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San Beda College of Law 2010 Centralized Bar Operations
SETTLEMENT OF ESTATE OF DECEASED PERSONS RULES 73-90 Procedure (Judicial) in Settlement Proceedings RULE 73: VENUE AND PROCESS SECTION 1. WHERE ESTATE OF DECEASED PERSONS SETTLED Venue INHABITANT (Resident) OF THE PHILIPPINES (whether citizen or alien) Court of the province/city where he resides at the time of death. INHABITANT (Resident) OF FOREIGN COUNTRY Court of any province wherein he had his estate.
Petition for Probate of will, if any (Rule 75-76) Court order fixing the time and place for probate Publication of hearing for 3 successive weeks. Notice shall also be given to the designated/known heirs, legatees and devisees, and the executor if the one petitioning for allowance of the will is not the testator Issuance of Letters Testamentary/Administration (A special administrator may be appointed) (Rules 77-80) Publication of Notice for Filing Claims Filing of Claims (Rule 86) Issuance of Order of Payment or Sale of Properties
Residence means his personal, actual or physical habitation, his actual residence or place of abode (Fule vs. CA, L-40502, Nov. 29, 1976). Two Kinds of Settlement A. Extrajudicial Settlement - (Rule 74, Section 1) B. Judicial Settlement - Testate or intestate proceeding instituted in the country where decedent had his residence or had estate if a nonresident.
Payment of Claims: Sale/Mortgage/Encumbrance of estate properties
Different Modes of Settlement of Estate of a Distribution of remainder, if any

(But this can be made even before payment if a bond is filed by the heirs)
Extent of Jurisdiction Probate courts are courts of LIMITED jurisdiction. It may only determine and rule upon issues relating to the settlement of the estate, namely: 1. Administration of the estate; 2. Liquidation of the estate; and 3. Distribution of the estate. General Rule: Probate court cannot determine issue of ownership. Exceptions: 1. Provisionally, ownership may be determined for the purpose of including property in inventory, without prejudice to its final determination in a separate action; or 2. When all the parties are heirs and they submit the issue of ownership to the probate court provided that the rights of third parties are not prejudiced (Bernardo vs. CA, L18148, Feb. 28, 1963); 3. Question is one of collation or advancement;
Deceased Person/Presumed Dead 1. Extrajudicial Settlement of Estate (Section 1, Rule 74); 2. Summary Settlement of Estate of Small Value (Section 2, Rule 74); 3. Partition (Rule 69); 4. Probate of Will (Rule 75 to 79); 5. Petition for letters of Administration in cases of Intestacy (Rule 79);
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San Beda College of Law Special Proceedings

