Part I

Introduction
Introduction to
Special Proceedings
Special Proceeding, defined

A special proceeding is a remedy by which a party seeks to establish a status, a right or a

particular fact. (Rule 1, Sec. 3c) Usually, no formal pleadings are required, unless the statute so
provides. The remedy is generally granted upon an application or motion. [Hagans v. Wislizenus, 42 Phil
880]

Subject Matter (Rule 72, Sec. 1)

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

Applicability of rules of civil actions (Rule 72, Sec. 2)

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

Part II.

Settlement of estates and similar actions

Settlement of estates of deceased persons

Escheats
Voluntary dissolution of corporations

Settlement of Estate
of Deceased Persons
INTRODUCTION
Purpose

The primordial purpose of the law relative to the settlement of estates is to strive to have the
estate settled in a speedy manner so that the benefits that may flow therefrom may be immediately
enjoyed by the heirs and beneficiaries.

Venue (Rule 73, Sec. 1)

If decedent is an inhabitant of Philippines

at the time of his death:

In the RTC in the province where he

resides at the time of his death

If decedent is an inhabitant of a
foreign country:

In the RTC of any province in which he

had estate

The term resides means the personal, actual or physical habitation of a person, actual place of
residence of place of abode. It signifies physical presence in a place and actual stay thereat. It does
NOT mean legal residence or domicile. [Garcia-Fule v. CA, 74 SCRA 189]
The court first taking cognizance of the settlement of the estate exercises jurisdiction to the exclusion
of other courts.

Modes of Settlement

Estates of deceased persons may be settled either extrajudicially or judicially.

Extrajudicial settlement may be done either through:
(1) Self-Adjudication; or
(2) Partition
while judicial settlement may be done either through:
(1) Probate proceedings;
(2) Partition under Rule 69; or
(3) Summary settlement of small estates

SUMMARY SETTLEMENT OF ESTATES

General rule, exceptions

The general rule is that when a person dies leaving property, his property should be judicially
administered and the competent court should appoint a qualified administrator, in the order established in
Section 6, Rule 78, in case the deceased left no will, or in case he left one, should he fail to name an
executor therein.
However, there are 2 instances when an estate can be settled summarily:
(1) Extrajudicial settlement (ES), which may be resorted to when (1) the
decedent left no will, (2) all the heirs are of lawful age and (3) there are no debts due
from the estate. The heirs may agree in writing to partition the property without instituting
judicial administration or applying for appointment of administrator. (Section 1, Rule 74)
(2) Summary settlement of small estates (SS) may be resorted to when
the property left by the decedent does not exceed P10,000.00 (SS) (Section 2, Rule 74).

Summary settlement of small estates

When resorted to
Summary settlement may be resorted to when the gross value of the estate of the deceased does
not exceed P 10,000.00. This is regardless of whether the decedent died testate or intestate. (Rule 74,
Sec. 2)

Procedure
(1)

Filing of petition with RTC by any interested person

(2)

Notice shall be published at least once a week for 3 consecutive weeks in a newspaper of
general circulation in the province. Notice shall likewise be given to interested persons as
the court may direct.

(3)

The court shall set the petition for hearing not less than 1 month nor more than 3 months
from the date of the last publication of the notice.

(4)

Without appointing an executor or administrator, the court shall, without delay, grant
allowance of the will, if proper, to determine who are the persons legally entitled to participate
in the estate.
The court shall likewise apportion and divide the estate among the heirs after the payment of
such debts of the estate as the court shall then find to be due.

Extrajudicial settlement
Requisites of a valid extrajudicial settlement
1.

The decedent died intestate;

2.

There are no outstanding debts of the estate at the time of the settlement;

3.

The heirs are all of age, or the minors are represented by their judicial guardians or legal
representatives;

4.

The settlement is made in a public instrument, stipulation or affidavit duly filed with the
register of deeds;
The requirement that a partition be put in a public document and registered has
for its purpose the protection of creditors and at the same time the protection of
the heirs themselves against tardy claims. The object of registration is to serve
as constructive notice to third persons.

5.

A bond is filed with the register of deeds in an amount equivalent to the value of the
personal property involved;
Note that:

6.

No bond is necessary when only real estate is involved

because the lien as recorded is sufficient security for any claim
which may be filed under Sec. 4.

The fact of such extrajudicial settlement must be published in a newspaper of general

circulation in the province once a week for three consecutive weeks.

How extrajudicial partition effected

An extrajudicial partition may be effected through the following ways:
(a)

by means of a public instrument where co-heirs agree to such extrajudicial

settlement of the estate. Such public instrument must be filed with the Register of
Deeds.

(b) where, during the pendency of an action for partition, the parties stipulate upon
an extra-judicial partition submitted to the court for approval and thereafter filed
with the Register of Deeds.
(c) by means of an affidavit of adjudication filed with the Register of Deeds where
there is only one heir.
The purpose of registration of the affidavit with the Register of
Deeds is to enable the heir to get a Transfer Certificate of Title
registered in his or her name.

Validity of oral partition

Rule 74, Section 1 contains no clear or express declaration that the required public instrument is
to be constitutive of a contract of partition or an inherent element of its effectiveness as between parties.
Hence, oral partition is allowed. However, oral partition is only proper when there are no creditors or no
rights of creditors are involved. [Hernandez v. Andal, 78 Phil 196; Vda. De Reyes v. CA, 199 SCRA 646]

Binding effect of extrajudicial partition on third persons

An extrajudicial settlement, despite the publication, shall not be binding on any person who has
not participated therein or who had no notice of the death of the decedent. This is because the procedure
outlined in Sec 1, Rule 74 is an ex parte proceeding. [Sampilo and Salacup v. CA, 103 Phil 70]
A summary settlement is likewise not binding upon heirs or creditors who were not parties therein
or had no knowledge thereof.

Presumption of absence of debts

It is presumed that the decedent left no debts if no creditor files a petition for letters of
administration within 2 years after the death of the decedent. (Rule 74, Sec. 1)

Discovery of unpaid debts

The discovery of unpaid debts after the extrajudicial settlement has been effected does not ipso
facto invalidate the partition. In such case, the creditor may ask for administration of the estate, but only

Comparison of summary settlement of small estates

and extrajudicial settlement
so much of the estate sufficient to pay the debt shall be subject to such administration. The other
partitioning persons shall be left undisturbed in their possession of the remainder.
However, the partitioning heirs can prevent such administration by paying the obligation. As an
alternative to administration, the creditor can file an ordinary action against the distributees for his claim.

Remedies of an excluded creditor

The remedies of an excluded creditor in an extrajudicial settlement are as follows:
(1) Proceed against the bond
The unpaid creditor may proceed against the bond by filing, within 2
years, a motion for the payment of his credit in the court wherein such
summary settlement was had. After the lapse of the 2 year period, the
creditor may no longer proceed against the bond, but can institute an
ordinary action against the distributees within the statute of limitations.
(2) Petition for letters of administration
(3) Action for rescission under Art. 1381 (3) on the ground of fraud of
creditors. This has a prescriptive period of 4 years.
(4) Proceed against the real property 2 years (The lien subsists for
2 years.)
(5) Ordinary civil action

Remedies of an excluded heir

An heir who has been excluded from an extrajudicial settlement has the following remedies
available to him / her:
(1) Action to compel settlement of estate (Rule 74, Sec. 4)
(2) Action for rescission on the ground of lesion (NCC 1381 (1) 4 years
(3) Accion reivindicatoria 10 years, implied trust (Lajom v. Viola)
(4) Annulment on the ground of fraud 4 years (Gerona v. de Guzman)

Resort to administration
Section 1, Rule 74 does not preclude the heirs from instituting administration proceedings, even if
the estate has no debts or obligations, if they do not desire to resort for good and compelling reasons to
an ordinary action for partition. This section is not mandatory or compulsory as may be gleaned from the
use of the word may. (Arcillas v. Montejo 26 SCRA 197)
What reasons would an heir have for refusing to submit to an extrajudicial
settlement even if there is no will and there are no debts?
See Rule 87, Sec. 6-9. The powers of an administrator enumerated here are not
available in a Rule 69 action for probate. Also, distribution may be more final here.
Or heir may suspect that there is estate property being concealed; or it is possible
that the heirs cannot agree as to what the estate is.

Provisions common to extrajudicial settlement

and summary settlement
Extrajudicial Settlement

Summary Settlement

Court intervention

Not required.

Involves judicial adjudication.

Value of estate

Immaterial.

Applies only when the gross estate

does not exceed P 10,000. This
amount is jurisdictional.

Type of succession

Only in intestate succession.

Allowed in both testate and intestate

estates.

Who may institute

Only at the instance and by theAny interested party and even by a

agreement of all the heirs.
creditor of the estate without the
consent of all the heirs.

Amount of bond to be filed

Equal to the value of the personalDetermined by the court.

property, as established by the
instrument of adjudication

Liabilities of distributees and heirs after partition; duration

Real property distributed either by extrajudicial settlement or by summary settlement shall be
subject to a two-year lien. Such lien shall be annotated on the title issued to distributees and may be
cancelled by Register of Deeds without court order after the lapse of time. Such lien cannot be cancelled
within the 2-year period even if distributees ask for a bond for contingent claims.
Personal property distributed either by extrajudicial settlement or by summary settlement shall be
covered by a bond in an amount equivalent to the value of such personal property.
Such bond and real estate shall remain charged with a liability to creditors, heirs, or other persons
for the full period of 2 years after such distribution of the estate. This is notwithstanding any transfers of
real estate that may have been made. (Rule 74, Sec. 4)
If it shall appear at any time within 2 years after the settlement and distribution of the estate that
there are debts outstanding against the estate which have not been paid, or that an heir or other person
has been unduly deprived of his lawful participation payable in money, the court may, by order and after
hearing, settle the amount of such debts or lawful participation and issue execution against the bond or
against the real estate or both.
After the 2 years, an ordinary action may be filed against distributees, but the right to proceed
against the bond no longer exists.
Rule 74, Sec. 4 which bars distributees or heirs from objecting to an extrajudicial partition after 2
years applies only to persons who have participated or taken part or had notice of the extrajudicial
partition, and only when the provisions of section 1 or Rule 74 have been strictly complied with, i.e. that all
the persons or heirs of the decedent have taken part in the extrajudicial settlement or represented by
themselves or through guardians. (Beltran v. Ayson, 4 SCRA 69)
The following persons may file actions against the estate beyond the 2-year rule:
(1) Minors
(2) Mentally incapacitated persons
(3) Persons in prison
(4) Persons residing outside the Philippines
They must present their claims within 1 year after their respective disabilities are removed. (Rule 74,
Sec. 5)

Extrajudicial partition, Rule 69

partition, and probate compared

Rule 69 partition

Extrajudicial partition

Probate

Expenses

When appropriate

Only if no will and decedentIf there is a will

has no debts

Vulnerability to attack

May be attacked via:

Filing of bond
Publication

Most expensive among the

3 modes. (See notice
requirements.)

May be attacked via:

Rule 47 action to
annul on the ground of
fraud;

Petition for relief from

judgment under Rule
38;

Action to impeach
judicial record under
Rule 132, Sec. 29

Rule 47 action to
annul;
Action for rescission
under Art. 1381 (1) or
(3), Civil Code;
Accion reivindicatoria

NON-SUMMARY SETTLEMENT OF ESTATE

Special Proceedings for the settlement of estate of a deceased person may be testate or
intestate. Where the deceased left a will, the proceeding is testate; when there is no will, it is intestate.
The term probate proceedings has come to refer to the settlement of estates whether testate or
intestate. The conversion of intestate proceedings to testate proceedings is a matter of form which lies
within the sound discretion of the court.

Jurisdiction

Where gross value of estate > P 200,000.00

if outside Metro Manila; > P 400,000.00 if within
Metro Manila

Regional Trial Court

Where gross value of estate < P 200,000.00

if outside Metro Manila; < P 400,000.00 if within
Metro Manila

MTC, MCTC, MeTC

(Sec. 19 and Sec. 33 of BP 129, as amended by RA 7691)

Note that Sec.1, Rule 73 which prescribes that the court where a decedents estate shall be
settled shall be the court of the decedent's place of his residence or where the estate is located, relates to
venue and not to jurisdiction. The laying of venue is procedural rather than substantive. Improper venue
is a waivable procedural defect. [In the matter of Intestate Estate of Kaw Singco, 73 Phil 239]

TESTATE PROCEEDINGS
Testate proceedings take precedence over intestate proceedings. Hence, if intestate proceedings
had been filed and a will is discovered, probate proceedings may be instituted in a separate proceeding or
by appropriate motion in the same court. Should the probate be denied, the proceeding shall continue as
an intestacy. (Uriarte v. CFI of Negros Occidental, May 29, 1970)

Probate
Definition
Probate is the act of proving in court a document purporting to be the last will and testament of a
deceased person, in order that it may be officially recognized, registered and its provisions carried out
insofar as they are in accordance with law.
What is a will?
A will has been defined as a personal, solemn, revocable and free act by
which a capacitated person disposes of his property and rights and declares or
complies with duties to take effect after his death. (Vitug v. CA)

Kinds of probate
There are 2 kinds of probate:
(1) Ante-mortem probate, wherein the testator himself petitions for the probate of his
will; and
(2)

Post-mortem probate, wherein the will of the testator is probated after his death
upon the petition of his heirs or other interested parties.

Nature of probate proceedings

MANDATORY:
Rule 75, Sec. 1 states that "no will shall pass either real or personal estate unless it is
proved and allowed in the proper court." The law enjoins the probate of a will and public policy
requires it, because unless the will is probated and notice thereof given to the whole world, the
right of a person to dispose of his property by will may be rendered nugatory. (Guevara v.
Guevara, 74 Phil. 479, 1973)
Because probate is mandatory, prescription does not run.
PROCEEDING IN REM:
Probate of a will is a proceeding in rem. As a general rule, notice by publication is the
act which vests the court with jurisdiction. [However, this rule does not apply in instances when
the testator petitions for the probate of his will, since newspaper publication is not a requirement
here. (Rule 76, Sec. 3)]
To satisfy the requirement of due process, heirs, devisees, legatees and executors are
still required to be notified by mail or personally. If the testator is the petitioner, notice shall be
sent only to his compulsory heirs. [Sec. 3]

How probate initiated

There are 2 ways by which probate is initiated, namely:

(1) by surrendering the will by the executor or its custodian; or
(2) by filing petition for allowance of the will

When jurisdiction vests

Jurisdiction is vested upon the probate court upon delivery of the will even if the corresponding
petition for its probate has not yet been filed. (Rodriguez v. Borja, 17 SCRA 418)
However, if the will has not yet been delivered to the court, then jurisdiction vests upon the filing of
the petition for its allowance.

Duty to produce will (Rule 75)

Presentation of a will to the court for probate is mandatory and its allowance by the court is
essential and indispensable to its efficacy. (Guevara v. Guevara, 74 Phil. 479, 1943)
The person who has custody of a will shall deliver the will to the court or to the executor named
in the will within 20 days after knowledge of death of testator. (Rule 75, Sec. 2)

Should he neglect to fulfill his duty to deliver, and he has no excuse

satisfactory to the court, he shall be fined not more than P 2,000.00. (Rule
75, Sec. 4)

However, should he neglect without reasonable cause to fulfill this duty

even when ordered to do so by the court, he may be committed to prison
and kept there until he delivers the will. (Rule 75, Sec. 5)

A person named as executor in a will shall present the will to the court within 20 days from
knowledge of the testator's death or from knowledge that he was named executor, if he obtained such
knowledge after the death of the testator. That is, unless the will has reached the court in any other
manner. (Rule 75, Sec. 3)
Within the same period of time, he shall signify to the court in writing his acceptance of the trust
or his refusal to accept it. (Rule 75, Sec. 3)

Should he neglect to fulfill any of the foregoing duties, and he has no

excuse satisfactory to the court, the executor shall be fined not more than
P2,000.00. (Rule 75, Sec. 4)

Section 4 and Section 5, distinguished

It must be pointed out that Section 5 can only be applied when a court is acting in the exercise of
its jurisdiction over the administration of the estate of deceased persons. Where administration
proceedings are not pending, the court, before taking action under this section, should require that there
be before it some petition, information, or affidavit of such character as to make action by the court under
this section appropriate.
The remedy under Section 5 is different from that under Sec 4. Sec 4 is a special procedural
offense which must be prosecuted upon complaint or information as other criminal offenses. (US v. Chiu
Guimco, 36 Phil 917)

Petition for allowance of a will

The allowance of a will precedes the issuance of letters testamentary or of administration. One
can have a will probated without necessarily securing letters testamentary or of administration. (Guevara
v. Guevara, 74 Phil. 479, 1943)

Who may petition

(a) executor, devisee, legatee named in the will;
(b) any other person interested in the estate even though not named in the will;
What is an "interested party"?
An interested party is one who would be benefited by the estate, such as an heir,
or one who has a claim against the estate, such as a creditor. This interest must be
material and direct, not merely indirect or contingent. (Sanguinsin v. Lindayag)
However, even where a person who had filed a petition for the allowance of the
estate of the deceased person had no right to do so in view of his lack of interest in the
estate, nevertheless, where the interested persons did not object to the application, the
defect in the petition would be deemed cured. The filing of the petition may be considered
as having been ratified by the interested parties. (Eusebio v. Valmores, 97 Phil 163)
Where an heir has validly assigned all his rights to the estate BEFORE the
institution of settlement proceedings, he no longer has the requisite interest to participate
therein. Where the assignment is made DURING the pendency of the settlement
proceedings, it requires the approval of the court for its validity. Once approved, the
assignor is no longer a party to the proceedings; if not approved, the assignor remains to
be an interested party. [Duran v. Duran, 30 SCRA 331] However, in such a situation, such
approval is not deemed final until the proceeding over the estate is closed, as such
approval can still be vacated; hence, the assignor remains as an interested party in the
proceeding. (Gutierrez v. Villegas, May 31, 1962)
Where the right of a claimant is dependent on the disallowance of the 2 nd will
and the incapability to inherit of the legatees instituted by the testator in the 1 st will, such
contingent interest does not make the claimant an interested party. (Espinosa v. Barrios,
70 Phil. 311; Trillana v. Crisostomo, 89 Phil. 710)
Objection to the petition on the ground of lack of legal capacity to institute
proceedings may be barred by waiver or estoppel or rule on omnibus motion. [Insurance
Company of North America v. Sharp & Co.]

(c) the testator himself during his lifetime.

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

(a) the jurisdictional facts, namely that:

(1) the decedent left a will;
(2)

the petition has been filed in the proper venue: in the case of residents,
that he died in the residence within the territorial jurisdiction of the court; in
case of non-residents, that he left an estate within such territorial
jurisdiction; and

(3) the will has been delivered to the court.

(b) names, ages and residences of heirs, legatees, and devisees;

(c) probable value and character of the property of the estate;
(d) name of person for whom letters are prayed;
(e) name of person having custody of will, if it has not yet been delivered to the court.

Necessity of attaching original of the will

Failure to attach the original of a will to the petition is not critical where the will itself was adduced
in evidence.

Admission of lost or destroyed will to probate

Rule 76, Sec 1 allows the filing of the petition for allowance of a will regardless of whether or not
the will is in the possession of the petitioner, or is lost or destroyed.
A lost or destroyed will can be admitted to probate provided that the following facts are proved:
1.

That the will has been duly executed by the testator;

2.

That the will was in existence when the testator died, or if not, that it has been
fraudulently or accidentally destroyed in the lifetime of the testator without his
knowledge (Cf. NCC 830);

3.

That the provisions of the will are clearly established by at least 2 credible
witnesses.

It must be stressed that this only applies to attested or notarial wills. In the probate of a
holographic will, the document itself must be produced. A lost holographic will cannot be probated. (Gan
v. Yap)
However, in the case of Rodelas v. Aranza, the court held that the probate of a photostatic or
xerox copy of the holographic will may be allowed.

Issues to be resolved
As a general rule, in probate proceedings, the court's area of inquiry is limited to an examination
and resolution of the extrinsic validity of the will. Thus, in determining whether a will should be allowed or
disallowed, the court must resolve the following issues:
1.

Whether the instrument submitted is the decedents last will and testament;

2.

Whether said will was executed in accordance with the formalities prescribed by
law;
The validity of a will as to its form depends upon the observance of the law in force at
the time it is made. (NCC 795)
The forms and solemnities of contracts, wills, and other public instruments shall be
governed by the laws of the country in which they are executed. (This is otherwise known
as the lex loci contractus rule. NCC 17)

Every testator, whether Filipino or alien, wherever he may be, has 5 choices as to what
law to follow for the form of his will:
(a)

The law of his citizenship (NCC 816-817 for aliens; applying to Filipinos by
analogy, NCC 15)
(b) The law of the place of execution (NCC 17);
(c)

The law of his domicile (NCC 816 for aliens abroad; applying to aliens in
the Philippines and to Filipinos by analogy);

(d) The law of his residence (same basis as for (c));

(e)

Philippine law (NCC 816-817 for aliens; NCC 15, applying to Filipino by
analogy)

Requisites of a notarial will:

(1)

Subscribed by the testator or his agent in his presence and by his express
direction at the end thereof, in the presence of the witnesses;

(2)

Attested and subscribed by at least 3 credible witnesses in the presence of

the testator and of one another;

(3)

The testator, or his agent, must sign every page, except the last, on the left
margin in the presence of the witnesses;

(4)

The witnesses must sign every page, except the last, on the left margin in
the presence of the testator and of one another;

(5) All pages numbered correlatively in letters on the upper part of each page;
(6) Attestation clause, stating:
(a) the number of pages of the will;
(b) the fact that the testator or his agent under his express direction
signed the will and every page thereof, in the presence of the
witnesses;
(c) the fact that the witnesses witnessed and signed the will and every
page thereof in the presence of the testator and one another;
(7) Acknowledgment before a notary public
Requisites of a holographic will:
(1) Completely handwritten by the testator;
(2) Dated by him;
(3) Signed by him.

3.

Whether the decedent had the necessary testamentary capacity at the time the
will was executed:
Testamentary capacity is the legal capacity to make a will. All natural persons, unless
disqualified by law, have testamentary capacity.
The law governing capacity to make a will is lex patriae or the testator's national law.
(NCC 15)
The following persons are disqualified from making a will:
(a) Those under 18 years of age;
(b) Those of unsound mind;

4.

Whether the execution of the will and its signing were the voluntary acts of the
decedent.

However, the probate of a will might become an idle ceremony if on its face it appears to be
intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed
upon, even before it is probated, the court should meet the issue. (Nepomuceno v. CA, 139 SCRA 206)
Thus, in the following cases, the court disallowed the will on the ground of intrinsic nullity:

Where the will appointed the testator's witness as executor and devised
property to her, such illicit relationship appearing on the face of the will
(Nepomuceno v. CA, supra);
Where the testator instituted the petitioner as universal heir and completely
preterited the surviving forced heirs (Nuguid v. Nuguid, 17 SCRA 449)

Grounds for disallowing a will (Art. 839, Civil Code; Rule 76, Sec. 9)
A will is either valid or void. There is no such thing as a voidable will.
The following are grounds for disallowing a will:
1.

The formalities required by law have not been complied with;

2.

The testator was insane, or otherwise mentally incapable of making a will, at the
time of its execution;

3.

The will was executed through force or under duress, or the influence of fear or
threats;

4.

The will was procured by undue and improper pressure and influence on the part
of the beneficiary or of some other person;

5.

The signature of the testator was procured by fraud;

6.

The testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto.

Note that this enumeration is exclusive.

Procedure in proving will

Probate petitioned by personProbate petitioned
other than testator
by testator
(1) Setting of time and place
When a will is delivered to, or a petition for the allowance of a will
for proving the will
is filed, the court having jurisdiction shall fix a time and place for
proving the will when all concerned may appear to contest the
allowance thereof. (Rule 76, Sec. 3)
(2) Publication of notice of The court shall cause notice ofNewspaper
time and place for proving the such time and place to bemade.
will
published for 3 successive weeks
previous to the time appointed in a
newspaper of general circulation in
the province.

publication

is

not

(3) Notice by mail or personal Copies of the notice shall beCopies of the notice shall be sent
service to heirs, devisees, mailed to the designated or otheronly to the testator's compulsory
legatees and executors
known
heirs, legatees, andheirs.
devisees of the testator resident in
the Philippines, as well as the
executor and any co-executor, if
such places of residence be
known.
Such notices shall be deposited in
the post office with prepaid
postage at least 20 days before
the hearing. Personal service of
copies of the notice at least 10
days before the day of hearing
shall be equivalent to mailing.
(4) Hearing; contesting of will

At the hearing, compliance with the provisions of notice and

publication must be shown before the introduction of testimony in
support of the will.
Anyone appearing to contest the will must state in writing his
grounds for opposing its allowance, and serve a copy thereof on the
petitioner and other parties interested in the estate. (Rule 76, Sec.
10)
All testimony shall be taken under oath and reduced to writing.
The degree of proof necessary for allowance of the will (whether
contested or not) is described in more detail in the table below.

