroad? An executor is named in the last will

and testament and the executor acted the testamentary wishes of the testator. Can thisadministrator be also the administrator of the property yet to be reprobated in the Philippines?Can the court issue another letter of administration to a petitioner to the reprobate of the will?

the court has the discretion whether such would admit the ability of the one appointedabroad or they could appoint another administrator in the Philippines only for thepurpose of the reprobation of the properties in the Philippines

how do you call the administration or the executor issued by the letter testamentary by theprobate court abroad?

principal administrator

allowance of the same will in the Philippines with respect to the properties in the Philippinesleft by the testator. Can the court is it automatic, the administrator be also be the administratorfor the properties in the Philippines?

it is not automatic. Because the will has to be probated as if it is originally probated for the first time.Can the probate court in the Philippines issue letters of administration to any interestedperson?

he is an ancillary administrator

ancillary administrators powers are only limited to the properties in the Philippines while theprincipal administrator would administer properties not within the Philippines

what would be the effect is the reprobate of the will in the phils is allowed? the effect is that the will is treated as if it is originally probated in the Philippines and the letters of administration shall extend to all the properties in the Philippines

who can apply for letters of administration? any competent person one who is not incompetent

Any competent person may serve as executor or administrator He is incompetent if:

1. a minor2. a non-resident3. one who in the opinion of the court is unfit to exercise the duties of the trust by reason

ofa. drunkenness-b. improvidence

c. want of understanding and integrityd. conviction for an offense involving moral turpitude


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difference of letters of administration and letters testamentary:

LETTERS TESTAMENTARY - Authority issued to an executor named in the will to administerthe estate.

Petition for Issuance of Letters of Administration GROUNDS FOR ISSUANCE:

1. No executor is named in the will, or

2. Incompetent executor or executors,

3. Refusal of executor to accept trust, or

4. Executor failed to give Bond, or

5. A person dies Intestate

difference between an executor and an administrator of an estate of a decedent:

Executor and administrator to retain whole estate to pay debts, and to administerestate not willed.

EXECUTOR - The one appointed by the testator in his will for the administration of hisproperty after his death.

ADMINISTRATOR - One appointed by the State for the administration of the property of thedeceased in case the decedent failed to leave a will, or if he failed to appoint one even if heleft a will, or executor named is not competent or refuses the office.

Which of the 2 is required to post a bond? both are required to put up a bond

Requis i tes for a p erson to b e appoin ted executor or adminis t ra tor :

1) Accepts the trust2) Gives a BOND3) Competent

who determines the compensation for the administrator and the executor? it is determined by the court for the administrator for the executor the one who will determine the compensation is the testator

ORDER OF PREFERENCE1) The surviving husband or wife or the next of kin, or both in the discretion of the court, or to

such person as such surviving spouse or next of kin, request to have appointed, ifcompetent and willing to serve.

2) If the surviving spouse or the next of kin or the person selected by them be incompetent or

unwilling to serve, or if the surviving spouse or next of kin neglects for thirty (30) days afterthe death of the decedent to apply for administration, ANY one or more of the principalcreditors , if competent and willing to serve.

3) If there is no such creditor competent and willing to serve, it may be granted to such otherperson as the court may select.

*** The ORDER OF PREFERENCE: this provision is not mandatory for the courts to obey.

Powers and duties:

a. possession and charge of the properties

b. commence and maintains suit for the estate

c. sell perishable property

d. pay debt as ordered by the court


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When does the power of a spec ial adminis t ra tor cease?

After the letters are granted.

*** Appointment of a special administrator under this rule is not mandatory but the judge maydo so in the exercise of its discretion.

I s appoin tment o f sp ec ial adminis t ra tor appealable?

NO, the same is interlocutory. However, appointment of a REGULAR ADMINISTRATOR isappealable because it is a final order.

*** A special administrator is not authorized to pay the estate unless so ordered by the Court.

Section 1. Opposition to petition.

Grounds for opposition:

1. majority of alleged minor

2. competency of alleged incompetent3. unsuitability of the persons for whom letters are prayed or there is a better right

GUARDIANS; Grounds for disqualification1) Mental incapacity2) Conviction of a crime3) Moral delinquency4) Physical disability

Procedure:

a. filing of petition

b. court shall set the case for hearing

cause notices to be served to the persons mentioned in the petition, including minor, if 14years and above, this requirement is jurisdictional

c. court shall receive evidence

d. declaration of the propriety of the petition

e. issue letters of guardianship

Contents of a petition for letters of administration:

a. jurisdictional facts;

b. name, age, residence of heirs and creditors;

c. probable value and character of the property

d. name of the person for whom letters is prayed for

NOTE: Essentially the same as contents of petition for probate, except: (1) latter has anadditional requirement (the last; see Rule 76); and (2) in the latter, no need to name creditorsin the petition.