4. When the parties consent to the assumption of jurisdiction by the probate court and the rights of third persons are not impaired. Other Questions which the Probate Court can Determine 1. Who the heirs of the decedent are; 2. The recognition of a natural child; 3. The validity of disinheritance effected by the testator; 4. Status of a woman who claims to be the lawful wife of the decedent; 5. The validity of a waiver of hereditary rights; 6. The status of each heir; 7. Whether property in inventory is conjugal or exclusive property of deceased spouse; 8. Matters incidental or collateral to the settlement and distribution of the estate. Principle of Exclusionary Rule General Rule: The court first taking cognizance of the settlement of the estate of the decedent shall exercise jurisdiction to the exclusion of all other courts. The probate court acquires jurisdiction from the moment the petition for the settlement of estate is filed with said court. It cannot be divested of such jurisdiction by the subsequent acts of the parties as by entering into extrajudicial partition of the estate (Sandoval vs. Santiago, L-1723, May 30, 1949); or by filing another petition for settlement in a proper court of concurrent venue (De Boria vs. Tan, 77 Phil 872). Note: Testate proceedings take PRECEDENCE over intestate proceedings for the same estate. If during the pendency of intestate proceedings, a will of the decedent is discovered, proceedings for the probate of the will shall replace the intestate proceedings even if an administrator had already been appointed therein (Cuenco vs. CA, L-24742, Oct. 26, 1973). SECTION 2. WHERE THE ESTATE SETTLED UPON DISSOLUTION OF MARRIAGE Upon the death of either the husband or the wife, the partnership affairs must be liquidated in the testate or intestate proceedings of the deceased husband or wife. If both have died, liquidation may be made in the testate or intestate proceedings of either. SECTION 3. PROCESS The RTC may issue warrants and processes to compel the attendance of witnesses. Writ of Execution General Rule: Probate court cannot issue writs of execution. Ratio: Its orders usually refer to the adjudication of claims against the estate which the executor/administrator may satisfy without the need of executory process. Exceptions: (CEE) 1. To satisfy the CONTRIBUTIVE SHARE of the devisees, legatees and heirs when the latter had entered prior possession over the estate (Sec. 6, Rule 88); 2. To enforce payment of the EXPENSES OF PARTITION (Sec. 3, Rule 90); 3. To satisfy the costs when a person is cited for EXAMINATION in probate proceedings (Sec. 13, Rule 142). SECTION 4. PRESUMPTION OF DEATH There is no need for an independent action for Declaration of Presumptive Death for purposes of Succession. The recovery by the returning absentee of his estate is subject to the conditions that: 1. All his debts must have been paid; 2. He shall recover his property in the condition in which it may be found together with the
Exception: Estoppel by Laches Note: Jurisdiction under Rule 73 Sec. 1 DOES NOT relate to jurisdiction per se but to venue. Hence, institution in the court where the decedent is neither an inhabitant nor had his estate may be WAIVED (Uriarte vs. CFI, L21938-39, May 29, 1970). Remedy If Venue Is Improperly Laid General Rule: ORDINARY APPEAL certiorari or mandamus. not
Exception: If want of jurisdiction appears on the record of the case (Rule 73, Section 1).
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price of any property that may have been alienated or the property acquired therewith; 3. He is not entitled to the fruits of the rent (Art. 392 of the Civil Code).
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RULE 74: SUMMARY SETTLEMENT OF ESTATES General Rule: The settlement of the estate of the decedent should be judicially administered through an administrator or executor. Exception: The heirs may resort to: 1. Extrajudicial settlement of estate (Sec.1); or 2. Summary settlement of estates of small value (Sec. 2). Note: In both exceptional circumstances, an administrator or executor need not be appointed under the exceptions. SECTION 1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS Extrajudicial Settlement Procedure in extrajudicial settlement by agreement between/among heirs
Division of estate in public instrument or affidavit of adjudication
3. Publication of notice of the fact of extrajudicial settlement once a week for 3 CONSECUTIVE WEEKS; 4. Bond filed equivalent to the value of PERSONAL property. Note: The bond is required only when personalty is involved. If it is a real estate, it shall be subject to a lien in favor of creditors, heirs or other persons for the full period of 2 years from such distribution and such lien cannot be substituted by a bond ( Rebong vs. Ibaez, L-1578, September 30, 1947). The bond is the value of the personal property certified by the parties under oath and CONDITIONED upon payment of just claims filed under Sec. 4, Rule 74.
The public instrument or affidavit of adjudication must be filed with the proper Registry of Deeds
Is a public instrument necessary for the validity of an extrajudicial settlement? NO. Private instrument/document or Oral agreement of partition as well as a compromise agreement entered without previous authority of the court is valid among the heirs who participated in the extrajudicial settlement. The requirement under Sec. 1, Rule 74 that it must be in a public instrument is NOT constitutive of the validity but is merely evidentiary in nature (Hernandez vs. Andal, L273, March 29, 1947). However, reformation may be compelled (Regalado, p.19).
Extrajudicial Settlement No court intervention. Value of the estate is immaterial. Allowed only in intestate succession. There must be no outstanding debts of the estate at the time of settlement. Resorted at the instance and by agreement of ALL heirs. Amount of bond is equal to the value of personal property. Summary Settlement Requires summary judicial adjudication. Gross estate must not exceed P10T. Allowed in both testate and intestate It is available even if there are debts; it is the court which will make provision for its payment. May be instituted by ANY INTERESTED PARTY even by a creditor of the estate without the consent of all heirs. Amount of bond is to be determined by the court.
Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks in a newspaper of general circulation
Requisites: A.
Filing of bond equivalent to the value of personal property
S u b
stantive 1. The decedent left a. NO will; b. NO debts. 2. The heirs are all of age or the minors are represented by their judicial or legal representatives duly authorized for the purpose. B. Procedural 1. Division of estate must be in a PUBLIC INSTRUMENT or by AFFIDAVIT of SELF-ADJUDICATION in the case of a sole heir; 2. Filed with proper Registry of Deeds;
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While the Rules provide that the decedent must not have left any debts, it is sufficient if any debts he may have left have been paid at the time of the extrajudicial settlement is entered into (Guico vs. Bautista, L-14921, December 31, 1960). Procedure in Summary Estates of Small Value Settlement of
Application for summary settlement with an allegation that the gross value of the estate does not exceed P10k Publication of notice of the fact of summary settlement once a week for 3 consecutive weeks in a newspaper of general circulation (the court may also order notice to be given to other persons as such court may direct
Disputable Presumption That Decedent Left No Debts If no creditor files a petition for letters of administration within 2 years after the death of the decedent. Note: Section 1, Rule 74 does not preclude heirs from instituting administration proceedings even if the estate has no debts or obligations, if they do not desire to resort, for GOOD REASONS, to an ordinary action for partition (Rodriguez vs. Tan, L-6044, November 24, 1952). Good reason depends on the circumstances of each case. SECTION 2. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE The GROSS VALUE of the estate must NOT EXCEED P10, 000. In accordance with B.P. Blg. 129, the summary settlement of estates of small value is within the jurisdiction of the MTCs.
Hearing to be held not less than 1 month nor more than 3 months from the date of the last publication of notice
Court to proceed summarily, without appointing an executor/administrator, and to make orders as may be necessary, such as:
Grant allowance of the will, if any Determine persons entitled to estate Pay debts of estate which are due
Filing of bond fixed by the court
Partition of the estate
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Important Requirements 1. Application must contain allegation of gross value of estate; 2. Date for hearing: a. shall be set by court not less than 1 MONTH nor more than 3 MONTHS from date of last publication of notice; b. order of hearing published, ONCE A WEEK FOR 3 CONSECUTIVE WEEKS in a newspaper of general circulation. 3. Notice shall be served upon such interested persons as the court may direct; 4. Bond in an amount fixed by the court ( not value of personal property) conditioned upon payment of just claims under Sec. 4. SECTION 3. BOND TO BE FILED BY DISTRIBUTEES The amount of bond required under Section 2 hereof is determined by the court, unlike in Section 1 hereof where the amount is equal to the value of the personal property as established by the instrument of adjudication. SECTION 4. LIABILITY OF DISTRIBUTEES AND ESTATE When settlement of estates in the courts may be compelled: 1. If there is an undue deprivation of lawful participation in the estate; 2. The existence of debts against the estate; or 3. If there is an undue deprivation of lawful participation payable in money. Note: The bar against distributees from objecting to an extrajudicial partition after the expiration of two years is applicable only (1) to persons who have participated or taken part or had notice of the extrajudicial partition, and (2) when all the persons or heirs of the decedent have taken part in the extrajudicial settlement (Sampilo vs. CA, L-10474, February 28, 1958). Remedies of the Aggrieved Parties After Settlement of the Estate 1. Within two (2) yrs. - claim against the bond or the real estate or both (Rule 74, Sec.4); 2. Rescission in case of preterition of compulsory heir in partition tainted with bad faith (Article 1104, NCC); 3. Reconveyance of real property; 4. Action to annul a deed of extrajudicial settlement on the ground of fraud which should be filed within 4 years from the discovery of fraud; 5. Petition for Relief on the ground of FAME Fraud, Accident, Mistake, Excusable negligence 60 days after the petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered (Rule 38); 6. Reopening by Intervention within reglementary period anytime before rendition of judgment, as long as it is within the reglementary period of 2 years; 7. New action to annul settlement within reglementary period of 2 years. An heir deprived of his share may file an action for reconveyance based on an implied or constructive trust which prescribes 10 years from the date of registration or date of issuance of certificate of title or from actual discovery of fraud if the registration was made in bad faith (Marquez vs. CA, GR No. 125715, December 29, 1998). Where the estate has been summarily settled, the unpaid creditor may, within 2 years, file a motion in court wherein such summary settlement was had, for the payment of his credit. After the lapse of 2 years, an ordinary action may be instituted against the distributees within the statute of limitations BUT NOT against the bond. The 2-year lien upon the real property distributed by extrajudicial or summary settlement shall be annotated on the title issued to the distributees and after 2 years will be cancelled by the register of deeds without need of court order (LRC CIRCULAR 143). Such lien cannot be discharged nor the annotation be cancelled within the 2 year period even if the distributees offer to post a bond to answer for contingent claims from which lien is established ( Rebong vs. Ibaez, L-1578, September 30, 1947).
SECTION 5. PERIOD FOR CLAIM OF MINOR OR INCAPACITATED PERSON If on the date of the expiration of the two-year period, the creditor or heir is: 1. A minor; or 2. Incapacitated; or 3. In prison; or
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4. Outside the Philippines. He may present his claim within ONE YEAR after such disability is removed (Sec. 5 Rule 75). RULE 75: PRODUCTION OF WILL ALLOWANCE OF WILL NECESSARY SECTION 1. ALLOWANCE NECESSARY CONCLUSIVE AS TO EXECUTION Nature of Probate Proceedings 1. In Rem - binding on the whole world. 2. Mandatory - no will shall pass either real or personal property unless it is proved and allowed in the proper court. However, a will may be sustained on the basis of Article 1080 of the Civil Code which states that: If the testator should make a partition of his properties by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heir (Mang-Oy vs. CA, L27421, September 12, 1986). 3. Imprescriptible because of the public policy to obey the will of the testator. 4. The doctrine of estoppel does not apply. The presentation and probate of the will is required by public policy. It involves public interest (Fernandez vs. Dimagiba, L-23638, October 12, 1967). SECTION 2. DELIVER CUSTODIAN OF WILL TO SECTION 4. CUSTODIAN AND EXECUTOR SUBJECT TO FINE FOR NEGLECT A fine not exceeding P 2,000. SECTION 5. PERSON RETAINING WILL MAY BE COMMITTED RULE 76: ALLOWANCE OR DISALLOWANCE OF WILL Probate is the act of proving in a court a document purporting to be the last will and testament of a deceased person in order that it may be officially recognized, registered and its provisions carried insofar as they are in accordance with law (also referred to as allowance of the will). SECTION 1. WHO MAY PETITION FOR THE ALLOWANCE OF WILL 1. Executor; 2. Devisee or legatee named in the will; 3. Person interested in the estate; (ex. heirs) An INTERESTED PARTY is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor (Sumilang vs. Ramagosa, L23135, December 26, 1967).
4. Testator himself during his lifetime; 5. Any creditor - as preparatory step for filing of his claim therein (Regalado, p.30). Who may be a party in probate? In general, any person having a direct and material interest in the will or estate. SECTION 2. CONTENTS OF PETITION 1. The jurisdictional facts death of the testator and his residence at the time of death or the province where estate was left by the decedent who is a non-resident; The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent; The probable value and character of the property of the estate; The name of the person for whom letters are prayed; The name of the person having custody of the will if it has not been delivered to the court.
The custodian must deliver the will to the court or to the executor within 20 days after he learns of the death of the testator. SECTION 3. EXECUTOR TO PRESENT WILL AND ACCEPT OR REFUSE TRUST The executor of the will shall, within 20 days after he knows of the testators death or after he knows that he is named an executor if he knows it after the testators death shall: 1. present the will to the court (unless it has reached the court in any other manner); and 2. signify in writing his acceptance or refusal of the trust.
2. 3. 4. 5.
But no defect in the petition shall render void the allowance of the will, or the issuance of
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letters testamentary or of administration with the will annexed.
Effect of the Probate of a Will It is conclusive as to the EXECUTION and the VALIDITY of the will (even against the State). Thus, a criminal case against the forger may not lie after the will has been probated. Issue in the Probate of a Will General Rule: Only determination of the extrinsic validity not the intrinsic validity or validity of testamentary dispositions. Exception: Principle of Practical Consideration The waste of time, effort, expense plus added anxiety are the practical considerations that induce us to a belief that we might as well meet head-on the issues of the validity of the provisions of the will in question ( Nuguid vs. Nuguid, L-23445, June 23, 1966). Where the entire or all testamentary dispositions are void and where the defect is apparent on its face (Acain vs. IAC GR No. 72706, October 27, 1987; Nepumuceno vs. CA, L-62952, October 9, 1985). Extrinsic Validity means due execution of the will. Meaning Of Due Execution 1. That the will was executed strictly in accordance with the formalities required by law; 2. That the testator was of sound and disposing mind when he executed the will; 3. That there was no vitiation of consent through duress, fear or threats; 4. That it was not procured by undue or improper pressure or influence on the part of the beneficiary, or some other person for his benefit; 5. That the signature of the testator is genuine, i.e., it was not procured through fraud and that the testator intended that what he executed was his last will and testament. SECTION 3. COURT TO APPOINT TIME FOR PROVING WILL. NOTICE THEREOF TO BE PUBLISHED PUBLICATION for 3 WEEKS successively of the order setting the case for hearing AND sending NOTICES to all persons interested are JURISDICTIONAL REQUIREMENTS.
If the petition for probate is on testators own initiative during his lifetime (Ante Mortem) 1. No publication is necessary (Sec. 3); and 2. Notice shall be made only to the compulsory heirs (Sec. 4).
Note: Three (3) weeks successively is not strictly 21 days. It is sufficient that publication has been made once a week successively three times, even if less than twenty- one days intervened between the first and last publication (Basa v. Mercado). SECTION 4. HEIRS, DEVISEES, LEGATEES, AND EXECUTORS TO BE NOTIFIED BY MAIL OR PERSONALLY Persons to be Given Notice: 1. Designated or known heirs, legatees and devisees; and 2. Executor and co-executor if not the petitioner. Modes of Notification IF by mail: 20 days before hearing IF through personal service: 10 days before hearing SECTION 5. PROOF AT HEARING. WHAT SUFFICIENT IN ABSENCE OF CONTEST At the hearing, compliance of publication and notice must first be shown before introduction of testimony in support of the will. Evidence Required in Support of a Will 1. Uncontested Will (Sec.5) a. Notarial Wills - Testimony of at least 1 of the subscribing witnesses may be allowed, if such witness testifies that the will was executed as is required by law. i. If all subscribing witnesses reside outside the province deposition is allowed (Sec.7). ii. If the subscribing witnesses are dead, insane, or none of them resides in the Philippines The court may admit 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 (Sec. 8).
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b. Holographic Wills - the testimony of 1 witness who knows the handwriting and signature of the testator. In the absence thereof and if the court deem it necessary, expert testimony may be resorted to. 2. Contested Will (Sec.11) a. Notarial Wills - ALL subscribing witnesses AND the notary public before whom the will was acknowledged must be produced and examined. HOWEVER, if any or all the witnesses (i) testify against the execution of the will, (ii) do not remember attesting thereto, or (iii) of doubtful credibility, the will may 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 (An instance where a party may impeach his own witness). b. Holographic Wills - 3 witnesses who know the handwriting of testator. In the absence thereof and if the court deem it necessary, testimony of an expert witness may be resorted to. HOWEVER, in Codoy vs. Calugay, GR no. 123486, Aug. 12, 1999, the SC ruled that if the holographic will is contested, 3 witnesses who know the handwriting and signature of the testator are now required/mandatory to prove its authenticity and for its allowance. General Rule: Holographic will destroyed CANNOT be probated. if been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge; and 3. The provisions of the will are clearly established by at least two credible witnesses. SECTION 7. PROOF WHEN WITNESSES DO NOT RESIDE IN PROVINCE SECTION 8. PROOF WHEN WITNESSES DEAD OR INSANE OR DO NOT RESIDE IN THE PHILIPPINES SECTION 9. GROUNDS FOR DISALLOWING WILL Grounds provided for are exclusive: (FIDUS) 1. If not executed and attested as required by law; (Formalities) 2. If the testator was Insane, or otherwise mentally incapable to make a will, at the time of its execution; 3. If it was executed under Duress, or the influence of fear, or threats; 4. 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; 5. 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. Substantial Compliance Rule 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 (Art. 809, NCC). Separate wills which contain essentially the same provisions and pertain to properties which in all probability are conjugal in nature, practical considerations dictate their joint probate (Vda. De Perez vs. Tolete, G.R. No. 76714, June 2, 1994). TO FILE
Exception: If there exists a Photostatic or Xerox copy thereof (Gan vs. Yap, L12190, August 30, 1958). SECTION 6. DESTROYED THEREUPON PROOF WILL. OF LOST OR CERTIFICATE
This section applies to a lost or destroyed notarial will and not to a holographic will. FACTS which should be PROVED in order that a lost or destroyed will may be allowed: 1. That the will has been duly executed by the testator; 2. That the will was in existence when testator died, or if it was not, that it has
SECTION 10. CONTESTANT GROUNDS OF CONTEST
Contestant must: 1. State in writing his grounds for opposing the allowance of the will; and 2. Serve a copy thereof to petitioner and other interested parties.
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SECTION 11. SUBSCRIBING WITNESSES PRODUCED OR ACCOUNTED FOR WHERE WILL CONTESTED SECTION 12. PROOF WHERE TESTATOR PETITIONS FOR ALLOWANCE OF HOLOGRAPHIC WILL If there is no contest, the fact that the testator affirms that the holographic will and the signature are in his own handwriting shall be sufficient evidence of the genuineness and due execution thereof. In case of contest, the burden of proof is on the contestant. 3. One who in the opinion of the court is unfit to exercise the duties of the trust by reason of: a. Drunkenness; b. Improvidence; c. Want of understanding or integrity; d. Conviction for an offense involving moral turpitude. 4. The executor of an executor cannot administer the estate of the first testator.
Executor Nominated by the testator and appointed by court. Administrator Appointed by the court in case the testator did not appoint an executor or if the executor refused appointment (administrator with a will annexed) or if the will was disallowed or if a person did not make a will (intestate succession). No such duty.
SECTION 13. CERTIFICATE OF ALLOWANCE ATTACHED TO PROVED WILL. TO BE RECORDED IN THE OFFICE OF REGISTER OF DEEDS. RULE 78: LETTERS TESTAMENTARY AND OF ADMINSTRATION, WHEN AND TO WHOM ISSUED Who can administer the estate? 1. Executor; 2. Administrator, regular or special (Rule 80); and 3. Administrator with a will annexed (Rule 79, Section 1). An Executor is the one named by the testator in his will for the administration of his property after his death. An Administrator is the one appointed by the Court in accordance with the Rules or governing statutes to administer and settle the intestate estate. An Administrator WITH A WILL ANNEXED is the 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 incapacitated or unwilling to serve as such. Who may serve as an executor or administrator? Any COMPETENT person may serve as executor or administrator. SECTION 1. WHO ARE INCOMPETENT TO SERVE AS EXECUTORS OR ADMINISTRATORS 1. 2. A minor; A non-resident;
Must present will to the court within 20 days after he knows of the death of testator or after he knew that he was appointed as executor (if he obtained such knowledge after death of testator), unless the will has reached the court in any manner. Testator may provide that he may serve without a bond (BUT court may direct him to give a bond conditioned only to pay debts). Compensation may be provided for by the testator in the will, otherwise Sec. 7, Rule 85 will be followed.
Required unless exempted by law
Compensation is governed by Sec. 7, Rule 85.
SECTION 2. EXECUTOR OF EXECUTOR NOT TO ADMINISTER ESTATE SECTION 3. SERVE MARRIED WOMEN MAY
SECTION 4. LETTERS TESTAMENTARY ISSUED WHEN WILL ALLOWED Letters Testamentary is an authority issued to an executor named in the will to administer the estate. Letters of Administration is an authority issued by the court to a COMPETENT person to administer the estate of the deceased who died intestate.
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the higher interest and most influential motive to administer the estate correctly (Gonzales vs. Aguinaldo, G.R. No. 74769 September 28, 1990). Note: Co-administrators may be appointed for the benefit of the estate and those interested therein (Matute vs. CA, G.R. No. 26751, January 31, 1969). RULE 79: OPPOSING ISSUANCE OF LETTERS TESTAMENTARY, PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION SECTION 1. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY. SIMULTANEOUS PETITION FOR ADMINISTRATION The main issue is the determination of the person who is rightfully entitled to administration. Persons to oppose the issuance of letters: Any person interested in the will. Ground for Opposition: Opposition may be accompanied by a Petition for the issuance of Letters of Administration with the will annexed. SECTION 2. CONTENTS OF A PETITION FOR LETTERS OF ADMINISTRATION: 1. 2. The jurisdictional facts; The names, ages, residences of heirs and the names and ages of the creditors; 3. The probable value and character of the estate; and 4. The name of the person for whom letters are prayed for. No defect in the petition shall render void the issuance of the letters of administration. SECTION 3. COURT TO SET TIME FOR HEARING. NOTICE THEREOF Publication for 3 weeks and notice to heirs, creditors and other persons believed to have an interest in the estate is required before hearing. Note: Section 3 JURISDICTIONAL. of this Rule is
Letters of Administration with a Will Annexed is an authority issued by the court to a COMPETENT person to administer the estate of the deceased if the executor named in the will refused to accept the office. SECTION 5. WHERE SOME COEXECUTORS DISQUALIFIED, OTHERS MAY ACT SECTION 6. WHEN AND TO WHOM LETTERS OF ADMINISTRATION GRANTED Order of Preference in Granting Letters of Administration 1. 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, requests to have appointed, if competent and willing to serve (SURVIVING SPOUSE OR NEXT OF KIN OR THEIR NOMINEE); Next of Kin has been defined as those persons who are entitled under the statute of distribution to the decedents property (Regalado, Remedial Law Compendium, (2008), p. 46). 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 30 days after the death of the decedent to apply for administration by them or their nominee, ANY one or more of the PRINCIPAL CREDITORS, if competent and willing to serve; Note: Preference given to surviving spouse or next of kin may be disregarded by the court where said persons neglect to apply for letters of administration for 30 days after decedents death. 3. If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select (STRANGER).
Note: The Order of Appointment of Regular Administrator is final and appealable. Basis for the Preferential Right The underlying assumption is that those who will reap the benefits of a wise, speedy and economical administration of the estate or on the other hand, suffer the consequences of waste, improvidence or mismanagement, have
Where no notice as required by this section has been given to persons believed to have an interest in the estate of the deceased person, the proceeding
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for the settlement of the estate is void and should be annulled (Eusebio vs. Valmores G.R. No. L-7019, May 31, 1955). SECTION 4. OPPOSITION TO PETITION FOR ADMINISTRATION Grounds for Opposition: 1. Incompetence; 2. Preferential right of the heir under Sec. 6, Rule 78. SECTION 5. HEARING AND ORDER FOR LETTERS TO ISSUE Letters of Administration shall issue if it is proven that: 1. Notice as required in Sec. 3 was given; and 2. The decedent left no will; or there is no competent and willing executor. SECTION 6. WHEN LETTERS OF ADMINISTRATION GRANTED TO ANY APPLICANT Letters can be granted to any person or any other applicant even if other competent persons are present if the latter fail to claim their letters when notified by the court. RULE 80: SPECIAL ADMINSTRATOR SECTION 1. APPOINTMENT OF SPECIAL ADMINISTRATOR When may a probate court appoint a special administrator? 1. Delay in granting of letters by any cause including appeal in the probate of the will; 2. Executor is a claimant of the estate he represents (Section 8, Rule 86). Note: In the second instance, the administrator shall have the same powers as that of a general administrator. Order of Appointment (DISCRETIONARY) The preference accorded by Sec. 6 of Rule 78 of the Rules of Court to surviving spouse refers to the appointment of a regular administrator, NOT to that of special administrator, and that the order appointing the latter lies within the discretion of the probate court, and is not appealable (Pijuan vs. De Gurrea, G.R. No. L-21917, November 29, 1966).
Regular Administrator Order of Appointment is FINAL and is APPEALABLE One of the obligations is to pay the debts of the estate. Appointed when decedent died intestate or did not appoint an executor in the will or will was disallowed.
Special Administrator Order of Appointment is INTERLOCUTORY and is NOT APPEALABLE Cannot pay debts of the estate. Appointed when there is delay in granting letters testamentary or administration or when the executor is a claimant of the estate.
SECTION 2. POWERS AND DUTIES OF SPECIAL ADMINISTRATOR 1. Possession and charge of the goods, chattels, rights, credits, and estate of the deceased; 2. Preserve the same; 3. Commence and maintain suit for the estate; 4. Sell ONLY: a. Perishable property; and b. Other property ordered sold by the court; 5. Pay debts ONLY as may be ordered by the court. The special administrator has also the duty to submit an inventory and to render an accounting of his administration as required by the terms of his bond (Sec 4, Rule 81).
SECTION 3. WHEN POWERS OF SPECIAL ADMINISTRATOR CEASE. TRANSFER OF EFFECTS. PENDING SUITS When does the power of a special administrator cease? After the questions causing the delay are resolved and letters are granted to regular executor or administrator. Is an appointment of a special administrator appealable? NO, as expressly provided for in Sec. 1, Rule 109. HOWEVER, appointment of a REGULAR ADMINISTRATOR is appealable because it is a final order.
Note: It is possible for the executor or administrator whose appointment is
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challenged by appeal to be appointed also as the special administrator pending such appeal. There is no harm in appointing the same person as special administrator because there is a vast difference between the powers and duties of the two positions. While special administrator may commence and maintain suits under Sec. 2, he cannot be sued by a creditor for the payment of the debts of the deceased (De Gala vs. Gonzales, et al., 53 Phil 104). Such suit must await the appointment of a regular administrator. RULE 81: BONDS OF EXECUTORS AND ADMINISTRATORS SECTION 1. BOND TO BE GIVEN BEFORE ISSUANCE OF LETTERS. AMOUNT. CONDITIONS. When filed: Before an executor or administrator enters upon the execution of his trust. Amount: To be fixed by the court Conditions of the Bonds: 1. Make within 3 MONTHS a true and complete INVENTORY of the property of the deceased which came to his knowledge and possession; 2. ADMINISTER the estate and pay and discharge all debts, legacies and charges, including dividends declared by the court from the proceeds; 3. Render a true and just ACCOUNT within ONE YEAR and when required by the court; 4. PERFORM all orders of the court. Administrators Bond Statutory Bond Conditions prescribed by statute forms part of bond agreement. Terms and effectivity of bond does not depend on payment of premium and does not expire until the administration is closed. As long as the probate court retains jurisdiction of the estate, the bond contemplates a continuing liability (Luzon Surety vs. Quebrar, L-40517, January 31, 1984). Even if the testator has directed in his will that his executor serve without a bond, the court may still require him to file a bond conditioned only to pay the debts of the testator. SECTION 3. BONDS OF JOINT EXECUTORS AND ADMINISTRATORS SECTION 4. BOND ADMINISTRATOR OF SPECIAL
Conditions of the Bonds: 1. Make and return a true inventory; 2. Render accounting when required by court; and 3. Deliver the estate to the person appointed executor or administrator or other authorized persons. The bond is effective as long as the court has jurisdiction over the proceedings. RULE 82: REVOCATION OF ADMINSTRATION, DEATH, RESIGNATION AND REMOVAL OF EXECUTORS AND ADMINSTRATORS SECTION 1. ADMINISTRATION REVOKED IF WILL DISCOVERED. PROCEEDINGS THEREUPON When letters revoked and powers cease When the decedents will is allowed and proved by the court after the issuance of letters of administration. Duty of Administrator upon revocation of the letters 1. Surrender the letters to the court; and 2. Render his account within such time as the court may direct. Whether the intestate proceeding already commenced should be discontinued and a new proceeding under a separate number and title should be constituted is entirely a matter of form and lies within the sound discretion of the court (Reynoso vs. Santiago, L-3039, December 29, 1949).
Note: The discovery of a will does NOT ipso facto nullify the letters of administration already issued until the will has been proved and allowed pursuant to Rule 82, Sec. 1 (De Parreno vs. Aranzanso, G.R. No. L-27657, Aug. 30, 1982). SECTION 2. COURT MAY REMOVE OR ACCEPT RESIGNATION OF EXECUTOR OR ADMINISTRATOR. PROCEEDINGS UPON DEATH, RESIGNATION OR REMOVAL
SECTION 2. BOND OF EXECUTOR WHERE DIRECTED IN WILL WHEN FURTHER BOND REQUIRED
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Grounds for Removal of Executor or Administrator 1. Neglect to render accounts (within 1 year and when required by the court); 2. Neglect to settle estate according to these rules; 3. Neglect to perform an order or judgment of the court or a duty expressly provided by these rules; 4. Absconding; or 5. Insanity or incapability or unsuitability to discharge the trust. Note: Grounds are NOT exclusive. The position of the administrator is one of confidence and when the court finds that the administrator is not entitled to such confidence, it is justified in withdrawing the appointment and giving no valid efficacy thereto (Cobarrubias vs. Dizon, L-225, February 26, 1946).
RULE 83: INVENTORY AND APPRAISAL PROVISION FOR SUPPORT OF FAMILY SECTION 1. INVENTORY AND APPRAISAL TO BE RETURNED WITHIN THREE MONTHS Inventory and appraisal must be made within 3 MONTHS from the grant of letters testamentary or of administration. The three-month period is not mandatory. The fact that an inventory was filed after the three-month period would not deprive the probate court of jurisdiction to approve it. However, an administrators unexplained delay in filing the inventory may be a ground for his removal (Sebial vs. Sebial, L-23419, June 27, 1975). Approval of an inventory is not a conclusive determination of what assets constituted the decedents estate and of the valuation thereof. Such determination is only provisional and a prima facie finding of the issue of ownership.
Degree of Diligence Required An administrator is required to exercise reasonable diligence and act in entire good faith in the performance of that trust. SECTION 3. ACTS BEFORE REVOCATION, RESIGNATION OR REMOVAL TO BE VALID Lawful acts of an administrator or executor before the revocation, resignation, or removal are valid. SECTION 4. POWERS OF NEW EXECUTOR OR ADMINISTRATOR. RENEWAL OF LICENSE TO SELL REAL ESTATE The order of removal is appealable (Borromeo v. Borromeo, 97 Phil. 549). Power of the New Executor or Administrator 1. Collect and settle the estate not administered; 2. Prosecute or defend actions commenced by or against the former executor or administrator; and 3. Have execution on judgments recovered in the name of former executor or administrator. Authority to sell previously given to the former executor or administrator may be renewed without notice or hearing.
SECTION 2. CERTAIN ARTICLES NOT TO BE INVENTORIED 1. Wearing apparel of surviving spouse and minor children; 2. Marriage bed and bedding; 3. Provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased. SECTION 3. ALLOWANCE TO WIDOW AND FAMILY Allowance refers to the monetary advances which are subject to collation and are likewise deductible from their share in the estate of the decedent. Persons entitled to allowance during proceedings 1. Legitimate surviving spouse (Nepomuceno vs. CA, L-62952, October 9, 1985); and 2. Children of the decedent. Note: According to Art. 188 of the Civil Code, the children need not be minors or incapacitated to be entitled to allowance (Santero vs. CFI of Cavite, GR No. 61700-03, Sept. 24, 1987).
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or mediation of another, the property under administration; Cannot borrow money without authority of the court; Cannot speculate with funds under administration; Cannot lease the property for more than one year; Cannot continue the business of the deceased unless authorized by the court; Cannot profit by the increase or decrease in the value of the property under administration. RULE 85: ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINSTRATORS SECTION 1. EXECUTOR ADMINISTRATOR CHARGEABLE ALL ESTATE AND INCOME OR WITH
Grandchildren are NOT entitled to allowance under Rule 83 (Ruiz vs. CA, G.R. No. 118671, January 29, 1996). When liabilities exceed the asset of the estate, his widow and children are not entitled to support pending the liquidation of the intestate estate, on the ground that such support, having the character of an advance payment, to be deducted from the respective share of each heir during distribution (Wagner vs. Moore, L-25842, March 18, 1927). RULE 84: GENERAL PROVISIONS AND DUTIES OF EXECUTORS AND ADMINSTRATORS
2. 3. 4. 5. 6.
SECTION 1. EXECUTOR OR ADMINISTRATOR TO HAVE ACCESS TO PARTNERSHIP BOOKS AND PROPERTY. HOW RIGHT ENFORCED SECTION 2. EXECUTOR OR ADMINISTRATOR TO KEEP BUILDINGS IN REPAIR SECTION 3. EXECUTOR OR ADMINISTRATOR TO RETAIN WHOLE ESTATE TO PAY DEBTS AND TO ADMINISTER ESTATE NOT WILLED Powers of the Executor or Administrator of the Estate (BERIP) 1. To have access to, and examine and take copies of Books and papers relating to the partnership in case of a deceased partner; 2. To Examine and make invoices of the property belonging to the partnership in case of a deceased partner; 3. To maintain in tenantable Repairs, houses and other structures and fences and to deliver the same in such repair to the heirs or devisees when directed so to do by the court; 4. To make Improvements on the properties under administration with the necessary court approval except for necessary repairs; 5. To Possess and manage the estate when necessary: a. For the payment of debts; and b. For payment of expenses of administration. Some Restrictions on the Power of an Administrator or Executor 1. Cannot acquire by purchase, even at public or judicial auction, either in person
General Rule: The executor or administrator is accountable for the whole estate of the deceased. Exception: He is not accountable properties which never came to possession. for his
Exception to the Exception: When through untruthfulness to the trust or his own fault or for lack of necessary action, the executor or administrator failed to recover part of the estate which came to his knowledge. SECTION 2. NOT TO PROFIT BY INCREASE OR LOSE BY DECREASE IN VALUE Administrator or executor shall not profit by the increase of the estate nor be liable for any decrease which the estate, without his fault, might have sustained. SECTION 3. WHEN NOT ACCOUNTABLE FOR DEBTS DUE ESTATE The executor or administrator is not accountable if debt remains uncollected without his fault. SECTION 4. ACCOUNTABLE FOR INCOME FROM REALTY USED BY HIM If executor or administrator uses or occupies real estate under administration, he must account for it.
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SECTION 5. ACCOUNTABLE IF HE NEGLECTS OR DELAYS TO RAISE OR PAY MONEY When accountable: 1. If an executor or administrator: a. neglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased; or b. neglects to pay over the money he has in his hands; and 2. The value of the estate is lessened; or 3. Unnecessary cost or interest accrues; or 4. The persons interested suffer loss. SECTION 6. WHEN ALLOWED MONEY PAID AS COSTS SECTION 7. WHAT EXPENSES AND FEES ALLOWED EXECUTOR OR ADMINISTRATOR. NOT TO CHARGE FOR SERVICES AS ATTORNEY. COMPENSATION PROVIDED BY WILL CONTROLS UNLESS RENOUNCED Expenses of Administration refers to those necessary for the management of the property, for protecting it against destruction or deterioration, and possibly for the production of fruits. Compensation if there is No Provision in the Will 1. P4.00 a day for the time actually and necessarily employed; OR 2. 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. An administrator may not recover attorneys fees from the estate; his compensation is fixed by the rule but such compensation is in the nature of executors or administrators commissions, and never as attorneys fees. 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. SECTION 8. WHEN EXECUTOR OR ADMINISTRATOR TO RENDER ACCOUNT General Rule: Within one year from the time of receiving letters testamentary or letters of administration. Exception: An extension of time is allowed by the court for presenting claims against, or paying the debts of the estate, or for disposing of the estate; and he shall render such further accounts as the court may require until the estate is wholly settled. The fact that the final accounts had been approved does not divest the court of jurisdiction to require supplemental accounting for, aside from the initial accounting, the Rules provide that he shall render such further accounts as the court may require until the estate is wholly settled.
SECTION 9. EXAMINATIONS ON OATH WITH RESPECT TO ACCOUNT Examination may be dispensed with when: 1. No objection is made to the allowance of the account; and 2. Its correctness is satisfactorily established by competent proof. The heirs, legatees, distributees and creditors have the same privilege of being examined.
SECTION 10. ACCOUNT TO BE SETTLED ON NOTICE SECTION 11. SURETY ON BOND MAY BE PARTY TO ACCOUNTING RULE 86: CLAIMS AGAINST ESTATE SECTION 1. NOTICE TO CREDITORS TO BE ISSUED BY COURT Claim refers to any debt or pecuniary demand against the decedents estate. When may the court issue notices to creditors to file their claims? Immediately after granting letters testamentary or of administration.
Procedure for Collection of Attorneys Fees 1. Request the administrator to make payment and file an action against him in his personal capacity and not as administrator should he fail to pay; or
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Statute of Non-Claims SUPERSEDES the Statute of Limitations insofar as the debts of deceased persons are concerned because if a creditor fails to file his claim within the time fixed by the court in the notice, then the claim is barred forever. However, BOTH statute of Non-Claims and Statute of Limitations MUST CONCUR in order for a creditor to collect. Note: HOWEVER, a creditor barred by the Statute of Non-claims may file a claim as a COUNTERCLAIM in any suit that the executor or administrator may bring against such creditor (Sec 5). SECTION 3. PUBLICATION OF NOTICE TO CREDITORS. Publish the notice for 3 successive weeks in a newspaper of general circulation in the province and post the same in 4 public places in the province and in 2 public places in the municipality where the decedent last resided. SECTION 4. FILING COPY OF PRINTED NOTICE. 10 days after publication and posting. SECTION 5. CLAIMS WHICH MUST BE FILED UNDER NOTICE. IF NOT FILED, BARRED; EXCEPTIONS. Claims referred to under this section refer to claims for the recovery of money and which are not secured by a lien against the property of the estate (Olave vs. Canlas, L-12709, February 28, 1962). Claims which should be filed under the Statute of Non-claims 1. Money claims, debts incurred by deceased during his lifetime arising from contract: a. Express or implied; b. Due or not due; c. Absolute or contingent. 2. Claims for funeral expenses; 3. For the last illness of the decedent; 4. Judgment for money against decedent. Absolute Claim is such a claim as, if contested between living persons, would be proper subject of immediate legal action and would supply a basis of a judgment for a sum certain. Contingent Claim is a conditional claim or claim that is subject to the happening of a future uncertain event.
Purpose: For the speedy settlement of the affairs of the deceased person and early delivery of the property of the estate into the hands of the persons entitled to receive it. Claims arising AFTER his death cannot be presented except for: a. Funeral expenses; and b. Expenses of the last sickness of the decedent. Claims for taxes (inheritance and estate) due and assessed after the death of the decedent need not be presented in the form of a claim. The court in the exercise of its administrative control over the executor or administrator may direct the latter to pay such taxes (Pineda vs. CFI of Tayabas, 52 Phil 13). And the heirs, even after distribution, are liable for such taxes (Government of the Philippine Islands vs. Pamintuan, L33139, October 11, 1930).
SECTION 2. TIME WITHIN WHICH CLAIMS SHALL BE FILED Statute of Non-Claims is the period fixed by the rule for the filing of the claims against the estate. When to File Claims: General Rule: Within the time fixed in the notice which shall not be more than 12 MONTHS nor less than 6 MONTHS after the date of the FIRST PUBLICATION. Otherwise, they are BARRED FOREVER. Even if the testator acknowledged the debt in his will and instructed the executor to pay the debt, the statute of non-claims must still be complied with; otherwise the claim may also be barred.
Exception: BELATED CLAIMS Belated Claims are claims not filed within the original period fixed by the court. On application of a creditor who has failed to file his claim within the time previously limited, at ANY TIME BEFORE an order of distribution is entered, the court may, for cause shown and on such terms as are equitable, allow such claim to be filed within a time NOT EXCEEDING 1 MONTH from the order allowing belated claims.
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Claims not yet due or contingent may be approved at their present value share in the general distribution of the assets of the estate; 2. FORECLOSE his mortgage or realize upon his security by action in court making the executor or administrator a party defendant and if there is judgment for DEFICIENCY, he may file a claim (contingent) against the estate within the statute of non-claims; 3. RELY SOLELY ON HIS MORTGAGE and foreclose (judicial or extrajudicial) the same at anytime within the period of the statute of limitations but he cannot be admitted as creditor and shall not receive in the distribution of the other assets of the estate. Note: These remedies are ALTERNATIVE, the availment of one bars the availment of other remedies. SECTION 8. CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST AN ESTATE This is one of the instances where a special administrator is appointed. The special administrator will have authority to act only with respect to the claim of the regular administrator or the executor (Regalado, Vol. 2, 11th ed., p. 83). SECTION 9. HOW TO FILE A CLAIM. CONTENTS THEREOF. NOTICE TO EXECUTOR OR ADMINISTRATOR How to file a claim: 1. Deliver the claim with the necessary vouchers to the clerk of court; 2. Serve a copy thereof on the executor or administrator; 3. If the claim is due, it must be supported by affidavit stating the amount due and the fact that there has been no offsets; 4. If the claim is not due or contingent, it must be accompanied by affidavit stating the particulars thereof; 5. Executor must file his answer to the claim within 15 days after service of a copy of the claim. SECTION 10. ANSWER OF EXECUTOR OR ADMINISTRATOR. OFFSETS Executor shall file answer within 15 days from service of claim. Answer must set forth claims which decedent has against claimant or else it will forever be barred.
Claims Extinguished By Death Personal to either of the parties and is extinguished by death Examples: legal separation, annulment of marriage, declaration of nullity of marriage
Actions Which Survive Claim is not extinguished by death but shall be prosecuted as a money claim against the estate of the deceased Example: contractual money claim
Where the defendant dies while the action for a sum of money is pending against him in the Court of Appeals, he shall be substituted therein by his legal representative but the final judgment of the appellate court shall not be enforceable by a writ of execution but should be filed in the probate court as a money claim in accordance with Sec. 5 of Rule 86. (Paredes, et al. v. Moya, L-38051, Dec. 26, 1973) If a final judgment had already been rendered against the decedent prior to his death, but without levy on execution having been effected against his property, such judgment must also be filed as a claim against the estate in the manner provided for by this Rule. If levy has already been made before his death, execution shall proceed. (Sec. 7[c], Rule 39) SECTION 6. SOLIDARY OBLIGATION OF DECEDENT Claim should be filed against decedent as if he were the only debtor without prejudice on the part of the estate to recover contribution from the other debtor. Joint obligation of decedent The claim must be confined to the portion belonging to the decedent. SECTION 7. MORTGAGE DEBT DUE FROM ESTATE Creditor Holding a Claim Secured by a Mortgage or Other Collateral Security Alternative Remedies: (AFR) 1. ABANDON OR WAIVE the security and prosecute his claim against the estate and
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SECTION 11. DISPOSITION OF ADMITTED CLAIM The heir, legatee or devisee may oppose the claim admitted by the executor or administrator. SECTION CLAIM 12. TRIAL refer OF the CONTESTED claim to a
2. 3. real/ personal property (or any interest therein) from the estate; Enforcement of a lien thereon; Action to recover damages arising from tort. incurred by the deceased during his lifetime arising from contract; Claims for funeral expenses or for the last illness of the decedent; Judgment for money against decedent.
2.
3.
The court may commissioner.
SECTION 13. JUDGMENT APPEALABLE Judgment against executor and administrator shall not create any lien upon the property of the estate or does not constitute a specific lien which may be registered on such property. Judgment of a probate court approving or disapproving a claim is appealable. Note: The mode of appeal is record on appeal and must be filed within 30 DAYS from notice of judgment. SECTION 14. COSTS RULE 87: ACTIONS BY AND AGAINST EXECUTORS SECTION 1. ACTIONS WHICH MAY AND WHICH MAY NOT BE BROUGHT AGAINST EXECUTOR AND ADMINISTRATOR Actions which may be commenced directly against the executor or administrator: 1. Recovery of real or personal property or any interest therein from the estate; 2. Enforcement of a lien thereon; 3. Action to recover damages for any injury to person or property, real or personal (tortuous acts). These are actions that SURVIVE the death of the decedent. An action for revival of money judgment may be filed against the administrator to preempt prescription of judgment (Romualdez vs. Tiglao, L-51151, July 24, 1981).
Claims That Survive Rule 87, Sec. 1 Actions that may be commenced directly against the executor and administrator 1. Recovery of Claims That Do Not Survive Rule 86, Sec. 5 Actions that may be commenced against the estate of the deceased 1. Money claims, debts
SECTION 2. EXECUTOR OR ADMINISTRATOR MAY BRING OR DEFEND ACTIONS WHICH SURVIVE SECTION 3. HEIR MAY NOT SUE UNTIL SHARE ASSIGNED Before distribution is made or before any residue is known, the heirs and devisees have no cause of action against the executor or administrator for recovery of the property left by the decedent. SECTION 4. EXECUTOR OR ADMINISTRATOR MAY COMPOUND WITH DEBTOR SECTION 5. MORTGAGE DUE ESTATE MAY BE FORECLOSED Note: There is no need of a special authority from the court for the administrator or executor to bring an action for foreclosure on behalf of the estate (Calimbas vs. Paguio, L-22197, December 2, 1924). SECTION 6. PROCEEDINGS WHEN PROPERTY CONCEALED, EMBEZZLED, OR FRAUDULENTLY CONVEYED Purpose: To elicit information or to secure evidence from those persons suspected of having possession or knowledge of property or will of the deceased, or of having concealed, embezzled or conveyed away any properties of the deceased. General Rule: The probate court has no authority to decide whether or not the properties belong to the estate or to the person being examined since probate courts are courts of limited jurisdiction. Exceptions: 1. Provisional determination of ownership for inclusion in the inventory; or 2. When the parties are all heirs and they voluntarily submitted the issue to the probate court and the determination of which will not prejudice the rights of 3rd
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persons (Bernardo vs. CA, GR No. 82483, Sept. 26, 1990). SECTION 7. PERSON ENTRUSTED WITH ESTATE COMPELLED TO RENDER ACCOUNT SECTION 8. EMBEZZLEMENT LETTERS ISSUED BEFORE 7. The action by the creditor is in the NAME of the executor or administrator. Note: HOWEVER, the last three requisites are unnecessary where the grantee is the executor or administrator himself, in which event, the action should be in the name of all the creditors. RULE 88: PAYMENT OF THE DEBTS OF THE ESTATE SECTION 1. DEBTS PAID IN FULL IF ESTATE SUFFICIENT A writ of execution is not the proper procedure to satisfy debts. The court must ORDER THE SALE OR MORTGAGE of the properties of decedent, the proceeds of which will satisfy the debts and expenses. Is execution a proper remedy to satisfy an approved claim? NO, because: 1. Payment approving a claim does not create a lien upon a property of the estate; 2. Special procedure is for the court to order the sale to satisfy the claim. SECTION 2. PART OF ESTATE FROM WHICH DEBT PAID WHEN PROVISION MADE BY WILL If the testator makes a provision in his will or designates the estate to be appropriated for the payment of his debts that will be followed. But if it is not sufficient, such part of the estate as is not disposed of by will, if any, shall be appropriated for that purpose. SECTION 3. PERSONALTY FIRST CHARGEABLE FOR DEBTS, THEN REALTY Two (2) Instances When Realty is Liable for Debts and Expenses 1. When the personal estate of the decedent is not sufficient for that purpose; 2. Where the sale of such personalty would be to the detriment of the participants of the estate. SECTION 4. ESTATE TO BE RETAINED TO MEET CONTINGENT CLAIMS If the court is satisfied that contingent claim duly filed is valid, it may order the executor or administrator to retain in his hands sufficient estate to pay a portion equal to the dividend of the creditors.
The responsible person shall be liable to an action in favor of the executor or administrator of the estate for double the value of the property sold, embezzled, or alienated, to be recovered for the benefit of the estate. SECTION 9. PROPERTY FRAUDULENTLY CONVEYED BY DECEASED MAY BE RECOVERED. WHEN EXECUTOR OR ADMINISTRATOR MUST BRING ACTION This provision applies when there is a deficiency of assets in the hands of the executor or administrator for the payment of the debts and expenses for administration. The executor or administrator may, on his own initiative or on option of the creditors and as directed by the court, institute an action for the recovery of said property, but the court may direct the creditors to defray part of the costs and expenses of the suit since said action is for their own benefit (Regalado, p. 93). SECTION 10. WHEN CREDITOR BRING ACTION. LIEN FOR COSTS MAY
Requisites Before Action may be filed by Creditors: (D-FAN LaBaN) 1. There is a DEFICIENCY of assets in the hands of an executor or administrator for the payment of debts and expenses of administration; 2. The deceased in his lifetime had made or attempted to make a FRAUDULENT CONVEYANCE of his property or had so conveyed such property that by law the conveyance would be void as against his creditors; 3. The subject of the attempted conveyance would be liable to ATTACHMENT in his lifetime; 4. The executor or administrator has shown NO DESIRE TO FILE action or failed to institute the same within a reasonable time; 5. LEAVE is granted by the court to the creditor to file the action; 6. A BOND is filed by the creditor;
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Requisites: 1. Contingent claim is duly filed; 2. Court is satisfied that the claim is valid; and 3. The claim has become absolute. SECTION 5. HOW CONTINGENT CLAIM BECOMING ABSOLUTE IN TWO YEARS ALLOWED AND PAID If such contingent claim becomes absolute and is presented to the court as an absolute claim within two years from the time allowed for the presentation of claims, it will be paid in the same manner as the other absolute claims. If the contingent claim matures after the expiration of the two years, the creditors may sue the distributees, who are liable in proportion to the shares in the estate respectively received by them (Jaucian vs. Querol, L-11307, October 5, 1918). It has been ruled that the only instance wherein a creditor can file an action against a distributee of the debtors assets is under Sec. 5, Rule 88 of the Rules of Court. The contingent claims must first have been established and allowed in the probate court before the creditors can file an action directly against the distributees (De Bautista vs. De Guzman, L-28298, November 25, 1983). SECTION 10. WHEN AND HOW CLAIM PROVED OUTSIDE THE PHILIPPINES AGAINST INSOLVENT RESIDENTS ESTATE PAID Claims proven outside the Philippines where the executor had knowledge and opportunity to contest its allowance therein may be added to the list of claims in the Philippines against the estate of an INSOLVENT RESIDENT and the estate will be distributed equally among those creditors. Principle of Reciprocity The benefits of Sections 9 and 10 cannot be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines. SECTION 11. ORDER FOR PAYMENT OF DEBTS SECTION 12. ORDERS RELATING TO PAYMENT OF DEBTS WHERE APPEAL IS TAKEN. SECTION 13. WHEN SUBSEQUENT DISTRIBUTION OF ASSETS ORDERED Conditions: 1. Whole of the debts are not paid; 2. Whole assets are not distributed, OR other assets afterwards come to the hands of the executor or administrator. SECTION 14. CREDITORS TO BE PAID IN ACCORDANCE WITH TERMS OF ORDER SECTION 15. TIME FOR PAYING DEBTS AND LEGACIES FIXED, OR EXTENDED AFTER NOTICE, WITHIN WHAT PERIODS Shall not exceed 1 year in the first instance. But court may extend period on application of executor or administrator and after hearing and notice on the following conditions: 1. the extension must not exceed six months for single extension; 2. the whole period allowed to the original executor or administrator shall not exceed 2 years. SECTION 16. SUCCESSOR OF DEAD EXECUTOR OR ADMINISTRATOR MAY
SECTION 6. COURT TO FIX CONTRIBUTIVE SHARES WHERE DEVISEES, LEGATEES, OR HEIRS HAVE BEEN IN POSSESSION SECTION 7. ORDER OF PAYMENT IF ESTATE INSOLVENT If estate is insolvent, as in liabilities are more than the assets, Sec.7 in relation to Art. 1059 and 2239 to 2251 of the Civil Code (Concurrence and Preference of Credits) must apply. SECTION 8. DIVIDENDS TO BE PAID IN PROPORTION TO CLAIMS SECTION 9. ESTATE OF INSOLVENT NONRESIDENT, HOW DISPOSED OF In case administration is taken in the Philippines of the estate of a person who was at the time of his death an inhabitant of another country, and who died INSOLVENT, his estate in the Philippines shall be so disposed of that his creditors in and outside the Philippines may receive an equal share, in proportion to their respective credits.
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HAVE TIME EXTENDED ON WITHIN A CERTAIN PERIOD NOTICE Ratio: The reason behind this requirement is that the heirs are the presumptive owners. Since they succeed to all the rights and obligation of the deceased from the moment of the latters death, they are the person directly affected by the sale or mortgage and therefore cannot be deprived of the property, except in the manner provided by law (Maneclang vs. Baun, L-27876, April 22, 1992). SECTION 3. PERSONS INTERESTED MAY PREVENT SUCH SALE, ETC., BY GIVING BOND If the opposition to the sale is based on the fact that oppositor claims title to the property to be sold, the court will hold the abeyance the authority to sell such property until the issue of ownership has been settled in an ordinary action, since the probate court generally has no jurisdiction to resolve issues of ownership in the administration proceedings (Pio Barreto Realty Dev., Inc. v. CA, et al., G.R. Nos. 62431-33, Aug. 31, 1984). Conditions of bond To pay the debts, expenses of administration and legacies within such time as the court directs. SECTION 4. WHEN COURT MAY AUTHORIZE SALE OF ESTATE AS BENEFICIAL TO INTERESTED PERSONS. DISPOSAL OF PROCEEDS The court may authorize the sale of whole or part of the estate if it appears beneficial to the heirs, devisees, legatees, and other interested persons. The proceeds shall be assigned to the persons entitled to the estate in the proper proportions. SECTION 5. WHEN COURT MAY AUTHORIZE SALE, MORTGAGE OR OTHER ENCUMBRANCE OF ESTATE TO PAY DEBTS AND LEGACIES IN OTHER COUNTRIES When it appears from records and proceedings of a probate court of another country that the estate of the deceased in foreign country is not sufficient to pay debts and expenses. SECTION 6. WHEN COURT MAY AUTHORIZE SALE, MORTGAGE OR
Successor of deceased executor or administrator may be given an extension not to exceed 6 months. RULE 89: SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT SECTION 1. PERSONALTY ORDER OF SALE OF
The court may order the whole or part of the PERSONAL estate to be sold if necessary: 1. To pay debts and expenses of administration; 2. To pay legacies; or 3. To cover expenses for the preservation of the estate. SECTION 2. WHEN COURT MAY AUTHORIZE SALE, MORTGAGE, OR OTHER ENCUMBRANCE OF REALTY TO PAY DEBTS AND LEGACIES THOUGH PERSONALTY NOT EXHAUSTED 1. If personal estate is NOT sufficient to pay debts, expenses of administration and legacies; or 2. If sale of personal estate may injure the business or other interests of those interested in the estate; and 3. If testator has NOT made sufficient provision for payment of such debts, expenses and legacies; 4. If deceased was in his lifetime under contract, binding in law to deed real property to beneficiary (Section 8); 5. If the deceased during his lifetime held real property in trust for another person (Section 9); Requisites: 1. Application of Executor/Administrator; 2. Written notice to heirs, devisees and legatees; and 3. Hearing. Note: Assets in the hands of executor/administrator will not be reduced to prevent a creditor from receiving his full debt or diminish his dividends. Note: Without notice and hearing, the sale, mortgage or encumbrance is void. Notice is mandatory.
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OTHER ENCUMBRANCE OF REALTY ACQUIRED ON EXECUTION OR FORECLOSURE SECTION 7. REGULATIONS FOR GRANTING AUTHORITY TO SELL, MORTGAGE, OR OTHERWISE ENCUMBER ESTATE Application for authority to sell, mortgage or encumber property of the estate may be denied by the court if: 1. The disposition is not for any of the reasons specified by the rules; OR 2. Under Section 3 Rule 89, any person interested in the estate gives a bond conditioned to pay the debts, expenses of administration and legacies. SECTION 8. WHEN COURT MAY AUTHORIZE CONVEYANCE OF REALTY WHICH DECEASED CONTRACTED TO CONVEY. NOTICE. EFFECT OF DEED SECTION 9. WHEN COURT MAY AUTHORIZE CONVEYANCE OF LANDS WHICH DECEASED HELD IN TRUST RULE 90: DISTRIBUTION AND PARTITION OF THE ESTATE Liquidation is the determination of all assets of the estate and payment of all debts and expenses. SECTION 1. WHEN ORDER DISTRIBUTION OF RESIDUE MADE FOR From FINALITY of order of distribution.
An order which determines the distributive shares of heirs is appealable. If not appealed, it becomes final. Effect of a final decree of distribution: A final order of distribution of the estate of deceased person vests title to the land of the estate in the distribute; and the only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence (Del Rosario Vda. De Alberto v. CA, 173 SCRA 436, May 18, 1989). Note: The probate court loses jurisdiction over the settlement proceedings only upon payment of all debts and expenses of the obligor and delivery of the entire estate to all the heirs (Guilas vs. Judge of CFI of Pampanga, L-26695, January 31, 1972). Conditions Precedent to be Complied with for the Issuance of an Order of Distribution 1. Showing that the executor, administrator or person interested in the estate applied for such; and 2. The requirements as to notice and hearing upon such application have been fulfilled. Prohibition Against Interference by Other Courts In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedents estate, a court should not interfere with probate proceedings pending in a co-equal court. SECTION 2. QUESTIONS AS ADVANCEMENT TO BE DETERMINED TO
General Rule: ORDER OF DISTRIBUTION shall be made AFTER payments of all debts, funeral expenses, expenses for administration, allowance of widow and inheritance tax is effected. Except: If the distributees or any of them gives a bond conditioned for the payment of said obligation, the ORDER OF DISTRIBUTION may be made even BEFORE payments of all debts, etc. In these proceedings, the court shall: 1. Collate; 2. Determine heirs; and 3. Determine the share of each heir. A separate action for the declaration of heirs is not necessary.
SECTION 3. BY WHOM EXPENSES OF PARTITION PAID 1. By the executor or administrator if he has sufficient effects in his hands and when equitable and not inconsistent with the testators intention; otherwise, 2. By the parties in proportion to their respective shares or interest in the premises. Note: This is one of the instances where writ of execution may be issued.
When is title vested?
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the respondent may file a MOTION TO DISMISS the petition (Herrera, p.227). SECTION 3. HEARING AND JUDGMENT RULE 91: ESCHEATS SECTION 1. WHEN PETITION FILED AND BY WHOM Requisites: 1. Publication of the order; 2. Person died intestate; 3. He is seized of real/personal property in the Philippines; 4. He left no heir or person entitled to such property; and 5. There is no sufficient cause to the contrary. To Whom Will the Property Escheated be Assigned: 1. If personal property, to the municipality or city where he last resided; 2. If real property, to the
SECTION 4. RECORDING THE ORDER OF PARTITION OF ESTATE
Escheat is the proceeding whereby the real and personal property of a deceased person in the Philippines, who dies without leaving any will or legal heirs, become the property of the State upon his death. Three Instances of Escheats 1. When a person dies intestate leaving no heir but leaving property in the Philippines (Section 1); 2. REVERSION PROCEEDINGS Sale in violation of the Constitutional provision; 3. Unclaimed Balances Act (dormant accounts for 10 years shall be escheated). What is the basis of the states right to receive property in escheat? Order of succession under the Civil Code, the STATE is the last heir of the decedent. Who files: Solicitor General or his representative in behalf of the Philippines. Where to file: RTC of last residence or of location of his estate in the Philippines if he is a non-resident. Requisites for filing of petition: 1. That a person died intestate; 2. That he left no heirs or persons by law entitled to the same; and 3. The deceased left properties. SECTION 2. ORDER FOR HEARING If petition is sufficient in FORM and SUBSTANCE the court shall: 1. Make an ORDER OF HEARING hearing shall not be more than 6 MONTHS AFTER ENTRY OF ORDER; 2. Direct the publication of a copy of the order at least once a week for 6 CONSECUTIVE WEEKS. Remedy of Respondent When the petition does not state facts which entitle the petitioner to the remedy prayed for,
municipality or city where the property is situated;

