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Preliminary matters
Definition of terms: What is the difference between special proceedings from an ordinary
action and special civil action?
As to nature:
SP In a special proceeding, it is a remedy to establish a status, a right, or a particular fact
(settlement of the estate of a deceased person, right of a property a government wishes to
take, correction of entry as long as allowed by law)
Ordinary action collection of sum of money, damages, specific performance; basically, the
purpose is for a party to reinforce or protect a right, or the prevention or redress of a wrong
committed against him
Special Civil Action example: certiorari; purpose is to correct any abuse of discretion
amounting to lack or excess of jurisdiction committed by a court or a quasi-judicial body.
Prov Rem prevention of a wrong committed against you: preliminary injunction
As to rules governing the actions:
Ordinary civil actions ordinary rules supplemented by special rules. Sometimes there are
rules that are special only to the kind of ordinary action and applied only suppletorily
Special Civil Action governed by special rules supplemented by ordinary rules. Example:
how is an action which is a special proceeding commenced? By filing a petition because if it is
an ordinary action, it should be through a complaint. A special civil action could either be a
complaint or petition.
- How special is a special civil action? It is only a comment that is asked of the
respondent to file within 5 days or depending on the discretion of the court which
could be longer
- What about special proceedings? Upon filing, the court will determine if the petition is
sufficient in form and substance. If found sufficient, it will ask the civil registrar or
SolGen to file a comment. Usually who is impleaded is only the civil registrar or NSO
and not the SolGen. What is required? It should be published in a newspaper of
general circulation to acquire jurisdiction over all persons interested. If the respondent
decides to oppose, he should file a petition for opposition before the jurisdictional
facts are heard. What should be published is not the petition itself, but only the order
of the court setting the decision for the judicial hearing. When the case is called, the
court will determine whether it has jurisdiction. To acquire jurisdiction, they must
prove that there was publication.
o Special rules supplemented by ordinary rules: After initial hearing, case will
be set for reception of evidence, just like any ordinary action. When the court
rules on evidence, the court follows ordinary rules on evidence. In spec pro,
since usually there is only one party, after presentation of evidence, the court
will now order that the petition is deemed admitted for decision.
. There is only one party involved in special proceedings. After the formal offer of its
exhibits and its admission, the court will now order that the petition be submitted for decision
and the case is now decided based on the evidence presented by the petitioner. Whereas, in
an ordinary action, it must be based on the evidence of both parties. The same may be true
with special civil actions, especially when there is a private party. Unless when the one
involved as the respondent is the court or a quasi-judicial body, in which case, the case is
decided based on the evidence presented by the petitioner.

How else do you differentiate? In Ordinary Civil Actions, usually involves at least two parties,
the plaintiff and the defendant. Sometimes, it even complicates and results to third party
plaintiff against a third party defendant. Not to mention, cross claim (cross-claim
plaintiff/defendant), and intervention.

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

However, they are only nominal respondents; they are not personally interested in you.
Unless of course you are really a male who wants to have your gender changed to Female
because it will now involve public interest. More often than not, it only involves the interest of
the petitioner. In one case however, the petitioner wanted to change the name of his father in
his birth certificate since though it appears from such document that the father is Juan, in truth
and in fact according to the mother, the father is Pedro. There is a problem, that would have
been fine if Juan and Pedro would refer to the same person but in this case, Pedro and Juan
are two different identities. The mother put Juan instead of Pedro since it was the former who
was willing to answer for the fathers responsibility instead, it would somehow avoid social
embarrassment. Now, Pedro already wants to claim his child and it would also be impossible
for Juan to have fathered the child since he just met the mother after the delivery of the
newborn.
So, naturally in this case, it is not only the Civil Registrar who would be made as a
respondent, there is high probability that Juan would oppose since he was initially named as
the father. There is also a need to implead Pedro in this case. Now, what happens if Juan has
a wife and other heirs who were never impleaded? As legal heirs, may they petition to nullify
the judgment? Is that it? No. This is the very purpose of PUBLICATION wherein all interested
parties are deemed to have constructive notice which is the means of the court in acquiring
jurisdiction over them. All interested parties are presumed to know that there is this petition
which is ordinarily non-adversarial.

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

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

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

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

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

What else are subject to Special Proc? Aside from the settlement of estate, what else? The
subject matter, what do we cover in Special Proceedings? Lets have this, Guardianship and
Custody of Children, only opposition is needed herenot an answer. This has nothing to do
with the solgen, this could be between parents.

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

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

You have habeas corpus, change of name, voluntary dissolution of corporations (e.g. due to
bankruptcy), judicial approval of voluntary recognition of minor natural children, judicial
constitution of the family home (Teachers comment: under the new rules, di na kinahanglan
diba under the new rules? Kinahanglan pa ba na? Depende sa value of the property. But di
na man na kinahanglan ug judicial approval so di na kinahanglan mupetition), declaration of
absence and death, petition of declaration of death (Teachers comment: the easiest way to
remarry is to petition for the declaration of presumptive death), cancellation/correction of an
entry of the civil registry, liquidation proceedings, intracorporate controversies, corporate
rehabilitation, recognition and enforcement of arbitrational proceedings. While the later
enumerations are not found under the Rules of Court, it is found under the Corporation Code.


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

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

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as to the value. If non-resident, you have to ascertain the location of the properties and their
gross value. It used to be, as of 1999, where the property is 100k or less, outside metro
manila, MTC of the place where property is located. It has been increased to 200k, and then 5
years thereafter, the expanded jurisdiction of the first level court in so far as settlement of
estate. It is now 300k or less outside metro manila. In metro manila, 400k. If it exceeds, RTC
shall have jurisdiction. Take note that it is only venue. It can be waived if the parties did not
object. The court shall remain to have jurisdiction basta siya MTC or RTC. If amount is 400k
and filed before MTC, that is no longer venue. That is jurisdictional. It should have been filed
with RTC. If 300k and the property is located in Cebu City and the parties considered venue
in Lapu-lapu City and they participated, the venue is considered waived. However should
there be questions later on that the venue is improperly laid and it is obvious in the record that
it is improperly laid, the remedy is certiorari. You ask for the dismissal for lack of jurisdiction. If
it is not clear, especially when there are several locations of the properties, you have to wait
until after termination of the proceeding then you can always appeal the issue of jurisdiction
when the case is elevated in the appellate court.

As regards to the dissolution of the marriage caused by the death of one of the spouses, the
partnership affairs has to be liquidated. Where at? Intestate (no will)/testate (with will)
proceeding of the deceased spouse. If both died, it can be in the intestate (no will)/testate
(with will) proceeding of either, but not separate. They have to be consolidated. If separate
proceedings have been instituted, they can be consolidated in the same court.