What i s the main i ssue in an adminis t ra t ion proc eeding?

Who is the person rightfully entitled to administration.

GROUNDS FOR OPPOSING


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1) Incompetency2) Contestants right to administration3) Requirements not fulfilled

Judgment abroad is not binding in the Philippines that is why it has to be reprobated.

Foreign judgment has no extra-territorial effectThe next question is what will you do when you file the petition? original petition for the probate of the will

o the fact of deatho the domicileo the properties left whether the court has jurisdiction over the propertieso consider the probable value and character fo the estateo the heirs and creditors of the decedento there was publicationo there was already probate of the will abroado notices made to the heiro the initial hearing

present the last will and testament

prove that it was validly executed in the laws of the foreign countryand that the will was duly probated in accordance with the laws of theforeign country

that the court which issued or approve the will is a probate court establish the procedure in the probate of the will the legal requirements required to probate the will domicile abroad

once established then the court will give due course.

Thereafter, you have the notices made to the heirs. Then a publication made for 2 weeks.Then there is the initial hearing, you will have to present the last will and testament that it isexecuted in accordance of the laws to where it was executed or probated. You also need toprove that the court that approved the will is a probate court. You also need to establish theprocedure in the probate of the will. What are the requirements?

- Order to allow the last will and testament abroad- That the testator was a domicile abroad

**Once established, the court will now give due course to the last will and testament.

What about administration the administration of the property for the mean time so that it canbe disposed of?

Is the court bound by the executor appointment of giving of the letters testamentary to theexecutor named in the last will and testament? An example is what I gave you earlier wherethe son and the wife of the testator were named as executors of his last will, is it automatic forthe court to adapt the same? Can they also be appointed? What if the petitioner in that case

where the will is being reprobated here in the Philippines is not even one of the executors?Should the court then approve if this petitioner would apply for letters of administrationbecause he was never ________ even if there is a last will and testament? Will the namedexecutor be disqualified for appointment as executor?

- In this case, the one who asked for the court to be reprobated is the son. If you werethe court, you knew that there were two persons appointed, should the court alsomake the same appointment? After all, it is discretionary upon the court here in thePhilippines. The court may appoint another person, a complete stranger in fact.

- He is called as ancillary administrator where he can be at the same time a principaladministrator. His appointment as administrator executor affects only the propertieswithin the jurisdiction of the court that issued the letters testamentary or letters ofadministration, not outside of its territorial jurisdiction.

- In the Philippines then, the court has the discretion to make an appointment ofanother administrator just to administer the properties left by the testator here in thePhilippines.


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What would then be the effect once it is reprobated?

1. Same effect as it was allowed in the Philippines, the letters testamentary if there is anexecutor or letters of administration with annexed will shall extend to all estate.

**What is the difference between letters testamentary and letters ofadministration and letters of administration with annexed will?

o Executor is one who was nominated by the testator approved by the courtand the authority given here is what we call letters testamentary.o Where there is no last will and testament, it is the court that appoints the

administrator. And the authority given here is the letters of administration.o Letters of administration with annexed will. This is a case where there is a will

and in fact named an executor, however, the executor is incompetent. Inwhich case, the court will issue the letters of administration with annexed will.Or it is possible that there is a last will and testament but there is no executornominated by the testator and so the court will be bound to appoint anadministrator. Usually it will be the petitioner.

Once the will is reprobated, the court will now give you the letters testamentary which meansthat it is the same executor named in the last will and testament who will be appointed by the

court as administrator, or it could be someone else who could be the creditor of the decedenthere in the Philippines in order to administer his property for the purpose of paying his debtsand dispose of the property left.

Whoever shall be appointed has the duty to make payments of the debts, expenses ofadministration and the disposition of the residue of the properties in accordance with theprovisions of our laws.

LETTERS OF ADMINISTRATION AND LETTERS TESTAMENTARY

Basically, the purpose of these two is to administer and manage the properties of thedecedent who died either with or without a will.