3. If deceased never resided in the Philippines, to the municipality or city where the property may be found. The court, at the instance of an interested party, or on its own motion, may order the establishment of a PERMANENT TRUST, so that only the income from the property shall be used. The right to escheat may be waived expressly or impliedly.
SECTION 4. WHEN AND BY WHOM CLAIM TO ESTATE FILED Who may file a claim on the escheated property: Any devisee, legatee, heir, widow/er, or other person entitled thereto. When to file: Within 5 years from date of judgment, otherwise FOREVER BARRED. SECTION 5. ESCHEATS OTHER ACTIONS FOR
Actions for reversion of property alienated in violation of Constitution or any statute. These shall be governed by Rule 91. HOWEVER, the action must be instituted in the province where the land lies in whole or in part.
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Period of Filing Claim: Within 5 YEARS from the date of judgment. (Under ART. 1014 of the Civil Code. THE 5-YEAR PERIOD IS RECKONED FROM THE DATE THE PROPERTY WAS DELIVERED TO THE STATE and further provides that if the property had been sold, the municipality or city shall be accountable only for such part of the proceeds as may not have been lawfully spent.) By whom: A person with interest. Proceedings in Escheat cannot be converted into Settlement of the Estate. For the distribution of the estate of the decedent to be instituted, the proper petitions must be presented and the proceedings should comply with the requirements of the Rule. An escheat court does not have the power to order or proceed with, the distribution of the estate of a decedent in escheat proceedings and adjudicate the properties to the oppositors (Municipality of Magalloon, Negros Occ. V. Ignatius Henry Bezore, G.R. No. L- 14157, Oct. 26, 1960). Note: Escheat under the Unclaimed Balances Acts must be filed in RTC of the place where the dormant deposits are found. General Guardians and Guardianship Note: Guardianship of minors is now governed by the Rule on Guardianship of Minors (A.M. No. 03-02-05-SC) which took effect on May 1, 2003 while guardianship of incompetents who are not minors is still governed by the provisions of the Rules of Court on Guardianship (Rule 92 to Rule 97). Guardianship is the power of protective authority given by law and imposed on an individual who is free and in enjoyment of his rights over one whose weakness on account of his age or other infirmity renders him unable to protect himself (Herrera, p. 235). Basis: Parens Patriae Purpose: To safeguard the right and interests of minors and incompetent persons. Guardian is a person in whom the law has entrusted the custody and control of the person or estate or both of an infant, insane or other person incapable of managing his own affairs (Herrera, p. 235).
Kinds of Guardians A. According to scope: 1. GUARDIAN OF THE PERSON - one who has been lawfully invested with the care of the person of the minor; 2. GUARDIAN OF THE PROPERTY one appointed to have the management of the estate of a minor or incompetent; 3. GENERAL GUARDIAN one appointed to have the care and custody of the person and of all the property of the ward. (Herrera, p. 237) B. According to constitution: 1. LEGAL GUARDIAN - without need of judicial appointment;
2.
3.
GUARDIAN AD LITEM - appointed by courts of justice to prosecute or defend a minor, insane or person declared to be incompetent, in an action in court. JUDICIAL GURDIAN - appointed in pursuance to law, as guardian for insane persons, prodigals, minors, etc. (Herrera, p. 237).
Procedure for Guardianship Under Rules 92-97