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

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

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

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

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case in the place where property is located. The problem is when properties are located in
different provinces, so RTC if value is more than 400k, 300k as the case may be. So its
possible to file it in any court where property is located. There could be several heirs with
conflicting claims Im the true heir, hes not an heir!. Which one should assume jurisdiction?
Any of these RTCs/MTCs where properties are located. Pero the moment one court first
acquired jurisdiction, it will be to the exclusion of the rest. Subsequent questions should be
filed in the court which took first cognizance of the settlement proceeding. That is the
exclusionary rule under rule 73 sec1. Jurisdiction cannot be divested by subsequent act of
parties such as entering into extrajudicial settlement or partition settlement.

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

Can you petition for mandamus instead, if you insist this court must take cognizance, if there
is question of improper venue? No. Where it is not clear WON court has jurisdiction, you have
to wait until the termination of the case and then assign that as one of the errors in the
judgment. Pero if obvious gani, and in the records of the case, indeed the court has no
jurisdiction, what will be the remedy? Certiorari.

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

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

Can the probate court issue a writ of execution? There is no executor, no administrator.
GR: cannot.
Exception: share of the devisees, legatees, heirs when they already entered the estate, and
to enforce payment of expenses of partition rule 90 sec3
After distribution- partition (subdivision, certification from DAR/DA, Registry of Deeds)
If only one heir shouldered, must be reimbursed by other heirs. If they do not pay, ask for writ
of execution directing them to share expenses of partition
Finally, you can ask for writ in order to satisfy the cause when person is cited for examination
in a probate proceeding. Expenses for the witnesses who testified. Rule 142 sec 13.


Rule 74
What shall be done to the estate of the decedent when he dies? How is his estate settled?
Ways of settling:
GR: by judicial settlement- magastos and proceedings take long
EXC:
Extrajudicial settlement by agreement among all heirs
Adjudication of the estate of the decedent by the sole heir by executing affidavit of
adjudication.
Summary settlement of estate of small value- sec 2 rule 74.

KINDS OF SETTLEMENT OF ESTATE:
1. Summary settlement of estate of small value;
2. Extra judicial settlement;
3. Judicial settlement through letters testamentary or letters of administration with or without
a will.

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

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

Adjudication of a sole heir
- execute an affidavit of adjudication
o what do you need/ requirements?
adjudication of the affidavit
o who are heirs?
Legitimate or illegitimate
Ascendant or descendant
Surviving spouse (mao nalang ang heir wala nai laen)
Collateral relatives (only if there are no more ascendants and
descendants hurot tanan sa storm surge)
o What if it is a common-law wife or husband? Can they settle the estate of the
spouse by executing an affidavit of adjudication by sole heir?
No. it is defined by law that the surviving spouse should be a
legitimate surviving spouse. (not common-law)
They are only considered as co-owner but not as sole heir
- you need to have a cultural community membership certification
o meaning di siya member sa indigenous people or cultural community.
- You have to put up a bond

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

If naa siyay utang, would it bar him from executing an affidavit of adjudication of sole heir?
- he can still adjudicate provided only after he pays all the obligations of the estate.
o It does not bar the heir as long as he pays the obligations before settlement
of the estate through adjudication of sole heir.

When the estate is comprised of personal properties there should be a bond
- why only on personal properties?
o Because they can be easily be disposed of and consumed and other heirs
may claim over the estate at least the bond may answer for that.
- Bond is filed in the registrar of cebu city.

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

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

There has to be a survey plan for the technical description of the real properties.
Monuments of title
- like tax declarations
- certificate of title
- receipts
- proof of ownership
- certification provided by the agrarian


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taxes on the property should be paid ( estate taxes)
the inheritance tax
- return should be filed within 6 months from the death of the decedent
- the BIR has to be informed of the death of the decedent within 30 days from the
death of the decedent

how much taxes should be paid by the estate to the government
there has to be publication
- publish the affidavit of adjudication or the extrajudicial agreement
- publish the notice to creditors
the publication should be made once a week for 3 consecutive weeks, of newspapers of
general circulation, of the place where the bulk of the properties of the decedent are located.

EXTRAJUDICIAL SETTLEMENT OF THE ESTATE
- you are among the heirs you prove the fact of death of the decedent.
- It should be made in a public instrument.
o What if not notarized or not under oath but signed by all the heirs and the
witnesses meaning it is a private document?
the agreement is valid among the parties
problem with this one only valid but it can be easily contested by the
parties unlike if it is made in a public document it will enjoy the
presumption of regularity
disadvantage: compelled for the reformation
o where do you file this public instrument?
Extra-judicial then you file it with the registry of deeds where the
property is located.

There may be an agreement to settle the estate extra judicially but they cannot agree on the
sharing. What is the remedy?
no choice you have to go to court for judicial partition
because settlement is one thing and actual partition and determination of the sharing
is another thing
o apply rule 69 the judicial partitions and without prejudice to the heirs who did
not participate so what ever is the decision of the partition of the estate.
Whether you are omitted or share is not proportionate

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

The requirement on payment of taxes
Publication
That no debts are left or at least the debts are paid for extra judicial agreement was executed.
- presumed by law that the decedent did not leave any debts if there is no letters of
administration filed by a creditor within 2 years from the death of the decedent.
o Without prejudice if the creditor did not know of the settlement and then it
may go beyond the 2 year period.

Is it possible that the heirs instead will submit the settlement judicially instead of extra-
judicially? So first they have the extra-judicial settlement and then later on they did not agree
on the sharing can they instead submit to judicial settlement?
It is only allowed if the heirs insist It is not mandatory
o some of the heirs insist and have the estate settled judicially.

If there is already been a settlement of the estate (judicially) can the parties agree instead that
they would extra-judicially settle the estate setting aside the judicial settlement?
yes they can.
Without prejudice because they can agree on the settlement but the actual sharing
they cannot agree.


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Requisites:
Extra-judicial
- the decedent left no will
- and no debts
o if there are debts then it should be paid at the time that the judicial
settlements are entered into
- the disputable presumption that the decedent has no debts if no creditor files a
petition for letters of administration within 2 years after the death of the decedent.
- They are all of age

Procedural requirement:

division of estate must be in a public instrument
filed with proper Registry of Deeds
publication of notice of petition once a week for three consecutive weeks
bond filed equivalent to the value of personal property

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

Which court should have jurisdiction over the summary petition for settlement of estate of
small value?
the value of the estate subject of the summary settlement does not exceed 10k
MTC
o MTC where the Resident of the Philippines at the time of his death.
o The MTC of the property where the property is located.

When you file a petition you may ask for the appointment of an administrator. The probate of
will there may be an executor or there may be none, you may ask for an administrator.
Especially when there are no debts.
- the executor will execute the distribution of the estate according to the will of the
decedent.
- Administrator is also to distribute the estate of the decedent after the debts are paid.