- If there is a will and there is an executor named in the last will and testament, whatcould the executor do? The executor could apply for letters testamentary in order thathe can administer, manage and dispose of the property of the testator in accordancewith his last will and testament. Take note, virtually he is just nominated, it is still forthe court to approve whether he should be appointed as executor because itspossible that he may not be qualified. Instead, what might be issued by the court is aletter of administration with annexed will to whoever is qualified and competed toadminister the property. It could be a petitioner or it could be an oppositor to thepetition for letters of administration.

o So it may start with a letters testamentary application, you oppose to itbecause of the incompetence of the executor, and at the same time as anoppositor you will prove that you have better right to administer the propertyand thus apply for letters of administration with annexed will. So he is not justan oppositor but he is also at the same time an applicant for letters ofadministration.

What is the difference between an executor and an administrator?

- An executor is one who is nominated by the testator to administer his property andthen thereafter approved by the court. While an administrator is one who is appointedby the court to administer the property of his decedent.

- The executor actually knew that there was a last will and testament, so he has theduty to present the said last will and testament within 20 days upon his knowledge ofdeath of the testator. The administrator doesnt have the duty to present, because infact there may not have been a last will and testament.

- With regard to the requirement of a bond. Take note that one of the requirements tobe appointed as administrator is there should be a filing of a bond to guarantee thathe will replace damage of the property of the decedent. However, an executor maynot be required by the court to put up a bond if the last will and testament says that


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he should not be liable to put up a bond. But if the last will is silent, then he may berequired by the court to put up a bond.

- With regard to compensation: Compensation of the executor is usually determined bythe testator himself as stated in his last will and testament. Compensation on thelatter is, however, determined by the court.

Qualifications of an executor or administrator: Sec. 1, Rule 78Positive side:

- One who is competent who is not incompetento Who cannot be appointed is one who is an incompetent, or a minor, or is not

a resident of the Philippines.o That is why usually, one who is named as executor in a will probated abroad

may not necessarily be appointed as executor of the properties left by thetestator in the Philippines. If you cannot prove that you are a resident of thePhilippines, then you cannot be competent.

o If in the opinion of the court you are unfit of trust by reason of drunkennesso Improvidence walang pakialamo

Lack of understanding dumb, lack of intelligence.o Integrity lack of soundness of moral principles and character.o Convicted of an offense involving moral turpitude one who acts contrary to

justice, modesty, or good morals If you have a judge charged for committing rape, he is disqualified! It

is against modesty or good morals. What about if you were convicted of a crime in violation of RA 3019,

sec 3 (e) causing undue injury? That is not a crime involving moralturpitude. There is already a decided case.

o Unsuitableness

Once you are appointed you are just a mere trustee of the estate, so the funds of the estateare not yours. You are only holding it in trust of the estate. There should be inventory of theproperties of the decedent, and then you have to state the expenses for administration, taxesand all. That should be properly accounted for.

Is it possible to have co-executors or administrators?

- Yes, only in so far as regular administrators, there can be two executors or twoadministrators. Usually the reasons for appointment of co-administrators is becausesometimes mag-away ning pamilya labanay mn na. There can be groups and just tomake sure that all heirs are satisfied, they would represent them.

- Justice and equity demanded opposing parties are represented in the management ofthe estate of the decedent.

- When the person entitled to the administration of an estate desires to have anothercompetent person associated with him, it is the administrator himself who wants tohave a co-administrator.

- One thing for sure is there cannot be two special administrators at the same time.There should only be one.

o They take over in the expenses of administration pending approval of aregular administrator

Preference to the appointment of an administrator:

- Spouse of the deceased- If no spouse, the next of kin:

o Children oro Ascendants of the testator or decedent

**Rule: the nearest kin excludes the farthest kin- If no next of kin, it will be the principal creditor- If none, any person the court may select, this is otherwise under the discretion of the

court now.


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Is it possible for the court, in the exercise of its discretion, to disregard the order of preferenceunder Rule 78, Sec. 6? Or is the order of preference absolute?

- The order of preference in the appointment of an administrator depends on theattendant facts and circumstances. The probate court, in the exercise of discretion,may disregard the order of preference in the appointment of an administrator when

the persons who have preferential rights are incompetent or are not willing to serve.(Villamor vs. CA)- In other words, always, the consideration in the appointment of an administrator is the

interest of the person in the estate of the one to be appointed. Who may be benefitedby the settlement of the estate? Benefited and dili kay mapaninglan. In other words, ifyou were a debtor of the decedent, that would not be beneficial to you because youhave an adverse claim against the estate (sorry guys, pro nglibog sd ko ani na part)

- The order of preference does not rule out the appointment of administrator especiallywhen justice and equity demands for it.