Petition for the Appointment of a Guardian
Court order fixing the Hearing of the petition
Notice of the Hearing
Hearing and Appointment of the Guardian
Service of Judgment on the Local Civil Registrar
Filing of Bond by the Guardian
Issuance of Letters of Guardianship
RULE 92: VENUE
Termination of Guardianship
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hospitalized. (Sec. 2 AM 03-02-05-SC) leper; (Sec. 1) 5. Any one interested in the estate of a nonresident incompetent. (Sec. 6)
SECTION 1. PROCEEDINGS
WHERE
TO
INSTITUTE
Jurisdiction: Incompetents RTC of his residence or where his property is located in case of non-residents (Sec. 1). SECTION 2. MEANING OF THE WORD INCOMPETENT Incompetent includes: (CLeP DUN) 1. Those suffering from penalty of Civil interdiction; 2. Hospitalized Lepers; 3. Prodigals; 4. Deaf and dumb who are unable to read and write; 5. Those of Unsound mind though they have lucid intervals; 6. Persons Not of unsound mind but by reason of age, disease, weak mind and other similar causes cannot, without outside aid, take care of themselves and manage their property. SECTION 3. TRANSFER OF VENUE RULE 93: APPOINTMENT OF GUARDIANS SECTION 1. WHO MAY PETITION FOR APPOINTMENT OF GUARDIAN FOR RESIDENT 1. Any relative; 2. Friend; or 3. Other person on behalf of the resident incompetent who has no parents or lawful guardian; or 4. The Director of Health in favor of an insane person who should be hospitalized or in favor of an isolated leper.
Incompetents Who Are Not Minors 1. Any relative; 2. Friend; or 3. Other person on behalf of the resident incompetent who has no parents or lawful guardian; or 4. The Director of Health in favor of an insane person who should be hospitalized or in favor of an isolated
Note: The father and the mother shall jointly exercise legal guardianship over the person and property of their minor without the necessity of a court appointment. In such case, this Rule shall be suppletory to the provisions of the Family Code on Guardianship (Sec 1, AM 03-02-05-SC). SECTION 2. CONTENTS OF PETITION 1. The jurisdictional facts; 2. The incompetency rendering the appointment necessary or convenient; 3. The names, ages, and residences of the relatives of the incompetent, and of the persons having him in their care; 4. The probable value and character of his estate; 5. The name of the person for whom letters of guardianship are prayed. Note: The petition involving minors is required to be VERIFIED and accompanied by certification against FORUM SHOPPING while that involving incompetent must be verified only. HOWEVER, no defect in the petition or verification shall render void the issuance of letters of guardianship.
Minor a. The jurisdictional facts; b. The name, age and residence of the prospective ward; c. The ground rendering the appointment necessary or convenient; d. The death of the parents of the minor or the termination, deprivation or suspension of their parental authority; e. The remarriage of the minors surviving parent; f. The names, ages, and residences of relative within the 4th civil degree of minor, and of persons having him in their care and custody; Incompetents Who Are Not Minors a. The jurisdictional facts; b. The incompetency rendering the appointment necessary or convenient; c. The names, ages, and residences of the relatives of the incompetent, and of the persons having him in their care; d. The probable value and character of his estate; e. The name of the person for whom letters of guardianship are prayed. (Sec. 2 Rule 93)
Minor 1. 2. Any relative; or Other person on behalf of a minor; or 3. The minor himself if 14 years of age or over; or 4. The Secretary of Social Welfare and Development AND by the Secretary of Health in case of an insane minor who needs to be
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g. The probable value, character and location of the property of the minor; and h. The name, age and residence of the person for whom letters of guardianship are prayed. (Sec. 7, AM 03-02-05-SC)
Ancillary Guardianship refers to the guardianship in a state other than that in which guardianship is originally granted (Herrera, p. 276). SECTION 7. PARENTS AS GUARDIANS This provision may be deemed to have been modified by the provisions of the Family Code on Guardianship (Herrera, vol. III-A, p. 277, 2005 ed.). SECTION 8. SERVICE OF JUDGMENT Civil Registrar of the place where the minor or incompetent resides or where the property is situated shall be served with a copy of the judgment. RULE 94: BONDS OF GUARDIANS SECTION 1. BOND TO BE GIVEN BEFORE ISSUANCE OF LETTERS. AMOUNT. CONDITIONS Before an appointed guardian enters upon the execution of his trust, he shall give a BOND. Conditions: (IFAP) 1. To make and return to the court, within three (3) months, a true and complete INVENTORY of all the estate of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for him; 2. To FAITHFULLY execute the duties of his trust, to manage and dispose of the estate according to these rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward; (emp) 3. To Render a true and just ACCOUNT of all the estate of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by these rules and such other times as the court directs; and at the expiration of his trust to Settle his accounts with the court and Deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; (rsd) 4. To PERFORM all orders of the court by him to be performed. Purpose of the Bond: For the protection of the property of the minor or incompetent to the end that he may be assured of an honest administration of his funds (Herrera, p. 282).
SECTION 3. COURT TO SET TIME FOR HEARING. NOTICE THEREOF To Whom Notice Served: 1. Persons mentioned in the petition residing in the Philippines; 2. The incompetent. There is NO requirement for PUBLICATION, only notice. Except in case of nonresident incompetent. HOWEVER, service of NOTICE upon the persons mentioned in the petition, including the incompetent who is not a minor, is mandatory and jurisdictional. If the person is insane, service of notice upon the Director of Hospital where he is hospitalized is sufficient.
SECTION 4. OPPOSITION TO PETITION Must be in writing; need not be verified Grounds: 1. COMPETENCY of alleged incompetent; 2. UNSUITABILITY of the person for whom letters are prayed. SECTION 5. HEARING AND ORDER FOR LETTERS TO ISSUE At the hearing: 1. The alleged incompetent must be present if able to attend; 2. It must be shown that the required notice has been given. SECTION 6. WHEN AND HOW GUARDIAN FOR NONRESIDENT APPOINTED. NOTICE Any relative, friend or any one interested in the estate of a person liable to be put under guardianship may file a petition for guardianship over the property of such person. Notice shall be given through publication or otherwise.
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SECTION 2. ORDER TO SHOW CAUSE THEREUPON Next of Kin pertains to those relatives who are entitled to share in the estate of the ward under the Law on Intestate Succession including those who inherit per stirpes or by right of representation. Note: Notice to next of kin and interested persons is JURISDICTIONAL. SECTION 3. HEARING ON RETURN OF ORDER. COSTS SECTION 4. CONTENTS OF ORDER FOR SALE OR ENCUMBRANCE, AND HOW LONG EFFECTIVE The Order of Sale must specify the grounds. Duration of the Order of Sale and Encumbrance of Property: Within 1 year from the granting of the order. It is presumed that if the property was not sold within 1 year, the ward has sufficient income. The guardian, among others, cannot acquire by purchase even at a public or judicial auction, either in person or through the mediation of another, the property of the person or persons who may be under his guardianship. (Art. 1491, NCC) The authority to sell or encumber shall not extend beyond 1 year unless renewed by the court. Appeal is the proper remedy against an order of the court authorizing the sale of the wards property (Lopez vs. Teodoro, 86 Phil 499, G.R. No. L- 3071, May 29, 1950).
Necessity of the Bond: When required by statutes to give a bond, no person can qualify and act as guardian without complying with this condition precedent (Herrera, p. 282). SECTION 2. WHEN NEW BOND MAY BE REQUIRED AND OLD SURETIES DISCHARGED SECTION 3. BONDS ACTIONS THEREON TO BE FILED.
In case of breach of the bonds conditions, the bond may be prosecuted in the same proceeding or in a separate action, for the use and benefit of the ward or of any person legally interested in the estate. The bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulfilled. The mere fact that defendant was removed as guardian did not relieve her or her bondsmen from liability during the time she was duly acting as such guardian (Guerrero vs. Teran, 13 Phil 212). RULE 95: SELLING AND ENCUMBERING PROPERTY OF WARD
SECTION 1. PETITION OF GUARDIAN FOR LEAVE TO SELL OR ENCUMBER ESTATE A. Grounds 1. When the income of estate is insufficient to maintain the ward and his family or; 2. When it appears that it is for the benefit of the ward. B. Requirements 1. Petition must be verified; 2. Notice must be given to the next of kin; and 3. Hearing so that they may show cause why petition should not be granted. Sale of the wards realty by the guardian without authority from the court is VOID. Under the law, a parent acting merely as legal administrator of the property of his/her children, does NOT have the power to dispose of, or alienate, the property of said minor without judicial approval (Lindain vs. CA, GR No. 95305, Aug. 20, 1992).
Note: There being a presumption that the sale of the wards estate is valid, the same cannot be attacked collaterally in the registration proceedings. A separate action to avoid or rescind the sale on the grounds specified by law should have been filed (Margate vs. Rabacal, L-14302, April 30, 1963).
SECTION 5. COURT MAY ORDER INVESTMENT OF PROCEEDS AND DIRECT MANAGEMENT OF ESTATE
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Secs. 1 & 2 of this Rule relate only to the investment of proceeds from sale or encumbrance of the estate, and investment of other funds is covered by Section 5 of this Rule (Philippine Trust Co. v. Ballesteros, 98 Phil. 1007). RULE 96: GENERAL POWERS AND DUTIES OF GUARDIANS SECTION 1. TO WHAT GUARDIANSHIP SHALL EXTEND Conflicts regarding the ownership or title to the property in the hands of the guardian in his capacity as such should be litigated in a separate proceeding, the court in guardianship proceeding being solely concerned with the wards care and custody and proper administration of his properties ( Viloria vs. Administrator of Veteran Affairs, L-9620, June 28, 1957). SECTION 2. GUARDIAN TO PAY DEBTS OF WARD Order of Liability of wards property: 1. Personal estate and income of real estate; 2. Real estate SECTION 3. GUARDIAN TO SETTLE ACCOUNTS, COLLECT DEBTS AND APPEAR IN ACTIONS FOR WARD SECTION 4. ESTATE TO BE MANAGED FRUGALLY AND PROCEEDS APPLIED TO MAINTENANCE OF WARD The guardian is bound to exercise such diligence and prudence as reasonable men ordinarily employ in the conduct of their own affairs and will be held liable for any loss which results from his failure to exercise such prudence and diligence (Herrera, p. 301). SECTION 5. GUARDIAN MAY BE AUTHORIZED TO JOIN IN PARTITION PROCEEDINGS AFTER HEARING Requisites: 1. Hearing; 2. Notice to relatives of the ward; and 3. Careful investigation as to the necessity and propriety of the proposed action. SECTION 6. PROCEEDING WHEN PERSON SUSPECTED OF EMBEZZLING OR CONCEALING PROPERTY OF WARD Purpose: To secure evidence from persons suspected of embezzling, concealing or conveying away any property of the ward so as to enable the guardian to institute the appropriate action to obtain the possession of and secure title to said property ( Cui vs. Piccio, L-5131, July 31, 1952). Note: In guardianship proceedings, the court CANNOT actually order the delivery of the wards property found to be embezzled, concealed or conveyed except when the title of the ward to the same is clear and indisputable (Cui vs. Piccio, L-5131, July 31, 1952). SECTION 7. INVENTORIES ACCOUNTS OF GUARDIANS, APPRAISEMENT OF ESTATE AND AND
SECTION 8. WHEN GUARDIANS ACCOUNTS PRESENTED FOR SETTLEMENT, EXPENSES AND COMPENSATION ALLOWED The guardian shall be allowed the amount of his reasonable expenses incurred in the execution of his trust and such compensation for his services, not exceeding 15% of the net income of the ward. General Powers and Duties of Guardians (CAPSIM) 1. To have the Care and custody of the person of the ward, and the management of his estate, or the management of the estate only, as the case may be (Sec. 1); 2. Pay the debts of the ward (Sec. 2); 3. Settle accounts, collect debts and appear in actions for ward (Sec. 3); 4. Manage the estate of the ward frugally, and apply the proceeds to maintenance of the ward (Sec. 4); 5. Render verified Inventory within 3 MONTHS after his appointment and annually thereafter, and upon application of interested persons (Sec. 7); and 6. Render to court for its approval an Accounting of the property for 1 YEAR from his appointment and every year thereafter, and upon application of interested persons (Sec. 8).
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RULE 97: TERMINATION OF GUARDIANSHIP SECTION 1. PETITION THAT COMPETENCY OF WARD BE ADJUDGED, AND PROCEEDINGS THEREUPON Who may file: 1. Person who incompetent; 2. His guardian; 3. Relative; or 4. Friend. has been declared 4. Failure to render an account or make a return within 30 days after it was due. The remedy of a guardian from the order of removal is appeal ( Olarte vs. Enriquez, L-16098, October 31, 1960).
A guardian may be allowed to resign when it appears proper to allow the same. SECTION 3. OTHER TERMINATION OF GUARDIANSHIP SECTION 4. RECORD TO BE KEPT BY JUSTICE OF THE PEACE OR MUNICIPAL JUDGE SECTION 5. SERVICE OF JUDGMENT
Estate/Intestate Court Rules 73-90 STATUTE OF NONCLAIMS Can pass upon the Merits of the claim Sale of PERSONAL properties first (Rule 89) Bond DEFEATS the Petition for Authority to Sell PUBLICATION (Rule 89) INDEFINITE effectivity of Authority to Sell May appoint a SPECIAL Administrator Guardianship Court Rules 92-97 NO Statute of NonClaims Cannot pass upon the merits of the claim Sale of PERSONAL or REAL properties first (Rule 95) Bond DOES NOT DEFEAT the Petition for Authority to Sell PERSONAL NOTICE (Rule 95) ONE (1) YEAR effectivity of Authority to Sell No such thing as a special guardian (remedy: Appeal from order appointing the guardian)
Petition shall be verified by oath and shall state that such person is then competent. Grounds for termination: Competency of the ward has been judicially determined; Guardianship is no longer necessary; Death of guardian; Death of ward.
Minor Incompetent
1. 2. 3. 4.
1. The ward has