Procedural requirements:
1. Where the decedent died whether, testate or intestate;
2. Gross value of the estate does not exceed P10,000.00
3. By the petition of an interested person and
4. Publication of notice once a week for 3 consecutive weeks in a newspaper of general
circulation in the province of residence of decedent and other notice to interested
persons;
5. After hearing held not less than one (1) month nor more than three (3) months from the
date of the last publication of notice;
6. The court may proceed summarily, without the appointment of an executor or administrator,
and without delay, grant:
a. Allowance of the will, if any;
b. Determine who are the persons legally entitled to participate in the estate, and
> the filing of the bond
c. Apportion and divide it among them after the payment of such debts of the estate.

IMPORTANT: Requisites to pursue a summary settlement of a deceased person:
1. Application must contain allegation of gross value of estate.
2. Date for hearing shall be set by court which shall:
a. be held not less than one month nor more than three months from date of last
publication of notice;
b. order of hearing be published, once a week for three consecutive weeks in a
newspaper of general circulation.
3. Notice shall be served upon such interested persons as the court may direct.

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Is the summary hearing binding upon creditors who are not parties? No knowledge of the
settlement?
bond fixed by the court upon payment of the things will answer to creditors under
section 4 rule 74, 2 years from the settlement of the estate

what will be the remedy? within 2 years
you can claim against the bond or under the real estate payable in money
Only availed of against the bond if there is undue deprivation of the lawful
participation in the estate.
o They will write to the court that they did not have the chance of participation.
Only within 2 years after the settlement and distribution of the estate.
The bond and the real estate shall remain charged on the liability within 2 years.
o Except when there is fraud
Within 4 years from the discovery of the fraud
Or when at the time of the settlement the heir is incapacitated by
reason of minority within 1 year
Or the heir is insane or in jail or abroad so how can he participate
within 1 year

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

Aside from going against the bond. There is the petition from relief from judgment
fraud
accident
mistake
excusable negligence
o period is 60 days from learning of the judgment and not more than 6 months
from the time judgment was entered as final and executory.
Concurring na ang 60 days and 6 months

Another remedy is the intervention within the reglementary period.

Can they ask for the reopening of the case in order to include the properties that were
omitted?
- No, the remedy is to file a separate action for settlement of estate.
What about if an heir was omitted? They knew that he is an heir but he was not included in
the settlement, what would be the remedy?
- File a motion for the reopening, mao ni siya. Reopening by intervention within the
reglementary period. Kung ikaw creditor, you still have 2 years to establish your claim
against the estate by way of making a claim against the bond or real properties.
Who is allowed to intervene?
1. A person who is either has legal interest in the matter in litigation,
2. Has such legal interest in the success in either of the parties or interest against both.
3. He is so situated as to be adversely affected by the distribution or disposition of
property in custody of the court because he may also claim as owner of the property.
When can you intervene?
- Anytime before rendition of judgment by the trial court as long as within the
reglementary period of two years in the settlement of the estate.
Third remedy:
- You can file an action to annul settlement within the reglementary period which is 2
years and not the prescriptive period.

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Another one is rescission in case of preterition of the compulsory heir in partition tainted with
bad faith. (Art. 1104 of CC) it would be an ordinary cause of action.
And then you have a petition to annul a deed of extrajudicial settlement on the ground of
fraud. You have 4 years from discovery within which to file otherwise your action is
dismissible on the ground of laches or prescription. That would be an ordinary action.
To summarize, extrajudicial settlement no court intervention. In summary settlement, it
requires summary judicial adjudication. The value in extrajudicial is not material but
jurisdictional in summary settlement, should not be more than 10K. In extrajudicial settlement,
no outstanding obligation upon settlement of estate by the parties. In summary settlement of
estate, there may be debts because the court may have to make provisions in the payment of
debts.
- In extrajudicial, it is resorted to only in the instance of or by agreement of all the heirs.
In summary settlement, it may be at the instance of any interested party without
consent of the all heirs, it may also be by the creditor by asking letters of
administration in the settlement of estate of the decedent.
- The amount of bond, so far as personal property: equal to the value as determined by
parties concerned in extrajudicial settlement. In summary settlement, the value is
determined by the court which is usually based to the value of the personal property.
- Administration is not necessary if there are no debts by the decedent. Take note of
the liability of the distributees of the estate within 2 years.
Extrajudicial settlement.
- Take note of Sec. 4 in the filing of a motion to reopen, only for purposes of paying
debts of creditors who may not have participated in the settlement of the estate only
when there is fraud. (Rule 74)
- Even if its a judicial settlement, there may be extrajudicial partition of the estate
without prejudice to the final determination to the settlement of the whole estate.

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

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

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

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will and testament disallowed, you continue the intestate proceeding.

Duty of the custodian of last will and testament.
Custodian- not necessarily the executor. One who is in possession of last will and testament
Duty of custodian upon death of testator
Within 20days after knowledge of death (not after death), deliver it to court having jurisdiction.
If executor at the same time, he must signify acceptance or non-acceptance of having been
named as executor. Even without petition, you deliver last will and testament. Court will then
immediately fix time and date of initial publication and order the publication to notify parties as
to the allowance of last will and testament delivered.

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


The proceeding on the allowance and disallowance of the will

Assuming there is the existence of a will, notarial or holographic; therell be the hearing of the
case.
Who can petition? During lifetime of testator, there can be allowance. Petitioner is the testator
himself. Advantage: chance to correct if there are any mistake or error in so far as intrinsic
requirements; be assured itll be successfully allowed after death. Also less duress or fraud
may be exerted on the person of testator. The court will see for itself if executed by testator
free from any means vitiating the will of testator.
Upon death of testator, manner of probate: anyone may file in the court of competent
jurisdiction, place where the last residence, if resident of Phil or the location of the property, if
non-resident.
Petitioners: devisee given with real property in last will and testament, legatee given with
personal property in the will, executor named in last will and testament, any person with
interest (heirs of the testator, creditors of the testator)
as regards heirs, compulsory heirs (legitimate children & descendant, legitimate parent &
ascendants like parents, grandparents, widow/widower, acknowledged natural, illegitimate
children, natural parent of illegitimate decedent, collateral relatives within 5
th
civil degree-
nearest excludes the farthest. Order of succession be followed
Voluntary heirs (devisees, legatees)
As regards creditor- not just anyone who claims as creditor during lifetime. Must establish his
claim in accordance with the laws in appropriate proceeding. That was the decision in the
case of Torres v. Morales.

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

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

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

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

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

Any person interested may appear and interpose opposition.
During the initial hearing, lawyer of petitioner should present documents to establish courts
jurisdiction: petition sufficient in substance and form; order of court setting time, date and
place of hearing; notice of the hearing to all parties concerned; application for publication to
be issued by editor/publisher of the publication; newspaper clippings; last will and testament;
death certificate

Any deficiency in those requirements does not avoid the proceeding.