(5) Judgment

If the court is satisfied, upon proof taken and filed, that the will (1)
was duly executed, (2) the testator at the time of its execution was of
sound and disposing mind, and (3) the testator was not acting under
duress, menace, and undue influence or fraud, it shall issue a
certificate of allowance of the will. (Rule 76, Sec. 13)
Where a lost will is proved, the provisions thereof must be distinctly
stated and certified by the judge, under the seal of the court. (Rule
76, Sec. 6)
Such certificate of allowance shall be signed by the judge, attested
by the seal of the court, and attached to the will. The will and the
certificate shall then be filed and recorded by the Clerk of Court.
Attested copies of the will devising real estate and of certificate of
allowance thereof shall be recorded in the register of deeds of the
province in which the lands lie.

Required proof
The following are the requirements for proving the authenticity and due execution of the will being
petitioned for probate:
Probate petitioned by personProbate petitioned
other than testator
by testator
Notarial will
3 subscribing witnesses + notary public (Sec 11)

Contested

1 subscribing witness (section 5)

Not contested

Holographic will
Contested

3 ordinary witnesses who knowOppositor must present his witness

testators handwriting and signature(section 12)
(section 11) It must be pointed out
that this requirement is merely
directory; not mandatory. (Azaola v.
Singson, 109 Phil. 102)
In the absence of any competent
witness, and if the court deems it
necessary, expert testimony may be
resorted to.

Not contested

1 ordinary witness who knowsAffirmation by the testator (section

testators handwriting and signature 12)

Where witness does not reside in the province:

Proof when witnesses are dead, insane

or reside outside Philippines:

Deposition of the subscribing witnesses

may be ordered by the court upon motion (Rule
76, Sec. 7)
Court may admit testimony of other
witnesses to prove the sanity of the testator and
the due execution of the will; and may admit
proof of the handwriting of the testator and/or of
the subscribing witnesses as evidence of the
execution of the will (Rule 76, Sec. 8)

In the case of a lost or destroyed will, to be proved as such, the following must be established:
(1) Due execution and validity of the will;
(2) The will was in existence at the time of the death of the testator, or was fraudulently
or accidentally destroyed in the lifetime of the testator without his knowledge.
Moreover, the provisions of the will must be clearly and distinctly proved by at least 2 credible witnesses.
(Rule 76, Sec. 6)

Effects of allowance of a will

Once a will has been proved and allowed in the proper court, it will then be possible for it to pass
either real or personal estate of the deceased.
Allowance of a will shall be conclusive as to its due execution. This, however, is subject to the
right of appeal. (Rule 75, Sec. 1) The will cannot be impugned on any grounds except fraud, in any
separate or independent action or proceeding. But any interested person may still question the intrinsic
validity of its testamentary provisions. [Heirs of Jesus Fran v. Salas, June 25, 1992]
Upon allowance of a will, the Court shall likewise issue letters testamentary to the person named
as the executor therein, provided that he is competent, accepts the trust, and gives a bond as required by
the Rules. (Rule 78, Sec. 4)

Once a decree of probate becomes final in accordance with the rules of procedure, it is res
judicata. Thus, even where a joint will was invalidly admitted to probate, failure to appeal this decision
renders the judgment final and incontrovertible. (Cf. Dela Cerna v. Potot, 12 SCRA 576)

PETITIONS FOR
ADMINISTRATION OF ESTATE
Executor and Administrator, distinguished

An executor is the person nominated by a testator to carry out the directions and requests in his
will, and to dispose of the property according to his testamentary provisions after his death.
An administrator is a person appointed by the court of probate, in accordance with the governing
statutes, to administer and settle intestate estates when:
(1) the decedent dies intestate, or
(2) although there is a will, the will is either (a) void, (b) does not appoint any executor, or (c)
if it appoints one, said person is either incapacitated or unwilling to serve.
There are two kinds of administrators: the "regular" administrator and the special administrator.

Petitions that may be filed

There are 3 kinds of petitions that may be filed for the purpose of acquiring powers of
administration over the deceased's estate:
In testate proceedings, there are 2 kinds of petitions:
(1) Petition for letters testamentary
(2) Petition for letters of administration with will annexed
while in intestate proceedings, a petition for letters of administration may be filed.

Letters testamentary
When a will have been proved and allowed, the court shall issue letters testamentary thereon to
the person named as executor therein, if he is competent, accepts the trust, and gives a bond as required
by the Rules. (Rule 78, Sec. 4)
When all of the executors named in a will cannot act because of incompetency, refusal to accept
the trust, or failure to give bond, on the part of one or more of them, letters testamentary may issue to
such of them as are competent, accept and give bond, and such executors may perform the duties and
discharge the trust required by the will. (Rule 78, Sec. 5)

Petition for letters of administration with will annexed

A person interested in a will opposing the issuance of letters testamentary to the person/s named
in the will as executor may file a simultaneous petition for letters of administration with the will annexed.
(Rule 79, Sec. 1)

Petition for letters of administration

Who may file
A petition for letters of administration may be filed by an interested person. (Rule 79, Sec. 2)

Contents of petition
A petition for letters of administration must contain the following, so far as known to the petitioner:
(a) The jurisdictional facts, namely;
1.

Death of the testator;

2.

Residence at the time of his death in the province where the probate court is
sitting, or if an inhabitant of a foreign country, his having left property in such
province. (Pilipinas Shell Petroleum Corp. v. Dumlao, 206 SCRA 40)

(b) The names, ages, and residences of the heirs, and the names and residences of the
creditors of the decedent;
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters of administration are prayed.
Setting of hearing; notice thereof
When a petition has been filed, the court shall fix a time and place for hearing the petition, and
shall cause notice thereof to be given to the known heirs and creditors of the decedent, and to any other
persons believed to have an interest in the estate. (Rule 79, Sec. 3)
The court shall cause notice of such time and place to be published for 3 successive weeks
previous to the time appointed in a newspaper of general circulation in the province. Copies of the notice
shall likewise be mailed to the designated or other known heirs, legatees, and devisees of the testator
resident in the Philippines, if such places of residence be known. Such notices shall be deposited in the
post office with prepaid postage at least 20 days before the hearing. (Rule 76, Sec. 3-4, in relation to
Rule 79, Sec. 3) Personal service of copies of the notice at least 10 days before the day of hearing shall
be equivalent to mailing.
The requirement of notice is jurisdictional. Where no notice is given, the proceeding for the
settlement of the estate is void and should be annulled. [De Guzman v. Angeles, 162 SCRA 347]
Grounds for opposing petition for letters of administration
A petition for letters of administration may be opposed (through a written opposition) on the
following grounds:
(1) Incompetency of the person for whom letters are prayed therein; or
(2) The contestant's own right to the administration.
In his/her opposition, the contestant may pray that letters issue to himself, or to any competent person/s
named in the opposition. (Rule 79, Sec. 4)
A MTD may lie on the ground of lack of legal capacity to institute proceedings since a petition for
letters of administration must be filed by an interested person. (Cf. Rule 79, Sec. 2)

Selection of an administrator

In the appointment of the administrator, the principal consideration is the interest in said estate of
the one to be appointed as administrator. The underlying presumption is that those who will reap the
benefit of a wise, speedy, economical administration of the estate, or on the other hand, suffer the
consequences of waste, improvidence or mismanagement, have the highest interest and most influential
motive to administer the estate correctly. (Gonzales v. Aguinaldo, 190 SCRA 112)
A corporation or association authorized to conduct the business of a trust company in the
Philippines may be appointed as an executor, administrator, guardian of an estate, or trustee, in like
manner as an individual. (NCC 1060)

Disqualifications
The following are incompetent to serve as executors or administrators and therefore should not
be appointed by the court:
(a) minors;
(b) non-residents (Note that a foreigner may be appointed as executor as long as he is
a resident.)
(c) those who, in the opinion of the court, are unfit to execute the duties of the trust by reason of:
(1) drunkenness,
Something grosser than occasional intoxication must appear in order to
preclude the appointment of the person entitled. The drunkenness contemplated by
this section is that excessive, inveterate and continued use of intoxicants, to such an
extent as to render the subject of the habit as unsafe to entrust with the care of prop
or the transaction of business.

(2) improvidence,
Improvidence refers to the lack of care, foresight, or business capacity
endangering the safety of the estate. Capacity for care and
foresight need not be evidenced by the accumulation of any considerable estate.
Symptoms of improvidence: carelessness, indifference, prodigality, wastefulness or
negligence in reference to the care, management and preservation of property.

(3) want of understanding or integrity, or

Want of understanding amounts to lack of intelligence or weakness of mind
such as would or might subject one to sinister influence or coercion against the
general interest of the estate.
Want of integrity: accusation should be certain and grave in its nature, and
must be established by proof which would at least approach the certainty required for
conviction in a criminal prosecution.

(4) conviction of an offense involving moral turpitude.

Moral turpitude includes anything done contrary to justice, honesty, principle
of good morals.

Note that the courts cannot add new causes of disqualification. However, antagonistic interest may
be taken into consideration when determining the fitness of a person as an executor or administration.
Moreover, clerks of court and other court personnel of probate courts should not be appointed as
administrators or receivers of estates of deceased persons so as not to compromise their objectivity and
impartiality in the performance of their regular functions. (Medina v. CA, Sept. 28, 1973; Vasquez v.
Malvar, Aug. 31, 1978)

Order of preference
The following order of preference shall be followed in the appointment of an administrator:
(a)

To the surviving spouse, or next of kin, or both, in the discretion of the court, or
to such person as such surviving spouse, or next of kin, requests to have
appointed, if competent and willing to serve;

(b)

If the above are incompetent or unwilling, or if the surviving spouse or next of

kin, neglects for 30 days after death of decedent to apply for admin or to request
admin to be granted to some other person, it may be granted to one or more of
the principal creditors, if competent and willing to serve;

(c)

If there is no such creditor, it may be granted to such other person as the court
may select.

Basic principles in appointing an administrator

The basic principles, as stated in the case of Gabriel v. Court of Appeals (212 SCRA 413), are as
follows:
1.

In the appointment of the administrator of the estate of a deceased person, the

principal consideration reckoned with is the interest in said estate of the one to be
appointed.

2.

For the benefit of the estate and those interested therein, more than one
administrator may be appointed since that is both legally permissible and sanctioned
in practice.

3.

A mere importunity by some of the heirs of the deceased, there being no factual and
substantial basis therefor, is not adequate ratiocination for the removal of the
administrator. Removal of administrators does not lie on the whims, caprices and
dictates of the heirs or beneficiaries of the estates.

4.

The order of preference under Sec 6 is not absolute and may be disregarded for
valid cause.

5.

The 30-day period within which the surviving spouse or the next of kin must apply for
letters of administration is not mandatory. The period is waivable under the
permissive tone in par (b) of Rule 78.

6.

The determination of a persons suitability for the office of judicial administrator rests
to a great extent, in the sound judgment of the court exercising the power of
appointment and said judgment is not to be interfered with on appeal unless the
court is clearly in error.

Issuance of letters of administration

Requirements for letters to issue

For the order for letters of administration to issue, the following must be shown during the hearing
of the petition:
(1) The requirements of notice and publication were duly complied with;
(2) The decedent left no will, or that if he did, there is no competent and willing
executor.
When there are other competent persons having better right to the administration but such
persons fail to appear when notified and claim the issuance of the letters to themselves, letters of
administration may be granted to any applicant. (Rule l79, Sec. 6)

Co-administration

The Rules expressly allow the appointment of 2 or more administrators. Co-administration is

resorted to for the following reasons:
1.

To have the benefit of their judgment;

2.

Where justice and equity demand that opposing parties be represented in the
management of the estate of the deceased;

3.

Where the estate is large or from any cause an intricate and perplexing one to settle;

4.

To have all interested persons satisfied and the representatives to work in harmony;

5.

When a person entitled to the administration of an estate desires to have another

competent person associated with him in the office

Duties upon entering into administration

Duty to give bond
As a general rule, an executor or administrator is required to post a bond. However, an executor
may be exempt from such requirement if the testator expressly stated such in his will. This implies
tremendous trust and confidence in the executor.
If in his will the testator directs that the executor serve either (a) without bond, or (b) with only his
individual bond, he may be allowed by the court to give a bond in such sum and with such surety as the
court approves, conditioned only to pay the debts of the testator. However, in case of a change in the
executor's circumstances, the court may require him to post a further bond with the conditions named in
Rule 81, Sec. 1 (Rule 81, Sec. 2. The conditions mentioned in the bond are discussed below.).
When 2 or more persons are appointed executors, the court may take a separate bond from
each, or a joint bond from all. (Rule 81, Sec. 3)
Both regular and special administrators are required to post a bond. However, the conditions
stated therein are different.

Duty to perform the duties imposed by the bond

The basic conditions of an executors or administrators bond, and the duties which are required of
the executor or administrator, are as follows:
1.

To make and return to the court, within 3 months, a complete inventory of all
goods, chattels, credits which shall come to his possession or knowledge;

2.

To administer according to these rules or according to the will of the testator;

3.

To render a true and just account of his administration within 1 year;

4.

To perform all orders of the court.

As long as the probate court retains jurisdiction of the estate, the bond contemplates a continuing
liability. Hence, for as long as one is an administrator of the estate, the bond can be made liable and
inevitably, the liability of the surety subsists as it is co-extensive with that of the administrator.

Termination of powers of administration

Discovery of will
Mere discovery of a document purporting to the last will and testament of the decedent after
appointment of an administrator and assumption that the decedent died intestate does not ipso facto
nullify the letters of administration already issued by the court. The will must be proved and allowed
before the letters of admin are revoked.
However, once the will has been proved, probate proceedings should replace the intestate
proceedings. The administrator who had been appointed in the intestate proceedings shall be required to
render a final account and turn over the estate in his possession to the executor subsequently appointed.
This is understood to be without prejudice that the proceeding shall continue as an intestacy. (Uriate v.
CFI Negros Occidental)

Revocation
Letters of administration are revoked when it is shown that they should not have been issued, or
they were improperly issued.
In the case of Corrubias v. Dizon (76 Phil 209), the Supreme Court held that where an
appointment of an administrator was procured through false and incorrect representations, the power of
the probate court to revoke the appointment on that ground is beyond question.
As a general rule, appellate tribunals are disinclined to interfere with the action taken by a
probate court in the matter of the removal of an executor or admin. The exception, however, is when
positive error or gross abuse of discretion is shown.

Removal
Removal of an executor or administrator is only for grounds which have arisen after letters of
administration were validly issued.
An administrator or executor can be removed if he / she:
1.

Neglects to render an account and settle the estate according to law;

2.

Neglects to perform an order or judgment of the court;

3.

Neglects to perform a duty expressly provided by the rules;

4. Absconds,
5. Becomes insane, or
6. Becomes incapable or unsuitable to discharge the trust.
Removal of an administrator should only be for cause. (Reyes v. Aranzaso, 116 SCRA 157) The
sufficiency of any ground for removal should thus be determined by said court, whose sensibilities are in
the first place, affected by any act or omission on the part of the administrator not conformable to or in
disregard of the rules or the orders of the court. (Degala v. Ceniza and Umpig)

Resignation
The court may permit the executor or administrator to resign instead of removing him for any of
the grounds for removal as enumerated above.

Effects of termination
Review of decision terminating administrator
The order of removal is appealable. (Borromeo v. Borromeo 97 Phil 549)

Prior acts
Acts of the executor or administrator or executor prior to revocation of the letters remain valid
even after such revocation. The effect of a revocation is to TERMINATE the authority of the executor or
administrator, BUT the acts of the executor or administrator, DONE IN GOOD FAITH PRIOR to the
revocation of the letters, will be protected and similar protection will be extended to rights acquired under
a previous grant of administration. [Sec3; Vda de Bacaling v. Laguna, 54 SCRA 243]

Appointment of new administrator

The new executor or administrator shall have the following powers:
1.

To have like powers as that of the former executor or administrator, to collect and
settle the estate not administered;

2.

To prosecute and defend actions commenced by or against the former executor

or administrator;

3.

To have execution on judgments recovered in the name of the former executor

or administrator.

Where the order of the court appointing a new administrator in substitution of the original
administrator is pending appeal, and in the absence of any order for the immediate execution of the order
of substitution, the old administrator has the right to continue as such until the appeal is finally disposed
of.

Special administrator

Special administrator, defined

A special administrator is the representative of decedent appointed by the probate court to care
for and preserve his estate until an executor or general administrator is appointed.

Rationale for appointment

The necessity of appointing a special administrator rests in the fact that estates of decedents are
frequently involved in protracted litigation, thereby being exposed to great waste and losses if there is no
authorized agent to collect the debts and preserve the assets in the interim. The principal object of
appointment of temporary administration is to preserve the estate until it can pass into the hands of
person fully authorized to administer it for the benefit of creditors and heirs.

When appointed
A special administrator may be appointed in the following instances:
1.

When there is DELAY in granting letters testamentary or of administration by any cause

including an appeal from the allowance or disallowance of a will.
any cause: includes those incidents clearly showing that there is a delay
in the probate of the will and that the granting of letters testamentary will
consequently be prolonged, necessitating the immediate appointment of a
special administrator.

2.

Whenever the executor or administrator dies or becomes insane, or otherwise incapable

from further performing his trust; or

3.

When the executor or administrator has a claim against the estate.

The appointment of a special administrator is merely discretionary on the part of the court.
Before the court can appoint a special administrator, the requirements of notice and publication
must be strictly complied with. Such requirements are jurisdictional. (See De Guzman v. Angeles, 162
SCRA 347)

Preference in appointment
The priority in the appointment of certain persons as administrator accorded by Section 6, Rule
78 of the Revised Rules of Court does not apply to the selection of a special administrator. (Roxas v.
Pecson)

Nature of duty
A special administrator is (1) deemed an officer of the court subject to the supervision and control
of the Probate Court [Corona v. Dayrit, 116 SCRA 316], and (2) is expected to work in the best interest of
the entire estate and its earliest settlement. [Vda. De Dayrit v. Ramolete, 117 SCRA 608]
As a general rule, a special administrator is not authorized to pay the debts of the estate unless
so ordered by the court. Thus, he may not be sued by a creditor of the estate.

However, when the claim will prescribe as in the case where the appointment of a regular
administrator is delayed for a long time such that the statute of limitations may bar the filing of the action
by the creditor, as well as an action for foreclosure of mortgage, a special administrator may pay the
debts of the estate. [Liwanag v. Reyes, 12 SCRA 43]

Contesting the appointment of a special administrator

The order of the court appointing a special administrator cannot be appealed. It is interlocutory in
nature, a mere incident to the judicial proceedings.

Necessity of appointing a regular administrator

The appointment of a regular administrator is necessary for the prompt settlement and distribution
of the estate. There are important duties devolving on a regular administrator, which a special
administrator cannot perform and there are many actions to be taken by the court which could not be
accomplished before a regular administrator is appointed.
The term of a special administrator subsists only until a regular administrator is appointed.

ADMINISTRATION OF THE ESTATE

Purpose of administration

The purpose of administration is the liquidation of the estate and distribution of the residue among
the heirs and legatees. Liquidation means the determination of all the assets of the estate and payment of
all debts and expenses.

Kinds of administration

When a person dies intestate owning property in the country of his domicile as well as in a foreign
country, administration shall be had in both countries. That which is granted in the jurisdiction of the
decedent's domicile is principal or domicilliary administration, while any other administration is termed
ancillary administration.
As a general rule, administration extends only to the assets of the decedent found within the state
or country where it was granted, so that an administrator appointed in one state has no power over
property in another state.
Principal and ancillary administration will be discussed in more detail in a subsequent chapter of
this reviewer.

Powers of the probate court

In probate proceedings, the court:

orders the probate of the will of the decedent;

grants letters of administration to the party best entitled thereto

or to any qualified applicant;

supervises and controls all acts of administration;

hears and approves claims against the estate of the deceased;

orders payment of lawful debts;

authorizes sale, mortgage or any encumbrance of real estate;

directs the delivery of the estate to those entitled thereto

The probate jurisdiction of the court relates only to matters having to do with settlement of the estate
and probate of wills of deceased persons, and the appointment and removal of administrators, executors,
guardians and trustees. Subject to exceptions, the law does not extend the jurisdiction of a probate court
to the determination of questions of ownership that arise during the proceeding. (Ramos v. CA, 180
SCRA 635)

When the probate court may pass upon the question of title to property
The probate court may pass upon the question of title to property when:

the interested parties who are all heirs of the deceased consent thereto and the
interests of third parties are not prejudiced; [Trinidad v. CA 202 SCRA 106]

it is necessary to determine whether said property should be included in or excluded

from the inventory. This determination is merely provisional, and is without
prejudice to the final determination of title in a separate action especially where the
property is in the possession of a third party who has a certificate of title thereto.
Thus, there is no res judicata between the special proceeding and the action
applies because of the difference in the cause of action. (Jimenez v. IAC, 17 April
1990)

Tasks involved in administration of the estate

Administration of the estate consists of the following tasks:

(1) Collation and inventory;
(2) Recovery and protection of the decedent's property;
(3) Payment of debts of the estate;
(4) Partition and distribution of the estate.
Each task will be discussed in their respective sections subsequently.

Nature of administrator's duties

An administrator is not a guarantor or insurer of the safety of the estate. But he is required to
exercise the same degree of prudence, care and judgment which a person of fair average capacity and
ability exercises in similar transactions of his own. (Lao v. Genato, 137 SCRA 85) The standard of
responsibility of the administrator is best measured as that of a bailee. Like any bailee, he must pursue
his discretion honestly and in good faith, or he will become personally liable to those who are interested in
the estate for waste, conversion or embezzlement.

Nature of accountability
An executor is a mere trustee. The funds of the estate in his hands are trust funds and he is held
to the duties and responsibilities of a trustee of the highest order. He cannot unilaterally assign to himself
and possess all the property and fruits thereof without first submitting an inventory and appraisal of all real
and personal properties of the deceased. (Ruiz v. CA, 29 Jan 1996)

General rule; exceptions

As a general rule, the executor / administrator is chargeable in his account with:

1.

The whole of the estate of the deceased at the value of the appraisement
contained in the inventory;

2.

The interest, profit, and income of the estate;

3.

Proceeds of the estate sold by him at the price it was sold;

However, he is not accountable for the properties of the deceased which have NOT come into his
possession. But when through unfaithfulness to the trust or through his own fault, or for lack of necessary
court action, he fails to recover a portion or part of the estate which has come to his knowledge, he will be
accountable for such properties as well.

Specific accountabilities of an executor / administrator

An executor / administrator shall not profit by the increase or suffer loss by the decrease or
destruction, without his fault, of any part of the estate. (Rule 85, Sec. 2) Moreover, he must account for:
1.

The excess when he sells any part of the estate for more than the appraisement (Rule 85, Sec.
2);

2.

The part of the real estate used or occupied by himself in accordance with:
a.
b.
c.

3.

the agreement of the parties

adjustment by the court with approval of the parties, or
if the parties cannot agree, the court will determine the sum to be allowed and
such determination by the court will be final. (Rule 85, Sec. 4)

The neglect or delay in raising money (by collecting the debts or selling properties of the
deceased) and the neglect to pay over the money he has in his hands when:
a. the value of the estate is lessened; or when
b. unnecessary cost or interest accrues, or when
c. the persons interested suffer loss. (Rule 85, Sec. 5)
However, the executor or administrator is not accountable for:

1. Costs awarded against him in actions or proceedings provided they are not prosecuted or resisted
without just cause, and in bad faith;
2.

Losses due to fortuitous events, in the absence of proof that such losses were due to his
negligence. [Garcia v. Escudero, 43 Phil 437]

3.

Debts due to the deceased which remain uncollected without his fault. However, it must be
proved that efforts have been exerted to collect such debts.