come of age; or 2. Has died; (Sec. 25, AM 03-0205-SC)
1. Competency of
the ward has been judicially determined; Guardianship is no longer necessary; Death of guardian; Death of ward.
2. 3. 4.
Note: Notice of hearing of the petition is NOT intended as a personal service process in the sense necessary to give the court jurisdiction over the ward (In Re Guardianship of Incompetent Jose de Inchausti, 40 Phil 682). Who may oppose: 1. Guardian; 2. Relative of the ward; or 3. Any other person, in the discretion of the court. SECTION 2. WHEN GUARDIAN REMOVED OR ALLOWED TO RESIGN. NEW APPOINTMENT Grounds for Removal of a Guardian 1. Insanity; 2. Incapability or unsuitability to discharge functions; 3. Wastage or mismanagement of the property of the ward; and
SALIENT FEATURES OF THE RULE ON GUARDIANSHIP OF MINORS (A.M. No. 03-02-05-SC, effective May 1, 2003) SECTION 1. RULE APPLICABILITY OF THE
Rule applies to petitions for Guardianship over the person or property, or both of a minor. The father and the mother shall jointly exercise legal guardianship over the person and property of their minor without the necessity of a court appointment. In
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such case, this Rule shall be suppletory to the provisions of the Family Code on Guardianship. Who May Petition (Sec.2) 1. Any relative; or 2. Other person on behalf of a minor; or 3. The minor himself if 14 years of age or over; or 4. The Secretary of Social Welfare and Development AND by the Secretary of Health in case of an insane minor who needs to be hospitalized Where to File Petition (Sec.3) Family Court of the Province or the city where the minor actually resides. If he resides in a foreign country, with the Family Court of the Province or city where his property or any part thereof is situated. Grounds of Petition (Sec.4) (D SuRe Best) Death, continued Absence, or Incapacity or of his parents; (dai) Suspension, Termination or Deprivation of parental authority; (std) Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority; When the Best interests of the minor so require. court shall select any of them taking into account all relevant considerations; 2. The OLDEST BROTHER OR SISTER of the minor over twenty-one years of age, unless unfit or disqualified; 3. The ACTUAL CUSTODIAN of the minor over twenty-one years of age, unless unfit or disqualified; and 4. Any OTHER PERSON, who in the sound discretion of the court would serve the best interests of the minor. Contents of Petition (Sec.7) 1. The jurisdictional facts; 2. The name, age and residence of the prospective ward; 3. The ground rendering the appointment necessary or convenient; 4. The death of the parents of the minor or the termination, deprivation or suspension of their parental authority; 5. The remarriage of the minors surviving parent; 6. The names, ages, and residences of relative within the 4th civil degree of minor, and of persons having him in their care and custody; 7. The probable value, character and location of the property of the minor, and the name, age and residence of the person for whom letters of guardianship are prayed. Time and Notice of Hearing (Sec. 8) Notice must be given to persons named in the petition and to the minor if over 14 years of age. Case Study Report (Sec. 9) The court shall order a social worker to conduct a case study of the minor and all prospective guardians and submit his report and recommendation (3 days before hearing) to the court for its guidance before the scheduled hearing. Opposition to Petition (Sec.10) Must be in writing; need not be verified Grounds: 1. MAJORITY of alleged minor; 2. UNSUITABILITY of the person for whom letters are prayed
1. 2. 3. 4.
Considerations in Appointing Guardians (Sec. 5) (MP FRALA) 1. Moral character; 2. Physical, mental and psychological condition; 3. Financial status; 4. Relationship of trust with the minor; 5. Availability to exercise the powers and duties of a guardian for the full period of the guardianship; 6. Lack of conflict of interest with the minor; 7. Ability to manage the property of the minor. Who May Be Appointed Guardian of the Person or Property, or Both, of a Minor (Sec.6) In default of parents or a court-appointed guardian, the court may appoint a guardian of a minor, observing as far as practicable, the following ORDER OF PREFERENCE: (G-BAO) 1. The SURVIVING GRANDPARENT and in case several grandparents survive, the
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Petition to Sell or Encumber Property (Sec.19) Grounds: 1. When income of estate is insufficient to maintain and educate ward when a minor; or 2. When it appears that it is for the benefit of the ward. Grounds for Removal or Resignation of Guardian (Sec.24) Guardian: 1. becomes insane or otherwise incapable of discharging his trust; 2. is found thereafter to be unsuitable; 3. has wasted or mismanaged the property of the ward; 4. has failed to render an account or make a return 30 days after it was due. Grounds for Termination of Guardianship (Sec. 25) 1. The ward has come of age; or 2. Has died. Effect of the Rule (Sec.27) This Rule amends Rules 92-97 inclusive if the Rules of Court on guardianship of minors. Guardianship of incompetents who are not minors shall continue to be under the jurisdiction of the regular courts and governed by the Rules of Court. QUICK GUIDE: RULE ON GUARDIANSHIP OF MINORS Petition is VERIFIED with certificate of non-forum shopping Hearing may be closed to the public. There is a BOND, the conditions are the same as those in Rule 94. Parents to post a bond if the market value of the childs properties or income exceeds P50,000 and the bond shall not be less than 10% of the value of the properties or incomeVERIFIED petition for the APPROVAL of the bond and docketed as summary special proceedings. The general duties of the guardian are the same as those in Rule 96. Court may authorize disbursements not to exceed 10% of the net income of the ward. The authority to sell or encumber wards properties does not exceed 1 year unless renewed. No motion for removal of guardian unless the latter has submitted proper accounting and such is approved by the court. Guardianships termination may be motu proprio or by a verified motion by any person allowed to file a petition for guardianship on the grounds of majority and/or death of the ward (in case of death, notify the court within 10days). Local Civil Registrar AND Register of Deeds to enter judgments and orders Effectivity: May 1, 2003. RULE 98: TRUSTEES
E x e c u t o r / A d m i n i s t r a t o r
Accounts are NOT under oath and except for initial and final submission of accounts, they shall be filed only at such times as may be REQUIRED by the court. Court that has jurisdiction may be MTC or RTC.
Guardian
Accounts must be UNDER OATH and filed ANNUALLY.
Accounts must be UNDER OATH and filed ANNUALLY.
Court which has jurisdiction is RTC (incompetent) or FAMILY COURT (minors).
May sell, encumber or mortgage property
May sell or encumber property of ward
Court which has jurisdiction is RTC if appointed to carry into effect provisions of a will; if trustee dies, resigns or removed in a contractual trust, RTC has jurisdiction in the appointment of new trustee. May sell or encumber property of
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if it is necessary for the purpose of paying debts, expenses of administration or legacies, or for the preservation of property or if sale will be beneficial to heirs, legatees or devisees. (Upon APPLICATION to the court with written NOTICE to the heirs.) Order of sale has NO TIME LIMIT. Appointed by the court to SETTLE estate of decedent. if income of estate is insufficient to maintain ward and his family and educate ward or the sale or encumbrance is for the benefit of ward upon ORDER of the court. estate held in trust if necessary or expedient upon ORDER of the court.
Order of sale is valid for only 1 YEAR after grant of the same. Appointed as GUARDIAN.
Order of sale has NO TIME LIMIT. Appointed to CARRY INTO EFFECT the provisions of a will or written instrument (contractual trust). May be EXEMPTED from filing bond if provided in the will or if beneficiaries requested exemption. Trusteeship is terminated upon TURNING OVER THE PROPERTY to beneficiary after expiration of trust (period may be provided for in the will or trust contract). NO OBLIGATION to pay debts of beneficiary or trustor.
NOT EXEMPTED from filing bond even if such exemption is provided in the will (bond is only conditioned upon payment of debts). Services of executor or administrator is terminated UPON PAYMENT OF DEBTS of the estate and distribution of property to heirs.
Must ALWAYS FILE A BOND.
SECTION 1. APPOINTED
WHERE
TRUSTEE
Jurisdiction: The RTC in which the will was allowed, if it be a will allowed in the Philippines, otherwise by the RTC of the province in which the property, or some portion thereof, affected by the trust, is situated. A trustee is necessary to carry into effect: 1. A will where the testator omitted to appoint a trustee in the Philippines (Testamentary Trust); and 2. Other written instruments where the trustee therein declines, resigns, dies, or is removed before accomplishment of trust (Contractual Trust). SECTION 2. APPOINTMENT AND POWERS OF TRUSTEE UNDER WILL. EXECUTOR OF FORMER TRUSTEE NEED NOT ADMINISTER TRUST No person succeeding to the trust as executor or administrator of a former trustee shall be required to accept such trust. Note: Notice to and consent of the beneficiary are NOT essential for the creation of the trust (De Leon vs. Molo-Peckson, L17809, December 29, 1962). SECTION 3. APPOINTMENT AND POWERS OF NEW TRUSTEE UNDER A WRITTEN INSTRUMENT When a New Trustee Appointed:
MUST PAY debts of estate.
the the
Guardianship is terminated upon attainment of age of MAJORITY of the minor or upon gaining COMPETENCY in the case of an incompetent (need court order for the latter). MUST PAY the debts of the ward.
Procedure for Appointment of Trustees

Allowance of the Instrument creating the trust (Probate of Will)
Petition by the Executor/ Administrator or the Person Appointed as Trustee in the Instrument
Under 98
Rule
Appointment of the Trustee by the court
Notice to all interested persons
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Filing of Bond by the Trustee

When a trustee under a written instrument declines, resigns, dies or is removed before the objects of the trust are accomplished AND no adequate provision is made in such instrument supplying the vacancy. SECTION 4. PROCEEDINGS TRUSTEE APPOINTED ABROAD WHERE settlement, to the person or persons entitled thereto. When the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return of an inventory if one has already been filed. SECTION 7. APPRAISAL. COMPENSATION OF TRUSTEE SECTION 8. REMOVAL OR RESIGNATION OF TRUSTEE Requisites: 1. Petition filed by parties interested; 2. Notice to trustee; and 3. Hearing. Who May interested. Petition: Parties beneficially
When land in the Philippines is held in trust for a resident by a trustee who derives his authority from abroad, such trustee must petition the RTC where the land is situated, otherwise, the trust will be vacant and a new trustee will be appointed. When a trust is created abroad for property in the Philippines, judicial approval is still needed though trustor is alive. SECTION 5. TRUSTEE MUST FILE BOND Neglect of trustees to file a bond will be interpreted by the court as resignation or decline to accept the trust. However, he may be exempted from bond when requested by: a. Testator; b. All persons beneficially interested in the trust. Nonetheless, the court may cancel such exemption anytime. SECTION 6. CONDITIONS INCLUDED IN BOND (IMAS) 1. That the trustee will make and return to the court, at such time as it may order, a true Inventory of all the estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge; 2. That he will Manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed; 3. That he will render upon oath at least once a year until his trust is fulfilled a true Account of the property in his hands and of the management and disposition thereof, and such other accounts as the court may order; 4. That at the expiration of his trust he will Settle his accounts in court and pay over and deliver all the estate remaining in his hands, or due from him on such
beneficially
Grounds: 1. Removal appears essential in the interest of petitioners; 2. Insanity; 3. Incapability of discharging trust; 4. Unsuitability. A trustee may resign his trust if it appears to the court proper to allow such resignation. SECTION 9. PROCEEDINGS FOR SALE OR ENCUMBRANCE OF TRUST ESTATE The Rules on Sale and Encumbrance of Trust Estate shall conform as nearly as may be to the provisions on Sale and Encumbrance by Guardians. Adoption
Judicial Adoption Proper in DOMESTIC adoption. Under the jurisdiction of the FAMILY COURT (where adopter resides). Extrajudicial Adoption Proper in INTERCOUNTRY adoption. Under the jurisdiction of the INTER-COUNTRY ADOPTION BOARD (but a petition may also be filed with the FAMILY COURT [where adoptee resides] which will turn it over to ICAB). Trial custody for 6 months is IN THE COUNTRY OF ADOPTER and is mandatory before a
Trial custody is IN THE PHILIPPINES for 6 months (but court may reduce period or exempt parties from
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trial custody). PETITION FOR ADOPTION may include PRAYER for change of name, or declaration that child is a foundling, abandoned, dependent or neglected child. ADOPTEE: Legitimate or illegitimate CHILD of a spouse or even a person who is OF LEGAL AGE may be adopted. ANNEXES: Income tax returns, police clearance, character reference, family picture, birth certificate of adopter are NOT REQUIRED to be annexed in the petition. Petition must be PUBLISHED at least once a week for 3 successive weeks in a newspaper of general circulation in the province or city where court is situated. Application is through a PETITION IN THE FC. Decree of adoption issued by FC which has jurisdiction over case. decree of adoption is issued (expenses are borne by the adopter). PETITION FOR ADOPTION only.
Purpose of Adoption: The promotion of the welfare of the child and the enhancement of his opportunities for a useful and happy life, and every intendment is sustained to promote that objective. Adoption is strictly personal between the adopter and the adopted (Teotico vs. Del Val, L-18753, March 26, 1956). Adoption is a privilege not innate or fundamental, but rather a right created by statute. It is a privilege which is governed by the states determination of what is for the best welfare of the child ( Lahum v. Sibulo, 2003).
ADOPTEE: Only a CHILD LEGALLY AVAILABLE for domestic adoption may be the subject of intercountry adoption. ANNEXES: Income tax returns, police clearance, character reference, family picture, birth certificate of adopter are REQUIRED to be annexed in the petition. NO PUBLICATION requirement.
RULES ON DOMESTIC ADOPTION (Secs. 1-25 A.M. No. 02-6-02)

Application may be through AGENCY IN FOREIGN COUNTRY and then submit to ICAB. Decree of adoption issued by a FOREIGN COURT.
Procedure for Domestic Adoption under AM-02-6-02-SC