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

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

If holographic, prove: dated, written, and signed by him. At least 1 witness is needed
In notarial will, the 3 instrumental witnesses are needed. Who can be instrumental witness?
Articles 820-21 of the civil code. Attestation clause

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

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

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

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

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

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

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If holographic will lost/destroyed
GR: cannot be probated anymore
Exc: can produce a photocopy of holographic will and can prove due execution by credible
witnesses.

Grounds to disapprove a will (sec9 rule 76)
(a) If not executed and attested as required by law;
Attestation (number of pages, language used, signed in every page, in the presence
of each other)
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its
execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing his signature thereto.

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

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

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

GR: no jurisdiction to ascertain issues relating to the ownership of the estate or properties
mentioned in last will and testament
Exc: limited jurisdiction for purposes of inventory and distribution- determination on intrinsic
validity is not conclusive neither is it final yet especially to people not parties to probate
proceeding because on the intrinsic validity, that is in personam action. Only binds the parties
of the case. A separate action can be filed to raise issue of ownership

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

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

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

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

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


What should be proved in reprobation?
The following need to be established:

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1. due execution of the will in accordance with foreign laws;
2. domicile of the testator in the foreign country and not in the Philippines;
3. that the will has been admitted to probate in such country;
4. that the foreign tribunal is a probate court;
5. the laws of a foreign country on procedure and allowance of the will in accordance
therewith and in the absence of proof of foreign law, processual presumption applies.
probation of will requirement that despite the fact that it was already probated abroad and
what requirements or evidence that you have to prove for the reprobate the last will and
testament of the decedent?
that there is a will left by the decedent and it was probated in the foreign country
the laws of the foreign country
the will was already probated and was valid
the execution of the will in accordance of the foreign laws
decedent is a domicile of the foreign country

assuming there is already a probate of the will abroad? An executor is named in the last will
and testament and the executor acted the testamentary wishes of the testator. Can this
administrator be also the administrator of the property yet to be reprobated in the Philippines?
Can the court issue another letter of administration to a petitioner to the reprobate of the will?
the court has the discretion whether such would admit the ability of the one appointed
abroad or they could appoint another administrator in the Philippines only for the
purpose of the reprobation of the properties in the Philippines
how do you call the administration or the executor issued by the letter testamentary by the
probate court abroad?
principal administrator

allowance of the same will in the Philippines with respect to the properties in the Philippines
left by the testator. Can the court is it automatic, the administrator be also be the administrator
for the properties in the Philippines?
it is not automatic.
Because the will has to be probated as if it is originally probated for the first time.
Can the probate court in the Philippines issue letters of administration to any interested
person?
he is an ancillary administrator

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

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


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

Any competent person may serve as executor or administrator He is incompetent if:
1. a minor
2. a non-resident
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 and integrity
d. conviction for an offense involving moral turpitude

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difference of letters of administration and letters testamentary:

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

Petition for Issuance of Letters of Administration GROUNDS FOR ISSUANCE:
1. No executor is named in the will, or
2. Incompetent executor or executors,
3. Refusal of executor to accept trust, or
4. Executor failed to give Bond, or
5. A person dies Intestate

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

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

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

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

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

Requisites for a person to be appointed executor or administrator:
1) Accepts the trust
2) Gives a BOND
3) Competent

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

ORDER OF PREFERENCE
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, request to have appointed, if
competent and willing to serve.
2) If the surviving spouse or the next of kin or the person selected by them be incompetent or
unwilling to serve, or if the surviving spouse or next of kin neglects for thirty (30) days after
the death of the decedent to apply for administration, ANY one or more of the principal
creditors , if competent and willing to serve.
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.
*** The ORDER OF PREFERENCE: this provision is not mandatory for the courts to obey.

Powers and duties:
a. possession and charge of the properties
b. commence and maintains suit for the estate
c. sell perishable property
d. pay debt as ordered by the court


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When does the power of a special administrator cease?
After the letters are granted.
*** Appointment of a special administrator under this rule is not mandatory but the judge may
do so in the exercise of its discretion.
Is appointment of special administrator appealable?
NO, the same is interlocutory. However, appointment of a REGULAR ADMINISTRATOR is
appealable because it is a final order.
*** A special administrator is not authorized to pay the estate unless so ordered by the Court.


Section 1. Opposition to petition.
Grounds for opposition:
1. majority of alleged minor
2. competency of alleged incompetent
3. unsuitability of the persons for whom letters are prayed or there is a better right

GUARDIANS; Grounds for disqualification
1) Mental incapacity
2) Conviction of a crime
3) Moral delinquency
4) Physical disability

Procedure:
a. filing of petition
b. court shall set the case for hearing
cause notices to be served to the persons mentioned in the petition, including minor, if 14
years and above, this requirement is jurisdictional
c. court shall receive evidence
d. declaration of the propriety of the petition
e. issue letters of guardianship

Contents of a petition for letters of administration:
a. jurisdictional facts;
b. name, age, residence of heirs and creditors;
c. probable value and character of the property
d. name of the person for whom letters is prayed for

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

What is the main issue in an administration proceeding?
Who is the person rightfully entitled to administration.

GROUNDS FOR OPPOSING

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1) Incompetency
2) Contestants right to administration
3) Requirements not fulfilled

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

Foreign judgment has no extra-territorial effect
The next question is what will you do when you file the petition?
original petition for the probate of the will
o the fact of death
o the domicile
o the properties left whether the court has jurisdiction over the properties
o consider the probable value and character fo the estate
o the heirs and creditors of the decedent
o there was publication
o there was already probate of the will abroad
o notices made to the heir
o the initial hearing
present the last will and testament
prove that it was validly executed in the laws of the foreign country
and that the will was duly probated in accordance with the laws of the
foreign country
that the court which issued or approve the will is a probate court
establish the procedure in the probate of the will
the legal requirements required to probate the will
domicile abroad
once established then the court will give due course.