Restrictions on powers

If the estate is already the subject of testate or intestate proceedings, the administrator cannot
enter into any transaction involving it without prior approval of the court. (Manotok Realty v. CA, 149
SCRA 174) However, powers necessary for administration can be exercised without leave of court.
In particular, the executor / administrator cannot:
1.

acquire by purchase even at public or judicial auction, personally or through another,

the property under administration.
Administrator of an estate CANNOT exercise right of legal redemption over a portion of
the property owned in common sold by 1 of the co-owners since this is NOT within the powers
of administration.

2.

borrow money without authority of the court, even if it would redound to the benefit of
the estate.

3.

speculate with funds under administration.

4.

lease the property for more than one year.

Constitution of lease over property is an act of administration and leave of court. is not
required. Any interested party who wants to impugn the same must do so in an ordinary civil
action as the probate court has no jurisdiction over the lessee. If lease K > 1 yr., the same is
no longer considered a mere act of administration. [A 1878, CC ], and leave of court should be
obtained.
A view is held however that Civil Code provisions should not apply to leases entered into
by executor or administrator under the theory that they represent not only the estate but also
parties interested therein, that they are required to file a bond, & that their acts are subject to
specific provisions of law & orders of the probate court which circumstances are not true with
respect to agents. [San Diego v. Nombre, 11 SCRA 165]

5.

continue the business of the deceased unless authorized by the court; otherwise he
shall be liable for the loss; [Wilson v. Rear 55 Phil 44]

6.

profit by any increase or decrease in the value of the property under administration.
(Rule 85, Sec. 2)

COLLATION and INVENTORY

Computing the net hereditary estate

According to Prof. Balane, the net value of the estate, also known as the net hereditary estate, is
computed in the following manner:
(1) Inventory of all the existing assets This involves an appraisal / valuation of these existing assets at the time of the decedent's death.
These assets include only those property and obligations that survive the decedent, i.e. those which are
not extinguished by his death.
The value determined by this inventory will constitute the gross assets.
(2) Deducting unpaid debts and charges All unpaid obligations of the decedent should be deducted from the gross assets. Only those
obligations with monetary value which are not extinguished by death are considered here. Thus, those
obligations which are purely personal are not taken into account.
The difference between the gross assets and the unpaid obligations will be the available assets.
(3) Adding the value of donations inter vivos To the available assets should be added all the inter vivos donations made by the decedent. The
donations inter vivos shall be valued as of the time they were respectively made. Any increase or
decrease in value from the time they were made to the time of the decedent's death shall be for the
donee's account, since donation transfers ownership to the donee.

Duty to prepare inventory

Purpose of Inventory
There are several reasons why an inventory and appraisal are essential to the administration
proceedings:
(1) First and foremost, to know the value of the estate;
(2) To determine the extent of support for the family;
(3) To determine the bond that must be posted;
(4) To determine the estate tax that must be paid;
(5) To determine the allowance for contingent claims;
(6) To determine the administrator's commission (since the commission is based on
a percentage basis);
(7)

To aid the court in revising the accounts and determining the liabilities of the
executor/ administrator.

Articles which need not be included in the inventory:

The following articles need not be included in the inventory:
1.

The wearing apparel of the surviving spouse and minor children;

2.

Marriage bed and beddings;

3.

Such provisions and other articles as will necessarily be consumed in the

subsistence of the family of the deceased.

When to file inventory; effect of failure to file

Rule 81, Sec. 1 and Rule 83, Sec. 1 provide that the inventory and appraisal must be filed within
3 months after the executor or administrator's appointment.
However, it was held in the case of Sebial v. Sebial (64 SCRA 385) that such three month period
is not mandatory. The fact that an inventory was filed after the three month period would not deprive the
probate court of jurisdiction to approve it. However, an administrators unexplained delay in filing the
inventory may be a ground for his removal.

Inclusion in inventory of property claimed by 3rd persons

Property claimed by 3rd persons may be included in the inventory as part of the assets of the
estate and the probate court may order such inclusion. However, such order of the probate court is only a
prima facie determination and does not preclude the claimants from maintaining an ordinary civil action
for the determination of title (Vda. de Paz v. Vda de Madrigal, 100 Phil. 1085) since such determination is
merely provisional.
It must be noted that an order relating to inclusion or exclusion of properties in inventory is not
appealable as it is merely interlocutory.

MANAGEMENT OF ESTATE /
RECOVERY and PROTECTION OF DECEDENT'S PROPERTY
General rule
Rule 84 vests upon the executor or administrator the right not only to the possession but also to
the management of the real and personal estate of the deceased so long as it is necessary for the
payment of the debts and the expenses of administration. Where there are no debts to be paid, the
estate should pass to the heirs.

Duty to provide allowance for support

Rule 83, Sec. 3 provides that during the settlement of the estate, the widow and minor or
incapacitated children of a decedent are to receive, under the direction of the probate court, such
allowance as is provided by law, under the direction of the court.
In the case of Santero v. CFI Cavite (153 SCRA 728), it was held that the support referred to in
Rule 83, Sec. 3 does not extend only to minors or incapacitated children since under Art. 133 of the
Family Code, during liquidation of the conjugal partnership, the deceaseds legitimate spouse and
children, regardless of their age, civil status or gainful employment are entitled to provisional support from
the funds of the estate. Since the provision of the Civil Code, a substantive law, gives the surviving
spouse and the children the right to receive support, such right cannot be impaired by Rule 83, Sec. 3
which only speaks of minor and incapacitated children, which is a procedural rule. The law is rooted on
the fact that the right and duty to support especially the right to education subsist even beyond the age of
majority. The spouse however must be the legitimate spouse and not the common law spouse. The
Rule is clear, however, that it extends only to widow and children, and not to grandchildren of the
deceased.
It must be noted that the allowance for support refers only to allowance for subsistence.
The allowance for support pending liquidation is subject to collation and deductible from the
shares of the heirs in the inheritance insofar as they exceed what they are entitled to as fruits or income.

Duty to maintain houses

The executor or administrator has the duty to maintain in tenantable repair the houses and other
structures and fences belonging to the estate, and to deliver the same in such repair to the heirs or
devisees when directed to do so by the court. (Rule 84, Sec. 2)

Duty / power to bring actions for recovery or protection of property or

rights of deceased
An administrator or executor may bring or defend actions for causes which survive the deceased
for the recovery or protection of the property or rights of the deceased. (Rule 87, Sec. 2) Such actions
include the following:
(1) Foreclosure of mortgage (Rule 87, Sec. 5);
(2)

Action for recovery of property fraudulently conveyed by the deceased. (Rule 87,
Sec. 9)
This is resorted to when there is a deficiency of estate assets for the payment
of debts and expenses of administration, and the deceased conveyed real or
personal property or interests therein with intent to defraud creditors or to avoid
any right, debt or duty.

Before Rule 87, Sec. 9 can apply, the following conditions must be fulfilled:
1.

Creditors of the deceased make an application.

2.

Creditors pay such part of the costs and expenses or give security
to the A/E in such amount as the court deems equitable.

3.

There is a deficiency of assets in the hands of the executor or

admin for the payment of debts and expenses of admin.

4.

Deceased in his lifetime has conveyed real or personal property,

or a right or interest therein, or a debt or credit, with intent to
defraud the creditors or to avoid any right, debt , or duty, or had so
conveyed such property, right, interest, debt or credit that by law
the conveyance would be void as against his creditors; and

5.

The subject of such attempted conveyance was liable to

attachment by any of the creditors during the decedents lifetime.

Once the foregoing conditions are fulfilled, the A/E may commence and
prosecute to final judgment an action for the recovery of such properties,
rights, interests, debts, or credits fraudulently conveyed, for the benefit of the
creditors.
Should the A/E refuse to commence the action, the creditors may
commence and prosecute to final judgment, in the name of A/E, for the
recovery of the subject of the conveyance. Before commencing such an
action, the creditors must: (1) obtain permission of court , and (2) give a
bond in an amount approved by judge, conditioned to indemnify A/E against
costs due to the action.
However, if the grantee of the alleged fraudulent conveyance is the A/E,
the action is to be in the name of all the creditors. In this case, permission of
court and filing of bond is unnecessary.
Demands by the administrator against third persons must be in an
independent and separate action because the third person is not under the
courts jurisdiction anymore [Paula v. Ecsay]

(3) An administrator may, with the approval of the court, compound with the debtor of
the deceased for a debt due, and may give a discharge of such debt on receiving a
just dividend of the estate of the debtor (Rule 87, Sec. 4).
(4) Where, in his lifetime, a final judgment had been rendered in favor of the deceased,
the said judgment shall be enforced by execution on motion of the executor or
administrator (Cf. Rule 39, Sec. 7a)

(5)

Fact-finding inquiries under Rule 87, Sec. 6-8, where estate property is being
concealed, embezzled, or has been fraudulently conveyed.
These proceedings are merely in the nature of fact-finding inquiries. If in the
proceedings authorized under these sections the persons alleged to have
converted property of the estate assert title thereto, the probate court cannot
determine the issue of title. The executor or administrator must file an ordinary
action in court for the recovery of the properties or damage thereto. (Cf. Mallari
v. Mallari, 92 Phil. 694; Valera v. Inserto, May 7, 1987)

(6)

Action for recovery of double the value of estate property sold, embezzled or
alienated prior to the grant of letters testamentary or of administration (Rule 87, Sec.
8);

Heirs and devisees may not maintain actions that survive in place of the administrator or executor
except where the administrator or executor is unwilling or fails or refuses to act, then the heirs are allowed
to act in the A/Es place. [Pascual v. Pascual, 73 Phil 561]

Dealings with estate property

Preference for personal property
Generally, the probate court may order the whole or a part of the personal (as opposed to real)
estate to be sold, if it appears necessary for the purpose of paying debts, expenses of administration, or
legacies, or for the preservation of the property.
However, even though the personalty of the estate is not yet exhausted, the court may authorize
the sale, mortgage or other encumbrance of realty when:
(1)

The testator has not otherwise made sufficient provision for the payment of
his debts, expenses and legacies, and

(2)

the personal estate of the deceased is not sufficient to pay the debts,
expenses of administration and legacies; or

(3)

the sale of such personal estate may injure the business or other interests
of those interested in the estate. (Rule 89, Sec. 2)

Insufficiency of estate property in a foreign jurisdiction

Where it appears from records and proceedings of a probate court in another country that the
estate of the deceased in such other country is not sufficient to pay the debts, expenses of administration
and legacies there, the Philippine probate court may authorize the sale and/or encumbrance of personal
and real property here, for the payment of such debts or legacies in the other country. (Rule 89, Sec. 5)

Beneficial sale
When it appears that the sale of the whole or a part of the real or personal estate will be
beneficial to the heirs, devisees, legatees, and other interested persons, the court may, upon application
of the executor or administrator and on written notice to the heirs, authorize the sale thereof. However,
such authority shall not be granted if inconsistent with the provisions of a will. (Rule 89, Sec. 4)

Sale of Realty and Beneficial sale, distinguished

a.

Sale of property under Sec. 2 is for the payments of debts, expenses of

administration and legacies; while the sale of property under Sec 4 is for the
benefit of heirs, devisees, legatees and other interested persons.

b.

Under Sec 2, notice must be given to heirs, devisees, etc. who reside in the
Phil. Under Sec. 4, notice must be given to heirs, devisees, legatees whether
residing in or outside the Philippines.

Necessity for securing court authority

The executor or administrator must first secure the courts approval for any sale, mortgage or
encumbrance of estate property through petition with notice to heirs and interested parties. Without such
approval, A/E is guilty of conversion and becomes liable for its value with legal interest. Moreover, sales
and / or encumbrances made without court authority are null and void. (Santos v. Roman Catholic Bishop
of Nueva Caceres, 45 Phil. 895)
The process for securing court authority is as follows:
(1)

Filing of written petition by A/E;

The petition or application must contain the following:
(a)
(b)
(c)
(d)
(e)
(f)

Debts due from the deceased

Expenses of administration
Legacies
Value of the personal estate
Situation of the estate to be sold, mortgaged or otherwise encumbered.
Such other facts as will show that the sale, mortgage or encumbrance
is necessary or beneficial

(2)

Fixing of time and place of hearing of the petition as well as notice thereof
to the heirs and other interested parties;

(3)

Hearing of the petition;

(4)

Filing of additional bond by the A/E, if necessary;

(5)

Granting of authority;

(6)

Registration in the Registry of Deeds.

The application for authority to sale or encumber may be denied if:

(1) The disposition is not for any of the reasons specified by the rules; or
(2)

If under Rule 89, Sec. 3, any person interested in the estate gives a bond
conditioned to pay the debts, expenses of administration and legacies, for the
security of the creditors and the executor or administrator.

Conveyance of realty which the deceased contracted to convey

Where the deceased was in his lifetime under contract to deed real property or an interest therein,
the court may authorize the executor or administrator to convey such property according to such
contract. If the contract is to convey real property to the executor or administrator, the clerk of court shall
execute the deed, and such deed executed shall be as effectual to convey the property as if executed by
the deceased in his lifetime.
However, no such conveyance shall be authorized unless notice of the application has been given
personally or by mail to all persons interested, and such further notice has been given by publication or
otherwise, as the court deems proper. Neither shall it be authorized if the conveyance will result in the
diminution of the assets in the hands of the A/E so as to prevent a creditor from receiving his full debt or
diminish his dividend, or if the contact to deed real property is controverted by the executor or
administrator, the heirs or the creditors.
If the contract is controverted, the remedy of the person in whose behalf the contract was
executed is to file a separate action.

CLAIMS AGAINST THE ESTATE

Duty to pay and discharge debts
Under Rule 81, Sec. 1b, the executor or administrator has the duty to pay and discharge, from the
proceeds of the estate, all debts, legacies, and charges on the estate, or such dividends thereon as shall
be decreed by the court.

Claim, defined
A claim is a debt or pecuniary demand against the decedents estate.

Kinds of claims

Provable claims
Provable claims are those claims which may be properly filed against the estate. These are:
(1) Money claims arising from contract, i.e. claims of a pecuniary nature which
are not enforceable against specific property. (Olave v. Canlas, 4 SCRA 463)
Note: Not all claims for money are money claims.
In the case of De Bautista v. De Guzman (Nov. 25, 1983), it was
held that an action for a sum of money for breach of contract of carriage
resulting in the death of a passenger is a money claim which can be filed
against the decedent's estate.
(2) Claims for funeral expenses.
(3) Claims for expenses for last sickness of decedent.
(4) Judgments for money against decedent.
Favorable judgments obtained by the plaintiff in an action on
contractual money claims against the decedent shall be enforced as a
money claim without need of proving the same.
Provable claims do not include the following:
(1) claims for recovery of real or personal property;
(2) money claims arising from torts or crimes which should be filed under Sec 1
rule 87 or against the heirs;
(3) claims by Government for unpaid taxes. (Quirino v. Gorospe 5 SCRA 959)
The provision covers claims upon a liability consented to by the decedent before his death. Accordingly,
except for funeral expenses and expenses of the last sickness of the decedent, claims arising after his
death can't be presented. However, such claims can be allowed as expenses for administration, and may
be collected from the administrator or executor personally or by motion in the testate or intestate
proceedings without the formality and limitations provided for money claims against the decedent.
A money claim upon a liability contracted by the deceased must be duly filed even if the
deceased, in his will, acknowledged and ordered the payment of such debt. (Gotamco v. Chan Seng, 46
Phil. 542) However, under certain circumstances, such filing may be waived by the act or conduct of the
estate's representative.

Non-provable claims
Non-provable claims are those claims which cannot be filed against the estate but can only be
filed against the executor or administrator of the estate. These claims are:
(1)

Actions to recover real or personal property or interests therein from the

estate;

(2) Actions to enforce liens on real or personal property of the estate;

(3)

Actions to recover damages for injuries to persons or property, real or

personal (Rule 87, Sec. 1) Also see Rule 111, Sec. 4, Revised Rules of
Crim Pro 2000

This will be discussed in the subsequent chapter of this reviewer.

Statute of non-claims
Period for filing
The term "statute of non-claims" refers to the period fixed in Rule 87, Sec. 2 for the filing of
provable claims, i.e. claims against the deceased's estate. This period, which shall not be more than 12
nor less than 6 months after the date of the 1 st publication of the notice, is to compel the expeditious
distribution of the estate's property to the proper distributees, and to ensure the peace of mind and
comfort of the distributees.
This period begins to run from the date of the first publication of the notice referred to in Sec. 1.
The period runs even against the State. [Tan Sen Guan v. Go Sui San 47 Phil 89] Failure to file such
claims forever bars them from being filed.
Where a claimant with a claim under a judgment for money against the deceased files a petition
for the issuance of letters of admin over the estate of the decedent within the 10-year period from the
finality of its judgment, and after said 10-year period filed a claim against the estate of the deceased
under administration, said claim retroacts to the date of the filing of the petitioner for letters of
administration & therefore has not prescribed. (PNB v. De Villarin, September 5, 1975)

Extension of time to file

However, the court, for good cause shown, may grant, upon motion, a one-month grace period
for a creditor to file a claim if the period under Sec. 2 already lapsed. The motion must however be filed
in the administration proceedings before an order for distribution has been entered. Belated claims must
be filed within a time not exceeding one month from the order of the court allowing the claim and not
from the expiration of the original period. [Quisumbing v. Guimson, 76 Phil 730]

Claims permitted even if not filed within the statute of non-claims

The following claims are not barred even if not filed within the statute of non-claims:
1.

Claims which are set forth as counterclaims;

2.

In cases where the executor or administrator continues a suit already

commenced by the deceased and the debtor, by way of answer, sets claims he
has against the decedent;

3.

Mutual claims that may be set off against each other;

4.

Taxes against the estate.

The reason for a more liberal treatment of claims for taxes against a decedent's
estate in the form of exception from the application of the statute of non-claims is not hard
to find. Taxes are the lifeblood of the Government and their prompt and certain availability
is an imperious need. (Commissioner v. Pineda, 21 SCRA 105)

Notice to creditors
It shall be the duty of the executor or administrator to (a) immediately cause the notice to the
creditors to be published and posted; and (b) file in court a printed copy of the notice with an affidavit
setting forth the name of the newspaper and dates of the 1 st and last publication, within 10 days after
publication and posting.
The notice is to be published in a newspaper of general circulation for 3 successive weeks, and
posted for the same period in 4 public places in the province and 2 public places in the municipality where
the decedent last resided. (Rule 86, Sec. 3)

Effect of failure to give notice

Failure to give notice to creditors results in the non-commencement of the statute of non-claims,
thereby giving creditors additional time to present their claims.

Procedure for filing claims

(1)

Claimant files claim. This is done by delivering to the clerk of court the necessary
vouchers and serving a copy thereof to the administrator or executor.
If claim is founded on a bond, note or any other instrument,
(a) Attach only a copy of the instrument.
(b) Present the original of the instrument when (i) the executor or administrator
demands to see it; or (ii) court or judge requires it by order. If the original is
lost, claimant must accompany claim with affidavits containing copy or
particular description of the instrument stating its loss or destruction.
If the claim is due, it must be supported by an affidavit stating to his knowledge:
(a) the amount justly due;
(b) fact that no payments have been made;
(c) that there are no offsets to the claim
If claim is not yet due or is contingent, it must be supported by an affidavit
saying:
(a) the amount that will be due;
(b) when the claim will be due or become absolute;
(c) the fact that there are not offsets to the claim to the knowledge of
the claimant.
Comment: According to Regalado, it would appear that in view of Rule 86, Sec. 9, if
there is no instrument evidencing the debt of the decedent, and no writing is offered as
proof thereof, the claim cannot be proved. This appears to be sustained by the Dead
Man's Statute. (Rule 130, Sec. 20a)

(2)

(3)

E/A files answer, with offsetting claims, if any, 15 days from service of a copy of
the claim under Sec 10. The answer must:
1.

Specifically admit or deny the claims;

2.

Set forth the substance of the matters which are relied upon to support the
admission or denial;

3.

State or allege in offset any claim which the decedent had before his death
against the claimant. (Note that failure to allege offset bars the offsetting claim
forever.)

If E/A admits claim entirely, the same is submitted to clerk of court.

The Court may
Approve the claim without hearing; or
Order a hearing so that opposing heirs, legatees or
devisees may be heard.

Filing of answers (15 days)

Claim is then set for trial. (May be referred to

commissioner)
(4)

If E/A contests the claim, the clerk of court shall set the claim for trial with notice
to both parties.
The duty of the clerk of court to set claim for trial arises upon filing of an answer
to the claim, or the expiration of the time for such filing.
The court may refer the claim to a commissioner.

(5)

The court shall then render judgment either approving or disapproving a claim.

When claim deemed sufficient

A claim is deemed to be sufficient if it:

(1) states the character and amount of the claim;
(2) enables the executor or administrator to provide for its payment;
(3) serves to bar all other claims by reason of its particularity.
Determination of sufficiency is left to the discretion of the court.

Approval / disapproval of claims

Claim admitted in entirety

As discussed above.

Partial admission; effects

When the executor or administrator, in his answer, admits and offers to pay part of a claim, and
the claimant refuses to accept the amount offered in satisfaction of his claim, he cannot recover costs if
he fails to obtain a more favorable judgment. Moreover, he must pay the executor or administrator costs
from the time of the offer. (Rule 86, Sec. 14)

Contingent claims
Treatment of valid contingent claims
The Court shall order the executor or administrator to retain in his hands sufficient estate to pay
the claim, or if the estate is insolvent, a portion equal to the dividend of the other creditors. (Rule 88, Sec.
4)

Treatment of contingent claim becoming absolute

If such contingent claim becomes absolute and is presented to the court or to the executor or
administrator within 2 years from the expiration of the statute of non-claims:
(1)

It may be allowed by the court if not disputed by the executor or

administrator, in which case the creditor will receive payment; or

(2) If disputed, it may be proved and allowed or disallowed by the court as the
facts may warrant.
If it is not presented within the 2 year period:
(1)

If allowed by the court court may order the distribution of the assets
retained in the hands of the A/E to the claimant; or if already in the hands
of the distributes, claimant may maintain an action against the distributees
to recover the debt. Distributees shall be liable for the debt in proportion to
the amount of estate they have received from the property of the deceased.

(2)

If the claim is not allowed, the claimant will not receive payment. (Rule 88,
Sec. 5)

Effects of an approved claim

An approved claim entitles the creditor to payment of his claim. However, approval does not
create any lien upon estate property. Neither does it give the judgment creditor any priority of payment.
(Rule 86, Sec. 13)
If an appeal has been taken from a decision of the court concerning a claim, the court may either:
(1) suspend the order for the payment of the debts, or (2) order the distribution among the creditors
whose claims are definitely allowed, leaving in the hands of the executor or administrator sufficient assets
to pay the claim disputed and appealed.

Post-judgment remedy
The judgment of the court approving or disapproving a claim shall be filed with the record of the
administration proceedings with notice to both parties, and is appealable as in ordinary cases. (Rule 86,
Sec. 13)
A claimant may still hold heirs or distributees liable for his claim even when estate was already
adjudicated by heirs. Heirs are liable individually for the payment of all lawful outstanding claims against
the estate in proportion to the amount of value of the property they have respectively received from the
estate. Hereditary property consists only of that part which remains AFTER the settlement of all lawful
claims against the estate, for the settlement of which the estate is first liable. And the heirs cannot, by
any act of their own, or by agreement amongst themselves, reduce the creditors security for the payment
of their claims. [Pavia v. Dela Raja, 8 Phil 70]

Special rules
Remedies available to a mortgage creditor
There are 3 alternative remedies available to a mortgage creditor upon the death of the mortgagor:
1.

Mortgage creditor may abandon his security and prosecute his claim under Rule 86;
or

2.

Institute foreclosure suit against the executor or administrator and recover upon the
security. If there is no full recovery, he may obtain a deficiency judgment and file
claim under Rule 86; or

3.

Rely solely on the mortgage and foreclose the same anytime within statute of
limitations

The remedies do not prohibit the executor or administrator from redeeming the property
mortgaged or pledged.

Claim of executor or administrator against the estate

When the executor or administrator has a claim against the estate he represents, he shall give
notice thereof in writing to the court. The court shall then appoint a special administrator, who shall have
the same power and be subject to the same liability as the general administrator or executor with respect
to the adjustment of such claim. The court may order the general executor or administrator to pay to the
special administrator necessary funds to defend such claim. (Rule 86, Sec. 8)

Claims originating after decedent's death

As mentioned previously, claims originating after the decedent's death may be allowed as
expenses of administration. Such may be collected from the administrator or executor personally or by
motion in the testate or intestate proceedings without the formality and limitations provided for money
claims against the decedent.