The difference between the appointment of a regular administrator and a specialadministrator:

- In the appointment of a regular administrator, you follow strictly Sec. 6, Rule 78,unless all those people in the order of preference is incompetent or otherwise willing

to be appointed, in which case, you have to consider discretion of the court.- On the other hand, in the appointment of a special administrator, you do not follow

the order of preference. You will base it on the sound discretion of the probate court.He could be a complete stranger to the estate. Not necessarily in accordance with thepreference under Sec. 6.

If for example, the surviving spouse has the preference in the appointment, tried to apply forlett ers of administration 20 days after the decedents death, will this exclude her fromappointment as administrator of the estate?

- It will no exclude her but there is always a strong case for her disqualification orexclusion as administrator even if he is the surviving spouse.

What would then be the function of the administrator?

- To administer- He will conduct an inventory of all the properties of the deceased person.- Collate all of them, collect all the estates- Thereafter, he will pay all the debts.- Then, payment of taxes in the order of preference.- If there is anything left in the property, distribute the residue in accordance with the

law on succession, and if there is no disposition in the last will and testament.

If you are not among those in the order of preference, do you have any chance of gettingappointed? You were not even the petitioner. If brothers and sisters mo nya ga away mo,giunhan nmo ug file, what do you do? You are in the same level..pariha mo next of kin? Naamai nkafile ug una, d baya na pde na mufile pd ka ug another petition for letters ofadministration. Kung nag file mo nya wa mo nagpahibal-anay sa usag-usa, then it will beconsolidated. It should be that they knew that there was already a petition for letters ofadministration. What could be your ground?

- If there has already been an executor named in the last will and the court probatedthe will and the nomination was then appointed by the court, can you still object?

o Yes, before the finality of judgment.- Your ground for opposing issuance of letters testamentary will be incompetence of

the executor.- He must not be a minor, a resident of the Philippines and must not be disqualified by

court by reason of drunkenness, improvidence, etc.

What about if there is no last will and testament?


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Why do you think interest of the estate is really contingent? Contingent in the sense that it hasto do with the utangan ang estate, and the case is pending in court, do you understand?

Would that still be considered as an interest if you as a creditor, your interest is contingent tothe outcome of a ____?

Case of Berago vs Montilla.Even contingent claims, application for administration is warranted, is allowed.

If you applied petition for administration and you did not appear so the oppositor continued; Iflater, you changed your mind again, can you intervene in the case? NO, estoppel or a waiverof right applies. Case in point, Shell v. Indao (inaudible)

Lets go to the matter of appointment. So, if the court is satisfied with your application then theLetters of Administration is issued...what if there is still an appeal of allowance ordisallowance of a last will and testament? There cannot be an appointment of a regularadministrator yet in the meantime because there is still a question of your last will andtestament. In the meantime, there are claims of the estate that are misguiding those thingsagainst it that are also misguiding.

If there will be no administrator then the estate itself may be prejudiced by the delay. What willbe then the remedy? Apply the appointment of a special administration.

Why? Always remember that..in which case we can have the special administrationappointment.

What will then be the role of the administrator?Representative of the estate not just the heirs or the creditors of the estate, officer of the courtthus he is required to report to the court, remain objective in the management and protectionof the right of all the persons interested in the estate.

Can you appoint the clerk of court to act as an administrator over the property?

According to the Supreme Court the appointment of the clerk of court should be avoided.Why? Because the clerk of court are those who judge; there may not be objectivity and theremight be a conflict of interest.

If the other heirs were not notified of the hearing of petition regarding the hearing ofadministration and thus failed to file against the opposition, can it be cured? Can he interveneanytime? If he is excluded what must he do because he did not appear at the initial hearingand if he want to file his opposition? What will then be his remedy? He should file for amotion for reconsideration and the court must give the motion for reconsideration optionaccording with hearing otherwise if denied rather if it is not given due course, there might beviolation of the process for as long as eventually it is denied will be excluded. As long as amotion of reconsideration is filed and the hearing was conducted, in the lack of fraud, youcannot dispute . It does not guarantee actual hearing but only opportunity of hearing whetherthere is absence of hearing, where there may be a violation of due process of law.