Thereafter, you have the notices made to the heirs. Then a publication made for 2 weeks.
Then there is the initial hearing, you will have to present the last will and testament that it is
executed in accordance of the laws to where it was executed or probated. You also need to
prove that the court that approved the will is a probate court. You also need to establish the
procedure in the probate of the will. What are the requirements?
- Order to allow the last will and testament abroad
- That the testator was a domicile abroad
**Once established, the court will now give due course to the last will and testament.
What about administration the administration of the property for the mean time so that it can
be disposed of?
Is the court bound by the executor appointment of giving of the letters testamentary to the
executor named in the last will and testament? An example is what I gave you earlier where
the son and the wife of the testator were named as executors of his last will, is it automatic for
the court to adapt the same? Can they also be appointed? What if the petitioner in that case
where the will is being reprobated here in the Philippines is not even one of the executors?
Should the court then approve if this petitioner would apply for letters of administration
because he was never ________ even if there is a last will and testament? Will the named
executor be disqualified for appointment as executor?
- In this case, the one who asked for the court to be reprobated is the son. If you were
the court, you knew that there were two persons appointed, should the court also
make the same appointment? After all, it is discretionary upon the court here in the
Philippines. The court may appoint another person, a complete stranger in fact.
- He is called as ancillary administrator where he can be at the same time a principal
administrator. His appointment as administrator executor affects only the properties
within the jurisdiction of the court that issued the letters testamentary or letters of
administration, not outside of its territorial jurisdiction.
- In the Philippines then, the court has the discretion to make an appointment of
another administrator just to administer the properties left by the testator here in the
Philippines.

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What would then be the effect once it is reprobated?
1. Same effect as it was allowed in the Philippines, the letters testamentary if there is an
executor or letters of administration with annexed will shall extend to all estate.
**What is the difference between letters testamentary and letters of
administration and letters of administration with annexed will?
o Executor is one who was nominated by the testator approved by the court
and the authority given here is what we call letters testamentary.
o Where there is no last will and testament, it is the court that appoints the
administrator. And the authority given here is the letters of administration.
o Letters of administration with annexed will. This is a case where there is a will
and in fact named an executor, however, the executor is incompetent. In
which case, the court will issue the letters of administration with annexed will.
Or it is possible that there is a last will and testament but there is no executor
nominated by the testator and so the court will be bound to appoint an
administrator. Usually it will be the petitioner.
Once the will is reprobated, the court will now give you the letters testamentary which means
that it is the same executor named in the last will and testament who will be appointed by the
court as administrator, or it could be someone else who could be the creditor of the decedent
here in the Philippines in order to administer his property for the purpose of paying his debts
and dispose of the property left.
Whoever shall be appointed has the duty to make payments of the debts, expenses of
administration and the disposition of the residue of the properties in accordance with the
provisions of our laws.
LETTERS OF ADMINISTRATION AND LETTERS TESTAMENTARY
Basically, the purpose of these two is to administer and manage the properties of the
decedent who died either with or without a will.
- If there is a will and there is an executor named in the last will and testament, what
could the executor do? The executor could apply for letters testamentary in order that
he can administer, manage and dispose of the property of the testator in accordance
with his last will and testament. Take note, virtually he is just nominated, it is still for
the court to approve whether he should be appointed as executor because its
possible that he may not be qualified. Instead, what might be issued by the court is a
letter of administration with annexed will to whoever is qualified and competed to
administer the property. It could be a petitioner or it could be an oppositor to the
petition for letters of administration.
o So it may start with a letters testamentary application, you oppose to it
because of the incompetence of the executor, and at the same time as an
oppositor you will prove that you have better right to administer the property
and thus apply for letters of administration with annexed will. So he is not just
an oppositor but he is also at the same time an applicant for letters of
administration.
What is the difference between an executor and an administrator?
- An executor is one who is nominated by the testator to administer his property and
then thereafter approved by the court. While an administrator is one who is appointed
by the court to administer the property of his decedent.
- The executor actually knew that there was a last will and testament, so he has the
duty to present the said last will and testament within 20 days upon his knowledge of
death of the testator. The administrator doesnt have the duty to present, because in
fact there may not have been a last will and testament.
- With regard to the requirement of a bond. Take note that one of the requirements to
be appointed as administrator is there should be a filing of a bond to guarantee that
he will replace damage of the property of the decedent. However, an executor may
not be required by the court to put up a bond if the last will and testament says that

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he should not be liable to put up a bond. But if the last will is silent, then he may be
required by the court to put up a bond.
- With regard to compensation: Compensation of the executor is usually determined by
the testator himself as stated in his last will and testament. Compensation on the
latter is, however, determined by the court.
Qualifications of an executor or administrator: Sec. 1, Rule 78
Positive side:
- One who is competent who is not incompetent
o Who cannot be appointed is one who is an incompetent, or a minor, or is not
a resident of the Philippines.
o That is why usually, one who is named as executor in a will probated abroad
may not necessarily be appointed as executor of the properties left by the
testator in the Philippines. If you cannot prove that you are a resident of the
Philippines, then you cannot be competent.
o If in the opinion of the court you are unfit of trust by reason of drunkenness
o Improvidence walang pakialam
o Lack of understanding dumb, lack of intelligence.
o Integrity lack of soundness of moral principles and character.
o Convicted of an offense involving moral turpitude one who acts contrary to
justice, modesty, or good morals
If you have a judge charged for committing rape, he is disqualified! It
is against modesty or good morals.
What about if you were convicted of a crime in violation of RA 3019,
sec 3 (e) causing undue injury? That is not a crime involving moral
turpitude. There is already a decided case.
o Unsuitableness
Once you are appointed you are just a mere trustee of the estate, so the funds of the estate
are not yours. You are only holding it in trust of the estate. There should be inventory of the
properties of the decedent, and then you have to state the expenses for administration, taxes
and all. That should be properly accounted for.
Is it possible to have co-executors or administrators?
- Yes, only in so far as regular administrators, there can be two executors or two
administrators. Usually the reasons for appointment of co-administrators is because
sometimes mag-away ning pamilya labanay mn na. There can be groups and just to
make sure that all heirs are satisfied, they would represent them.
- Justice and equity demanded opposing parties are represented in the management of
the estate of the decedent.
- When the person entitled to the administration of an estate desires to have another
competent person associated with him, it is the administrator himself who wants to
have a co-administrator.
- One thing for sure is there cannot be two special administrators at the same time.
There should only be one.
o They take over in the expenses of administration pending approval of a
regular administrator
Preference to the appointment of an administrator:
- Spouse of the deceased
- If no spouse, the next of kin:
o Children or
o Ascendants of the testator or decedent
**Rule: the nearest kin excludes the farthest kin
- If no next of kin, it will be the principal creditor
- If none, any person the court may select, this is otherwise under the discretion of the
court now.