Deductibility of claims against estate for estate tax purposes

Claims against the estate are deductible from the gross estate for estate tax purposes.
If the claim is for an indebtedness, it is deductible provided that:
(1) At the time the debt was incurred, the debt instrument was duly notarized;
(2) If the loan was contracted within 3 years before the decedent's death, the
executor or administrator shall have submitted a statement showing the
disposition of the loan proceeds.

ACTIONS AGAINST THE ADMINISTRATOR / EXECUTOR

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

If the action would result in a direct charge upon the estate, the
administrator or executor is to be sued in his representative
capacity.

Personal:

An executor or administrator is to be sued in his personal

capacity if the action involves violation of or non-compliance with
the duties of his trust.

An heir or devisee is prohibited from suing the executor or administrator for recovery of title to, for
possession of, or for damages done to lands of the estate while such executor or administrator is still
discharging his functions. Such action may be maintained when
1.

there is already an order of the court assigning the lands to heirs or devisees; or

2.

time allowed for paying debts already expired. (Rule 87, Sec. 3)

However, this prohibition applies only to heirs and devisees and not donees inter vivos who may sue the
administrator for the delivery of the property donated (Lopez v. Olbes, 15 Phil. 540) or a reservatario in
reserva troncal who can sue to recover the property which the deceased was bound to reserve (Cabardo
v. Villanueva, 44 Phil. 186).

PAYMENT OF DEBTS and OTHER LIABILITIES OF THE ESTATE

Duty to pay taxes
The executor or administrator has the duty to pay estate tax and real property tax on the estate of
the deceased.

Taxes are not claims

Claims for taxes due and assessed after the death of the decedent need not be presented in the
form of a claim. Heirs are liable for such taxes even after the distribution of the estate.

Estate tax
Notice of Death
The executor or administrator has the duty to file the Notice of Death of the decedent within 2
months after the decedent's death or after qualifying as executor or administrator. (NIRC Sec. 89)

Estate Tax Return

The executor or administrator is required to file an estate tax return within 6 months from the
decedent's death, with a possible extension not exceeding 60 days, when:
(a) The gross value of the estate exceeds P 200,000.00, or
(b) Regardless of the gross value, where the said estate consists of registered
or registrable property (e.g. real property, motor vehicle, shares of stock) for
which a clearance from the BIR is required as a condition precedent for the
transfer of ownership (Sec. 90, NIRC)

Payment of Estate Tax; effect of non-payment

The estate tax is usually paid at the time the return is filed. However, an extension of time to pay
may be granted.
The estate tax must be paid by the executor or administrator before delivery to any beneficiary of
his distributive share of the estate. However, claims for taxes may be collected even after the distribution
of the decedent's estate among his heirs who shall be liable therefor in proportion to their shares in the
inheritance. (Gov't v. Pamintuan, 55 Phil. 13; Sec. 91c, NIRC)
No judge shall authorize the executor or judicial administrator to deliver a distributive share to any
party interested in the estate unless a certification from the BIR Commissioner that the estate tax is paid
is shown. (Sec. 94, NIRC)

Real property tax

The executor or administrator has the duty to pay tax on transfer of real property ownership within
60 days from the date of the decedent's death. (Sec. 135, Local Government Code)

What are debts; what are not

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

Conditions before debts can be paid

1. ALL THE MONEY CLAIMS AGAINST THE ESTATE HAVE BEEN HEARD;
2. The amount of such claims have been ascertained; and
3. It appears that there are sufficient assets to pay the debts.

Preference in payment

When the testator makes a provision in the will as regards payment of debts, the debts shall be
paid accordingly. But if the provision is insufficient, the court will apply real or personal property, not
disposed of the testator in his will, to the payment of the debts. The order of preference as regards
payment of estate debts is thus as follows:
(1) Portion of the property designated in the will;
(2) Personal property not disposed of;
(3) Real property not disposed of
However, real property of the deceased will be chargeable first for debts of the estate when:
(1) the personal property is insufficient; or
(2) when the sale of the personal estate would redound to the detriment of the
participants of the estate.

Insolvent estate

If decedent is a resident
If the decedent's estate is insolvent, Articles 2239-2251 of the Civil code on preference of credits
apply. If after the articles are applied and the estate is insufficient, pro-rate the claims of the creditors. No
creditor of a different class shall receive payment if not all the creditors of a preferred class have been
paid. (Rule 88, Sec. 7)
If it appears to the probate court that claims have been duly proven in another country against the
estate of a resident insolvent decedent, and that the executor or administrator had knowledge of the
presentation of such claims in such foreign country and an opportunity to contest their allowance, the
court shall receive a certified list of such claims, when perfected in such country, and add the same to the
list of claims proved against the decedent in the Philippines so that a just distribution of the whole estate
may be made equally among all its creditors according to their respective claims.
However, this benefit shall not be extended to the creditors of another country if the property of
such deceased person there found is not equally apportioned to the creditors residing in the Philippines
and the other creditors, according to their respective claims. (Rule 88, Sec. 10)

If decedent is a non-resident
In case administration is taken in the Philippines of the estate of a person who at the time of his
death was a non-resident and died insolvent, his estate found in the Philippines shall be disposed of as
fast as is practicable so that the decedent's creditors here and elsewhere may receive each an equal
share in proportion to their respective credits. (Rule 88, Sec. 9)

Time for paying debts

The executor or administrator shall pay the debts and legacies of the deceased within 1 year after
the granting of letters testamentary or of administration. This period is extendible for 6 months after
application, hearing and notice. The executor or administrator may thereafter file for another 6-month
extension. (Rule 88, Sec. 15)

If the executor or administrator dies and a new administrator is appointed, the new appointee is
given a period not exceeding 6 months beyond the time which the court might have allowed the original
administrator or executor. (Rule 88, Sec. 16)
It must noted, however, that the periods under Sec. 15 and 16 are merely directory.

DETERMINATION OF HEIRS,
PARTITION AND DISTRIBUTION OF THE ESTATE
Distribution and Partition

The probate court in the exercise of its jurisdiction to distribute the estate has the power to
determine the properties or parts to which each distributee is entitled. A project of partition is merely a
proposal for the distribution of the hereditary estate which the court may accept or reject. It is the court
which makes the distribution of the estate and determines the persons entitled thereto. (Kilayko v.
Tengko, 27 March 1992)

When distribution allowed

The distribution of a decedent's assets may only be ordered under any of the following 3
circumstances, namely:
(1) When the estate tax, among others, is paid;
(2) When a sufficient bond is given to meet the payment of the estate tax and all
other obligations of the nature enumerated in Rule 90; or
(3)

When the payment of the said tax and all other obligations mentioned in
Rule 90 has been (adequately) provided for (Vera v. Navarro, 79 SCRA 408,
as cited in Vitug, p. 221-222)

Under Sec. 94 of the NIRC, no judge shall authorize the executor or administrator to deliver a
distributive share to any party interested in the estate unless a certification from the BIR Commissioner
that the estate tax has been paid is shown.

Advance distribution, when allowed

Court may permit distribution of the estate among the heirs or legatees notwithstanding a
pending controversy or appeal in proceedings to settle the estate of a decedent under the ff. conditions:
(1) Such part distributed is not affected by the controversy or appeal; and
(2) Upon compliance with the conditions under Rule 90 of the Rules of Court.

Subsequent distribution, when allowed

Subsequent distribution of assets may be ordered by the court:
1. If the whole of the debts is not paid on the first distribution and the whole
assets are not distributed thereby; and

2. If other assets afterwards come to the hands of the executor or administrator.

Order of distribution

Conditions precedent to issuance of order of distribution

1.

The administrator / executor or any person interested in the estate must have
applied for such an order; and

2.

Requirements as to notice and hearing upon application have been fulfilled.

Contents of order
1.

Names of the persons entitled thereto;

2.

Proportion or parts of the estate to which each person is entitled.

The order of distribution must also be at the same time a declaration of heirs since a separate
action for the declaration of heirs is not proper. (Pimentel v. Palanca, 5 Phil. 436)

Effect of issuance of order

The issuance of an order of distribution brings the administration proceedings to a close, puts an
end to administration and relieves the executor or administrator from his duties [Austria v. Ventanilla, 99
Phil 1068; Solivio v. CA, 182 SCRA 119]. Thus, the probate court loses jurisdiction over the estate
[Timbol v. Cano 1 SCRA 1271]
The judicial decree of distribution vests title in the distributees and any objection thereto should be
duly raised in a seasonable appeal; otherwise, it will have binding effect like any other judgment in rem.
(Reyes v. Barretto-Datu, January 25, 1967)

Payment of legacies

When legitimes are impaired

When legitimes are impaired, the testator's gratuitous dispositions shall be reduces as follows:
(1)

(2)
(3)

First, reduce pro rata the non-preferred legacies and devises, and the
testamentary dispositions.
Among these legacies, devises and
testamentary provisions, there is no preference.
Second, reduce pro rata the preferred legacies and devises.
Third, reduce the donations inter vivos according to the inverse order of
their dates (i.e., the oldest is the most preferred). (NCC 911; Balane, p.
332-333)

When legitimes are not impaired

If the estate should not be sufficient to cover all the legacies or devises, and the legitimes are not
impaired, payment of such legacies or devises shall be made in the following order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be preferential;

(3) Legacies for support;

(4) Legacies for education;
(5) Legacies or devises of a specific, determinate thing which forms a part of the
estate;
(6) All others pro rata (NCC 950)

Obligation to deliver thing bequeathed

The executor or administrator must deliver the very thing bequeathed if he is able to do so and
cannot discharge this obligation by paying its value. (NCC 952) The expenses necessary for the delivery
of the thing bequeathed shall be for the account of the estate, but without prejudice to the legitime. (NCC
952)
Legacies of money must be paid in cash, even though the estate may not have any. (NCC 952)
The legatee or devisee cannot take possession of the thing bequeathed upon his own authority,
but shall request its delivery and possession of the executor or administrator of the estate should he be
authorized by the court to deliver it. (NCC 953)

Liability for loss

In proper cases, the executor or administrator shall be liable for the loss or destruction of a thing
devised or bequeathed based on malice, fault or negligence. (NCC 927, Balane, p. 347)

When probate court can issue writs of execution

Issuance of writs of execution

The probate court generally cannot issue writs of execution because its orders usually refer to
the adjudication of claims against the estate which the executor or administrator may satisfy without
necessity of resorting to a writ of execution. However, the probate court may issue writs of execution in
the following circumstances (note that this list is exclusive):
1.

To satisfy the contributive shares of devisees, legatees and heirs in possession

of the decedents assets (Sec. 6, Rule 88);
A writ of execution may not issue to enforce payment of a legacy because it is not
a debt of the estate. (Pastor v. CA, 122 SCRA 885)

2.

To enforce payment of expenses of partition (Sec. 3. Rule 90) and

3.

To satisfy the costs when a person is cited for examination in probate

proceedings (Sec. 13, Rule 142)

Partition; effects

Payment of expenses of partition

1.

The executor or administrator is liable for the expenses of partition if:

(a) at the time of distribution, the said A/E has retained sufficient assets in his
hands which may be lawfully applied for the payment of the expenses of
partition, and

(b) the amount of expenses of partition appears equitable to the court and not
inconsistent with the intention of the testator.
2.

Otherwise, such expenses shall be paid for by the parties in proportion to their respective
shares or interest in the premises.

Effects of partition
A judicial partition in probate proceedings does not bind the heirs who were not parties thereto.
No partition, judicial or extrajudicial, could add one iota or particle to the interest which the partitioners
had during the joint possession. Partition is of the nature of a conveyance of ownership, and certainly
none of the co-owners may convey to the others more than his own true right.

Remedy of an excluded heir

As a general rule, the final liquidation of an estate may not be set aside when the settlement
proceedings are already closed. However, when a party interested in the proceedings is left out by
reason of circumstances beyond his control, or through mistake, or inadvertence not imputable to
negligence, such party may file a motion to reopen the proceedings within the reglementary period.
[Guilas vs. Judge of the CFI of Pampanga 43 SCRA 111]
It must be noted that the filing of a separate action is NOT a proper remedy. The probate court
shall resolve the controversy as to who are the lawful heirs of the decedent or as to the distributive share
to which each person is entitled without instituting a separate action. (Marcelino v. Antonio, 70 Phil 388)
However, Justice Feria is of the opinion that an excluded heir may, within the prescriptive period, bring an
action reinvindicatoria.

FINAL MATTERS
Duty to render accounting

The duty of the executor or administrator to render accounting under Rule 81, Sec. 1 is not a
mere incident of an administration proceedings which can be waived or disregarded when the same is
terminated: it has to be performed and duly acted upon by the court before the administration is finally
ordered closed & terminated.
Such duty to render an accounting within one year from his appointment is mandatory unless the
court otherwise directs because of extensions of time for presenting claims against or paying the debts of
the estate, or for disposing of the estate. (Lim Kalaw v. IAC, 213 SCRA 289)

Expenses of administration
Expenses of administration or necessary expenses chargeable to the
estate
Necessary expenses or expenses of administration are those entailed for the preservation &
productivity of the estate & for its management, for the purpose of liquidation, payment of debts, &
distribution of the residue among the persons entitled thereto. Such expenses include:

Expenses for printing brief and stenographic notes incurred by the executor in
connection with the performance of his duty to gather all the assets of the estate
[BPI v. Gonzales, 106 Phil 925]

Services rendered by an administrator which benefited a particular heir and the

estate [Sison v. Teodoro, 100 Phil 1055]

Fees of accountants consulted and employed by the administrator in connection

with problems being faced by the administrator in the administration of the estate
[Ozaeta v. Palanca del Rio, 101 Phil 976]

Reasonable transportation expenses of the administrator in the exercise of his

duties [De Borja v. De Borja, 101 Phil 911]

However, the following expenses have been deemed as NOT necessary expenses:

expenses on the death anniversary;

expenses incurred by presumptive heir for her appearance & that of her
witnesses at trial to oppose the probate of alleged will;

expenses for the settlement of question as to who are entitled to the estate;

expenses by executor or administrator to procure a bond;

personal exp. of occupant or heir of the family residence, e.g. salary of the
katulong, light and water bills, cost of gas, etc.;

expenses for stenographic notes, unexplained representation expenses;

expenses for the keeping of ordinary records & receipts involved in his
administration;

losses incurred in the conduct of business with the use of the funds of the estate.

Rules on payment of attorneys fees

1.

Attorney renders services to admin or executor A/E liable but A/E can move for
personally to aid in the execution of his trust:
reimbursement and charge fees as expenses of
admin if fees are reasonable and beneficial to
the estate. [Uy Tioco v. Imperial, 53 Phil 802]

2.

Attorney rendered services in litigation

involving administrator or executor in his Chargeable to estate [Rodriguez v.
capacity as trustee of estate and for protection Ynza, 18 Nov. 1955]
of the estate:

3.

Administrator or executor engages services

of attorney for personal purposes or when
status as administrator/ executor is not
in issue:

Administrator / executor is personally

liable. [Albino v. Borromeo, 16 SCRA
247]

Procedure for collection of attorney's. fees

Counsel to request the administrator to make payment & file action against him in his personal
capacity & not as administrator should he fail to pay. If judgment is rendered against the administrator &
he pays, he may include the fees so paid in his account to the court.
Also, the attorney may, instead of bringing such an action, file a petition in the testate or intestate
proceedings asking the court, after notice to all persons interested, to allow his claim & direct the
administrator to pay it as an expense of administration [Aldamiz v. Judge of CFI Mindoro, 85 Phil 228]

Compensation

As a general rule, the compensation provided by the will controls. Otherwise,

1.

P4.00/day for time actually and necessarily employed or

2.

Commission according to the value of the estate coming to his possession and is
finally disposed by him in payment of debts, expenses or by delivery to the heirs
according to the ff. schedule :
(a)
(b)
(c)
(d)

2% of 1st P5 Th;
1% of > P5 Th but < P30 Th;
1/2% of >P30Th but < P100Th;
1/4% of > P100 Th

Courts may disallow compensation to administrators or executors who do not actively labor
towards the closing of the estate within 12 months from the time they are presented and may even adopt
harsher measures. (Layague v. Perez de Ulgasan, 31 Oct 1960)
Where the administration and liquidation of estate have been attended with great difficulty and
required a high degree of capacity on the part of executor/administrator, a greater sum may be allowed.
The determination of whether or not the administration and liquidation of an estate was attended with
great difficulty rests on the sound discretion of the court. (Intestate Estate of Carmen de Luna v. CA, 170
SCRA 246)

When probate court loses its jurisdiction

The probate court loses jurisdiction over an estate under administration after payment of all the
debts and after the residue estate has been delivered to the respective heirs entitled to receive them.
However, administration proceedings may not be terminated if there is an action by third persons
against the administrator and the heirs instituted an action for recovery of property involved in such
proceedings. The closure must wait until the ordinary civil action is finally terminated. (Dinglasan v. Ang
Chia, 88 Phil 476)

ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES

Wills proved and allowed in a foreign country, according to the laws of such country, may be
allowed, filed, and recorded by the proper RTC in the Philippines.

Procedure
1.

File a petition for the allowance of will. Attach copy of will and order of decree of allowance; both
should be duly authenticated.

2.

The court shall fix a time a time and place for the hearing and cause NOTICE to be served to the
heirs and other interested parties.

3.

The court will conduct a hearing.

4.

The court, if it deems proper to allow the will, will then issue a certificate of allowance, which is
signed by the judge and attested by the seal of the court.

5.

A copy of the will is then attached to the certificate of allowance and both shall be filed and
registered by the clerk.

Evidence necessary for re-probate and allowance

The following evidence is necessary for the re-probate and allowance of wills already proved and
allowed in a foreign country:
1.

The testator has his domicile in the foreign country and not in the Philippines;

2.

The will has been admitted to probate in such country;

3.

The fact that the foreign tribunal is a probate court;

4.

The laws of a foreign country on procedure and allowance of wills; and

Note that in the case of Fluemer v. Hix, 54 Phil 610, it was stated that the laws of a
foreign jurisdiction do not prove themselves in our courts. The Philippine courts are not
authorized to take judicial notice of the laws of the various states of the American Union.
Such laws must be proved as facts.

5.

Due execution of the will in accordance with the foreign laws.

Effect of allowance
The will shall have the same effect as if originally proved and allowed in a Philippine court. (Rule
77, Sec. 3)
The court shall grant letters testamentary, or letters of administration with the will annexed, and
such letters shall extend to all the estate of the testator in the Philippines. Such estate shall be disposed
of accordingly to such will, so far as such will may operate upon it, after the payment of just debts and
expenses of administration. Any residue shall be disposed of as provided by law in cases of estates in
the Philippines belonging to persons who are inhabitants of another state or country. (Rule 77, Sec. 4)

Escheats
Escheat , defined

An escheat proceeding is a proceeding whereby the real and personal property of a deceased
person become the property of the state upon his death without leaving any will or legal heirs. It is not an
ordinary action but a special proceeding commenced by petition and not by complaint.

Escheat and action for reversion, differentiated

An escheat proceeding may be instituted as a consequence of a violation of Art. XIII, Sec. 5 of the
Constitution which prohibits transfers of private agricultural land to aliens. Reversion, on the other hand,
is expressly authorized under the Public Land Act (CA No. 141)
Under Rule 91, Sec. 5, unless otherwise provided for by law, actions for reversion or escheat of
properties alienated in violation of the Constitution or of any statute shall be governed by Rule 91.
In both escheat proceedings and actions for reversion, whether or not they are governed by
different procedures, the effects are the same: i.e. the property in question becomes the property of the
State.

Requisites

The requisites of escheats are as follows:

(1) That a person dies intestate;
(2) That the deceased left properties; and
(3) That the deceased left no heirs or persons by law entitled to the same.

Jurisdiction

The Regional Trial Court of the province where the deceased last resided or in which he had
estate, if he was a non-resident, has jurisdiction over petitions for escheat. (Rule 91, Sec. 1)

Parties

The parties to a petition for escheat are:

1.

The Government: the petition must be initiated by the Government through the
Solicitor General;

2.

All interested parties, especially the actual occupants and the adjacent lot owners,
who shall be personally notified of the proceeding and given the opportunity to
present their valid claims;

3.

Any person alleging to have a direct right or interest in the property sought to be
escheated, who may properly oppose the petition or file a claim thereto with the court
within 5 years from the date of judgment.

Procedure

(1) Filing of petition

The Solicitor-General or his representative files a petition in behalf of the Republic of the
Philippines in the proper Regional Trial Court, setting forth the facts and praying that the estate of
the deceased be declared escheated.
(2) Setting of hearing and publication of order
If the petition is sufficient in form and in substance, the court shall fix a date and place for
the hearing thereof, and shall direct that a copy of the order be published before the hearing at
least once a week for 6 successive weeks in some newspaper of general circulation published in
the province.

The date of the hearing shall be not more than 6 months after the entry of the order.

What is a newspaper of general circulation?

A newspaper of general circulation is one which is not devoted to the interests or
published for the entertainment of a particular class, profession, trade, calling, race or
religious denomination. The fact that there is another paper that has more subscribers is
unimportant. The law does not require that the notice should be published in the
newspaper with the largest number of subscribers. No fixed number of subscribers is
necessary to constitute a newspaper of general circulation. (Basa v. Mercado, 61 Phil
632)

(3) Judgment
Escheats and forfeitures are not favored by law, and the modern rule is that the burden of
proof rests on the state to prove that the property in question is in all respects liable to escheat.
The state must recover, if at all, on the strength of its own title and not on the weakness of the
other claimants.
Upon satisfactory proof in open court on the date fixed in the order that (a) such order
has been published as directed, (b) all the requisites for a proper case of escheat are present in
the instant case, and (3) there is no sufficient cause to the contrary, the court shall adjudge that
the estate of the deceased in the Philippines shall escheat.
A judgment of escheat is held conclusive upon persons notified by advertisement to all
persons interested.
(4) Assignment of estate
After the just debts and charges have been paid, the deceased's estate shall be assigned
as follows:
Personal property:

Muncipality or city in the Philippines where the decedent last

resided;

Real property:

Municipalities or cities where the properties are located

If the deceased never resided in the Philippines, the whole estate may be assigned to the
respective municipalities or cities where the same is located. Such estate shall be for the benefit
of public schools, and public charitable institutions and centers in said municipalities or cities.
The Court may, at the instance of an interested party or on its own motion, order the
establishment of a permanent trust, so that only the income from the property shall be used.

Filing of claim to estate

Period for filing

If a person legally entitled to the estate of the deceased appears, he should file a claim with the
court within five (5) years from the date the property was delivered to the state. Otherwise the claim shall
be forever barred. (Rule 91, Sec. 4)

Where filed
The claim to the estate must be filed with the court which had jurisdiction over the escheat
proceeding.

Effects of filing of claim

Should the claim be found to be meritorious, the claimant shall have possession of and title to the
estate or part thereof.
If the properties of the estate have already been sold, the municipality or city shall be accountable
to the claimant for the proceeds, after deducting reasonable charges for the care of the estate.

Voluntary Dissolution of Corporations

Dissolution defined

Dissolution is the process by which a corporation ceases to be a juridical person.

Dissolution of corporations is now governed by Sec. 117-122 of the Corporation Code of the
Philippines (BP 68), which took effect on May 1, 1980. Petitions for dissolution of a corporation are now
to be filed with the Securities and Exchange Commission (SEC).

Modes of dissolution

A corporation formed or organized under the provisions of the Corporation Code may be dissolved
through the following modes:

(1) Failure to organize and commence business (Sec. 22);

(2) Cessation of business for 5 years (Continuous inoperation; Sec. 22);
(3) Expiration of original, extended, or shortened term;
(4) Voluntary dissolution (Sec. 118-119);
(a) Where no creditors are affected (Sec. 118)
This is effected by majority vote of the BOD and a 2/3 vote of the OCS or
members. (Note the special notice requirements.) The copy of the
resolution authorizing the dissolution shall be certified by a majority of the
BOD and countersigned by the secretary of the corporation. THE SEC
shall thereupon issue the certificate of dissolution.
(b) Where creditors are affected (Sec. 119)
(1) Filing of petition for dissolution with SEC
A petition for dissolution must be filed with the SEC after having
been signed by a majority of the BOD, verified by the president or
secretary or one of the directors, and resolved upon by the
affirmative vote of 2/3 of the OCS or members. The petition must set
forth all claims and demands against the corporation, and the fact
that the dissolution was approved by the SHs with the requisite 2/3
vote.