Petition for Domestic Adoption
Order of Hearing by the court
Note: The provisions of the Rules of Court on Adoption have been amended by the Domestic Adoption Act of 1998 and the Intercountry Adoption Act of 1995. Sec. 6 of Rule 99 was already amended by Administrative Circular No. 03-04-04 while Sec. 7 of Rule 99 was amended by Administrative Circular No. 02-1-19-SC. Effective August 22, 2002, there is a new Rule on Adoption. Nature and Concept of Adoption Adoption is a juridical act, a proceeding IN REM, which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.
Child and Home Study Reports by the Social Worker
Hearing on the Petition for Adoption
Supervised Trial Custody
Adoption Decree issued by the court
Who May Adopt (Sec.4) 1. Any Filipino Citizen a. Of legal age; b. In possession of full civil capacity and legal rights; c. Of good moral character;
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d. Has not been convicted of any crime involving moral turpitude; e. Emotionally and psychologically capable of caring for children; f. At least 16 YEARS older than the adoptee; and g. In a position to support and care for his/her children in keeping with the means of the family. 2. Any alien possessing the same qualifications as above, PROVIDED: a. That his country has diplomatic relations with the PHILIPPINES; b. That he has been living in the Philippines for at least 3 CONTINUOUS YEARS prior to the filing of the application for adoption; c. Maintains residence until the adoption decree is entered; d. Certified to have legal capacity to adopt by his country; and e. That his government allows the adoptee to enter his country as his adopted child. 3. The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities. The requirement of 16 YEARS difference between the adopter and the adoptee MAY BE WAIVED if the adopter is: 1. The biological parent of the adoptee; 2. The spouse of the adoptees parent. The requirement on residency and certification of aliens qualification to adopt may be WAIVED for the following: 1. The adopter is a former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity; 2. One who seeks to adopt the legitimate child of his Filipino spouse; 3. One who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the 4 th degree of consanguinity or affinity of the Filipino spouse. Who May Be Adopted (Sec. 5) 1. Any person below eighteen (18) years of age who has been judicially declared available for adoption OR voluntarily committed to DSWD; 2. The legitimate child of one spouse, by the other spouse; 3. An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy; 4. A person of legal age regardless of civil status, if, prior to the adoption, said person has been consistently considered and treated by the adopters as their own child since minority; 5. A child whose adoption has been previously rescinded; 6. A child whose biological or adoptive parents have died, but no proceedings shall be initiated within 6 months from the time of death of said parents; 7. A child not otherwise disqualified by law or these rules. A Child Legally Available for Adoption It refers to a child who has been voluntarily or involuntarily committed to the DSWD or to a duly licensed and accredited child-placing or child caring agency, freed of the parental authority of his biological parents, or in case or rescission of adoption, his guardian or adopter/s.
Two (2) Ways to Commit a Child 1. Administrative/Voluntary In this case, the parent or guardian of the child voluntarily committed him to the DSWD or any duly licensed child placement or child caring agency. The child must be surrendered in WRITING. Such written instrument must be notarized and signed in the presence of an authorized representative of the department after counseling has been made to encourage the parents to keep the child (Sec. 5, AM 02-1-19-SC). 2. Judicial/Involuntary Follow the procedure in AM 02-1-19-SC (see page 345). General rule: Husband and wife shall jointly adopt. Exceptions: 1. If one spouse seeks to adopt the legitimate child of the other; 2. If one spouse seeks to adopt his own illegitimate son/daughter, provided that the other spouse has signified his consent thereto; 3. If the spouses are legally separated from each other.
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Venue (Sec.6) Family Court where the prospective adoptive parents reside. Contents of the Petition (Sec.7) 1. If the adopter is a Filipino citizen, the petition shall allege the following: a. The jurisdictional facts; b. That the petitioner is of legal age, in possession of full civil capacity and legal rights; is of good moral character; has not been convicted of any crime involving moral turpitude; is emotionally and psychologically capable of caring for children; is at least sixteen (16) years older than the adoptee, unless the adopter is the biological parent of the adoptee or is the spouse of the adoptees parent; and is in a position to support and care for his children in keeping with the means of the family and has undergone pre-adoption services as required by Section 4 of Republic Act No. 8552. 2. If the adopter is an alien, the petition shall allege the following: a. The jurisdictional facts; b. Sub-paragraph 1(b) above; c. That his country has diplomatic relations with the Republic of the Philippines; d. That he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country and his government allows the adoptee to enter his country as his adopted child and reside there permanently as an adopted child; and e. That he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition and he maintains such residence until the adoption decree is entered. The requirements of certification of the aliens qualification to adopt in his country and of residency may be waived if the alien: i. is a former Filipino citizen who seeks to adopt a relative within the fourth degree of consanguinity or affinity; or ii. seeks to adopt the legitimate child of his Filipino spouse; or iii. is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth degree of consanguinity or affinity of the Filipino spouse. 3. If the adopter is the legal guardian of the adoptee, the petition shall allege that guardianship had been terminated and the guardian had cleared his financial accountabilities. 4. If the adopter is married, the spouse shall be a co-petitioner for joint adoption except if: a. one spouse seeks to adopt the legitimate child of the other; or b. if one spouse seeks to adopt his own illegitimate child and the other spouse signified written consent thereto; or c. if the spouses are legally separated from each other. 5. If the adoptee is a foundling, the petition shall allege the entries which should appear in his birth certificate, such as name of child, date of birth, place of birth, if known; sex, name and citizenship of adoptive mother and father, and the date and place of their marriage. 6. If the petition prays for a change of name, it shall also state the cause or reason for the change of name. In all petitions, it shall be alleged: 1. The first name, surname or names, age and residence of the adoptee as shown by his record of birth, baptismal or foundling certificate and school records; 2. That the adoptee is not disqualified by law to be adopted; 3. The probable value and character of the estate of the adoptee; 4. The first name, surname or names by which the adoptee is to be known and registered in the Civil Registry. Petition shall be verified and specifically state at the heading of the initiatory pleading whether the petition contains an application for a change of name, rectification of simulated birth, voluntary or involuntary commitment of children, or declaration of child as abandoned, dependent or neglected. Rectification of Simulated Birth (Sec.8) It shall allege that: a. Petitioner is applying for rectification of a simulated birth; b. The simulation of birth was made prior to the date of effectivity of Republic Act No. 8552, and the application for rectification
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of the birth registration and the petition for adoption were filed within five years from said date; c. The petitioner made the simulation of birth for the best interests of the adoptee; and d. The adoptee has been consistently considered and treated by petitioner as his own child. Adoption of a Foundling, an Abandoned, Dependent or Neglected Child (Sec.9) The petition shall allege: a. The facts showing that the child is a foundling, abandoned, dependent or neglected; b. The names of the parents, if known, and their residence. If the child has no known or living parents, then the name and residence of the guardian, if any; c. The name of the duly licensed childplacement agency or individual under whose care the child is in custody; and d. That the Department, child-placement or child-caring agency is authorized to give its consent. Change of Name (Sec.10) a. The title or caption must contain; b. The registered name of the child; c. Aliases or other names by which the child has been known; and d. The full name by which the child is to be known. Annexes to the Petition (Sec.11) A. Birth, baptismal or foundling certificate, as the case may be, and school records showing the name, age and residence of the adoptee; B. Affidavit of consent of the following: 1. The adoptee, if ten (10) years of age or over; 2. The biological parents of the child, if known, or the legal guardian, or the child-placement agency, child-caring agency, or the proper government instrumentality which has legal custody of the child; 3. The legitimate and adopted children of the adopter and of the adoptee, if any, who are ten (10) years of age or over; 4. The illegitimate children of the adopter living with him who are ten (10) years of age or over; and 5. The spouse, if any, of the adopter or adoptee. C. Child study report on the adoptee and his biological parents; D. If the petitioner is an alien, certification by his diplomatic or consular office or any appropriate government agency that he has the legal capacity to adopt in his country and that his government allows the adoptee to enter his country as his own adopted child unless exempted under Section 4(2); E. Home study report on the adopters. If the adopter is an alien or residing abroad but qualified to adopt, the home study report by a foreign adoption agency duly accredited by the Inter-Country Adoption Board; and F. Decree of annulment, nullity or legal separation of the adopter as well as that of the biological parents of the adoptee, if any.
Procedure A. Order of Hearing (Sec.12) It must be published at least once a week for 3 SUCCESSIVE WEEKS. At the discretion of the court, copies of the order of hearing shall be furnished to the office of the Solicitor General. Through the provincial or city prosecutor, the DSWD and the biological parents of the adoptee, IF KNOWN. If a change in the name of the adoptee is prayed for in the petition, notice to the Solicitor General shall be MANDATORY. B. Child & Home Study Reports (Sec.13) The social worker verifies with the Civil Registry the real identity and the name of adoptee and the fact that he is legally available for adoption. The social worker may make recommendations to the court if he finds some grounds to deny the petition. C. Hearing (Sec.14) It is to be held within 6 MONTHS from the date of issuance of the order.
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Except: In case of APPLICATION FOR CHANGE OF NAME which hearing must not be within 4 MONTHS after LAST PUBLICATION nor within 30 DAYS prior to election. The petitioner and the adoptee must personally appear and the former must testify in court. D. Supervised (Sec.15) Trial Custody (STC)
Effects of Adoption 1. Adopter will exercise parental authority; 2. All legal ties between biological parents and the adoptee shall be severed, except when biological parent is spouse of adopter; 3. Adoptee shall be considered legitimate child of adopter for all intents and purposes; 4. Adopters shall have reciprocal rights of succession without distinction from legitimate filiation. QUICK GUIDE: RULES ON DOMESTIC ADOPTION
Before issuance of decree of adoption the court shall give the adopter trial custody of the adoptee for at least 6 MONTHS. Ratio: In order for the parties to adjust psychologically and emotionally with each other and to establish a bonding relationship. Note: Court may reduce or exempt parties from Supervised Trial Custody, if it finds that the same shall be for the best interest of the adoptee. General rule: Alien adopter must complete the 6 MONTHS Supervised Trial Custody. Exception: Same as Exemptions from requirements of residency and certification: 1. A former Filipino citizen who seeks to adopt a relative within the 4th degree; 2. One who seeks to adopt the legitimate child of his Filipino spouse; 3. One who is married to a Filipino citizen and seeks to adopt jointly with his spouse the latters relative within the 4th degree. E. Decree of Adoption (Sec.16) The decree of adoption shall take effect as of the date of filing of the original petition. In case of change of name, the decree shall be submitted to the Civil Registrar where the court issuing the same is situated. An amended birth certificate shall be issued. The original birth certificate shall be stamped cancelled and shall be sealed in the Civil Registry records. Note: The new birth certificate to be issued to the adoptee shall not bear any notation that it is an amended issue.
Adopter cannot rescind the adoption, ONLY the ADOPTEE may rescind within 5 years from reaching the age of majority or after recovery from incompetency. ADOPTER: if Filipino, must at least be 16 years older but this may be waived and subject to exceptions; If Alien, at least 3 years residency is needed, but subject to waiver or exceptions (with certification from consul and subject to reciprocity rules). If a guardian wants to adopt his ward, he must comply with the requirement of rendering accounts. The petition may include a petition for CHANGE of name. The petition is VERIFIED with a certificate of non-forum shopping. The hearing is published. NOTICE to the Office of the Solicitor General is DISCRETIONARY except in case of a change of name. 6 months supervised trial custody (temporary parental authority). Retroactive effect of the decree of adoption from the time of the petition. VENUE (Petition to adopt): Family court where the adopter resides. VENUE (Petition for rescission of adoption): Family court where the adoptee resides. Confidentiality of the records and proceedings. PROCEDURE: 1. Petition 2. Order 3. Child / Home study report 4. Hearing 5. Supervised Trial Custody
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6. Decree of Adoption 7. Entry in the book of adoption INTER-COUNTRY ADOPTION (Sections 26-32) Where to File Petition (Sec. 28) 1. A verified petition to adopt a Filipino child may be filed by a foreign national or Filipino citizen permanently residing abroad with the Family Court having jurisdiction over the place where the child resides or may be found; 2. It may be filed directly with the InterCountry Adoption Board. Who May Adopt: 1. Any alien or Filipino citizen permanently residing abroad who is at least twentyseven (27) years of age; 2. Other requirements are the same as with RA 8552. d. That he has not been convicted of a crime involving moral turpitude; e. That he is eligible to adopt under his national law; f. That he can provide the proper care and support and instill the necessary moral values and example to all his children, including the child to be adopted; g. That he agrees to uphold the basic rights of the child, as embodied under Philippine laws and the U. N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of Republic Act No. 8043; h. That he comes from a country with which the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption of a Filipino child is allowed under his national laws; and i. That he possesses all the qualifications and none of the disqualifications provided in this Rule, in Republic Act No. 8043 and in all other applicable Philippine laws.
Who May Be Adopted: (Sec.29) Only a child legally available for domestic adoption may be the subject of inter-country adoption. A child under the Inter-Country Adoption Act is defined as any person below fifteen (15) years of age. Contents of Petition (Sec. 30) Petitioner must allege: a. His age and the age of the child to be adopted, showing that he is at least twenty-seven (27) years of age and at least sixteen (16) years older than the child to be adopted at the time of application, unless the petitioner is the parent by nature of the child to be adopted or the spouse of such parent, in which case the age difference does not apply; b. If married, the name of the spouse who must be joined as co-petitioner except when the adoptee is a legitimate child of his spouse; c. That he has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his country;
Annexes (Sec.31) a. Birth certificate of petitioner; b. Marriage contract, if married, and, if applicable, the divorce decree, or judgment dissolving the marriage; c. Sworn statement of consent of petitioners biological or adopted children above ten (10) years of age; d. Physical, medical and psychological evaluation of the petitioner certified by a duly licensed physician and psychologist; e. Income tax returns or any authentic document showing the current financial capability of the petitioner; f. Police clearance of petitioner issued within six (6) months before the filing of the petitioner; g. Character reference from the local church/minister, the petitioners employer and a member of the immediate community who have known the petitioner for at least five (5) years; h. Full body postcard-size pictures of the petitioner and his immediate family taken at least six (6) months before the filing of the petition. Note: Those which are in ITALICS are not applicable in DOMESTIC ADOPTION. QUICK GUIDE:RULE ON INTER-COUNTRY
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ADOPTION Where to file: Family court where the child resides or can be found or with InterCountry Adoption Board (ICAB). Only child legally available for adoption may be adopted. ADOPTER: at least 27 years old (16 years older than the adoptee) unless adopter is a biological parent or spouse of the parent of the child sought to be adopted. ANNEXES: written and officially translated in English (same with the annexes in domestic adoption but with some additions) The court has a duty to transmit the petition to the ICAB if the petition is sufficient in form and substance. The Board shall ensure that all possibilities for adoption of the child under the Family Code have been exhausted and that intercountry adoption is in the best interest of the child (Section 7, REPUBLIC ACT NO. 8043).
Period Within Which to File Verified Petition (Sec.21) Within 5 YEARS from reaching the age of majority or after recovery from incompetency. Adverse party shall file his ANSWER within 15 days from receipt of order of court requiring him to answer. (Sec. 22) Effects of Judgment of Rescission 1. Parental authority of biological parent or legal custody of DSWD will be restored; 2. Reciprocal rights of adoptee and adopter will be extinguished; 3. Vested rights acquired prior to judicial rescission shall be respected; 4. Successional rights shall revert to its status prior to adoption, as of the date of judgment of judicial rescission; 5. Adoptee shall use the name stated in his original birth or foundling certificate; 6. Civil registrar will reinstate his original birth or foundling certificate. Unlike in revocation of guardianship, revocation of adoption is a separate proceeding from the adoption.
RESCISSION OF ADOPTION Under the Domestic Adoption Act of 1998, the ADOPTER CAN NO LONGER RESCIND the adoption, he can merely disinherit the adoptee in accordance with the provisions of the Civil Code. RESCISSION relates only as to the date of the judgment. Hence, vested rights prior to rescission should be respected. Who Files: (Sec.19) 1. ADOPTEE a. over 18 years of age; or b. if minor with assistance of DSWD. 2. GUARDIAN or COUNSEL, if over 18 but incapacitated. Grounds for Rescission (Sec.19) 1. Repeated physical violence and verbal maltreatment by the adopter despite having undergone counseling; 2. Attempt on the life of the adoptee; 3. Sexual assault or violence; or 4. Abandonment or failure to comply with parental obligations. Venue (Sec.20) FAMILY COURT of the city or province where the adoptee resides.
RULE 101: PROCEEDINGS FOR HOSPITALIZATION OF INSANE PERSONS Procedure for the Hospitalization of Insane Persons
Petition for commitment filed in RTC
Court order fixing the date and place for hearing and ordering the Sheriff to produce the alleged insane person in the hearing
Service of Notice of the Court Order to the alleged insane person and to the person who has custody of him/her
Hearing on the Petition
Judgment granting/denying the Petition
SECTION 1. COMMITMENT
VENUE.
PETITION
FOR
Venue: RTC of province where the person alleged to be insane is found.
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respondents.
WHO files: Director of Health with assistance of city or provincial fiscal. Insanity is a condition of the mind which is so impaired in function or so deranged as to induce a deviation from normal conduct on the person so afflicted. Requisites: 1. Director of Health is of the opinion that the commitment of the person alleged to be insane is for PUBLIC WELFARE or for the WELFARE of said person; 2. Such person or the one having charge of him is opposed to his being taken to a hospital or asylum. SECTION 2. ORDER FOR HEARING SECTION 3. HEARING AND JUDGMENT Burden of proof In all actions and proceedings, the burden of proving insanity is on the plaintiff who alleged it; but where it is set up as an affirmative defense, the burden of proving rests on the defendant. SECTION 4. DISCHARGE OF INSANE Director of Health may file this petition in the RTC which ordered the commitment, when he is of the opinion that the person is permanently or temporarily cured or may be released without danger. SECTION 5. ASSISTANCE OF FISCAL IN THE PROCEEDING RULE 102: HABEAS CORPUS
Certiorari, Prohibition And Mandamus SPECIAL CIVIL ACTION (Rule 65) It reaches the RECORD; concerned with errors committed by a court. DIRECT attack. Failure of respondent to file comment will not be punished by CONTEMPT and will not even be declared in default. COURT and PREVAILING PARTY are named as Habeas Corpus SPECIAL PROCEEDING It reaches the BODY but not the record; inquiry on the legality of the detention. COLLATERAL attack. Failure to file return constitutes CONTEMPT (indirect). Respondent DETAINER. is the
SECTION 1. TO WHAT HABEAS CORPUS EXTENDS 1. Cases of illegal confinement or detention by which a person is deprived of his liberty; and 2. Cases by which the rightful custody of the person is withheld from the person entitled thereto. Note: Actual physical restraint not required; any restraint which will prejudice freedom of action is sufficient (Moncupa vs. Enrile, G.R. No. 63345, January 30, 1986). Writ of Habeas Corpus is a writ directed to the person detaining another and commanding him to produce the body of the prisoner at a certain time and place, with the day and the cause of his caption and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf (Bouviers Law Dictionary). A Prerogative Writ of Liberty employed to test the validity of a persons detention (Isagani Cruz, Constitutional Law II). When availed of (As a consequence of a judicial proceeding): 1. There has been a deprivation of a constitutional right resulting in the restraint of a person; 2. The court had no jurisdiction to impose the sentence; 3. An excessive penalty has been imposed, as such sentence is void as to such excess; 4. Where the law is amended, as when the penalty is lowered (Cruz vs. Director of Prisons, 17 Phil 269); 5. Denial of right to a speedy trial (since it is jurisdictional). Nature of the Petition Petition for habeas corpus, which is an inquisition by the government, at the suggestion and instance of an individual, most probably, but still in the name and capacity of the sovereign is LIKE A PROCEEDING IN REM. It is also instituted for the purpose of fixing the status of a person and that there can be no judgment entered against anybody since there is no real plaintiff and defendant (Alimpoos vs. CA, 106 SCRA 159).
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Purpose: The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal (Moncupa vs. Enrile, G.R. No. 63345, January 30, 1986). And any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty (Villavicencio vs. Lukban, L14639, March 25, 1919). Grounds for Suspension of the Privilege of the Writ of Habeas Corpus under the Constitution 1. Invasion, when public safety requires it; 2. Rebellion, when public safety requires it. (Article VII, Section 18 of the 1987 Constitution) In Cases Detention of Illegal Confinement or
Whether the petition for the writ of habeas corpus may be properly filed together with the petition for certiorari and mandamus: The writs of habeas corpus and certiorari may be ancillary to each other where necessary to give effect to the supervisory powers of the higher courts. A writ of habeas corpus reaches the body and the jurisdictional matters, but not the record. A writ of certiorari reaches the record but not the body. Hence, a writ of habeas corpus may be used with the writ of certiorari for the purpose of review. (Galvez vs. CA, G.R. No. 114046, October 24, 1994) SECTION 2. WHO MAY GRANT THE WRIT The RTC, CA, and SC have concurrent jurisdiction to issue writs of habeas corpus. The MTC can issue the writ in case there is no available RTC judge. Hierarchy of courts is not observed. Sandiganbayan may issue writs of habeas corpus only if it is in aid of its appellate jurisdiction. Family Courts have exclusive jurisdiction to issue writs of habeas corpus involving custody of minors.
Collegiate Court Enforceable throughout the Philippines. Returnable to any court. RTC Enforceable only within their respective judicial region. Returnable only to itself.
General rule: The release, whether permanent or temporary, of a detained person renders the petition for habeas corpus moot and academic. Exception: When there are restraints attached to his release which precludes freedom of action, in which case the court can still inquire into the nature of his involuntary restraint (Villavicencio vs. Lukban, L14639, March 25, 1919). Voluntary Restraint General Rule: Writ not available if restraint is voluntary. Exception: Writ will lie to enable the parents (or person having substituted parental authority) to recover custody of a minor child although she is in custody of a 3 rd person on her own volition. Note: Voluntariness is viewed from the point of view of the person entitled to custody. When petition for habeas corpus not proper: 1. For asserting or vindicating denial of right to bail; 2. For correcting errors in appreciation of facts/appreciation of law. Note: Habeas Corpus can never be a substitute for appeal.
Jurisdiction in cases of habeas corpus with respect to custody of minors Although the Family Court where the petitioner resides or where the minor may be found has exclusive and original jurisdiction to hear petitions for habeas corpus with respect to custody of minors, the Supreme Court and the Court of Appeals can take cognizance of such petition in order that it can be enforceable within the Philippines. HOWEVER, the RETURN can be heard in the FC/RTC (if there is no FC in the judicial region) and there is no need to file a separate petition for custody because the issue can be ventilated in the petition for writ.
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Requisites for the issuance of the Writ in cases where the rightful custody over the person of a minor is withheld from the person entitled thereto: 1. That the petitioner has the right to the custody over the minor; 2. That the rightful custody of the minor is being withheld from the petitioner by the respondent; 3. That it is to the best interest of the minor concerned to be in the custody of the petitioner and not that of respondent (Sombong vs. CA, G.R. No. 111876, January 31, 1996). SECTION 3. REQUISITES APPLICATION THEREFOR Who may apply: 1. Party for whose relief it is intended; or 2. Some person on his behalf. Verified petition must set forth: 1. That the person in whose behalf the application is made is imprisoned or restrained of his liberty; 2. The name of the person detaining another; 3. The place where he is imprisoned or restrained of his liberty; 4. The cause of his detention. SECTION 4. WHEN WRIT NOT ALLOWED OR DISCHARGED AUTHORIZED (JUCIT) 1. If Jurisdiction appears after the writ is allowed; 2. If the person is in the custody of an officer Under process issued by a court or by virtue of a judgment or order of a court of record which has jurisdiction to issue the process, render the judgment or make the order; 3. If the person is Charged with or convicted of an offense in the Philippines; 4. If the person is suffering Imprisonment under lawful judgment. 5. Three (3)-day detention of a SUSPECT for three (3) days without charge (Sec. 18, Ra No. 9372 Human Security Act of 2007 to take effect on July 14, 2007). Supervening Events May Bar Release Even if the arrest of a person is illegal, supervening events may bar release or discharge from custody. What is to be inquired into is the legality of his detention as of, at the earliest, the filing of the application for the writ of habeas corpus, for even if the detention is at its inception illegal, it may, by reason of FOR some supervening events such as the instances mentioned in Sec. 4, be no longer illegal at the time of the filing of the application (Velasco vs. CA, G.R. No. 118644, July 7, 1995). Note: Posting of a bail is NOT a waiver. Under the Revised Rules on Criminal Procedure, as application for bail is not necessarily a bar to challenge the validity of the arrest (Sec. 26, Rule 114). SECTION 5. WHEN WRIT MUST BE GRANTED AND ISSUED Preliminary citation refers to a citation to the government officer having the person in his custody, the illegality of which is not patent, to show cause why the writ of habeas corpus should not issue. Peremptory writ is issued when the cause of the detention appears to be patently illegal and the non-compliance wherewith is punishable.
Procedure for grant of writ: (VACS RH) 1. Verified petition signed by the party for whose relief it is intended; or by some other person in his behalf; 2. Allowance of writ; 3. Command officer to produce; 4. Service of writ by sheriff or other officer; 5. Return; and 6. Hearing on return. SECTION 6. TO WHOM WRIT DIRECTED, AND WHAT TO REQUIRE A. In case of imprisonment or restraint by an officer: The writ shall be directed to him; The officer shall produce the body of the person before the court. B. In case of imprisonment or restraint by a person not an officer: The writ shall be directed to an officer; The officer shall take and produce the body of the person before the court; The officer shall summon the person detaining another to appear before the court to show the cause of the imprisonment or restraint (changed to what appears in the provision). SECTION 7. HOW PRISONER DESIGNATED AND WRIT SERVED
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How service is made: 1. By leaving the original of the writ with the person to whom it is directed or to any person having custody if the former cannot be found or has not the person in his custody; and 2. By preserving a copy on which to make return of service. The writ itself plays the role of summons in ordinary actions; court acquires jurisdiction over the person of the respondent BY MERE SERVICE OF WRIT. SECTION 8. HOW WRIT EXECUTED AND RETURNED Officer shall: 1. Convey the person so imprisoned before the judge, unless from sickness or infirmity, such person cannot, without danger be brought before the court. 2. Make the return of the writ together with the day and the cause of caption or restraint. SECTION 9. DEFECT OF FORM NO writ can be disobeyed for defect of form IF it sufficiently states: 1. The person in whose custody or under whose restraint the party imprisoned or restraint is held; and 2. The court or judge before whom he is to be brought. SECTION 10. Contents of return 1. Whether he has or has not the party in his custody or power, or under restraint; 2. If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order, execution, or other process, if any, upon which the party is held; 3. If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge; 4. If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made.
SECTION 11. RETURN TO BE SIGNED AND SWORN TO SECTION 12. HEARING ADJOURNMENTS OF RETURN.
The failure of petitioners to file a reply to the return of the writ warrants the dismissal of the petition because unless controverted, the allegations on the return are deemed to be true or admitted (Florendo vs. Javier, L-36101, June 29, 1979). SECTION 13. WHEN THE RETURN EVIDENCE, AND WHEN ONLY A PLEA If detention is by public authority, the return is considered prima facie evidence of the validity of the restraint and the petitioner has burden of proof to show that the restraint is illegal. If detention is by reason of private authority, the return is considered only a plea of the facts asserted therein and the person responsible for the detention has the burden of proof to establish that the detention is legal and justified.
SECTION 14. WHEN PERSON LAWFULLY IMPRISONED RECOMMITTED, AND WHEN LET TO BAIL Habeas Corpus would not lie after the Warrant of Commitment was issued by the court on the basis of the Information filed against the accused (Ilagan v. Enrile, !39 SCRA 349). SECTION 15. WHEN DISCHARGED IF NO APPEAL PRISONER
If one is unlawfully imprisoned, court shall order his discharge but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If person detaining him does not appeal, the prisoner shall be released. Period of appeal: Within 48 hours from notice of the judgment or final order appealed from (Sec. 3, Rule 41). Form of appeal is by NOTICE OF APPEAL. SECTION 16. PENALTY FOR REFUSING TO ISSUE WRIT, OR FOR DISOBEYING THE SAME A penalty of P 1,000 and may be punished for contempt
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3. The material Operative facts constituting deprivation of custody; 4. Such other matters which are relevant to the custody of minor. Motion to dismiss is not allowed except on the ground of lack of jurisdiction over the subject matter or over the parties. (Sec.6) Respondent must file verified answer within 5 days from service of summons and copy of petition. (Sec.7) Pre-trial is mandatory. (Sec.9)
SECTION 17. PERSON DISCHARGED NOT TO BE AGAIN IMPRISONED Whether the State can reserve the power to re-arrest a person for an offense after a court of competent jurisdiction has absolved him of the offense: Ruling: The court holds that such a reservation is repugnant to the government of laws and not of men principle. Under this principle, the moment a person is acquitted on a criminal charge he can no longer be detained or re-arrested for the same offense (Toyoto vs. Ramos, G.R. No. L-69270 October 15, 1985). SECTION 18. WHEN PRISONER MAY BE REMOVED FROM ONE CUSTODY TO ANOTHER 1. By legal process; 2. Prisoner is delivered to an inferior officer to carry to jail; 3. By order of proper court or judge directing that he be removed from one place to another within the Philippines for trial; 4. In case of fire, epidemic, insurrection or other necessity or public calamity. SECTION 19. AND COSTS RECORD OF WRIT, FEES
RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATIONS TO THE CUSTODY OF MINORS ( A.M. No. 03-04-04-SC) Who May File Petition (Sec.2) A verified petition for the rightful custody of a minor may be filed by any person claiming such right. Where To File Petition (Sec.3) Family Court of the province or city where the petitioner resides or where the minor may be found. Contents of Verified Petition (Sec.4) (P-NOS) 1. The Personal circumstances of the petitioner and respondent; 2. The Name, age and present whereabouts of the minor and his or her relationship to the petitioner and respondent;
Provisional Order Awarding Custody (Sec.13) As far as practicable, the following order of preference shall be observed in the award of custody: (BEG BAO) 1. Both parents jointly; 2. Either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment unless the parent chosen is unfit; 3. The Grandparent or if there are several grandparents, grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified; 4. The eldest Brother or sister over twenty one (21) years of age unless he or she is unfit or disqualified; 5. The Actual custodian of the minor over twenty one (21) years of age, unless the former is unfit or disqualified; or 6. Any Other person or institution the court may deem suitable to provide proper care and guidance for the minor. Temporary Visitation Rights (Sec.15) The court shall provide in its order awarding provisional custody appropriate visitation rights to the non - custodial parent or parents unless the court finds said parent or parents unfit or disqualified. Hold Departure Order (Sec.16) The minor child subject of the petition shall not be brought out of the country without prior order from the court while the petition is pending. The Court, motu proprio or upon application under oath, may issue an ex parte hold departure order.
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Note: The court may Protection Order. (Sec.17)
also
issue
APPEAL (Sec.19) Notice of appeal within 15 days from notice of denial of motion for reconsideration or new trial. SECTION 1. VENUE No appeal shall be allowed unless a motion for reconsideration or new trial has been filed. Petition For (Sec.20) Writ of Habeas Corpus The RTC of the province where the petitioner has been residing for 3 years prior to the filing of the petition. A change of name is a proceeding IN REM and as such, strict compliance with all jurisdictional requirements, particularly on publication, is essential in order to vest the court with jurisdiction (Herrera, p. 511).
Shall be verified and filed with the Family Court where petitioner resides or where minor may be found. Shall be enforceable within its judicial region to which the Family Court belongs. The petition may however be filed with the regular court in the absence of the presiding judge of the Family Court, provided however that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty. Petition may also be filed with the SC, CA, or with any of its members and, if so granted the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits.
SECTION 2. CONTENTS OF PETITION 1. That petitioner is a bona fide resident of the province where petition is filed for at least three years prior to the date of filing; 2. Cause for change of name; 3. Name asked for; 4. All names by which petitioner is known (Secan Kok vs. Republic, L-27621, August 30, 1973). Petition shall be signed and verified by person desiring his name changed or some other person in his behalf. Requirement of verification is formal, NOT jurisdictional requisite. It is not a ground for dismissing petition.
Note: See the comparative chart on Habeas corpus, Writ of Amparo and Habeas Data on pages 202-203. RULE 103: CHANGE OF NAME Procedure for Change of Name under Rule 103
Petition for Change of Name Court order fixing the date and place of Hearing Publication of the court order fixing the date and place of hearing, at least once a week for 3 successive weeks in a newspaper of general circulation Hearing on the Petition Judgment granting/denying the change of name. Copy of the judgment shall be served upon the civil registrar, who shall annotate the same
Jurisdictional Requirements 1. The verified petition should be published for three successive weeks in some newspaper of general circulation in the province; 2. That both the title or caption of the petition and its body shall recite: a. Name/names or aliases of the applicant; b. Cause for which the change of name is sought; c. New name asked for. (Secan Kok vs. Republic, supra.) Ratio: A change of name is a matter of public interest (Secan Kok vs. Republic, supra). SECTION 3. ORDER FOR HEARING
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Hearing shall not be within 30 days prior to an election nor within 4 MONTHS after the LAST PUBLICATION of notice of hearing. Effect of Discrepancy in the Petition and Published Order The defect in the petition and the order, as to the spelling of the name of the petitioner, is substantial, because it did not correctly identify the party to said proceedings ( Tan vs. Republic, L-16384, April 26, 1962). Grounds for Change of Name (RC HEN) 1. Name is Ridiculous, tainted with dishonor or extremely difficult to write or pronounce; 2. Consequence of a change of status; e.g. legitimated child; 3. Habitual and continuous used and been known since childhood by a Filipino name, unaware of her alien parentage; 4. A sincere desire to adopt a Filipino name to Erase signs of former alienage, all in good faith and without prejudicing anybody; or 5. Necessity to avoid confusion;
Rule 103 Change Of Name Judicial (RTC).
Includes change surname.
in
Ra 9048 Correction Of Clerical Or Typographical Error Extrajudicial (local civil registrar or consul general in case of nonresident citizen). Covers clerical or typographical error and change of first name or nickname.
RULE 104: VOLUNTARY DISSOLUTION OF CORPORATIONS Note: Dissolution of corporations should now be filed with the Securities and Exchange Commission and is covered by Title XIV, Sections 117 to 122 of the Corporation Code of the Philippines. A.M. No. 00-11-03-SC, promulgated on November 21, 2000, designated some RTC branches NATIONWIDE (also known as Corporate courts) to try and decide SEC cases enumerated under Sec. 5 of P.D. 902-A. RULE 105: JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL CHILDREN Note: The matter of the filiations of illegitimate children and the proof thereof is governed by Articles 172 and 173, in relation to Article 175, of the Family Code. ART. 172. The filiation of legitimate children is established by any of the following: 1. The record of birth appearing in the civil register or a final judgment; or 2. An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: 1. The open and continuous possession of the status of a legitimate child; or 2. Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a) ART. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall
Title of Petition Must Contain the Following: 1. Official name (birth certificate) be very particular with the spelling because it may avoid or annul the proceedings; it is jurisdictional; 2. All aliases; and 3. Name asked for. Note: All the names or aliases must appear in the title or caption of the petition, because the reader usually merely glances at the title of the petition and may only proceed to read the entire petition if the title is of interest to him (Secan Kok vs. Republic, supra). The non-inclusion of all the names or aliases of the applicant in the caption of the order or in the title of the petition defeats the very purpose of the required publication (Republic vs. Zosa, L-48762, Sept. 12, 1988).
SECTION 4. HEARING SECTION 5. JUDGMENT SECTION 6. SERVICE OF JUDGMENT Civil Registrar of the city or municipality where the court is situated shall be furnished with a copy of the judgment.
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have a period of five years within which to institute the action. ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. RULE 106: CONSTITUTION OF FAMILY HOME Note: The rule has already been repealed by the Family Code, which took effect on August 3, 1988. ART. 153. The Family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is EXEMPT from execution, forced sale or attachment except herein after provided and to the extent of the value allowed by law. When Family Home is Not Exempt from Execution, Forced Sale or Attachment 1. Non-payment of taxes; 2. debts incurred prior to the constitution of the family home; 3. debts secured by mortgages on the premises before or after such constitution; and 4. debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. (Art. 155, Family Code) RULE 107: ABSENTEES
Absentee One who disappears from his domicile and his whereabouts being unknown and without having left an agent to administer his property or the power of agent has expired. Incompetent Includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, and persons who are unable to take care of themselves and manage their property by reason of age, disease, weak mind and other similar causes. RTC will appoint first a representative and after an absence of 2 years, or 5 years in case the absentee left a person in charge of the administration of his property a petition for declaration of absence may be filed and an administrator or trustee may be appointed. Order of hearing must be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province or city where absentee resides and declaration of absence will only take effect 6 months after its publication in a newspaper of general circulation designated by court and in the Official Gazette.
Notice of petition for guardianship for NONRESIDENT may be published when court deems it proper.
Procedures in the Rule on Absentees