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Is it possible for the court, in the exercise of its discretion, to disregard the order of preference
under Rule 78, Sec. 6? Or is the order of preference absolute?
- The order of preference in the appointment of an administrator depends on the
attendant facts and circumstances. The probate court, in the exercise of discretion,
may disregard the order of preference in the appointment of an administrator when
the persons who have preferential rights are incompetent or are not willing to serve.
(Villamor vs. CA)
- In other words, always, the consideration in the appointment of an administrator is the
interest of the person in the estate of the one to be appointed. Who may be benefited
by the settlement of the estate? Benefited and dili kay mapaninglan. In other words, if
you were a debtor of the decedent, that would not be beneficial to you because you
have an adverse claim against the estate (sorry guys, pro nglibog sd ko ani na part)
- The order of preference does not rule out the appointment of administrator especially
when justice and equity demands for it.
The difference between the appointment of a regular administrator and a special
administrator:
- In the appointment of a regular administrator, you follow strictly Sec. 6, Rule 78,
unless all those people in the order of preference is incompetent or otherwise willing
to be appointed, in which case, you have to consider discretion of the court.
- On the other hand, in the appointment of a special administrator, you do not follow
the order of preference. You will base it on the sound discretion of the probate court.
He could be a complete stranger to the estate. Not necessarily in accordance with the
preference under Sec. 6.
If for example, the surviving spouse has the preference in the appointment, tried to apply for
letters of administration 20 days after the decedents death, will this exclude her from
appointment as administrator of the estate?
- It will no exclude her but there is always a strong case for her disqualification or
exclusion as administrator even if he is the surviving spouse.
What would then be the function of the administrator?
- To administer
- He will conduct an inventory of all the properties of the deceased person.
- Collate all of them, collect all the estates
- Thereafter, he will pay all the debts.
- Then, payment of taxes in the order of preference.
- If there is anything left in the property, distribute the residue in accordance with the
law on succession, and if there is no disposition in the last will and testament.
If you are not among those in the order of preference, do you have any chance of getting
appointed? You were not even the petitioner. If brothers and sisters mo nya ga away mo,
giunhan nmo ug file, what do you do? You are in the same level..pariha mo next of kin? Naa
mai nkafile ug una, d baya na pde na mufile pd ka ug another petition for letters of
administration. Kung nag file mo nya wa mo nagpahibal-anay sa usag-usa, then it will be
consolidated. It should be that they knew that there was already a petition for letters of
administration. What could be your ground?
- If there has already been an executor named in the last will and the court probated
the will and the nomination was then appointed by the court, can you still object?
o Yes, before the finality of judgment.
- Your ground for opposing issuance of letters testamentary will be incompetence of
the executor.
- He must not be a minor, a resident of the Philippines and must not be disqualified by
court by reason of drunkenness, improvidence, etc.
What about if there is no last will and testament?

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- Some will apply for letters of administration before the court where the estate of the
decedent is located.
What would be the grounds for opposing?
- 1. Incompetence of the applicant or the petitioner
- 2. That you are better qualified than the applicant.
**It is not just opposing but at the same time applying for letters of administration.
How is this done?
- The usual, if there is petition for letters of administration, then we have to establish
jurisdictional facts. What are those allegations?
o State death of decedent, when he died
o Whether he left a last will or testament or not.
o Resident of the Philippines
o Or his properties are found in the province where the court is sitting (probate
court).
o The probable value or character of the estate.
o Who are the heirs and creditors?
o That there was publication
o That there was already letters testamentary issued
What happens next?
- There will be notices made to the heirs named in the petition
- Then there is a requirement for publication for once a week for three consecutive
weeks setting the case for initial hearing
When do you file an opposition?
- It could be before the initial hearing is set or at the initial hearing.
- At the initial hearing, you manifest your opposition to the petition. Usually, the court
will give you a certain period of time to file a written opposition while the case is being
set for hearing and determine whether the applicant is disqualified. The burden of
proof lies on both the petitioner and oppositor because in so far as the petitioner is
considered, he has to prove that he has the qualifications for appointment as
administrator. So far as the oppositor is concerned, he has to prove that the applicant
is not qualified and that he is better qualified.
What if, for example, the petitioner did not appear during the initial hearing? And there was an
oppositor. Will this mean dismissal for the petition for letters of administration?
- Wa nitunga ang petitioner, obviously, he loses interest in applying for letters of
administration. Should the case be dismissed?
- No. It can be cured by the oppositor by applying for letters of administration. So the
case will continue, this time the oppositor will now be the party applicant for letters of
administration. He need not prove anymore that the petitioner is disqualified. What he
needs to prove now is that he is qualified to be appointed as administrator, thus the
issuance for letters of administration.
We said that it could be anyone who could file an opposition for the petition for application of
letters of administration. And the person who is interested is one who will be benefited in the
estate, such as an heir may be compulsory or voluntary heir, such as the legatee or
devisee.
- Who else? One who has a claim against the estate, such as a creditor.
- This interest that we are talking about must be material and direct interest in the
estate

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

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

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

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

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

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

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

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

Can you appoint the clerk of court to act as an administrator over the property?
According to the Supreme Court the appointment of the clerk of court should be avoided.
Why? Because the clerk of court are those who judge; there may not be objectivity and there
might be a conflict of interest.

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


Rule 80 appointment of special administrator
So far as the appointment of a special administrator always remember that there can only be
one special administrator because too expensive and he will be left by the estate which will all
go to the special administrator administering.
Another one, If there is an appointment because this is pure discretionary of the court, we
dont follow the order of appointment under section 6 Rule 78. Can you appeal an order
appointing a special administrator? It is non-applicable because it is an interlocutory order.

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


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You have to establish that there is a delay that will be cause of the appointment of a regular
administrator. For example, because maybe there is still an appeal to the allowance of the
last will and testament. There are some actions that are prescribing either against or for the
estate of the decedent so he needs someone to represent the estate and protect the interest
of the decedent with the estate. It might be rendered as inutile, the settlement of the estate
when everything is lost, thus the justification or the appointment of a special administrator.
Take note that it is only temporary, that is very special to ask an administrator
immediately after death (not so sure about this) while the case for the appointment of the
regular administrator is pending.

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

Role of a special administrator

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

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

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

Can he be sued?
Yes, section 1, Rule 87.