(2) Fixing of date by SEC for filing of objections to petition

If the petition is sufficient in form and substance, the SEC shall
fix a date on or before which objections thereto may be filed by any
person.
Date: not less than 30 days nor more than 60 days after the
entry of the order
(3) Publication of order

Before the date fixed by the SEC, the SEC order shall be
published and posted accordingly.
Newspaper:

Once a week for 3 weeks in a newspaper of

general circulation published in the municipality
or city where the corporation's principal office is
situated, or there be no such newspaper, in a
newspaper of general circulation in the
Philippines

Posting:

For 3 consecutive weeks in 3 public places in the

city or municipality where the corporation's
principal office is situated

(4) Hearing of the petition for dissolution

Upon 5 days notice, given after the date on which the
right to file objections to the order has expired, the SEC shall
proceed to hear the petition and try any issue made by the
objections filed.
If no objection is sufficient, and the material allegations
are true, the SEC shall render judgment dissolving the
corporation and directing such disposition of its assets as justice
requires.
Note: The SEC may appoint a receiver to collect such
assets and pay the debts of the corporation.
(5) Involuntary dissolution (Sec. 121):

(a) Revocation of Certificate of Registration by SEC (Sec. 121)

A corporation may be dissolved by the SEC upon filing of a
verified complaint and after proper notice and hearing on grounds
provided by existing laws, rules and regulations.

(b) Quo Warranto proceedings (See Sec. 5b, PD 902-A and Rule 66, Rules of
Court. Previously, the SEC had exclusive jurisdiction over quo warranto
proceedings involving corporation. Under the Securities Regulation Code or
RA 8799, however, the jurisdiction of the SEC over all cases enumerated
under Sec. 5 of PD 902-A have been transferred to the Regional Trial Courts.
The grounds for involuntary dissolution of a corporation under quo
warranto proceedings are:
(1)

When the corporation has offended against a

provision of an act for its creation or renewal;

(2) When it has forfeited its privileges and franchises by

non-user;
(3)

When it has committed or omitted an act which

amounts to a surrender of its corporate rights,
privileges or franchises;

(4)

When it misused a right, privilege or franchise

conferred upon it by law, or when it has exercised a
right, privilege or franchise in contravention of law
(PNB v. CFI, 209 SCRA 294; 1992)

(6) Shortening of corporate term (Sec. 120)

NOTE: The simplest and most expedient way of effecting dissolution
is by shortening the corporate term and waiting for such term
to expire.

Rules:
(a) If expiration date is before approval by SEC, corporation dissolves upon
approval.
(b) If expiration date is after approval by SEC, corporation dissolves on the
date of expiration of term.
(c) If the SEC does not act on petition within 6 mos. from the date of filing,
corporation dissolves either:
(i) on the day after the 6-mo. pd. (if date of expiration was within
the 6- month period), or
(ii) on the date of expiration of term (if date is after the 6-month
period).

Dissolution of close corporations

In close corporations, any stockholder may, by written petition to the SEC, compel the
dissolution of such corporation when:
(1) Any of the acts of the directors, officers, or those in control
of the corporation is:

Illegal;
Fraudulent;
Dishonest;
Oppressive or unfairly prejudicial to the corporation
or any other SH;

(2) Corporate assets are being misapplied or wasted. (Sec. 105)

Effects of Dissolution
WHAT ARE THE EFFECTS OF DISSOLUTION?

Corporation ceases to be a juridical person and consequently can no longer

continue transacting its business.

Corporate existence continues for 3 years following dissolution for the ff.
purposes only:

(a) winding up of affairs; and

(b) liquidation of corporate assets.

Corporation can no longer continue its business, except for winding up.

Corporation CANNOT even be a de facto corporation.

Corporate existence may be subject to COLLATERAL attack.

NOTE that the subsequent dissolution of a corporation may not remove or impair any
right or remedy in favor of or against, nor any liability incurred by, any corporation, its
stockholders, members, directors, trustees or officers. (Sec. 145)

Liquidation
WHAT IS LIQUIDATION? (Sec. 122)

Liquidation, or winding up, refers to the collection of all assets of the corporation,
payment of all its creditors, and the distribution of the remaining assets, if any, among the
stockholders thereof in accordance with their contracts, or if there be no special contract,
on the basis of their respective interests.
WHAT ARE THE METHODS OF LIQUIDATING A CORPORATION? AND WHO MAY
UNDERTAKE THE LIQUIDATION OF A CORPORATION?
1.

Liquidation by the corporation itself through its board of directors

Although there is no express provision authorizing this method, neither is
there any provision in the Code prohibiting it.

2.

Conveyance of all corporate assets to trustees who will take charge of

liquidation.
If this method is used, the 3-year limitation will not apply provided the
designation of the trustees is made within said period. There is no time limit
within which the trustee must finish liquidation, and he may sue and be sued
as such even beyond the 3-year period unless the trusteeship is limited in its
duration by the deed of trust. (See Nat'l Abaca Corp. v. Pore, supra)

3.

Liquidation is conducted by the receiver who may be appointed by the

SEC upon its decreeing the dissolution of the corp.
As with the previous method, the three-year rule shall not apply.
However, the mere appointment of a receiver, without anything more, does
not result in the dissolution of the corporation nor bar it from the exercise of
its corporation rights.

FOR HOW LONG MAY THE LIQUIDATION OF A CORPORATION BE UNDERTAKEN?

Generally, a corporation may be continued as a body corporate for the purpose of
liquidation for 3 years after the time when it would have so dissolved. (Sec. 122)
However, it was held in the case of Clemente v. CA (supra) that if the 3-year period has
expired without a trustee or receiver having been expressly designated by the corporation
itself within that period, the BOD itself may be permitted to so continue as "trustees" by
legal implication to complete the corporate liquidation.
WHAT CAN AND SHOULD BE DONE DURING THE PERIOD OF LIQUIDATION?
(Sec. 122)
(1)
(2)

Collection of corporate assets and property;

Conveyance of all corporate property to trustees for the benefit of SHs,
members, creditors, and other persons in interest;

(3)

Payment of corporation's debts and liabilities;

(4)

Distribution of assets and property

Distribution of assets after payment of debts

GENERAL RULE:

No corporation shall distribute any of its assets or property

except upon lawful dissolution and after payment of all its debts
and liabilities. (Sec. 122)

EXCEPTION:

In cases of decrease of capital stock, and as otherwise allowed

by the Corporation Code

WHAT HAPPENS IF AN ASSET CANNOT BE DISTRIBUTED TO THE PERSON

ENTITLED TO IT?
Any asset distributable to any creditor or stockholder or member who is unknown or
cannot be found shall be escheated to the city or municipality where such assets are
located. (Sec. 122)

Distribution of assets of non-stock corporations

WHAT ARE THE RULES FOR DISTRIBUTION OF ASSETS OF NON-STOCK
CORPORATIONS? (Sec. 94-95)
(1)

All liabilities and obligations of the corporation shall be paid, satisfied, and
discharged, or adequate provision shall be made therefor.

(2)

Assets held by the corporation upon a condition requiring return, transfer

or conveyance, and which condition occurs by reason of the dissolution,
shall be returned, transferred or conveyed in accordance with such
requirements.

(3)

Assets received and held by the corporation subject to limitations

permitting their use only for charitable, religious, benevolent, education or
similar purposes, but not subject to condition (2) above, shall be transferred
or conveyed to one or more corporations, societies or organization
engaged in activities in the Philippines substantially similar to those of the
dissolving corp. according to a plan of distribution adopted pursuant to Sec.
95 of the Code.

(4)

Assets other than those mentioned in preceding paragraphs shall be

distributed in accordance with the AOI or by-laws.

(5)

In any other case, assets may be distributed to such persons, societies,

organizations or corporations, whether or not organized for profit, as may
be specified in a plan of distribution adopted pursuant to Sec. 95.

* The plan of distribution of assets may be adopted by a majority vote of the

Board of trustees and approval of 2/3 of the members having voting rights
present or represented by proxy at the meeting during which said plan is
adopted.
It must be noted that the plan of distribution of assets must not be inconsistent with the provisions of Title
XI of the Code.

Part III.
Family Court Proceedings

Adoption and custody of minors

Family Home
Absentees
Guardianship

Voluntary recognition

Adoption and
Custody of Minors
INTRODUCTION
Adoption defined

Adoption is a judicial act which creates between two persons a relationship similar to that which
results from legitimate paternity and filiation.

Laws on adoption

The laws on adoption are found in the Family Code, The Domestic Adoption Law of 1998 (R.A.
8552), and the Inter-Country Adoption Law (R.A. 8043) The Rules of Court and the Child and Youth
Welfare Code (P.D. 603) apply suppletorily.
Prof. Ruben Balane points out that RA 8552 has now superseded the Family Code provisions on
adoption.

Nature of adoption proceedings

Since adoption proceedings determine the status of a person and therefore do not involve a
defendant or an opposing party, they are not adversarial proceedings.
Adoption proceedings are proceedings in rem which the courts cannot entertain unless there is
jurisdiction over subject matter, over the parties, and over the res, i.e. the personal status of the child to
be adopted and the adopters. As a general rule, personal status is determined by and/or subject to the
jurisdiction of the domiciliary law. (Ellis v. Republic, 7 SCRA 962)

Jurisdiction

The Family Courts have exclusive original jurisdiction over petitions for adoption of children, as
well as petitions for revocation thereof. (Sec. 5c, R.A. 8369)

DOMESTIC ADOPTION
The rules on domestic adoption are contained in the Domestic Adoption Act of 1998 (R.A. 8552),
and the Family Code, where applicable.

Who may adopt

(1) Any Filipino citizen, provided that he/she:

(a)
(b)
(c)
(d)
(e)
(f)

is of legal age,
is in possession of full civil capacity and legal rights,
is of good moral character,
has not been convicted of any crime involving moral turpitude,
is emotionally and psychologically capable of caring for children,
is in a position to support and care for his/her children in keeping with the means
of the family, and
(g) is at least 16 years older than the adoptee

Exception: When the adopter is either (a) the biological parent of the adoptee, or
(b) the spouse of the adoptee's parent, then the 16-year age difference
requirement may be waived.
(2)

Any alien possessing the same qualifications as above stated for Filipino nationals, provided
that:
(a) His/her country has diplomatic relations with the Republic of the Philippines,
(b) He/she has been living in the Philippines for at least 3 continuous years prior to
the filing of the application for adoption and maintains such residence until the
adoption decree is entered,
(c)

He/she has been certified by his/her diplomatic or consular office or any

appropriate government agency that he/she has the legal capacity to adopt in
his/her country, and that his/her government allows the adoptee to enter his/her
country as his/her adopted son/daughter
Note: Requirements (b) and (c) may be waived if the alien is:
(1) A former Filipino citizen who seeks to adopt a relative within the 4 th
degree of consaguinity or affinity; or
(2)

One who seeks to adopt the legitimate son/daughter of his/her

Filipino spouse; or

(3) One who is married to a Filipino citizen and seeks to adopt jointly
with his/her spouse a relative within the 4 th degree of consanguinity
or affinity of the Filipino spouse.

Adoption by spouses
As a general rule, spouses shall jointly adopt. However, this is not required in the following cases:
(1) If one spouse seeks to adopt the legitimate son/daughter of the other;
(2) If one spouse seeks to adopt his/her own illegitimate son/daughter
The other spouse must signify his or her consent to the adoption.
(3) If the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the
other, joint parental authority shall be exercised by the spouses.

Who may not adopt

Persons not qualified to adopt under Sec. 7 of R.A. 8552 may not adopt.
A guardian may not adopt his or her ward prior to the approval of the final accounts rendered
upon the termination of their guardianship relation. However, he/she may adopt the ward after the
termination of the guardianship and clearance of his/her financial accountabilities.

Who may be adopted

The following may be adopted:

(1)

Any person below 18 years of age who has been administratively or judicially
declared available for adoption;

A child that is "legally available for adoption" is one who has been voluntarily or
involuntarily committed to the DSWD or to a duly licensed and accredited childplacing or child-caring agency, freed of the parental authority of his/her
biological parent(s) or guardian or adopter(s) in case of rescission of adoption.

(2) The legitimate son/daughter of one spouse by the other spouse;

(3) An illegitimate son/daughter by a qualified adopter to improve his/her status to that
of legitimacy;
(4)

A person of legal age if, prior to the adoption, said person has been consistently
considered and treated by the adopter(s) as his/her own child since minority;

(5) A child whose adoption has been previously rescinded;

(6) A child whose biological or adoptive parent(s) has died

But no adoption proceedings shall be initiated within 6 months from the time of
death of said parent.

Who may not be adopted

Under Art. 187 of the Family Code, the following persons may not be adopted:
1.

A person of legal age; unless

(a) He/she is a child by nature of the adopter or his or her spouse; or
(b) Prior to the adoption, said person has been consistently considered
and treated by the adopter as his or her own child during minority.

2.

An alien with whose Govt., the RP has no diplomatic relations; and

3.

A person who has already been adopted unless such adoption has been previously
revoked or rescinded.

Petition for adoption

Venue and Jurisdiction

It must be filed in the Family Court of the province or city where the adopter resides. (Sec. 5c,
R.A. 8369 vis--vis Rule 99, Sec. 1)

Contents of petition
The petition for adoption shall contain the following allegations:
(1) The jurisdictional facts;
(2) The qualifications of the adopter;
(3) That the adopter is not disqualified by law;
(4) The name (true name and the aliases), age, and residence of the person to
be adopted and of his relatives or of the persons who have him under their
care;
The true name of the person to be adopted is that appearing in the civil
registry and the court does not acquire jurisdiction if a different name is carried in
the notice of publication. (Cruz v. Republic, 26 July 1966)

(5) The probable value and character of the estate of the person to be adopted.
It must be noted that these allegations are the same as those required in a petition for guardianship.

Necessity of consent
Under the Domestic Adoption Act, the written consent of the following persons to the adoption is
required after such persons have been properly counseled and informed of their rights to give or withhold
their approval of the adoption:
(a) The adoptee, if 10 years old or over;
(b) The biological parent(s) of the child, if known;
However, the consent of the biological parent can be dispensed with if any of the
following conditions are present:
(i) abandonment;
(ii) insanity;
(iii) hopeless intemperance
In such cases, the court may acquire jurisdiction over the case even without the written
consent of the parents or one of the parents provided that the petition for adoption
alleges facts sufficient to warrant exemption from compliance therewith. (Cang v. CA,
September 25, 1998)

(c) The legal guardian of the child;

(d) The proper government instrumentality which has legal custody of the child;
(e)

The legitimate and adopted sons/daughter, 10 years old and above, of the
adopter(s) and adoptee, if any;

(f)

The illegitimate sons/daughters, 10 years old and above, of the adopter if

living with said adopter and the latter's spouse, if any; and

(g)

The spouse, if any, of the person adopting or to be adopted. (Sec. 9, R.A.

8552)

If the person to be adopted is of age, only his or her consent and that of the spouse, if any, shall
be required. (Rule 99, Sec. 3)
Such written consent is to be filed with the petition for adoption.

General procedure for adoption

(1) FILING OF PETITION

As discussed above.
(2) ORDER FIXING DATE AND HEARING
Case study requirement. No petition for adoption shall be set for hearing unless a
licensed social worker of the DSWD, the social service of the LGU, or any child-placing or
child-caring agency has made a case study of the adoption, his/her biological parent(s), as
well as the adopter(s), and has submitted the report and recommendations on the matter to
the court hearing such petition. (Sec. 11, R.A. 8552)
If the court finds the petition and consent to be sufficient, and the case study requirement
to have been complied with, it shall fix a date and place for hearing thereof.

Such date of hearing shall not be more than 6 months after the entry of the order of
hearing.
The order shall be published before the hearing at least once a week for 3 successive
weeks in a newspaper of general circulation published in the province, as the court shall
deem best.
Publication of the scheduled hearing for the petition for adoption is necessary for
the validity of a decree of adoption. (Republic v. Elepao, 15 Oct 1991)

(3) HEARING
During the adoption proceedings, the court shall require proof that the biological parent(s)
has been properly counseled to prevent him/her from making hurried decisions caused by
strain or anxiety to give up the child, and to sustain that all measures to strengthen the family
have been exhausted and that any prolonged stay of the child in his/her own home will be
inimical to his/her welfare and interest. (Sec. 10, R.A. 8552)
The DSWD shall intervene on behalf of the adoptee if it finds, after the conduct of the
case studies, that the petition should be denied. (Sec. 11, R.A. 8552)
All hearings in adoption cases shall be confidential and shall not be open to the public.
(Sec. 15, R.A. 8552)
(4) JUDGMENT
Trial custody. No petition shall be finally granted until the adopter(s) has been given by
the court a supervised trial custody period for at least 6 months. The trial custody period is
aimed at giving the parties time to adjust psychologically and emotionally to each other and
establish a bonding relationship. This period may be reduced if the court finds the same to
be in the best interest of the adoptee.
However, if the adopter(s) is an alien, the 6 month-trial period must be completed, except
when:
(a)

The alien is a former Filipino citizen seeking to adopt a relative

within the 4th degree of consanguinity or affinity;

(b)

The alien seeks to adopt the legitimate son/daughter of his/her

Filipino spouse;

(c) The alien is married to a Filipino citizen and seeks to adopt jointly
with his/her spouse a relative within the 4th degree of consanguinity
or affinity of the Filipino spouse (Sec. 7b)
It must be noted that these exceptions are the same instances when
the requirements on residency and certification of the alien's qualification
to adopt in his/her country may be waived.
Decree of adoption. If the court is convinced that the petitioners are qualified to adopt
and that the adoption would redound to the best interest of the adoptee, a decree of adoption
shall be entered.
The final order or judgment granting the adoption shall be served by the clerk of court
upon the civil registrar of the city or municipality wherein the issuing court is situated. (Sec.
8, Rule 100)

Decree of adoption

The decree of adoption shall be effective as of the date the original petition was filed. This
provision shall also apply in case the petitioner(s) dies before the issuance of the decree of adoption to
protect the interest of the adoptee.
The decree shall state the name by which the child is to be known. (Sec. 13, R.A. 8552)

Effects of adoption

Parental authority
As a general rule, the decree of adoption severs all legal ties between the biological parent(s) and
the adoptee and vests them on the adopter(s). (Sec. 16, RA 8552)
Exception: In cases where the biological parent is the spouse of the adopter, the
parental authority of said parent remains, and both biological parent and adopter exercise
joint parental authority.
Note that parental authority of the biological parent is not revived by the death of the adopting
parent.

Legitimacy
The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and
purposes and as such is entitled to all the rights and obligations provided by law to legitimate
sons/daughters born to them without discrimination of any kind. (Sec. 17, R.A. 8552)

Use of surname
An adopted child has the right to use the surname of the adopter. ( NCC 341 (4)) However, the
adoptee may use only the adopters surname, not the one acquired by virtue of marriage of the adopter.
(Johnston v. Republic, 7 Phil. 1040)
The use of the adopter's surname pertains to the use of the latter's original family
surname and not to that acquired through marriage. In a case where a wife adopted a
child without the concurrence of her husband, the adopted may only use the wife's maiden
surname and not her married surname. Confusion may result if the adopted child were
allowed to use the surname of the spouse who did not join in the adoption, as the public
may be misled into believing that the child was also adopted by the husband. (Johnston
v. Republic, 7 Phil. 1040)

Succession
In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of
succession without distinction from legitimate filiation. (Sec. 18, RA 8552) It must be noted however that
since adoption is strictly personal between adopter and adopted, the relationship established is limited
solely to the parties and does not extend to the relatives of the parties, except as expressly provided by
law. Thus, the adopted cannot represent the adopter in the inheritance from parents and ascendants of
the adopter.
Note: Under Art. 189 of the Family Code, the adopted remains an intestate heir of his parents
and other blood relatives. However, RA 8552 provides that if the adoptee and her biological parent(s) had
left a will, the law on testamentary succession shall govern (Sec. 18, RA 8552), thereby implying that the
adoptee is no longer a compulsory or intestate heir of his biological parent(s). According to Prof. Balane,
this is an ambiguity between the Family Code and R.A. 8552 which requires a definitive judicial
pronouncement from the Supreme Court.
In the absence of such a pronouncement, the rules on succession as stated in Art. 190 of the
Family Code are reproduced as follows:
1.

Legitimate and illegitimate children & surviving spouse:

accordance with the rules of legal or intestate succession.

inherit from adopted in

2.

Parents, (whether legitimate or illegitimate) or the legitimate ascendants of the adopted

(biological parents or ascendants) concur with adopters: divide the entire estate ( to
parents/ascendants and to the adopters).

3.

If surviving spouse or illegitimate children concur with adopters: divide the estate in
equal shares: 1/2 to be inherited by the spouse or illegitimate children of the adopted,
and the other half by the adopters.

4.

If adopters concur with the illegitimate children AND surviving spouse: they inherit in
equal shares of 1/3 each.

5.

If only the adopters survive: they inherit the entire estate.

6.

When only collateral blood relatives of the adopted survive, the ordinary rules on legal or
intestate succession shall apply.

Civil Registry Record

The Civil Registry shall issue an amended certificate of birth attesting to the fact that the adoptee
is the child of the adopter (s) by being registered with his/her surname. The original certificate of birth
shall be stamped "cancelled" with the annotation of the issuance of an amended birth certificate in the
place and shall be sealed in the civil registry records. The new birth certificate to be issued to the
adoptee shall NOT bear any notation that it is an amended issue. (Sec. 14, RA 8552)

Citizenship
Adopted children do not follow the citizenship/nationality of their adopting parents. Citizenship /
nationality is not among the rights granted to adopted children under Sec 341 of the Civil Code. Further,
acquisition of citizenship is not among the rights given to an adopted child since:
1.

Such acquisition partakes of the character of naturalization which is not regulated

by the Civil Code but by special laws on naturalization;

2.

Not being one of the means specified in special laws for the acquisition of Phil.
citizenship; adoption must be deemed necessarily excluded from the operation of
said law (Expressio unius est exclusion alterius)

3.

It would infringe on the authority of a nation to regulate its own citizenship

Adoption creates only a civil or contractual status. (Ching Leng v. Galang, 27 Oct 1938)

Assailing the validity of an adoption decree

The validity of an adoption decree cannot be assailed collaterally in intestate proceedings. It

must be attacked in a direct proceeding frontally addressing the issue. (Sayson v. CA, 205 SCRA 324)

Rescission of adoption

Who may file petition

The adoptee may file a petition for rescission or revocation. If he/she is a minor, of if over 18
years old is incapacitated, he/she shall be assisted by the Department of Social Welfare and
Development. (Sec. 19, RA 8552)
RA 8552 has repealed Art. 192 of the Family Code and the 2 nd paragraph of Sec. 1, Rule 100 of
the Rules of Court. Thus, the adopter can no longer file a petition for rescission since adoption is meant
to be in the best interest of the child. (Sec. 19, 2nd paragraph) However, the adopter(s) may disinherit the
adoptee for causes provided in Art. 919 of the Civil Code, namely:

Found guilty of an attempt against the life of adopter, or adopters spouse,

descants, ascendants;

Adopted accused the adopter of a crime (imprisonment for 6 yrs or more), if the
accusation has been found to be groundless

Convicted of adultery or concubinage with spouse of adopter

By fraud, violence, intimidation, or undue influence causes the adopter to

make a will or change one already made

Refusal to support the adopter without justifiable cause

Maltreatment of adopter by word or deed

Adopted leads a dishonorable or disgraceful life

Conviction of a crime which carries with it penalty of civil interdiction

Grounds for rescission

Under Sec. 19 of RA 8552, the decree of adoption may be rescinded by the adopted child on any
of the following grounds committed by the adopter:
(a) Repeated physical and verbal maltreatment by the adopter(s) despite having
undergone counseling;
(b) Attempt on the life of the adoptee;
(c) Sexual assault or violence; or
(d) Abandonment and failure to comply with parental obligations.
Rule 100, Sec. 1 provides that a petition for rescission may be filed for the same causes that
authorize the deprivation of parental authority. Under the Family Code, such applicable causes would be
if the person exercising parental authority:
(a) Has subjected the child or allowed him to be subjected to sexual abuse (FC 232), or to
acts of lasciviousness (FC 231);
(b) Giving the child corrupting orders, counsel or example (FC 231);
(c) Compelling the child to beg (FC 231);
(d) Treating the child with excessive harshness or cruelty (FC 231);
(e) Is convicted of a crime which carries the penalty of civil interdiction (FC 230)
Art. 191 of the Family Code provides that if the adoptee is at least 18 years of age, he may
petition for judicial rescission on the same grounds prescribed in Art. 920 of the Civil Code for disinheriting
an ascendant, namely, if the adopter has:
(a) Abandoned their children, induced their daughters to live a corrupt or immoral life,
attempted against their virtue;
(b)

Been convicted of an attempt against the life of the adoptee, or his spouse,
descendants, ascendants;

(c) Accused the adoptee of a crime for which the law prescribes imprisonment for 6
years or more, if the accusation has been found to be false;
(d) Convicted of adultery or concubinage with spouse of adoptee;
(e) By fraud, violence, intimidation or undue influence caused the adoptee to make a
will or change one already made;
(f)

Attempted against the life of the other parent, unless there has been a
reconciliation between them;

(g)

Refusal to support the children or descendants without justifiable cause. (NCC

920)

Period for filing petition

A minor or other incapacitated person must file the petition for rescission within the 5 years
following his majority, or if he was incompetent at the time of the adoption, within the 5 years following the
recovery from such incompetency. (Sec. 5, Rule 101)

Procedure for rescission

(1) Court, upon filing of petition, shall issue an order requiring adverse party to answer within 15
days from receipt of copy.
(2) The court shall set a date and time for hearing of petition.
(3)

On the day set for trial, if the court finds the allegations in the petition to be true, it shall
render judgment ordering rescission / revocation.