Petition for Appointment of Representative
Application for Declaration of absence and appointment of Trustee or Administrator
Termination of Administration/ Trusteeship
Appointment of Representative: When a person disappears, whereabouts are unknown, leaves no agent or upon expiration of power of agent, during the first two (2) years. Declaration of Absence and Appointment of Administrator: When a person disappears and still without any news since the receipt of the last news about him, after two (2) years if without administrator or after five (5) years if with administrator. Petition may be instituted by (a) the spouse present; (b) the heirs instituted in a will; (c) relatives who would succeed by law of intestacy; (d) those who have
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over the property of the absentee some right subordinated to the condition of his death. SECTION 1. REPRESENTATIVE APPOINTMENT OF
Beyond 7 years (absence of 4 years under extraordinary circumstance) Considered dead for all intents and purposes except for purposes of succession (if disappeared under extraordinary circumstances, considered dead for all purposes, even succession); For purposes of Marriage: 4 years continuous absence shall be sufficient for present spouse to remarry, 2 years only under extraordinary circumstance
SECTION 2. DECLARATION OF ABSENCE; WHO MAY PETITION Who May File A Petition For Appointment Of Administrator Or Trustee: 1. The spouse present; 2. The heirs instituted in a will, who may present an authentic copy of the same; 3. The relatives who would succeed by the law of intestacy; 4. Those who have over the property of the absentee some right subordinated to the condition of his death. Purpose of Petition: To appoint an administrator over the properties of the absentee. Hence, if absentee left no properties, such petition is unnecessary. SECTION 3. CONTENTS OF PETITION 1. The jurisdictional facts; 2. The names, ages, and residences of the heirs instituted in the will, copy of which shall be presented, and of the relatives who would succeed by the law of intestacy; 3. The names and residences of creditors and others who may have any adverse interest over the property of the absentee; 4. The probable value, location and character of the property belonging to the absentee.
Period Of Absence 0-2 years Consequence Petition for Appointment of Representative (unless the absentee left an agent to administer his property) Petition for declaration of absence and appointment of administrator or trustee may be filed.
SECTION 4. TIME OF HEARING; NOTICE AND PUBLICATION THEREOF Copies of the notice of the time and place fixed for the hearing shall be served upon the known heirs, legatees, devisees, creditors and other interested persons, at least ten (10) days before the day of the hearing. It shall be published once a week for three (3) consecutive weeks prior to the time designated for the hearing, in a newspaper of general circulation in the province or city where the absentee resides, as the court shall deem best. SECTION 5. OPPOSITION Oppositor must: 1. State in writing his grounds therefor; 2. Serve a copy thereof to petitioner and other interested parties on or before the hearing. SECTION 6. PROOF AT HEARING; ORDER SECTION 7. WHO MAY BE APPOINTED Appointment of Representative/Trustee: 1. Spouse present (preferred); or 2. Any competent person. SECTION 8. ADMINISTRATION TERMINATION OF
2 years to 7 years (5 years to 7 years in case the absentee left an agent)
Grounds for Termination of the Administration 1. Absentee appears personally or through an agent; 2. Absentees death is proven and heirs appear; 3. Third person appears showing that he acquired title over the property of the absentee. General rule: No independent action for Declaration of Presumption of Death.
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Exception: The need for declaration of presumptive death for purposes of remarriage (Article 41 of the Family Code).
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RULE 108: CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY Procedure for Cancellation or Correction of Entries under Rule 108
Petition for Cancellation or Correction of any entry relating to an act, event order or decree concerning the civil status Court order fixing the date and place for Hearing
petition or from the last date of publication of such notice, file his opposition thereto; 5. Full blown trial. Proceedings for the correction of entries should not be considered as establishing ones status in a manner conclusively beyond dispute. The status corrected would not have a superior quality for evidentiary purposes. There is no increase or diminution of substantive right (Chiao Ben Lim vs. Zosa, L- 40252, December 29, 1986). TO
SECTION 2. ENTRIES SUBJECT CANCELLATION OR CORRECTION