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

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

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

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

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

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

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exception is if the court finds reason to require the executor to put a bond. In other words, the
putting of a bond by an executor would become discretionary if there is a reason to do so.
What could be the reason for the requirement, notwithstanding the exemption of the executor
to put up a bond by the testator?
1. It could be that the executor is not a resident in the Philippines. It would be very
difficult to run after the executor should he neglect to perform his duties and caused
damage to the estate of the decedent to the prejudice of the interest of the heirs and
creditors because he is beyond the jurisdiction of the court. It would be more prudent
for the court to require the executor to put a bond to answer for any liability in the
performance of his functions of the executor.
2. It could be the executor is insolvent and is already bankrupt. There will always be a
danger that he will be tempted to squander the estate of the decedent. If there is
liability he cannot answer because he is insolvent. Our court may require him to put
up a bond nonetheless.
3. It could be that his executor cannot afford adequate security for his due
administration. In other words, he is on his verge of his bankruptcy. In which case it is
more prudent for the court to require him to put up a bond for the protection of the
heirs and creditors.
What is the purpose of the bond?
1. To safeguard or protect the estate
2. To make sure that he will perform his functions with utmost fidelity. So that if any
damage, liability or prejudice that may be caused in the performance of his function.
The bond will answer.
3. To secure a faithful administration of the estate and fair distribution of its proceeds
among those who are entitled to the estate of the deceased.
What are the acts or conditions that are secured by the bond as required by the court? They
are all enumerated under section 1 rule 81.
1. To make inventory of the estate of the deceased within 3 months from the date of
appointment
2. To administer the estate and pay the debts of the estate
3. To make accounting within 1 year from the date receipt of letters testamentary or
letters of administration and at any time as the court requires.
4. To perform all court orders.
These are the acts that are guaranteed of protection should there be any prejudice cause to
the heir or to the creditors we have the bond to answer.
Question: What about if the administrator used the money in good faith belonging to the
estate and unable to pay it. Can the creditor run after the bond put up by the administrator to
answer for the money that was used by the administrator? No, not one among those
enumeration that is being secured by the bond.
As to the amount of the bond, that is discretionary on the court. Court will consider the totality
of the estate of the decedent that needs to be protected and the maximum liability that the
bond may answer which is only up to the amount that is stated in the surety bond. In other
words, the liability of the surety is only limited up to the amount as stated in the bond. Not
beyond or less.
Another point, the bond put up by the administrator must be renewed every year. If you failed
to renew the bond as administrator and damage has been caused to the estate, or prejudicing
the heirs or the creditor in the performance of your function. Any of those parties may run
after the bond and hold the surety company liable.
Bond is already expired. Can you still hold the surety liable notwithstanding that the bond has
already expired? Yes. The expiration of the bond is of no moment. The suretys liability is
continuing for as long as the administration has not yet been revoked or terminated. The
problem is if the surety is already bankrupt. Renewal of the bond is impossible anymore. Can
they still recover from the surety? Yes, you file your claim in the court where the surety is filing

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a declaration for bankruptcy. Period of responsibility has no expiration until the administration
is terminated in accordance with the law and upon the orders of the court.
Question: When the bond is defective or insufficient would this be a ground to nullify the
issued letters of administration? The letters of administration was already issued after the
bond was posted but it was found out to be defective or insufficient, can you then ask for the
nullification of the order granting the letters of administration or letters of testamentary? No. it
will not necessarily nullify the order that is already been issued. The remedy would be to ask
an order from the court to require the other party to put up sufficient bond. If the other party
fails to do that then you may ask the court to nullify the order that granted the letters of
administration.
Basically the bond is a guarantee or a security from loss committed or fraud of these executor
or administrator in the administration of the estate.
Question: If the bond is forfeited because of the non-performance by the administrator
causing damage or injury to the creditors or the heirs of the estate. Is the surety entitled to
notice should there be a forfeiture of the bond? No, remember that the liability is co-extensive
with the administrator. The surety can intervene. However, it should be with leave of court.
The one principally liable is the administrator but the surety is placed in the shoes of the
administrator in the sense that he will be the one to pay. Once the administrator is liable,
definitely the surety should also be held liable. Notice to the surety is not necessary.
As to the bond that may be put up, it could be joint or individual especially if there are two
executors or administrators. If individual, there will be no problem. But if joint and only one
bond for the two executors or administrators, it is still allowed for as long as the amount is the
totality of the bond should be posted by the executor or administrator.|| Tapix-Jr Tapia

As to the bond that may be put up, it could be joint or individual. Actually when there are two
executors or administrators; kung individual no problem.
Q: Kung joint niya single ra siya the bond for the two executors or administrators, pwede na
siya?
A: Yes, basta ang amount is the totality of the bond should be posted by each executor or
administrator.
Q: what about the special administrators, are they required likewise to put up a bond?
A: Yes, they are required as well.
Take Note: Section 4 of Rule 81 as to the manner that it should be put up at the discretion
of the court.
Q: what is the matter that is being secured by the bond?
A: As enumerated in Sec. 4, Rule 81:
1. to make and return a true inventory of the goods of the deceased;
2. to account for the goods that are received by him; and
3. when required by the court, to deliver the same to the person appointed executor or
administrator or to such other person as may be authorized by the court to receive
the estate or the property of the deceased.


RULE 82
On the revocation of administration; death, resignation and removal of an executor or an
administrator.
Section 1 is a situation where there is already the issuance of the letters of administration to
an administrator, on the assumption that there is no last will and testament.
So what happened here, they instituted an intestate proceeding then the letters of
administration were then issued to the administrator. Thereafter, there was a discovery of last
will and testament.
Q: what is the effect of the discovery of the last will and testament on the letters of
administration already issued to the administrator? Is it automatically revoked, and his powers
are terminated?
A: No, it is not ipso facto nullified.
Q: why?
A: you still have to prove that the last will and testament is genuine, valid; and thus, there has
to be allowance and probate of the will first.

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Acts of administration done by the administrator prior discovery of the last will and testament
are considered as valid.
if there are some things later, youll have to submit that to the proceedings that will continue, it
could be in the intestate, or in the testate proceedings, the moment that last will and
testament is probated.
Q: what if the last and will and testament is found to be fake or otherwise not in compliance
with our laws? What will happen to the intestate proceedings?
A: it resumes, the intestate proceedings continue.
The bottom line there, bisag pending pa ang intestate and there is last will and testament,
ulahi na siya. Priority should always be the probate of the last will and testament before you
continue with intestate proceedings, because the reason behind this is you have to respect
the last wishes of the deceased. Kung tinu-od nga there is last will and testament, then that
should be respected and followed, if indeed the last will and testament is true and valid.
So then the moment the last will and testament is allowed, then only then, the letters of
administration are revoked and the powers of the administrator are terminated.
Take note of what would then be his duties and functions once they are terminated because
of the appointment of a new executor, take note of section 3.
As provided in Section 3:
1. it deprives the administrator of the right to do anything further with respect to the
administration and settlement of the estate;
2. he must settle his accounts;
3. Turn over the estate his successor (new executor) or to the court.
As regards to the grounds for removal of an executor or administrator.
As enumerated in Section 2, Rule 82:
1. Neglect to render the account;
2. Neglect to settle the estate according to law;
3. Neglect to perform an order or judgment of the court;
4. When he absconds;
5. When he becomes insane;
6. When he becomes incapable or unsuitalbe to discharge the trust; and
7. When he has conflicting or adverse interest against the estate; In which case you can
ask for the removal of the executor or administrator.
Q: Are these grounds exclusive? So that you cannot have an executor or administrator
removed except for the grounds enumerated in the Rule?
A: No, it is not exclusive. There are some cases decided by the Supreme Court where they
might not fall any of those grounds enumerated under Section 2, there can be reasons to
remove an administrator because ultimately the removal is discretionary upon the court.
Examples:
1. Lack of harmony and conflict of interest between the administrator and any person
interested in the estate.
a. Ex. an administrator cannot see eye to eye to one of the heirs. It would be
best then, to remove him as administrator because he cannot be trusted
anymore by the heirs of the deceased; in which case that could be a reason
for his removal.
2. When there is active hostility between the administrator and the creditor.
3. When he made false representations in order to obtain the appointment as an
administrator.
a. Ex. when he wrote in his qualification, he misrepresented that he is a resident
of the Philippines even if he is not.
4. Physical incapacity
a. Not just mental qualification or instability. You also have to consider the
physical fitness of the administrator, if he is unfit then that would be a ground.
5. When he has adverse interest against the heirs or creditors.