When the adopted minor has not yet reached the age of majority at the time of the
judicial rescission of adoption, the Court in the same proceeding shall reinstate the
parental authority of the parents by nature unless the latter are disqualified or
incapacitated, in which case the court shall appoint a guardian over the person and
property of the minor.
If the adopted minor is physically or mentally handicapped, the court shall
appoint in the same proceeding a guardian over his person or property or both. (FC
193)

(4) A certified copy of the judgment shall be served upon the civil registrar concerned, within 30
days from rendition thereof, who shall forthwith enter the action taken by the court in the civil
register. (Rule 100, Sec. 2-4)

Effects of rescission
Parental authority over minor or incapacitated adoptee. The parental authority of the
adoptee's biological parent(s), if known, or the legal custody of the DSWD shall be resorted if the adoptee
is still a minor or incapacitated.
Reciprocal rights and obligations. All reciprocal rights and obligations between adopters and
adopted arising from the relationship of parent and child shall be extinguished.
Successional rights. Successional rights shall revert to its status prior to adoption, but only as of
the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be
respected.
Use of surname. Adopted shall lose the right to use the surnames of the adopters and shall
resume his surname prior to the adoption.
Birth certificate. The court shall order the Civil Registrar to cancel the amended certificate of
birth of the adoptee and restore his/her original birth certificate.

INTER-COUNTRY ADOPTION
Inter-country adoption is governed by the provisions of the Inter-Country Adoption Law or
Republic Act No. 8043.

Inter-country adoption, defined

Inter-country adoption [ICA] refers to the socio-legal process of adoption of a Filipino child by a
foreigner or a Filipino citizen permanently residing abroad where the petition is filed. Unlike in domestic
adoption, in inter-country adoption, the supervised trial custody is undertaken, and the decree of adoption
is issued outside the Philippines.
Inter-country adoption is a measure of last resort. Before it can be resorted to, all possibilities for
adoption of the child under the Family Code must have been exhausted and inter-country adoption must
be in the best interest of the child.
The maximum number of foreign adoptions that may be allowed shall not exceed 600 a year for
the first five years.

Who may be adopted

Only a legally-free child may be the subject of inter-country adoption. Under the Inter-Country
Adoption Law, a child is defined as a person below 15 years of age unless sooner emancipated by law.

Who may adopt

Under the Inter-Country Adoption Law, any alien or Filipino citizen permanently residing abroad
may file an application for inter-country adoption of a Filipino child if he/she:
a)

b)
c)

is at least 27 years old and at least 16 yrs older than the child to be adopted, at the
time of application unless the adopter is the parent by nature of the child to be
adopted or the spouse of such parent;
if married, his/her spouse must jointly file for the adoption;
has the capacity to act and assume all rights and responsibilities of parental
authority under his national laws, and has undergone the appropriate counseling from
an accredited counselor in his/her country;

d)

has not been convicted of a crime involving moral turpitude;

e)

is eligible to adopt under his/her national law;

f)

is in a position to provide the proper care and support and to give the necessary
moral values and example to all his children, including the child to be adopted;

g)

agrees to uphold the basic rights of the child as embodied under Philippine laws, the
UN Convention on the Rights of the Child, and to abide by the rules and regulations
issued to implement the provisions of this Act;

h)

comes from a country with whom the Phil. has diplomatic relations and whose
government maintains a similarly authorized and accredited agency and that
adoption is allowed under his/her national laws; and

i)

possesses all the qualifications and none of the disqualifications provided herein and
in other applicable Philippine laws.

CUSTODY OF MINORS
Jurisdiction and venue of custody proceedings

Petitions for custody of children are to be filed in the Family Court of the province or the city where
the petitioner is residing. (Sec. 5b, R.A. 8369 vis--vis Rule 99, Sec. 1)

Proceedings when parents of child are separated

Awarding of custody
The task of choosing the parent to whom custody should be awarded is not a ministerial function
to be determined by a simple determination of the age of the child. The paramount criterion must always
be the childs interests. (Espiritu v. CA, 15 March 1995)
Custody of the child shall be awarded in accordance with the following guidelines:
(1) No child under 7 years of age shall be separated from its mother unless the
court finds there are compelling reasons therefor. (FC 213; Rule 99, Sec. 6)
(2) If the child is over 10 years of age, the court shall permit the child to choose
which parent he prefers to live with. The child's preference shall be respected
unless the parent chosen be unfit to take charge of the child by reason of moral
depravity, habitual drunkenness, incapacity or poverty.
(3) If it appears in such hearing that both parents are improper persons to have
custody of the child, the court may designate any of the following to take charge
of the child:
a.

The paternal or maternal Grandparent of the child, or

b.

His oldest brother or sister, or

c.

Some reputable and discreet person to take charge of such child

The Court may also commit the child to any suitable asylum, childrens home or
benevolent society.

Support
The court may, in conformity with the provisions of the Civil Code order either or both parents to
support or help support said child irrespective of who may be its custodian. (Rule 99, Sec. 6)

Visitation right
The court may make any order that is just and reasonable permitting the parent to visit the child
or have temporary custody thereof. (Rule 99, Sec. 6)
Visitation right refers to the right of access of a non-custodial parent to his or her child or
children. The Constitution and the Family Code recognize the inherent and natural right of parents and
those exercising parental authority to, among others, keep children in their company and to give them
love and affection, advice and counsel, companionship and understanding. (Art. II, Sec. 12, 1987
Constitution; FC 150, 209, 220)
The right of a parent to visit his or her child or children extends not merely to legitimate
relationships: it extends to void or inexistent marriages, as well as illegitimate relationships. (Silva v. CA
and Gonzales, 275 SCRA 604)

Availability of appeal
Either parent may appeal from an order made in accordance with the provisions of this section.

Proceedings as to abused or vagrant child

Any reputable resident may file a petition with the Family Court to have a minor child taken from
his or her parents if said parents:
(1) are dead, or

(2) by reason of long absence or physical disability have abandoned the child; or
(3) cannot support the child through vagrancy, negligence or misconduct; or
(4) neglect or refuse to support it; or
(5) treat it with excessive harshness; or
(6) or give it corrupting orders, counsels or examples; or
(7) cause to allow it to engage in begging or to commit offenses against the law.
The Court may issue an order requiring such parents (or the fiscal, if the parents are dead or
cannot be found) to show cause, at a time and place fixed in the order, why the child should not be taken
from the parents, if living.
If upon hearing, it appears that the allegations of the petition are true and that it is for the
best interests of the child, the court may make an order taking it from its parents, if living; and committing
it to any suitable orphan asylum, childrens home or benevolent society or person, to be ultimately placed
by adoption or otherwise in a home found for it by such asylum, childrens home, society or person. (Rule
99, Sec. 7)

Constitution of Family Home

The provisions of Rule 106 on the constitution of the family home have been abrogated by the
promulgation of the Family Code. The substantive law on the constitution of the family home is now the
Family Code, Articles 152-162.

Family Home, defined

The family home is the dwelling house and the land on which it is situated, where a husband
and his wife, or an unmarried head of a family, and their respective families reside. (FC 152)
The family home is deemed constituted from the time it is occupied as a family residence. (FC
153)

On what properties constituted

The family home is constituted on the house where the family resides and the land on which it is
situated.
The family home must be part of the properties of the absolute community or the conjugal
partnership, or of the exclusive properties of either spouse with the latters consent. It may also be
constituted by an unmarried head of a family on his or her own property.
Property subject of a conditional sale on installments where ownership is reserved by vendor
only to guarantee payment of the purchase price may also be constituted as a family home. (FC 156)

Beneficiaries of the family home

(1) The husband and wife, or an unmarried person who is the head of a family; and
(2)

Their parents, ascendants, descendants, brothers and sisters, whether the

relationship be legitimate or illegitimate, who are living in the family home and who
depend upon the head of the family for support. (FC 154)

For purposes of availing of the benefits of a family home as provided for by the Family Code, a
person may constitute or be the beneficiary of only 1 family home. (FC 161)

Exemption from execution

Rule; exceptions
The family home is exempt from execution, forced sale or attachment from the time of its
constitution and so long as any of its beneficiaries actually resides therein, except in the following
instances:
(1) for nonpayment of taxes;
(2) for debts incurred prior to the constitution of the family home;
(3)

for debts secured by mortgages on the premises before or after such

constitution; and

(4)

for debts due to laborers, mechanics, architects, builders, material men and
others who have rendered service or furnished material for the construction of
the building.

Extent of exemption
At the time of its constitution, the actual value of the family home shall not exceed P300,000 in
urban areas, and P200,000 in rural areas, or such amounts as may hereafter be fixed by law. If the value
of the currency changes after adoption of the FC, the value most favorable for the constitution of the
family home shall be the basis of evaluation. (This is left to the discretion of the judge.) (FC 157)
For purposes of this Article, urban areas are deemed to include chartered cities and
municipalities whose annual income at least equals that legally required for chartered cities. All others
are deemed to be rural areas.

Claim of creditor not falling under Art. 155

When creditor can apply for order directing sale of family home under execution. When a
creditor whose claim is not among those mentioned in Art. 155 obtains a judgment in his favor, and he
has reasonable grounds to believe that the family home is actually worth more than the maximum amount
fixed in Art. 157, he may apply to the court which rendered the judgment for an order directing the sale of
the property under execution.
Order of sale under execution. The Court shall order the sale under execution if it finds that the
actual value of the family home exceeds the maximum amount allowed by law at the time of its
constitution.
Execution sale. At the execution sale, no bid below the value allowed for a family home shall be
considered.
Application of proceeds. The proceeds shall be applied as follows:
(1) First to the maximum amount allowed by law for a family home;
(2) Then to the liabilities under judgment;
(3) And lastly, to costs.
Any excess shall be given to the judgment debtor.
Increase in actual value. If the increased actual value exceeds the maximum allowed in Art. 157
and results from subsequent voluntary improvements introduced by the person or persons constituting the
family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and
procedure shall apply.

Sale or encumbrance of family home

The family home may be sold, alienated, donated, assigned or encumbered by the owners with
the written consent of the person constituting the family home, the spouse and a majority of the
beneficiaries of legal age. Courts shall decide in case of conflict. (FC 158)
Professor Balane has remarked that this provision is "dangerous."

Effect of death of spouse/s or head of family

On continuation of family home as such

The family home shall continue as such despite the death of one or both spouses or of the
unmarried head of the family:
(1) for 10 years; or

(2) for as long as there is a minor beneficiary.

Heirs cannot partition the same unless the court finds compelling reasons therefor.
This rule applies regardless of whoever owns the property or constituted the family home. (FC
159)

Inclusion in the gross estate

The total value of the family home must be included as part of the decedent's gross estate.

Taxation
For purposes of taxation, the fair market value of the family home is allowed as a deduction from
the gross estate for the purpose of computing the estate tax due. A limit of P 1 million is allowed as
deduction. Any excess shall be subject to estate tax.
A certification from the barangay captain of the locality that the family home was indeed a family
home of the decedent is a condition sine qua non for the exemption / deduction.

Petitions for constitution of the family home

Although the Family Code now makes constitution of the family home automatic upon its
occupancy as such, the Family Courts Act provides that all petitions for constitution of the family home are
within the exclusive original jurisdiction of the Family Courts. (Sec. 5h, R.A. 8369)

Absentees
Absence, defined
Absence may be defined as the legal status of a person who has absented himself from his
domicile and whose whereabouts and fate are unknown, it not being known with certainty whether he is
still living or not.

Rationale behind the Civil Code provisions on absence

The Civil Code provisions on absence were enacted in order to protect:

(1) The interest of the person himself who has disappeared;
(2)

The rights of 3rd parties against the absentee, especially those who have
rights which would depend upon the death of the absentee; and

(3)

The general interest of society which may require that property does not
remain abandoned without someone representing it and without an owner.
(Reyes v. Alejandro)

Stages of absence

There are 3 stages of absence:

(1) PROVISIONAL ABSENCE
Provisional absence is when a person disappears from his domicile, his
whereabouts being unknown, without leaving an agent to administer his property. (NCC
381)
(2) DECLARED ABSENCE
Declared absence is when a person disappears from his domicile, and 2 years
have elapsed without any news about him or since the receipt of the last news, or 5 years
have elapsed in case he left a person to administer his property. (NCC 384)
(3) PRESUMPTIVE DEATH
Presumptive death is when the absentee is presumed dead. (NCC 390, 391)

Provisional absence
Requisites for provisional absence
(5)

The absentee has disappeared from his domicile;

(6)

His whereabouts are unknown;

(7)

He did not leave any agent to administer his property;

Common provisions for provisional absence

and declaration of absence
(8)

The appointment of a representative in connection with such property

is urgent or necessary

When appointment of representative is necessary

An appointment of a representative is necessary when the absent party either did not leave an

Declaration of absence
agent to administer his property, or if the power conferred by the absentee upon his agent has expired.
(NCC 381)

When necessary
A declaration of absence is necessary when:
(1) The absentee has properties which have to be taken care of or administered
by a representative appointed by the Court (NCC 384);
(2) The wife is asking the court that the administration of all classes of property
in the marriage be transferred to her (NCC 196);
(3) The spouse of the absentee is asking for separation of property (NCC 191).
Inasmuch as a judicial declaration of absence is patrimonial in purpose, it is unnecessary where
there are no properties to be administered. (Reyes v. Alejandro, January 16, 1986)

When declaration of absence may be obtained

If absentee did not leave a person in charge

of the administration of his properties:

If he left a person in charge

2 years having elapsed without any news about the

absentee, or since the receipt of the last news

5 years having elapsed without news about the

absentee or since the last news about him

Petition for appointment of a

representative in provisional
absence
Who may petition

Petition for declaration of

absence and appointment of
trustee or administrator

Any interested party, relative orThe following may ask for the
friend of the absentee maydeclaration of absence:
petition for the appointment of a
representative in provisional(1) The spouse present;
absence. (Rule 107, Sec. 1)
(2) The heirs instituted in a will,

who may present an authentic

copy of the same;
(3) The relatives who may
succeed by the law of intestacy;
(4) Those who may have some
right over the property of the
absentee subordinated to the
condition of his death (NCC
385)
Contents

The petition for the appointment of a representative, or for the

declaration of absence and the appointment of a trustee or
administrator, must show the following:
(1) jurisdictional facts;

Setting of hearing; notice and

publication

(2)

names, ages, and residences of the heirs instituted in the

will, copy of which shall be presented, and of the relatives
who would succeed by the law of intestacy;

(3)

names and residences of creditors and others who may

have any adverse interest over the property of the absentee;

(4)

the probable value, location and character of the property

belonging to the absentee. (Rule 107, Sec. 3)

(1) Court shall fix a date and place for hearing of the petition.
(2) Copies of the notice of time and place for hearing shall be
served on the known heirs, legatees, devisees, creditors and
other interested persons, at least 10 days before the day of
the hearing.
(3)

The notice shall likewise be published once a week for 3

consecutive weeks prior to the time designated for the
hearing in a newspaper of general circulation in the province
or city where the absentee resides.

Opposition

Any opposition to the petition shall state in writing the grounds

therefor, and a copy thereof must be served on the petitioner and
other interested parties on or before the date of the hearing.
(Rule 107, Sec. 5)

Proof at hearing; order

At the hearing, satisfactory proof must be shown of the fact of

compliance with the notice and publication requirements, and of
the allegations in the petition.

Effectivity of court order

Court order becomes effective Declaration of absence shall not

once it is final and executory.
take effect until six (6) months
after its publication in
a
newspaper of general circulation
and OG.

It must be noted that a declaration of absence be made in a proceeding separate from and prior to
a petition for administration. (Reyes v. Alejandro, 141 SCRA 65)

Effect of absence upon the absentee's contingent rights

Whoever claims a right of a person whose existence not recognized must prove that he was
living at the time his existence was necessary to acquire such right. (NCC 393)
Upon opening of succession to which the absentee is called, his share shall accrue to his
coheirs, unless the absentee has heirs, assigns or a representative. This is without prejudice to the
provisions of NCC 393 (NCC 394), and without prejudice to the action of petition for inheritance or other
rights which are vested in the absentee, his representatives or successors in interests, which shall not be
extinguished except by lapse of time fixed for prescription. (NCC 395)
Those who may have entered upon the inheritance shall appropriate the fruits received in good
faith so long as the absentee does not appear, or while his representatives or successors in interest do
not bring the proper actions. (NCC 396)

Administration
Who may be appointed
In the appointment of a representative, the spouse present shall be preferred when there is no
legal separation.
If the absentee left no spouse, or if the spouse present is a minor (not applicable under the
current state of the law) or otherwise incompetent, any competent person may be appointed by the court.
(NCC 383; Rule 107, Sec. 7)

Limitations on wife as administratrix

A wife appointed as administratrix of her husbands property cannot alienate or encumber the
property or that of the conjugal property without judicial authority.

Termination of administration
The trusteeship or administration of the property shall cease upon order of the court in any of
the following cases:
(1) When the absentee appears personally or by means of an agent;
(2)

When the death of the absentee is proved and his testate or intestate heirs
appear;

(3) When a third person appears, showing by a proper document that he has acquired
the absentees property by purchase or title.
In these cases, the trustee or administrator shall cease in the performance of his office, and the property
shall be placed at the disposal of those who may have a right thereto

Declaration of presumptive death

When the presumption of death arises
For purposes of opening succession:
Generally:
If absentee disappeared after
the age of 75 years:

10 years
5 years

For all other purposes:

7 years

Special circumstances:

4 years

person aboard a vessel lost during sea voyage, or an airplane missing, and not heard of
for 4 years since loss of the vessel or plane;

person in armed forces who has taken part in the war and missing for 4 years;

person who has been in danger of death under circumstances and existence not known
for 4 years.

No independent action; exception

There shall be no independent action for the declaration of presumption of death, except for
purposes of remarriage under the Family Code.

Requisites for declaration

There are 4 requisites for the declaration of presumptive death under Art. 41 of the Family Code:
(7)

That the absent spouse has been missing for 4 consecutive years, or 2
consecutive years if the disappearance occurred where there is danger of
death under the circumstances laid down in Art. 391 of the Civil Code;

(8) That the present spouse wishes to remarry;

(9)

That the present spouse has a well-founded belief that the absentee is
dead; and

(10) That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee. (Republic v. Nolasco, 220 SCRA 20)

Effect of Reappearance
Recovery of property
If the absentee appears, or without appearing his existence is proved, he shall recover his
property in the condition in which it may be found, and the price of any property that may have been
alienated or the property acquired therewith.
However, the absentee cannot claim either fruits or rents. (NCC 392; Rule 107, Sec. 4)

Termination of subsequent marriage

Any subsequent marriage under Art. 41 of the Family Code which was contracted by the present
spouse shall be automatically terminated by the recording of the affidavit of reappearance of the
absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.
However, this is without prejudice to the fact of reappearance being judicially determined in case such fact
is disputed. (FC 42)
The specific effects of the termination of the subsequent marriage are discussed in Art. 43-44 of
the Family Code.

Guardianship
INTRODUCTION

Guardianship defined

Guardianship is the office, duty or authority of a guardian; the relation subsisting between
guardian and the ward. It is the power of protective authority given by law and imposed on an individual
who is free and in the enjoyment of his rights, over one whose weakness on account of his age or other
infirmity renders him unable to protect himself.
A guardian is a person who legally has the care of the person or property, or both, of another
person who is incompetent to act for himself.
A ward is the person under guardianship.

Persons requiring guardianship

The following persons require guardianship:

(1) Minors;
(2) Incompetents, namely:
(a) Persons suffering the penalty of civil interdiction
Civil Interdiction deprives the offender of the ff. rights:

parental authority;
guardianship, either as to the person or prop. of any ward;
marital authority;
management of his property;
disposition of such property by any act or any conveyance inter vivos.

(b) Hospitalized lepers

(c) Prodigals
A prodigal is a person who though of full age, is incapable of managing his affairs
and the obligations which attend them, in consequence of his bad conduct and for
whom a curator is appointed therefor. The acts of prodigality must show a morbid
mind and a disposition to spend or waste the estate so as to expose his family to
want or to deprive his forced heirs of their inheritance.

(d) Deaf-mutes who are unable to read and write;

(e) Those who are of unsound mind, even though they have lucid intervals;
Insanity is a manifestation in language or conduct of disease or defect of the
brain, or a more or less permanently diseased or disordered condition of the mind,
functions or organs, and characterized by perversion, inhibition or disordered
function of the sensory or of the intellectual faculties or by impaired or disordered
volition. Every adult is presumed sane but once a guardian is named for the person,
a presumption of the mental infirmity of the ward is created.

(f) Those not of unsound mind, but by reason of age, disease, weak mind, and
other similar causes, cannot, without outside aid, take care of themselves and
manage their property, becoming thereby an easy prey for deceit and
exploitation.

Kinds of guardians

1. The legal guardian guardian by provision of law without need of judicial appointment, as in
the case of parents over the persons of their minor children or over their properties not
exceeding P50,000.00;
2. The guardian ad litem any competent person appointed by the court for purposes of a
particular action or proceeding involving a minor; and
3. The general or judicial guardian who is a competent person appointed by the court over
the person and/or property of the ward to represent the latter in all his civil acts and transactions
Rule 92 refers to general guardians.

GENERAL OR JUDICIAL GUARDIANSHIP

Jurisdiction

Exclusive original jurisdiction over petitions for guardianship is vested with the Family Courts.
(Sec. 5b, R.A. 8369)

Venue

If the ward is a resident, the petition for guardianship shall be filed in the Family Court of the
province or city where the minor or incompetent person resides. . (Sec. 5b, R.A. 8369, vis--vis Rule 92,
Sec. 1)
Where the minor or incompetent resides outside of the Philippines, the petition for
guardianship may be filed in the Family Court of the province or city where the property of such minor or
incompetent may be situated. (Sec. 5b, R.A. 8369, vis--vis Rule 92, Sec. 1)
The court may transfer guardianship proceedings to another venue when:
The ward has acquired real property in the province or municipality where the case
is to be transferred; and
Such ward has transferred his bona fide residence thereto.

Nature of powers of guardians

The nature of the powers of an appointed guardian is that they may be exercised only in the state
under whose laws they were conferred. The authority of the guardian may extend only to the property of
the minor or incompetent within such a state.

Petition for letters of guardianship

Who may petition

The following persons may petition for guardianship over a resident:
1. Any relative, friend, or other person on behalf of a resident minor or incompetent who
has no parent or lawful guardian;
2. The minor himself if 14 years of age or over;

3. An officer of the Federal Administration of the United States in the Philippines in favor
of a ward thereof; [This does not exist anymore] and
4. The Director of Health, in favor of an insane person who should be hospitalized or in
favor of an isolated leper. [Now the Secretary of Health]

Contents of petition
A verified petition for the appointment of a general guardian must show, so far as known to the
petitioner:
1.