Publication of the court order at least once a week for 3 successive weeks in a newspaper of general circulation, with reasonable notice given to persons named in the petition
Filing of opposition by the civil registrar and any person having/claiming interest under the entry whose cancellation/correction is sought, within 15 days from notice of the petition or from the last date of publication of the notice
Hearing on the Petition
Judgment granting/denying the petition. Copy of the judgment shall be served upon the civil registrar, who shall annotate the same
(BMD LAVLAA- NEC JVC) 1. Births; 2. Marriages; 3. Deaths; 4. Legal separations; 5. Judgments of Annulments of marriage; 6. Judgments declaring marriages Void from the beginning; 7. Legitimations; 8. Adoptions; 9. Acknowledgments of natural children; 10. Naturalization; 11. Election, loss or recovery of citizenship; 12. Civil interdiction; 13. Judicial determination of filiation; 14. Voluntary emancipation of a minor; 15. Change of name. Even substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceedings (Republic vs. Valencia, L-32181, March 5, 1986).
SECTION 1. WHO MAY FILE PETITION Any person interested in any act, event, order or decree concerning the civil status of persons recorded in the civil registry. Where filed: RTC of the province where the corresponding civil registrar is located. Requisites of Adversarial Proceedings 1. Proper petition is filed where the Civil Registrar and all parties interested are impleaded; 2. The order of the hearing must be published once a week for three consecutive weeks; 3. Notice thereof must be given to the Civil Registrar and all parties affected thereby; 4. The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within 15 days from notice of the
Adversarial Proceeding means one that has opposing parties; contested as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it (Republic v. Valencia, No. L-32181, Mar. 5, 1986). Rule 108, when all the procedural requirements thereunder are followed, is the appropriate adversary proceeding to effect substantial correction and changes in entries of the civil register (Lee v. CA, G.R. No. L118387, Oct. 11, 2001).
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SECTION 3. PARTIES 1. Civil registrar; 2. All persons who have or claim any interest which would be affected thereby. SECTION 4. NOTICE AND PUBLICATION Order of hearing shall be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province and all persons named in the petition shall be notified. SECTION 5. OPPOSITION The following are entitled to oppose the petition: 1. The Civil Registrar; and 2. Any person having or claiming any interest under the entry whose cancellation or correction is sought. Within 15 days from notice of the petition or from date of last publication. SECTION 6. EXPEDITING PROCEEDINGS The court may also grant preliminary injunction for the preservation of the rights of the parties pending such proceedings. SECTION 7. ORDER The Civil Registrar shall be given a copy of the judgment and annotate the same on his record.
Petitions For Change Of Name (Rule 103) Petition to be filed in the RTC where the petitioner resides. Solicitor General must be notified by service of a copy of the petition. Petitions For The Correction, Cancellation Of Entries (Rule 108) Verified petition filed in the RTC where the corresponding civil registry is located. Civil registrar concerned is made a party to the proceeding as a respondent. The Solicitor General must also be notified by service of a copy of the petition. Petition is filed by any person interested in any ACT, EVENT, ORDER or DECREE concerning the civil status of persons. Order shall also be published once a week for once a week for three consecutive weeks. three consecutive weeks and court shall cause reasonable notice to persons named in petition. Only typographical errors may be changed.
First name or last name (there must be valid ground with respect to the latter) may be changed. Service of judgment shall be upon the civil register concerned.
REPUBLIC ACT NO. 9048 Republic Act No. 9048 which was passed by Congress on February 8, 2001 substantially amended Article 412 of the New Civil Code, to wit: No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. Clerical or typographical error refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner (Sec. 2(3) RA 9048). Note: The above law speaks clearly. Clerical or typographical errors in entries of the civil register are now to be corrected and changed without need of a judicial order and by the city or municipal civil registrar or consul general. The obvious effect is to remove from the ambit of Rule 108 the correction or changing of such errors in entries of the civil register. Hence, what is left for the scope of operation of Rule 108 are substantial changes and corrections in entries of the civil register (Lee vs. CA, G.R. No. 118387, October 11, 2001).
Petition is filed by person desiring to change his name.
Order for hearing shall be published
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Petition for change of name (Rule 103) and petition for cancellation or correction of entries (Rule 108) are DISTINCT PROCEEDINGS. Hence, a party cannot change name and correct an entry in a single petition without satisfying the jurisdictional requirements. Grounds: 1. The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; 2. The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by the first name or nickname in the community; or 3. The change will avoid confusion. Who may file: Any person of legal age, having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register Person with direct and personal interest: 1. he is the owner of the record; or 2. the owners spouse, children, parents, brothers, sisters, grandparents, guardian; or 3. any other person duly authorized by law or by the owner of the document sought to be corrected: PROVIDED, that when a person is a minor or physically or mentally incapacitated: petition may be filed on his behalf by his spouse, or any of his children, parents, brothers, sisters, grandparents, guardians, or persons duly authorized by law. Procedure: Republic Act No. 9048
AFFIDAVIT with supporting documents (3 copies)
If change of first name/ nickname: Two weeks publication 2. Certification that there is no pending case or criminal record
Filed with the City or Municipal civil registrar (Local Civil Registrar [LCR]) or Consul General
10-day POSTING by the LCR or Consul General
LCR or Consul General: 5 days to ACT on the application
Grants
Denies
TRANSMIT decision & records to Civil Registrar General within 5 working days Within 10 days, the Civil Registrar General may IMPUGN the decision by way of objection If not impugned, the decision becomes FINAL AND EXECUTORY
Notify the LCR or Consul General with the adverse decision
LCR or Consul General shall notify petitioner
APPEAL to Civil Registrar General
MOTION FOR RECONSIDERA TION with Civil Registrar General
File appropriate petition with the proper court
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RA 9048 Administrative proceeding Affidavit With Penalty Clause Publication AND Posting Grounds: 1. Ridiculous, Dishonorable, Hard to Write/Pronounce; 2. Habitually and continuously used and known for; 3. Avoid confusion Venue: Local Civil Registrar Remedies: 1. Local Civil Registrar; 2. Civil Registrar General; 3. Office of the President; 4. CA by Petition for Review under Rule 43 Rule 108 Summary Judicial Proceeding Petition Without Penalty Clause Publication only Ground: Correct Clerical/Innocuous Errors
Venue: RTC of the city or province where the corresponding civil registry is located Remedies: 1. RTC; 2. CA by Appeal.
2. Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled; 3. Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it; 4. Settles the account of an executor, administrator, trustee or guardian; 5. Constitutes, in the proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; and 6. Is the final Order or judgment rendered in the case, and affects the substantial rights of the person appealing, UNLESS it be an order granting or denying a motion for a new trial or for reconsideration. Orders that are Not Appealable 1. Order directing administrator to take action to recover amount due to the estate; 2. Order made in administration proceedings relating to inclusion or exclusion of items of property in the inventory of executor or administrator; 3. Order appointing special administrator. SECTION 2. ADVANCE DISTRIBUTION IN SPECIAL PROCEEDINGS
Appeal In Ordinary Civil Action 15 days. Notice of Appeal and docket fees. No extension. Appeal In Special Proceedings 30 days. Record on Appeal and docket fees. Maybe extended on meritorious grounds.
QUICK GUIDE: REPUBLIC ACT NO. 9048 Applies to: clerical, typographical errors, change of first name or nickname WHERE to File: City or Municipal Civil registrar or Consul General (if in a foreign country; nearest Philippine Consulate) Filed in person and VERIFIED. If migrated (within the country): file in the registrar where he resides (the 2 LCR will communicate with each other). Petition is by affidavit supported with documents. In case of change of name or nickname: 2 weeks publication and certification that the applicant has no pending case or criminal record. The petition and documents are in TRIPLICATE copies. RULE 109: APPEALS IN SPECIAL PROCEEDINGS SECTION 1. ORDERS OR JUDGMENTS FROM WHICH APPEALS MAY BE TAKEN An interested person may appeal in special proceedings from such order or judgment rendered which: (ADASCO) 1. Allows or disallows a will;
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COMPARATIVE CHART: HABEAS CORPUS, WRIT OF AMPARO and HABEAS DATA

HABEAS CORPUS Involves the right to liberty of and rightful custody by the aggrieved party There is an actual aggrieved partys right. violation of WRIT OF AMPARO Involves the right to life, liberty and security of the aggrieved party and covers extralegal killings and enforced disappearances There is an actual or threatened violation of aggrieved partys right. Respondent is a public official or employee or a private individual or entity. Filed by the aggrieved party or by any qualified person or entity in the following order: a) any member of the immediate family of the aggrieved party, i.e. spouse, children and parents; b) any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity; c) any concerned citizen, organization, association or institution (right to file is successive) Filed before: 1. RTC of the place where the threat act or omission was committed or any of its elements occurred 2. Sandiganbayan or any justice thereof 3. CA or any justice thereof 4. SC or any justice thereof The writ shall be enforceable anywhere in the Philippines regardless of who issued the same. HABEAS DATA Involves the right to privacy in life, liberty or security of the aggrieved party and covers extralegal killings and enforced disappearances There is an actual or threatened violation of aggrieved partys right. Respondent is a public official or employee or a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family name and correspondence of the aggrieved party. Filed by the aggrieved party; but in cases of extralegal killings and enforced disappearances, may be filed by: a) any member of the immediate family of the aggrieved party, i.e. spouse, children and parents; b) any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity Filed with: 1. RTC where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered collected or stored, at the option of petitioner 2. SC, CA or Sandiganbayan when the action concerns public data files or government offices The writ shall be enforceable anywhere in the Philippines regardless of who issued the same.
Respondent: may or may not be an officer.
Filed by the party for whose relief it is intended or by some person on his behalf
Filed before: 1. RTC or any judge thereof, 2. CA or any member thereof in instances authorized by law, and 3. SC or any member thereof
If granted by SC or CA or any member of such courts, it is enforceable anywhere in the Philippines; if granted by the RTC or a judge thereof, it is enforceable only within his judicial district. If granted by the SC or CA or any member of such courts, it may be made returnable before the court or any member thereof or before an RTC or any judge thereof. If granted by the RTC or a judge thereof, it is returnable before himself.
If issued by the RTC or any judge thereof, it is returnable before such court or judge. If issued by the Sandiganbayan or the CA or any of their justices , it may be returnable before such court or any justice thereof, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred. If issued by the SC or any of its justices, it may be returnable before such Court or any justice thereof, or the Sandiganbayan or CA or any of their justices, or to any RTC of the place where the threat, act or omission was committed or any of its elements occurred.
If issued by the RTC or any judge thereof, it shall be returnable before such court or judge. If issued by the CA or the Sandiganbayan or any of its justices, it may be returnable before such court or any justice thereof, or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored. If issued by the SC or any of its justices, it may be returnable before such Court or any justice thereof, or before the CA or the Sandiganbayan or any of its justices, or to any RTC of the place where the petitioner or respondent resides or that which has jurisdiction over the place where the
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data or information is gathered, collected or stored. Only an indigent petitioner is not required to pay docket and other lawful fees. Summary hearing shall be conducted not later than 10 work days from the date of the issuance of the writ. Served upon the respondent personally, but if it cannot be served personally, the rules on substituted service shall apply.
Petitioner is exempted from payment of docket and other lawful fees. Date and time of hearing is specified in the writ. Served to the person to whom it is directed; and if not found or has not the prisoner in his custody, to the other person having or exercising such custody. If the person to whom the writ is directed neglects or refuses to obey or make return of the same, or makes a false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within 6 hours after the demand therefore, a true copy of the warrant or order of commitment, he shall forfeit to the party aggrieved the sum of Php 1,000 and may be punished for contempt. The person who makes the return is the officer by whom the prisoner is imprisoned or the person in whose custody the prisoner is found. Summary hearing shall be conducted not later than 7 days from the date of the issuance of the writ. Served upon the respondent personally, but if it cannot be served personally, the rules on substituted service shall apply.
If the respondent refuses to make a return or makes a false return, he may be punished with imprisonment or fine for committing contempt.
If the respondent makes a false return or refuses to make a return, he may be punished with imprisonment or fine for committing contempt.
The person who files the return is the respondent. A general denial of the allegations in the petition shall not be allowed. If the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte. There are prohibited pleadings and motions. The court, justice or judge may grant interim reliefs, to wit: temporary protection order, inspection order, production order and witness protection order. There is no presumption that official duty has been regularly performed. Judgment shall be rendered within 10 days from the time the petition is submitted for decision.
The person who files the return is the respondent. A general denial of the allegations in the petition shall not be allowed.
There are prohibited pleadings and motions.
Period of appeal is within 48 hours from notice of the judgment or final order appealed from
Period of appeal shall be 5 working days from the date of notice of the adverse judgment. Filed with SC thru RULE 45 May be consolidated with a criminal action filed subsequent to the petition.
Judgment shall be rendered within 10 days from the time the petition is submitted for decision. Judgment shall be enforced within 5 working days. Period of appeal shall be 5 working days from the date of notice of the judgment or final order. Filed with SC thru RULE 45 May be consolidated with a criminal action filed subsequent to the petition.
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VENUE AND JURISDICTION OF SPECIAL PROCEEDINGS

SPECIAL PROCEEDING Settlement of the Estate VENUE Residence of the decedent or if the decedent is a non-resident, place where he had an estate JURISDICTION MTC if the gross value of the estate does not exceed P300,000, or does not exceed P400,000 in Metro Manila RTC if the gross value of the estate exceeds the above amounts 2. Escheat a. Person dies intestate leaving no heir Residence of the decedent or if non-resident, in the place where he had an estate. b. Reversion Where the land lies in whole or in part c. Unclaimed Balances Act Where the dormant deposits are located 5. 6. 7. 8. Appointment of Guardians Appointment of Trustees Domestic Adoption Inter-Country Adoption Where the minor or incompetent resides Where the will was allowed or where the property or portion thereof affected by the trust is situated Where the adopter resides Where the adoptee resides if filed with the Family Court Where the adoptee resides Where the detainee is detained (if the petition is filed with the RTC) RTC RTC RTC Family Court (in case of Minors) RTC (Regular courtsin case of Incompetents) RTC Family Court Family Court or the Inter-Country Adoption Board Family Court SC, CA, RTC, MTC in the province or city in case there is no RTC judge; Sandiganbayan only in aid of its appellate jurisdiction. Family Court RTC; Sandiganbayan, CA or SC when the action concerns public data files or government offices RTC; Sandiganbayan, CA, or SC or any justice thereof Family Court, CA and SC. RTC RTC
1.
9. Rescission of Adoption 10. Habeas Corpus
11. Custody of Minors
Province or city where petitioner resides or minor may be found. Where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered collected or stored, at the option of petitioner Where the threat act or omission was committed or any of its elements occurred Where the petitioner resides or where the minor may be found. Where petitioner resides Where the absentee resided before his disappearance Where the corresponding Civil Registry is located
9.
Habeas Data
10. Amparo Proceedings 11. Habeas Corpus in relation to minor 12. Change of Name 13. Appointment of Representative of Absentee/Declaration of Absence 14. Cancellation/Correction of Entries in the Civil Registries 15. Petition for Declaration of Nullity, Annulment, Legal Separation
RTC Where petitioner or respondent has been residing for at least 6 months prior to the date of filing, in case of non resident respondent, where he may be found at the election of the petitioner.
Family Court
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San Beda College of Law 2010 Centralized Bar Operations

Payment of Claims: Sale/Mortgage/Encumbrance of estate properties

Different Modes of Settlement of Estate of a Distribution of remainder, if any

San Beda College of Law Special Proceedings

San Beda College of Law 2010 Centralized Bar Operations

San Beda College of Law Special Proceedings

Filing of bond equivalent to the value of personal property

San Beda College of Law 2010 Centralized Bar Operations

Filing of bond fixed by the court

Partition of the estate

San Beda College of Law Special Proceedings

San Beda College of Law 2010 Centralized Bar Operations

San Beda College of Law Special Proceedings

San Beda College of Law 2010 Centralized Bar Operations

SECTION 10. CONTESTANT GROUNDS OF CONTEST

San Beda College of Law Special Proceedings

Required unless exempted by law

Compensation is governed by Sec. 7, Rule 85.

San Beda College of Law 2010 Centralized Bar Operations

San Beda College of Law Special Proceedings

Note: It is possible for the executor or administrator whose appointment is

San Beda College of Law 2010 Centralized Bar Operations

San Beda College of Law Special Proceedings

San Beda College of Law 2010 Centralized Bar Operations

San Beda College of Law Special Proceedings

San Beda College of Law 2010 Centralized Bar Operations

San Beda College of Law Special Proceedings

San Beda College of Law 2010 Centralized Bar Operations

The court may commissioner.

San Beda College of Law Special Proceedings

San Beda College of Law 2010 Centralized Bar Operations

San Beda College of Law Special Proceedings

San Beda College of Law 2010 Centralized Bar Operations

When is title vested?

San Beda College of Law Special Proceedings

SECTION 4. RECORDING THE ORDER OF PARTITION OF ESTATE

municipality or city where the property is situated;

San Beda College of Law 2010 Centralized Bar Operations

Procedure for Guardianship Under Rules 92-97

Court order fixing the Hearing of the petition

Notice of the Hearing

Hearing and Appointment of the Guardian

Service of Judgment on the Local Civil Registrar

Filing of Bond by the Guardian

Issuance of Letters of Guardianship

RULE 92: VENUE

San Beda College of Law Special Proceedings

San Beda College of Law 2010 Centralized Bar Operations

San Beda College of Law Special Proceedings

San Beda College of Law 2010 Centralized Bar Operations

San Beda College of Law Special Proceedings

1. The ward has

San Beda College of Law 2010 Centralized Bar Operations

San Beda College of Law Special Proceedings

Accounts must be UNDER OATH and filed ANNUALLY.

Accounts must be UNDER OATH and filed ANNUALLY.

Court which has jurisdiction is RTC (incompetent) or FAMILY COURT (minors).

May sell, encumber or mortgage property

May sell or encumber property of ward

San Beda College of Law 2010 Centralized Bar Operations

Must ALWAYS FILE A BOND.

MUST PAY debts of estate.

Procedure for Appointment of Trustees

Notice to all interested persons