Rule 80 appointment of special administratorSo far as the appointment of a special administrator always remember that there can only beone special administrator because too expensive and he will be left by the estate which will allgo to the special administrator administering.

Another one, If there is an appointment because this is pure discretionary of the court, wedont follow the order of appointment under section 6 Rule 78. Can you appeal an orderappointing a special administrator? It is non-applicable because it is an interlocutory order.

What can be your remedy because this pertains to a discretion?You can file a petition for Certirari on the ground that there was grave abuse of discretion orlack/excess of jurisdiction.


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You have to establish that there is a delay that will be cause of the appointment of a regularadministrator. For example, because maybe there is still an appeal to the allowance of thelast will and testament. There are some actions that are prescribing either against or for theestate of the decedent so he needs someone to represent the estate and protect the interestof the decedent with the estate. It might be rendered as inutil e , the settlement of the estatewhen everything is lost, thus the justification or the appointment of a special administrator.

Take note that it is only temporary, tha t i s very spec ia l to ask an adminis t ra torimm ediately after death (not so sure about this) while the case for the appointment of theregular administrator is pending.

Appointment of a special administrator depends on the sound discretion of the court for aslong as it is not whimsical and contradicts to reason, justice or equity, that she could berespected.

Role of a special administrator

Representative of the court officer of the court and NOT for the agent or the partiessuggesting the appointment of an administrative charge of the estate and in fact the officer ofthe court subject to the supervision and control of the probate court.

Take note of the duties and the power of a special administrator as reiterated in section 2 -taking possession and charge of the estate of the deceased-making a return of the inventory of the estate-The estate of the deceased shall not pay the debt unless ordered by the court-account for the estate received with required by the court-deliver the estate to the executor or regular administrator or such of the person authorized toreceive the state after the appointment

Can a special administrator commence/initiate a suit?Yes, for the protection of the estate of the decedent.

Can he be sued?

Yes, section 1, Rule 87.

What if the special administrator sells the property with his personal capacity? Will the sale ofthe estate, a portion of the estate, of the decedent bind the estate? Will it bind the estate?No, in fact, the probate court cannot order sell of real properties.

What will be your remedy to your buyer?Your remedy is to submit proof of the sale such as the receipt of the sale or the deed of saleso that the court will recognize the transaction.

That was the case of Leabres vs the court of appeals December 12 1986

The moment a regular administrator will be appointed what will happen to the authority of thespecial administrator?It will automatically cease.

Do you need a court order before the regular administrator can assume the functions as anadministrator/ the estate of decedent?No need of a court order. (automatic) case, Lao v. Lao?If the attending case is already in court that was commenced by the special administrator, theregular administrator now can continue. All that it needs is to notify the court... That he isalready the regular administrator.// LULU

One of the requirements for an administrator to perform his functions and for letters ofadministration to be issued is he that must put up a bond. For an administrator that ismandatory. For an executor, it depends on the testator. If the testator exempts the executor toput up a bond then the executor may not be required by the court to put up a bond. The only


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exception is if the court finds reason to require the executor to put a bond. In other words, theputting of a bond by an executor would become discretionary if there is a reason to do so.What could be the reason for the requirement, notwithstanding the exemption of the executorto put up a bond by the testator?

1. It could be that the executor is not a resident in the Philippines. It would be verydifficult to run after the executor should he neglect to perform his duties and caused

damage to the estate of the decedent to the prejudice of the interest of the heirs andcreditors because he is beyond the jurisdiction of the court. It would be more prudentfor the court to require the executor to put a bond to answer for any liability in theperformance of his functions of the executor.

2. It could be the executor is insolvent and is already bankrupt. There will always be adanger that he will be tempted to squander the estate of the decedent. If there isliability he cannot answer because he is insolvent. Our court may require him to putup a bond nonetheless.

3. It could be that his executor cannot afford adequate security for his dueadministration. In other words, he is on his verge of his bankruptcy. In which case it ismore prudent for the court to require him to put up a bond for the protection of the

heirs and creditors.

What is the purpose of the bond?1. To safeguard or protect the estate2. To make sure that he will perform his functions with utmost fidelity. So that if any

damage, liability or prejudice that may be caused in the performance of his function.The bond will answer.

3. To secure a faithful administration of the estate and fair distribution of its proceedsamong those who are entitled to the estate of the deceased.

What are the acts or conditions that are secured by the bond as required by the court? Theyare all enumerated under section 1 rule 81.