The jurisdictional facts;

2.

Minority or incompetency rendering the appointment necessary or convenient;

3.

Names, ages, and residences of the relatives of the minor or incompetent, and of
the persons having him in their care;

4.

The probable value and character of his estate;

5.

The name of the person for whom letters of guardianship are prayed.

No defect in the petition or verification shall render void the issuance of letters of guardianship.
(Rule 93, Sec. 2)

Grounds for contesting petition

Any interested person may file a written opposition to the petition for letters of guardianship on
any of the following grounds:
a.

Majority of the alleged minor;

b.

Competency of the alleged incompetent;

c.

Unsuitability of person for whom letters are prayed. (Rule 93, Sec. 4)

In contesting the petition, the opponent may pray that the petition be dismissed, or that letters of
guardianship issue to himself or to any suitable person named in the opposition.

Duties of court upon filing of petition

Upon the filing of the petition, the Court shall:
1. Fix a time and place for hearing of the petition;
2. Cause reasonable notice thereof to be given to the persons mentioned in the petition
who are residents of the province, including the minor if above 14 years of age or
incompetent himself; and
3. Direct other general and special notice thereof to be given such as notice to all
relatives of the ward.

The giving of notice to all relatives is a jurisdictional requirement. (Cf.

Yangco v. CFI of Manila, 29 Phil. 183)

Should notice still be given to insane persons even though they cannot understand the contents thereof
anyway?
There are 2 views as regards this question:
1.

Rule 93, Section 3 makes no distinction between those incompetents described under Rule
92, Sec. 2. Sec 3 seems to say that all incompetents must be given notice and such is a
jurisdictional requirement.

2.

On the other hand, the Supreme Court ruled in the case of In re Inchausti (40 Phil 504) that
notice to the insane person would not be necessary where the giving of such notice would
seem impossible, useless or even dangerous.

Appointment of guardians

A.

If ward has property, guardian may be appointed over person, property, or both of the ward.

B.

If ward has no property, only over the person

C.

If ward is a resident of the Philippines, guardian may be appointed over person, property, or
both

D.

If ward is a non-resident, guardian may be appointed only over the property of the
ward situated in the Phil.
Guardian appointed for nonresidents: The non-resident must have property situated in
the Philippines. Any relative, friend or anyone interested in the estate of the non-resident,
in expectancy or otherwise may file a petition for appointment of a guardian.

E.

Courts may also appoint separate guardians for the person and property of the ward.

F.

The courts may appoint a guardian of the child's property or a guardian ad litem when the
best interests of the child so require. (FC 222)

Considerations in the appointment of a guardian

Since a guardianship proceeding is for the benefit and welfare of the ward, the guardian chosen
must suit such purpose. In appointing a guardian, the court shall consider the following factors:

financial condition;
physical condition;
sound judgment, prudence and trustworthiness;
morals, character and conduct;
the present and past history of a prospective appointee;
the probability of his being able to exercise the powers and duties of a guardian

The courts should not appoint as a guardian any person who is not personally subject to their
jurisdiction, such as non-residents of the Philippines. (Guerrero v. Teran, 13 Phil. 212)

Bond

Duty to file bond

The guardian to be appointed by the court has the duty to file a bond before entering upon the
execution of his trust or before his letters of guardianship issue. (Rule 94, Sec. 1) Such bond is to be
filed in the office of the clerk of court. (Rule 94, Sec. 3)

Conditions of the bond

The guardian's bond is subject to the following conditions:
1.

To make and return to the court within 3 months, a true and complete inventory of all
the estate of the ward which shall come to his possession or knowledge or the
possession or knowledge of any other person for him.
The inventory must be rendered within three months after his appointment, and
annually after such appointment, an inventory and account, the rendition of any of
which may be compelled upon the application of an interested person.

Whenever any property of the ward not included in an inventory already

rendered is discovered, or succeeded to, or acquired by the ward, an inventory and
appraisement thereof within 3 months after such discovery, succession or acquisition
shall be rendered.

2.

To faithfully execute his duties, manage and dispose of the property according to the
best interests of the ward, provide for care, custody and education of ward.

3.

To render a true account of all the property, proceeds, interest derived from the
properties, and management and disposition thereof at the time designated by rules,
by the court and at the expiration of the trust.

4.

To perform all orders of the court.

Actions on the bond

Actions on the bond in case of breach of condition thereof may be prosecuted in the same
proceeding or in a separate action for the use and benefit of the ward or of any other person legally in the
estate. (Rule 94, Sec. 3)

General powers and duties

The appointment of a guardian is good until set aside and, despite an appeal therefrom, can do
what is necessary, under the direction of the court, for the protection of the ward or his property. (ZafraSarte v. CA, March 30, 1970)

Duties
A guardian primarily has the following duties:
(1) TO PAY THE WARDS DEBTS
Only the wards just debts must be paid by the guardian out of the wards personal
property and income of the real properties.
If the above is insufficient, then payment shall be made out of the wards real estate
upon obtaining an order for the sale or encumbrance thereof.

(2) TO SETTLE THE WARD'S ACCOUNTS

(3) TO DEMAND, SUE FOR AND RECEIVE ALL DEBTS DUE HIM
In this connection, the guardian may, with the courts approval, compound for the same
and give discharges to the debtor upon receiving a fair and just dividend of the estate and
effects.

(4) APPEAR AND REPRESENT THE WARD IN ALL ACTIONS AND SPECIAL PROCEEDINGS
The court may authorize the guardian to join in an assent to a partition of real or
personal estate held by the ward jointly or in common with others. However, such authority
shall only be granted: (1) after hearing, (2) upon such notice to relatives of the ward as the
court may direct, and (3) after a careful investigation to determine the necessity and propriety
of the proposed action. (Rule 96, Sec. 5)

Management of the wards estate

In managing his ward's estate, the guardian must:
(1) Manage the estate of his ward frugally and without waste; and
(2) Apply the income and profits thereof, so far as may be necessary to the comfortable and
suitable maintenance of the ward and his family, if there be any. (Rule 96, Sec. 4)

Selling and encumbering property of ward

Petition for leave to sell or encumber. The guardian may file a verified petition with the
appointing court for leave to sell or encumber the ward's property in the following instances:
1.

When the income of the estate under guardianship is insufficient to maintain the
ward and his family;

2.

When the income is insufficient to maintain and educate the ward when a minor;

3.

When it appears that the sale, mortgage, or encumbrance is for the benefit of the
ward and the proceeds put out at interest, or invested in some productive security.

Guardians sale of the wards real estate is void unless the guardian has special authority
conferred by: (1) will; (2) statute; or (3) order of court (Inton v. Quintana, 81 Phil 97) Note that the lack
of verification of a petition filed in court for sale of real property belonging to the estate of the ward is NOT
a jurisdictional defect. (De Tavera v. El Hogar Filipino, 98 Phil 481)
Order to show cause; hearing. If it seems probable that such sale or encumbrance is
necessary, or would be beneficial to the ward, the court shall make an order directing the next of kin of the
ward, and all persons interested in the estate, to appear at a reasonable time and place therein specified
to show cause why the prayer of the petition should not be granted.
At the time and place designated in the order to show cause, the court shall hear the proofs and
allegations of the petitioner and next of kind, and other persons interested, together with their witnesses.
(Rule 95, Sec. 3)
Order for sale or encumbrance of property. Should the court find it beneficial to the ward to
sell or encumber the estate or some portion of it, it shall order such sale or encumbrance. The order for
sale or encumbrance of the ward's property must contain the following:

The causes why the sale/encumbrance is necessary or beneficial; and

A direction that the estate be sold or disposed of at either public or private

sale, subject to such conditions as to the time and manner of payment, and
security where a part of the payment is deferred.

No order of sale granted under Sec. 4 shall continue to be in force for more than a year after
granting of the same. (Rule 95, Sec. 4) This one year period does not, however, apply to mortgages and
other encumbrances.
The law merely requires that the guardian should be authorized in cases of sale of the wards
properties. There is no requirement that the deed of sale executed should also be approved by the court.
The courts approval in this case being merely pro-forma. (Margate v. Rabacal, 7 SCRA 894)
Remedy against an order authorizing sale of wards property. The proper remedy against an
order authorizing sale of ward's property is neither certiorari nor mandamus but appeal. [Lopez v.
Teodoro, 86 Phil 499]

Proceedings when persons suspected of embezzling or concealing ward's

property
Should there be any person suspected of having embezzled, concealed or conveyed away any
money, goods, interest, or a written instrument belonging to the ward, the guardian, the ward, or any
person having actual or prospective interest in the ward's estate may file a complaint to this effect.
The Court may cite the suspected person to appear for examination and make such orders as
will secure the estate against such embezzlement, concealment or conveyance. (Rule 96, Sec. 6)
However, where title to any property said to be embezzled, concealed or conveyed is in
question, the determination of said title or right, whether in favor of the ward or in favor of the person said
to have embezzled, concealed or conveyed the property must be determined in a separate ordinary
action and not in guardianship proceedings. (Cui v. Piccio, 91 Phil 712)

Settlement of the guardian's accounts

Expenses and compensation allowed in the settlement of the account of

guardian:
Expenses:

the amount of the guardians reasonable expenses incurred in the execution of

his trust;

Compensation: As the court deems just, not exceeding 15% of the net income of the ward.
However, if the guardian also happens to be the parent of the ward, he is not entitled to
reimbursement of expenses and compensation.
The guardian must present his account to the court for settlement and allowance upon the
expiration of a year from the time of his appointment and as often as the court may thereafter require.

Termination of guardianship

Guardianship may be terminated by any of the following modes:

(1) Declaration of competency of the ward (Rule 97, Sec. 1);
(2) Removal of the guardian by reason of the guardian's insanity, incapability of
discharging the trust or unsuitability therefor, mismanagement of the estate,
or failure to render an account or make a return for 30 days after said
account or return is due (Rule 97, Sec. 2);
(3) Resignation of the guardian

(Rule 97, Sec. 2)

Rule 97, Sec. 3 is inoperative because there is no such thing as emancipation by marriage or
voluntary emancipation by reason of the lowering of the age of majority to 18 under RA 6809.

Restoration of ward to capacity

The court which appointed the guardian is also the competent court to decide the petition for
restoration to capacity which is merely a continuation of the original guardianship proceeding.
(Crisostomo v. Endencia, 66 Phil 1)
The following persons may file a petition to have the ward judicially declared competent:

The person who has been declared incompetent

The guardian
A relative or
A friend

Upon receipt of the petition, the court shall:

(1) Fix a time for hearing the questions raised thereby; and
(2) Cause reasonable notice thereof to be given to the guardian of the person so
declared incompetent and to the ward.
Notice to the ward under Rule 97, Sec. 1 in a petition to terminate the guardianship is only
procedural unlike in a petition to appoint a guardian, wherein notice is jurisdictional. Here, the lack of
notice affects the validity of the proceedings only if prejudice is caused thereby. (El Banco EspanolFilipino v. Palanca, 37 Phil. 921)

Removal of guardian
Under Rule 97, Sec. 2, there are 6 grounds for removing a guardian:

(1) When he becomes insane;

(2) Becomes incapable of discharging his trust;
A guardian is or becomes incompetent to serve his trust if he is so disqualified by
mental incapacity, conviction of a crime, moral delinquency or physical disability as to be
prevented form properly discharging the duties of his office, and may be removed as a
result.

(3) Becomes unsuitable for discharging his trust;

(4) Has wasted the estate;
(5) Has mismanaged the estate; or
(6) Has failed to render an account or make a return for thirty (30) days after it is
due.
These grounds are exclusive. The guardian may not be removed from office for causes other than those
under Sec. 2. (Vda de Bengson v. PNB, 3 SCRA 751)
An order removing a guardian is appealable.

LEGAL GUARDIANS
Articles 225-227 of the Family Code lay down the following rules on guardianship as regards
parents and their children:
1.

Father and mother shall jointly exercise legal guardianship over the property of their
unemancipated common child without necessity of court appointment.

2.

Fathers decision will prevail in case of disagreement, unless there is a court order.

3.

Bond to be furnished by the parent concerned in an amount determined by the court

but not less than 10% of the value of the property or annual income, if the market
value of the property or annual income of the child is more than P50,000.00.

4.

Property of the unemancipated child earned or acquired with his work or industry or
by onerous or gratuitous title shall belong to the child in ownership and devoted
exclusively to his support and education.

5.

Right of the parents over fruits and income of childs property limited primarily to the
childs support and secondarily to the collective daily needs of the family.

6.

If parents entrust management of their properties to an unemancipated child, net

proceeds shall belong to the owner but child will receive reasonable monthly
allowance, the amount of which shall not be less than what the owner will pay to an
administrator if he were a stranger; unless the owner grants entire proceeds to child.
Proceeds shall not be charged to the childs legitime.

As a general rule, the ordinary rules on guardianship shall be merely suppletory.

However, when the child is under substitute parental authority, or the guardian is a stranger, or a
parent has remarried, the ordinary rules on guardianship shall apply. (FC 225)
A father/mother, as the natural guardian of the minor under parental authority, does not have the
power to dispose or encumber the property of the latter. Such power is granted by law only to a judicial
guardian of the wards property and even then only with the courts prior approval secured in accordance
with the proceedings set forth by the ROC. Any disposition done without power or authority is not binding
nor enforceable against any subsequent legal owners of said property. (Bautista v. Bustos, 92 Phil 327)
The courts may appoint a guardian of the child's property or a guardian ad litem when the best
interests of the child so require. (FC 222)

Judicial Approval of Voluntary

Recognition of Minor Natural
Children
Voluntary recognition defined

Voluntary recognition is an admission of the fact of paternity or maternity by the presumed

parent, expressed in the form prescribed under Art. 278 of the NCC which provides that recognition shall
be made in the:

record of birth
a will
a statement before a court of record
or in any authentic writing.

When judicial approval necessary

Judicial approval is necessary when the recognition of a minor does not take place in a record of
birth or in a will. (NCC 281)
This requirement of judicial approval imposed by Art. 281 is clearly intended for the benefit of
the minor. The lack of judicial approval cannot impede the effectivity of the acknowledgment made to his
prejudice. The lack or insufficiency of such approval is not a defect available to the recognizing parent
but one which the minor may raise or waive. (Gapusan Chua v. CA, 183 SCRA 160)

Civil Code rules on recognition

Please note the following provisions which, although repealed by the Family Code, may still be
applicable for lack of substitute provisions. It is still not settled which provisions remain applicable.

Voluntary recognition
A natural child may be recognized by the father and the mother jointly, or by only one of them.
(NCC 276) In case the recognition is made by only one of the parents, it shall be presumed that the
child is natural, if the parent recognizing it had legal capacity to contract marriage at the time of
conception. (NCC 277)
A minor who may not contract marriage without parental consent (18-21) cannot acknowledge a
natural child unless:

parent/guardian approves the acknowledgment

recognition is made in a WILL (NCC 279)

When the father or the mother makes the recognition separately:

He/shall not reveal the name of the person with whom he/she has the child;

Neither shall he/she state any circumstance whereby the other parent may be identified.
(NCC 280)

The action for the recognition of natural children may be brought ONLY during the lifetime of the
presumed parents, EXCEPT:
(1) If the father or mother died during the minority of the child, in which case the
latter may file an action within 4 years from the attainment of his majority age.
(2) If after the death of the father/mother a document should appear of which
nothing had been heard and in which either/ both parents recognize the child. In
this case, the action must be commenced within 4 years from the finding of the
document. (NCC 285)

Involuntary recognition
The father is obliged to recognize the child as his natural child in the following cases:
(1)

In cases of rape/abduction/seduction, when the period of the offense

coincides more or less with that of conception;

(2)

When the child is in continuous possession of the status of a child of the

alleged father by the direct acts of the latter or direct acts of his family;

(3) When the child was conceived during the time when the mother cohabited
with the supposed father.
(4) When the child has in his favor any evidence or proof the defendant is his
father. (NCC 283)
The mother is obliged to recognize her natural child:
(1)

(1)

In any of the cases in the preceding article, as between the child & the
mother; and

(2) When the birth and the identity of the child are clearly proven. (NCC
284)

The recognition made in favor of a child who either does not possess all the conditions in Art.
269, or in which the requirements of the law have not been fulfilled may be impugned by those who are
prejudiced by such recognition. (NCC 286)

Pertinent provisions of Family Code

Proof of filiation of illegitimate children

Illegitimate children may establish their illegitimate filiation in the same way and on the same
evidence as legitimate children, namely:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of illegitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the illegitimate filiation shall be proved by:
(1) The open and continuous possession of the status of an illegitimate child, or
(2) Any other means allowed by the Rules of Court and special laws. (FC 172)

Action to claim illegitimacy

If the action is based on the record of birth or the admission of illegitimate filiation, the action may
be brought during the child's lifetime. If the child died during minority or in a state of insanity, the child's
heirs shall have a period of 5 years within which to institute the action. (FC 175 vis--vis 173)
However, if the action is based on open & continuous possession of the status of an illegitimate
child or on other means, the action may be brought during the lifetime of the alleged parent. (FC 175)

Procedure

Venue
Petition shall be filed with the Family Court of the province or city in which the child resides. The
Family Court has exclusive original jurisdiction over all petitions for acknowledgment. (Sec. 5e, R.A.
8369)

Who may file

The child or his parents may file a petition for judicial approval of voluntary recognition.

Contents of petition
(1) jurisdictional facts;
(2) names and residences of the parents who acknowledged the child, or of either of
them, and their compulsory heirs, and the person/s with whom the child lives;
(3) the fact that the recognition made by the parent/s took place in a statement before
a court of record or in an authentic writing, copy of the statement or writing being
attached to the petition.

Procedure
(1) Court shall fix the date and place for the hearing of the petition which date shall not be
more than 6 months after the entry of the order.
(2)

A copy of the order to be served personally or by mail upon the interested parties and
published once a week for 3 consecutive weeks, in a newspaper of general circulation in
the province.

(3) Interested party within 15 days from service or from the last date of publication of the order
of hearing must file his opposition to the petition.
(4)

If from the evidence it appears that recognition of the child was willingly and voluntarily
made by the parent/s and that recognition is for the best interest of the child, judgment
granting judicial approval of the recognition shall be rendered.

(5)

Copy of the judgment shall be served upon the civil registrar who shall enter it in the
register.

Part IV.
Other special proceedings

Change of name
Correction of entries in civil registry
Habeas corpus
Trustees

Hospitalization of insane persons

Change of Name
and
Correction of Entries in Civil Registry
The rules on change of name and correction of entries in the Civil Registry are governed by Art.
407-413, Rule 103 and Rule 108 of the Rules of Court, and Republic Act No. 9048.

CIVIL REGISTRY
Civil Register, defined

The Civil Register refers to the books and all documents relating thereto wherein all acts, events
and judicial decrees concerning the civil status of persons are recorded. (Art. 407, New Civil Code)
Republic Act No. 9048 defines the Civil Register as "the various registry books and related
certificates and documents kept in the archives of the local civil registry offices, Philippines Consulates
and of the Office of the Civil Register General." (Sec. 2 (4), R.A. 9048)

CANCELLATION OR CORRECTION OF ENTRIES

IN THE CIVIL REGISTRY
Entries subject to cancellation or correction

(Rule 108, Sec. 2; Art. 408, New Civil

Code)

(1) births;
(2) marriages;
(3) deaths;
(4) legal separations;
(5) judgments of annulments of marriage;
(6) judgments declaring marriages void from the beginning;
(7) legitimations;
(8) adoptions;
(9) acknowledgments of natural children;
(10) naturalization;
(11) election, loss or recovery of citizenship;
(12) civil interdiction;
(13) judicial determination of filiation;
(14) voluntary emancipation of a minor; and
(15) changes of name.

Types of errors in entries

There are two (2) types of errors in Civil Registry entries:

(1) Clerical or typographical errors
Clerical or typographical errors are mistakes committed in the performance of clerical
work in writing, copying, transcribing or typing an entry in the civil register that is harmless and

innocuous, visible to the eyes or obvious to the understanding, and can be corrected or changed
only by reference to other existing record or records. (Sec. 2 (3), R.A. 9048)
(2) Substantial errors
Substantial errors are errors whose correction affect civil status, nationality, citizenship, or
any other matter considered substantial.

Kinds of proceedings under Rule 108

In the 1987 case of Republic v. Bautista (26 October 1987), it was held that proceedings under
Rule 108 and Art. 412 of the Civil Code may either be summary or adversary in nature. If the correction
sought to be made in the civil register is clerical, then the procedure is summary. If the recitation affects
the civil status, nationality, citizenship, or any matter considered substantial, the procedure adopted is
adversary.

Rules in cancellation or correction of entries

Originally, entries in the Civil Registry could not be changed or corrected without judicial order.
(Art. 412, New Civil Code)
However, Republic Act No. 9048, which was passed into law on 22 March 2001, now allows
clerical or typographical errors to be corrected administratively without the need for a judicial order.
In view of the changes introduced by R.A. 9048, it would now appear that the summary procedure
in Rule 108 has been taken over by the Civil Registrar, and thus Rule 108 now applies only to adversarial
proceedings.

Adversarial proceedings under Rule 108

Appropriate adversary proceeding, defined
An "appropriate adversary proceeding" has been defined as a contested proceeding having
opposing parties, as distinguished from an ex parte application. It is one where the aggrieved party has
given learn warning to and afforded the other party an opportunity to contest and demolish the former's
case. (Republic v. CFI of Naga, May 31, 1988)

Procedure
(1) FILING OF PETITION
Who may file. Any person interested in any act, event, order or decree concerning the civil
status of persons which has been recorded in the civil register may file a verified petition for
cancellation or correction of entry in the civil registry.
Where filed. The verified petition shall be filed with the RTC of the province where the
corresponding civil registry is located.
Parties to the petition. The civil registrar and all persons who have or claim any interest
which would be affected thereby shall be made parties to the proceeding.
(2) NOTICE AND PUBLICATION

Upon the filing of the petition, the court shall fix the time and place for the hearing of the
petition and cause reasonable notice thereof to be given to the persons named in the petition
by way of an order.
The court shall also cause the order to be published once a week for 3 consecutive
weeks in a newspaper of general circulation in the province.
(3) OPPOSITION TO PETITION
The civil registrar and any person having or claiming an interest under the entry whose
cancellation or correction is sought may file his/her opposition to the petition within 15 days
from notice of the petition, or from the last date of publication of such notice.
(4) HEARING AND JUDGMENT
The court shall proceed to hear the petition at the date and time stated in its order.
During the proceedings, the court may make orders expediting the proceedings. It may
also grant preliminary injunction for the preservation of the rights of the parties pending such
proceedings.
After hearing, the court may either dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a certified copy of the judgment shall be
served upon the civil registrar concerned, who shall then annotate the same in his record.

Administrative proceedings under R.A. 9048

Procedure
WHO MAY FILE
Any person having direct and personal interest in the correction of a clerical or typographical
error in an entry may file, in person, a verified petition for correction of entry.
WHERE FILED
General rule. The verified petition is filed with the local civil registry office of the city or
municipality where the record being sought to be changed is kept.
When petitioner has migrated to another place in the country and it is not practical for
such party to appear in person before the local civil registrar. The petition may be filed with the
local civil registrar of the place where the interested party is presently residing or domiciled. The 2
local civil registrars concerned will then communicate to facilitate the processing of the petition. The
petition should likewise be filed in person.
When Philippine nationals are residing or domiciled in foreign countries. The petition
may be filed with the nearest Philippine consulates. The petition should likewise be filed in person.
PROCEDURE
(1) Petition with supporting documents
The petition shall be in the form of a sworn affidavit which shall set forth facts necessary
to establish the merits of the petition and shall show affirmatively that the petitioner is
competent to testify to the matters stated. The petitioner shall state the particular erroneous
entry or entries which are sought to be corrected.
The petition, which shall be filed in 3 copies, should be supported with the following
documents:
(a)

A certified true machine copy of the certificate or of the page or of the

registry book containing the entry sought to be changed;

(b) At least 2 public or private documents showing the correct entry or entries
upon which the correction or change shall be based;
(c) Other documents which the petitioner or the city or municipal civil registrar or
the consul-general may consider relevant and necessary for the approval of
the petition.
(2) Posting
The city or municipal civil registrar or consul-general to whom the petition shall post the
petition in a conspicuous place provided for the purpose for 10 consecutive days after he
finds the petition and its supporting documents sufficient in form and substance.
(3) Action on petition
The city or municipal civil registrar or the consul-general shall act on the petition and shall
render a decision not later than 5 working days after the completion of the posting
requirement. He shall transmit a copy of his decision together with the records of the
proceedings to the Office of the Civil Registrar General within 5 working days from the date of
the decision.