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a. Ex. he is a debtor of the estate and it was found later, after when the letters
of administration was issued. Nangutang siya sa estate or he was a
mortgagor, so therefore, he cannot be neutral insofar administering the
property. He has always a special interest to be protected over and above the
estate of the deceased.
6. There is a delay in the winding and settlement of the estate under his administration,
and he does that, he resorted to that. Although he could have avoided it, and if he is
found to have intentionally, deliberate cause the delay, then that could be a ground
for his removal as an administrator.// PAGLINAWAN
after the revocation of powers of the previous administrator there is the allowance of the last
will and testament, what will be the powers of the new executor? The powers are enumerated
in section 4, basically he will be performing those functions of that of his predecessor.
- if there has already been some actions on the recovery of property that have already
been started, it is for him to prosecute and defend any things of the property of the
deceased
- if there is judgment already issued by the court it is his duty to have them executed

the bottom line is that the removal of the administrator or executor is discretionary upon the
court.


Inventory and appraisal of the property of the decedent and the giving of support to the widow
and children.

The first is Inventory
- remember the function of the executor or administrator that 3 months from the
appointment of the executor or administrator. The duty of the administrator or
executor to make an inventory and appraisal of all the properties of the decedent
consisting of all goods, chattels, credits or rights of the deceased, real or personal.

What is the reason for the inventory?
- basically to help the court in revision the assumption and determining the liability of
the executor administrator
so what will be the basis for the court to hold the executor or the administrator liable?
- the court must know what are the assets, liabilities that this executor must assume
- to aid the court in making a final and equitable distribution of the estate.
- Help the court in facilitating the distribution of the estate based on the inventory

In the inventory you take note on what is being done here:
- the executor or administrator will make a list of all the properties belonging to the
estate of the decedent
- those that in the possession of the administrator or in the name of the deceased, or in
possession of the heirs or executors.

What if for example, not in the possession of the estate, but it came to the knowledge of the
executor/ administrator that it belongs to the estate, what must he do?
- he can always include that in the list and anyone who object/contest, he can always
contest in the separate action (not in the probate court) because the jurisdiction of the
probate court is limited.
o It has no jurisdiction to classify ownership or title over properties which may
be claimed as part of the estate of the decedent
o If someone will object of the claim of the administrator or the claim of the
administrator is objected. The administrator cannot ordinarily do that in the
probate court he must file a separate action, in a court of general jurisdiction
not probate
What is now the purpose of the inclusion? Is it the proof of ownership?
- no, it is prima facie evidence that this property may belong to the estate of the
decedent and it is not yet final, that has still to be determined in the proper forum.

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- Therefore if there is initial provisional determination of title over a property in the
probate court, it is just temporary it is not conclusive. Prima facie is only for the
purposes of including that in the inventory, subject to contest of anyone who will claim
over the property
- The judgment of the probate court of the title or ownership over the property, is not
final and therefore res judicata does not apply and you cannot ask for the execution
of the order declaring that the property belongs to the estate.
o There is an exception:
o When all the parties the creditors the heirs will submit the issue of ownership
in the probate court, they will ask the probate court to resolve the issue of
ownership and what will be the probative value of the judgment of the probate
court with regards to the ownership or title over the property submitted, or the
parties interested in the estate such as the creditors and the heirs and it will
also bind the heirs of the creditors, then judgment now becomes definite and
not just prima facie, it is conclusive upon the heirs,
but cannot bind the parties that were not notified of the proceedings.
They can always contest of the ownership or title over the property.

Property has title and is in the name of the deceased, you follow the principle of the
conclusiveness of the Torrens title anyone who will contest that you file a case in another
court, because it is presumed to be the property of the decedent.

Appraisal
Part of the inventory you have to appraise the property for purpose of the payment of the real
property taxes and inheritance tax as the court will issue directing the BIR and tax appraiser
to assist you in the appraisal of the property. || Blue Sapphire

If an inventory has been already prepared together with the appraisal, the values
corresponding to the properties included in the list, is the inclusion/exclusion of these
properties in the list final? Theres this submission and the court will issue an order
enumerating the properties belonging to the estate. That will be the subject of settlement and
payment of obligations as well as distribution. Is that list final? The answer is NO.
Is the submission of the inventory within 3 months mandatory? The answer is NO. It can be
filed after 3 months.
What is the difference between inventory and accounting? Ang inventory, even if they are not
in the possession of the estate. But in accounting, you can only account for the properties on
the possession of the administrator or executor. Even if knowledge lang ang didto sa
inventory that it belongs to the estate, you can include that already in the inventory even if you
are not in the possession. Because that is without prejudice to the commencement of an
action for the recovery. Pero in accounting, ang imong ma-account ra gyud are those in your
possession.
Properties not included in the inventory:
Mga sinina sa magtiayon ug mga anak
Matrimonial bed or beddings
Ilahang pang-subsistence, kanang lata sa 555, dili included bisan pila pa na sila ka-
lata sa sardinas. They are not considered as assets. They shall not be included in the
inventory.
While you are settling the estate, who are entitled to allowance which will be charged against
the estate?
1. Ang widow (dili ang widower. Mu-ingon mo, that is not fair!. But that is the law)
2. Ug ang minor/incapacitated children

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You have to relate that, on sec.3 rule 83, to art.80 180 and 186 of RA 386 na apparels kuno
sa asawa should not be part of the inventory, in fact the mourning apparel of the widow
(widow ha!) should be charged against the estate of the husband.
Kaning allowance to children, because we have now the family code, you have to read it in
relation to art. 188 of the civil code, art.133 of the family code, and art.194. Kaning giving of
allowance kuno includes even children of age especially for their education. Especially like
you! Of age na mo pero sige lang gihapon eskwela dependent on your parents. Kana,
chargeable na siya against the estate. The education of person entitled to support includes
schooling or training for some profession even beyond the age of majority.
So sec.3 rule83 does not also, take note, cover grandchildren. Children ra of the deceased
person ang covered sa provision sa allowance.
Sa abroad kay they have specialization on this, they have studied and mastered this. Person
is called Solicitor. Diri sa Pilipinas, jack of all trades man ta, master of none.|| Jovelle Carmel
Espiloy Rejuso

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