1. To make inventory of the estate of the deceased within 3 months from the date ofappointment

2. To administer the estate and pay the debts of the estate3. To make accounting within 1 year from the date receipt of letters testamentary or

letters of administration and at any time as the court requires.4. To perform all court orders.

These are the acts that are guaranteed of protection should there be any prejudice cause tothe heir or to the creditors we have the bond to answer.Question: What about if the administrator used the money in good faith belonging to theestate and unable to pay it. Can the creditor run after the bond put up by the administrator toanswer for the money that was used by the administrator? No, not one among those

enumeration that is being secured by the bond. As to the amount of the bond, that is discretionary on the court. Court will consider the totalityof the estate of the decedent that needs to be protected and the maximum liability that thebond may answer which is only up to the amount that is stated in the surety bond. In otherwords, the liability of the surety is only limited up to the amount as stated in the bond. Notbeyond or less.

Another point, the bond put up by the administrator must be renewed every year. If you failedto renew the bond as administrator and damage has been caused to the estate, or prejudicingthe heirs or the creditor in the performance of your function. Any of those parties may runafter the bond and hold the surety company liable.Bond is already expired. Can you still hold the surety liable notwithstanding that the bond hasalready expired? Yes. The expiration of the bond is of no moment. The suretys liability iscontinuing for as long as the administration has not yet been revoked or terminated. The

problem is if the surety is already bankrupt. Renewal of the bond is impossible anymore. Canthey still recover from the surety? Yes, you file your claim in the court where the surety is filing


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a declaration for bankruptcy. Period of responsibility has no expiration until the administrationis terminated in accordance with the law and upon the orders of the court.Question: When the bond is defective or insufficient would this be a ground to nullify theissued letters of administration? The letters of administration was already issued after thebond was posted but it was found out to be defective or insufficient, can you then ask for thenullification of the order granting the letters of administration or letters of testamentary? No. it

will not necessarily nullify the order that is already been issued. The remedy would be to askan order from the court to require the other party to put up sufficient bond. If the other partyfails to do that then you may ask the court to nullify the order that granted the letters ofadministration.Basically the bond is a guarantee or a security from loss committed or fraud of these executoror administrator in the administration of the estate.Question: If the bond is forfeited because of the non-performance by the administratorcausing damage or injury to the creditors or the heirs of the estate. Is the surety entitled tonotice should there be a forfeiture of the bond? No, remember that the liability is co-extensivewith the administrator. The surety can intervene. However, it should be with leave of court.The one principally liable is the administrator but the surety is placed in the shoes of theadministrator in the sense that he will be the one to pay. Once the administrator is liable,definitely the surety should also be held liable. Notice to the surety is not necessary.

As to the bond that may be put up, it could be joint or individual especially if there are twoexecutors or administrators. If individual, there will be no problem. But if joint and only onebond for the two executors or administrators, it is still allowed for as long as the amount is thetotality of the bond should be posted by the executor or administrator. || Tapix-Jr Tapia

As to the bond that may be put up, it could be joint or individual. Actually when there are twoexecutors or administrators; kung individual no problem.Q: Kung joint niya single ra siya the bond for the two executors or administrators, pwede nasiya?

A: Yes, basta ang amount is the totality of the bond should be posted by each executor oradministrator.Q: what about the special administrators, are they required likewise to put up a bond?

A: Yes, they are required as well.

Take Note: Section 4 of Rule 81 as to the manner that it should be put up at the discretionof the court.Q: what is the matter that is being secured by the bond?

A: As enumerated in Sec. 4, Rule 81:1. to make and return a true inventory of the goods of the deceased;2. to account for the goods that are received by him; and3. when required by the court, to deliver the same to the person appointed executor or

administrator or to such other person as may be authorized by the court to receivethe estate or the property of the deceased.

RULE 82On the revocation of administration; death, resignation and removal of an executor or anadministrator.Section 1 is a situation where there is already the issuance of the letters of administration toan administrator, on the assumption that there is no last will and testament.So what happened here, they instituted an intestate proceeding then the letters ofadministration were then issued to the administrator. Thereafter, there was a discovery of lastwill and testament.Q: what is the effect of the discovery of the last will and testament on the letters ofadministration already issued to the administrator? Is it automatically revoked, and his powersare terminated?

A: No, it is not ipso facto nullified.Q: why?

A: you still have to prove that the last will and testament is genuine, valid; and thus, there hasto be allowance and probate of the will first.
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