(4) Review by Civil Registrar General

Within 10 working days from receipt of the decision granting a petition, the civil registrar
general shall exercise the power to impugn the decision of the city or municipal civil registrar
or consul-general by way of an objection based on the following grounds:
(a) The error is not clerical or typographical;
(b)

The correction of an entry or entries in the civil register is substantial or

controversial as it affects the civil status of a person.

If the civil registrar general fails to exercise his power to impugn the decision of the city
or municipal registrar or of the consul-general within the prescribed period, the decision
becomes final and executory.

Remedies of petitioner upon denial of petition

If the petition for change of name is denied by the city or municipal civil registrar or consulgeneral, the petitioner may either appeal the decision to the civil-registrar general, or file the appropriate
petition with the proper court.
If the favorable decision of the city or municipal civil registrar or consul-general is impugned by
the civil registrar general, the petitioner may either file a motion for reconsideration or file the appropriate
petition with the proper court.

PETITION FOR CHANGE OF NAME

Names

Definition
A name is a word or combination by which a person is known or identified.

Characteristics of a name
A name is said to have the following characteristics:
(a) It is absolute, intended to protect the individual from being confused with others;

(b) It is obligatory in certain respects, for nobody can be without a name;

(c) It is fixed, unchangeable, or immutable, at least at the start, and may be changed
only for good cause and by judicial proceedings;
(d) It is outside the commerce of man, inalienable and intransmissible by act inter
vivos or mortis causa;
(e) It is imprescriptible. (Republic v. CA and Wong, 209 SCRA 189)

Rule on use of names

Under NCC 380, no person is allowed to use different names and surnames. The legal exception
however is the employment of pen names and stage names, which is allowed as long as it is done in
good faith and 3rd persons are not injured thereby. (NCC 379)

Rules on Surnames

Children
Legitimate children:

Father's surname (FC 174)

Legitimated children:

Father's surname (FC 179)

Adopted children:

Adopter's surname (NCC 341 (4))

The use of the adopter's surname pertains to the use of the latter's original family
surname and not to that acquired through marriage. In a case where a wife adopted
a child without the concurrence of her husband, the adopted may only use the wife's
maiden surname and not her married surname. Confusion may result if the adopted
child were allowed to use the surname of the spouse who did not join in the
adoption, as the public may be misled into believing that the child was also adopted
by the husband. (Johnston v. Republic, 7 Phil. 1040)

Illegitimate children:

Mother's surname (FC 176)

Children conceived before

annulment of voidable
marriage:

Father's surname (NCC 369)

Women
MARRIED WOMAN (NCC 370)
A married woman may use any of the following names:
(a) maiden first name and surname + husbands surname; or
(b) maiden first name and husbands surname; or
(c) husbands full name but prefixing a word indicated that she is his wife, such as
Mrs.
ANNULMENT OF MARRIAGE (NCC 371)
If the wife is the guilty party:
If wife is the innocent spouse:

Wife shall resume her maiden name and surname.

She may resume her maiden name and surname, but
may choose to continue employing her former husbands
surname; unless:
(a) court decrees otherwise;
(b) she or the former husband is married again
to another person

LEGAL SEPARATION (NCC 372)

Wife shall use surname and name used before legal separation. A change of name under Rule
103 cannot be justified by the fact of legal separation. (Laperal v. Republic, October 30, 1962)
WIDOW (NCC 373)
Widow may use the deceased husbands surname as though living.
DIVORCED
There is no provision under the Civil Code on the use of surname by a divorced wife. NCC 371 is
not applicable to such a case since the article speaks of annulment, which involves a voidable marriage,
and not absolute divorc3e which involves a severance of valid marriage ties.
In the case of Tolentino v. CA & David (162 SCRA 66), the Supreme Court dismissed a petition
for injunction to restrain Senator Tolentino's previous wife from using the Tolentino surname in spite of
their absolute divorce in 1943. The court, quoting Senator Tolentino, stated that "the wife cannot claim an
exclusive right to use the husband's surname. She cannot be prevented from using it; but neither can
she restrain others from using it." Since there was no usurpation of petitioner's name and surname
(petitioner was Senator Tolentino's 3rd, and current, wife) and thus no impingement on her rights, the
divorced Mrs. Tolentino was allowed to continue using the Tolentino surname.
The onerous requirements of Rule 103 should not be applied to judicial confirmation of the right of
a woman divorced under Shari'a Law to resume her maiden name and surname. In the absence of a
specific rule or provision governing such a proceeding, where sufficient facts have been alleged
supported by competent proof as annexes, which appear to be satisfactory to the Court, such petition for
confirmation of change of civil status and/or to resume the maiden name must given due course and
summarily granted as in fact it is a right conferred by law. (Yasin v. Hon. Judge, Shari'a D.C., 241 SCRA
606)

Ascendants and Descendants (NCC 374-375)

Where there is identity of names and surnames, younger person shall be obliged to use an
additional name to avoid confusion.
Junior can only be used by a son.
For grandsons and other direct male descendants, there are 2 options:
(a) Add a middle name or the mothers surname; or
(b) Add Roman numerals II, III, and so on.

Usurpation of a name

Elements
(1) There is actual use of another's name by the defendant;
(2) The use is unauthorized; and
(3) The use of another's name is to designated personality or identify a person.

Actions arising from use of names and surnames

(1) Action for damages and other relief arising out of usurpation of name or surname (NCC
377)

(2) Action for damages and other relief arising out of unauthorized or unlawful use of another's
surname (NCC 378)
(3) Criminal prosecution under CA 142 for illegal use of alias
(4) Criminal prosecution under the Revised Penal Code

Petition for change of name

Purpose
The purpose of the statutory proceeding authorizing a change of name is simply to have,
whenever possible, a record of the change, and in keeping with the object of the statute, a court to which
the application is made should normally make its decree recording such change.

Nature of proceedings
A change of name is a special proceeding to establish the status of a person involving his
relation with others, that is, his legal position in, or with regard to, the rest of the community. For this
purpose, the only name that may be changed is the true or official name recorded in the civil register.
Formerly, the rule was that a change in name or surname could only be effected by way of
judicial action under either Rule 103 or Rule 108. However, with the enactment of Republic Act 9048, it is
now possible to have one's name or nickname changed without need of judicial proceedings, via a
petition filed with the civil registrar.
A petition for change of name cannot be granted by means of any other proceeding. To
consider it as a mere incident or an offshoot of another special proceeding would be to denigrate its role
and significance as the appropriate remedy available under our remedial law system. Neither cannot it be
properly joined with a petition for adoption. (Republic v. Hernandez, 253 SCRA 509)
Change of name is a proceeding in rem and as such, strict compliance with all jurisdictional
requirements, particularly on publication, is essential in order to vest the court with jurisdiction.

Change of name under Rule 103

Grounds for change of name

(1) Proper and compelling reasons such as
(a)

When the name is ridiculous, dishonorable or extremely difficult to write or

pronounce;

(b) When the change results as a legal consequence, as in legitimation;

(c) When the change will avoid confusion [Haw Liong v. Republic, 1 SCRA 677];
(d)

Having continuously used and been known since childhood by a Filipino name,
unaware of her alien parentage, [Ang v. Republic];

(e) A sincere desire to adopt a Filipino name to erase signs of former alienage, all in
good faith and without prejudicing anybody [Uy v. Republic];
(f)

When the surname causes embarrassment and there is no showing that the
desired change of name was for a fraudulent purpose or that the change of name
would prejudice public interest. [Oshita v. Republic, 19 SCRA 700]

(2) He will be prejudiced by the use of his true or official name.

Jurisdiction and Venue

A petition for change of name shall be filed in the RTC of the province in which the petitioner
resides.

Procedure
(1) PETITION
Form:

signed and verified by the person desiring his name changed or some
other person in his behalf.

Contents:
(a) That the petitioner has been a bona fide resident of the province where the
petition is filed for at least three years prior to the date of such filing;
(b) The cause for which the change of name is sought;
(c) The name asked for

Verification of the petition for change of name is not a jurisdictional, but a formal
requisite. Its non-compliance does not necessarily render the pleading fatally
defective. (Oshita v. Republic, 19 SCRA 700)

All aliases of the applicant must be set forth in the title of the petition; otherwise,
although the petition has been duly published, such defect would be fatal even if said
other aliases are contained in the body of the petition. (Go Chiu Beng v. Republic,
August 18, 1972)

Failure to indicate the surname asked for renders the petition defective, and any
publication thereof invalid and ineffective. (Telmo v. Republic, 73 SCRA 29)

(2) PUBLICATION OF ORDER OF HEARING

If the petition filed is found to be sufficient in form and substance, the court shall fix a
date and place for the hearing thereof by way of an order reciting the purpose of the
petition.
The Court shall direct that a copy of the order be published before the hearing at least
once a week for 3 successive weeks in some newspaper of general circulation published in
the province, as the Court shall deem best.

Publication of the order is a jurisdictional requisite. To be valid and to confer

jurisdiction on the court, such publication must give the correct information (Ng Yao
Siong v. Republic, March 31, 1966) and a defect in such publication is fatal. (Ma Ing
Chao v. Republic, July 28, 1970; Republic v. Judge of Branch III of CFI of Cebu,
October 11, 1984)

The title of the published order should include (1) the real name of the applicant; (2)
his aliases or other names , if any; and (3) name sought to be adopted. This is
notwithstanding that the body of the petition/order includes all the information
aforementioned. (Republic v. Taada, 42 SCRA 419)

(3) HEARING
The date set for the hearing shall not be within 30 days prior to an election nor within
4 months after the last publication of the notice.
Any interested person may appear at the hearing and oppose the petition for change
of name. The Solicitor-General or the proper provincial or city fiscal shall appear on behalf
of the Government of the Republic.
(4) JUDGMENT

Upon satisfactory proof in open court on the date fixed in the order that such order
has been published as directed and that the allegations of the petition are true, the court
shall adjudge that petitioner's name be changed in accordance with the prayer of the
petition if there appears to exist proper and reasonable cause for changing such name.
The civil registrar of the municipality or city where the court issuing the same is
situated shall be furnished with judgments or orders rendered in connection with this rule.
The civil registrar shall forthwith enter the same in the civil register.

Comparison of change of name under Rule 103 and under Rule 108
Rule 103
Change of name only

Rule 108
All cancellation or correction of entries

Entry is correct but petitioner desires to change There is a mistake in the entry which petitioner
the entry
wants to correct
Civil registrar is not a party

Civil registrar is an indispensable party. If not

made a party, proceedings are null and void.
Reason: He is an interested party in protecting
the integrity of the public documents.

Change of name under R.A. 9048

What may be changed
(1) First name (which may consist of one or more names in addition to the middle and last
names);
(2) Nickname
A surname cannot be the subject of a petition for change of name under R.A. 9048.

Grounds for change

A petition for change of first name or nickname may be allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously used
by the petitioner and he has been publicly known by the first name or
nickname in the community; or
(3) The change will avoid confusion
It must be noted that all petitions for change of first names or nicknames filed under R.A. 9048
may be availed of only once.

Procedure
WHO MAY FILE
Any person having direct and personal interest in the change of first name or nickname in the
civil register may file, in person, a verified petition for change of name.

WHERE FILED
General rule. The verified petition is filed with the local civil registry office of the city or
municipality where the record being sought to be changed is kept.
When petitioner has migrated to another place in the country and it is not practical for
such party to appear in person before the local civil registrar. The petition may be filed with the
local civil registrar of the place where the interested party is presently residing or domiciled. The 2
local civil registrars concerned will then communicate to facilitate the processing of the petition. The
petition should likewise be filed in person.
When Philippine nationals are residing or domiciled in foreign countries. The petition
may be filed with the nearest Philippine consulates. The petition should likewise be filed in person.
PROCEDURE
(1) Petition with supporting documents
The petition shall be in the form of a sworn affidavit which shall set forth facts necessary
to establish the merits of the petition and shall show affirmatively that the petitioner is
competent to testify to the matters stated. The petitioner shall state the change sought to be
made.
The petition, which shall be filed in 3 copies, should be supported with the following
documents:
(d)

A certified true machine copy of the certificate or of the page or of the

registry book containing the entry sought to be changed;

(e) At least 2 public or private documents showing the correct entry or entries
upon which the change shall be based;
(f)

Certification from the appropriate law enforcement agencies that he has no

pending case or no criminal record;

(g) Other documents which the petitioner or the city or municipal civil registrar or
the consul-general may consider relevant and necessary for the approval of
the petition.
(2) Posting and publication
The petition shall be published at least once a week for 2 consecutive weeks in a
newspaper of general circulation.
The city or municipal civil registrar or consul-general to whom the petition shall post the
petition in a conspicuous place provided for the purpose for 10 consecutive days after he
finds the petition and its supporting documents sufficient in form and substance.
(3) Action on petition
The city or municipal civil registrar or the consul-general shall act on the petition and shall
render a decision not later than 5 working days after the completion of the posting and
publication requirement. He shall transmit a copy of his decision together with the records of
the proceedings to the Office of the Civil Registrar General within 5 working days from the
date of the decision.
(4) Review by Civil Registrar General
Within 10 working days from receipt of the decision granting a petition, the civil registrar
general shall exercise the power to impugn the decision of the city or municipal civil registrar
or consul-general by way of an objection that the basis used in changing the first name or
nickname does not fall under any of the grounds enumerated in Sec. 4, R.A. 9048.

If the civil registrar general fails to exercise his power to impugn the decision of the city
or municipal registrar or of the consul-general within the prescribed period, the decision
becomes final and executory.

Remedies of petitioner upon denial of petition

If the petition for change of name is denied by the city or municipal civil registrar or consulgeneral, the petitioner may either appeal the decision to the civil-registrar general, or file the appropriate
petition with the proper court.
If the favorable decision of the city or municipal civil registrar or consul-general is impugned by
the civil registrar general, the petitioner may either file a motion for reconsideration or file the appropriate
petition with the proper court.

Effects of change of name

A change of name does not by itself define, or effect a change in, ones existing relations or in the
right and duties flowing therefrom; nor does it create new family rights and duties where non before
were existing. It does not alter ones legal capacity, civil status, or citizenship. What is altered is only
the name, which is distinguished from others and which he bears as the label of appellation for the
convenience of the world at large in dealing with him. (Yu v. Republic, 25 May 1966)

Habeas Corpus
Writ of habeas corpus, defined

The writ of habeas corpus is a writ directed to the person detaining another and commanding him
to produce the body of the prisoner at a certain time and place, with the day and the cause of his capture
and detention.

Scope of habeas corpus

Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases
of illegal confinement or detention by whom any person is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person entitled thereto. (Rule 102, Sec. 1)

Nature of the writ

The "extraordinary" writ of habeas corpus is a writ of equity which lies only when no other remedy
is available to question the illegality of one's arrest or detention or other restraint to liberty. It is a remedy
of last recourse.

Privilege of the writ

Privilege of the writ, defined

The privilege of the writ of habeas corpus is the right to have the immediate determination of the
legality of the deprivation of one's liberty.

Suspension of the privilege

In cases of rebellion or invasion, when the public safety requires it, the President may suspend
the privilege of the writ of habeas corpus for a period not exceeding 60 days

Effects of suspension of the privilege

The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion. (Art. VII, Sec. 18, 1987 Constitution)
When the privilege is suspended, all the detaining office needs to do when it receives the writ of
habeas corpus is to show to the court that the detainee is being detained for an offense covered by the
suspension, and the court cannot inquire any further to find out if the detention is illegal. But this is so
only for 3 days. After 3 days, the Court can require the detaining officer to produce the body of the
detainee and show cause why he should not be released.

When writ can be availed of

It shall extend to all cases of illegal confinement or detention:

(4) by which a person is deprived of his liberty; or
(5)

by which the rightful custody of any person is withheld from the person entitled
thereto.

(6) When there has been a deprivation of constitutional right resulting in restraint of the
person [Chavez v. CA 24 SCRA 663, Gumabon v. Director of Prisons 37 SCRA 420]

Who may avail of writ

Habeas corpus is available not only for those who are in actual detention but even for those
whose liberty is merely restrained. In the case of Moncupa v. Enrile (141 SCRA 233), the Supreme Court
granted habeas corpus to petitioner who, though temporarily released, could not travel outside Metro
Manila, could not change his residence, could not be interviewed by media, and had to report to the
military.
Generally, the writ shall not be issued if the restraint is voluntary. (Kelly v. Director of Prisons, 44
Phil 623) However, it has been held that the writ may lie to enable the parents to recover custody of a
minor daughter although she is in the custody of a third person on her own volition [Salvana v. Gaela, 55
Phil 680; Sombong v. CA, 31 Jan 1996] or to enable a brother exercising substitute parental authority to
regain custody of a minor younger sister living voluntarily in adulterous relations with another. [Macazo v.
Nuez, 105 Phil 55]

When no longer available

Writ of habeas corpus is no longer available after information is filed and a warrant of arrest is
issued by the trial court. The function of the special proceedings of habeas corpus is to inquire
into the legality of ones detention. As the detention is by virtue of a judicial order in relation to
criminal cases subsequently filed against them, the remedy of HC no longer lies. (Ilagan v. Enrile,
139 SCRA 349)

The general rule is that the release of a person, whether permanent or temporary, of a detained
person renders a petition of a writ of habeas corpus moot and academic, unless there are
restraints attached to his release which precludes freedom of action, in which case the court can
still look into the nature of the involuntary under the Villavicencio v. Lukban rule. (Lucien Tran Van
Nghia v. Liwag, 175 SCRA 318)

Habeas corpus as a post-conviction remedy

The writ of habeas corpus is available as a post-conviction remedy where:

(1)

There has been a deprivation of a constitutional right resulting in restraint of a

person;

(2) The court has no jurisdiction to impose the sentence;

(3)

An excessive penalty has been imposed, as such sentence is void as to such

excess (Cruz v. Director of Prisons)

In order that the writ will lie, the judgment of the court which resulted in said illegal deprivation of
liberty is no longer appealable, in which case the writ is in the nature of a collateral attack against a final
but void judgment. (Chavez v. CA, August 19, 1968; Santiago v. Alikpala, Sept. 28, 1968)

Who may grant the writ

Area of enforceability and returnability

1.

Supreme Court or any member thereof; on any day and at any time

The writ shall be enforceable anywhere in the Philippines and may be made
returnable before the court or any member thereof.

2.

Court of Appeals, or any member thereof, in the instances authorized by law

The writ shall be enforceable anywhere in the Philippines and may be made
returnable before the court or any member thereof.

3.

Regional Trial Court or judge therein on any day and at any time

4.

The writ shall be enforceable only within his judicial district, and returnable
only to the issuing judge.

Family Court, if the petition for the writ is in relation to custody of a child (Sec. 5b, R.A.
8369)

Application

Who may file

Applications for the writ shall be made through a verified petition signed either by the party for
whose relief it is intended, or by some person on his behalf.

Contents of petition
The verified petition shall set forth the following:
(h) That the person in whose behalf it is made is imprisoned or restrained of liberty;
(i)

Officer or name of person by whom he is so imprisoned or restrained;

If both are unknown or uncertain, officer or person may be described by an
assumed appellation, and the person who is served with the writ shall be deemed
the person intended.

(j)

The place where he is imprisoned or restrained, if known;

(k) A copy of the commitment or cause of detention of such person (if it can be procured
without impairing the efficiency of the remedy), or, the fact that the imprisonment or
restraint is without any legal authority, if this is so

Issuance

When the writ must issue

The writ must issue when a petition therefor is presented and it appears that the writ ought to
issue. (Sec. 5)

When the writ not allowed

1.

Person alleged to be restrained of his liberty is in the custody of an officer under process
issued by court or judge or by virtue of a judgment or order of a court of record;

2.

Person is charged with or convicted of an offense in the Philippines

3.

Person is suffering from imprisonment under lawful judgment.

The person for whom the writ is sought shall be discharged by reason of any informality or defect
in the process, judgment or order. (Sec. 4)

Who shall issue writ

The writ shall be issued by the clerk of court under the seal of the court. However, in case of
emergency, the judge may issue the writ under his own hand, and may deputize any officer of person to
serve it.
A clerk of court who refuses to issue the writ after allowance thereof and demand therefor shall
forfeit to the party aggrieved the sum of P 1,000.00, to be recovered in a proper action, and may also be
punished by the court or judge as for contempt. (Sec. 16)

To whom directed
The writ shall be directed as follows:
(1) In case of imprisonment or restraint by an officer:
The writ shall be directed to the officer concerned and shall command him to
have the body of the person restrained of his liberty before the court or judge
designated in the writ at the time and place therein specified.
(2) In case of imprisonment or restrain by a non-officer:
The writ shall be directed to an officer and shall command him to take and have
the body of the person restrained of his liberty before the court or judge
designated in the writ at the time and place therein specified, and to summon the
person by whom he is restrained then and there to appear before said court or
judge to show the cause of the imprisonment or restraint.

Service

Who may serve the writ

(1) Sheriff or other proper officer in any province; or
(2) Person deputed by the court or judge.

Manner of service
The writ shall be served as follows:
(1) by leaving the original with the person to whom it is directed and preserving a copy on
which to make a return of service; or
(2) if the person to whom it is directed cannot be found, or does not have the prisoner in his
custody, by leaving said copy with any other person having or exercising custody over the
prisoner.

Execution

No writ of habeas corpus can be disobeyed for defect of form if it sufficiently appears therefrom in
whose custody or under whose restraint the party imprisoned or restrained is held and the court or judge
before whom he is to be brought. (Sec. 9)
The officer to whom the writ is directed shall convey the person named in the writ before the judge
allowing the writ, or in case of his absence or disability, before some other judge of the same court on the
day specified in the writ; unless:
(1) the person directed to be produced is sick or suffers from an infirmity; and
(2) cannot, without danger, be brought before the court or judge.
A person to whom a writ is directed, who neglects or refuses to obey or make return of the same
according to the command thereof, or who, upon demand made by or on behalf of the prisoner, refuses to
deliver to the person demanding, within 6 hours after the demand therefor, a true copy of the warrant or
order of commitment, shall forfeit to the party aggrieved the sum of P 1,000.00, to be recovered in a
proper action, and may also be punished by the court or judge as for contempt. (Sec. 16)

Return

The officer shall make due return of the writ, with the day and the cause of caption and restraint of
the person according to the command thereof. (Sec. 8)

Contents of the return

The restraining officer, or in other cases the person in whose custody the prisoner is found, shall
make a return on the writ and state the following in writing, plainly and unequivocably:
(1) Whether he has or has not the party in his custody of power, or under the restraint;
(2) If yes to the above, the authority and the true and whole cause thereof, set forth of
large, with a copy of the writ, order, execution or other purposes, if any, upon which
the party is held.
(3) If the party is in his power or custody or is restrained by him and is not produced, the
nature and gravity of the sickness or infirmity, in particular, of such party by reason of
which he cannot, without danger, be brought before the court or judge;
(4)

If he has transferred such custody or restraint to another, particularly to whom, at

what time, for what cause, and by what authority such transfer was made.

When the return evidence, plea

If restraint is on account of a warrant of
commitment in pursuance of law:

Return is considered prima

facie evidence of the cause of
restraint.

If restraint is on account of any alleged private

authority:

The return is considered only

a plea of the facts set forth
therein, and the party claiming
the custody must prove such
facts. (Sec. 13)

Hearing on the return

The court or judge before whom the writ is returned or adjourned must immediately proceed to
hear and examine the return, and such other matters as are properly submitted for consideration, unless
for good cause shown the hearing is adjourned, in which event the court or judge shall make such order
for the safekeeping of the person imprisoned or restrained as the nature of the case requires.
If the person imprisoned or restrained is not produced because of his alleged sickness or infirmity,
the court or judge must be satisfied that it is so grave that such person cannot be produced without
danger before proceeding to hear and dispose of the matter.
On the hearing, the court or judge shall disregard matters of form and technicalities in respect to
any warrant or order of commitment of a court or officer authorized to commit by law. (Sec. 12)

False return
A person who makes a false return on the writ shall forfeit to the party aggrieved the sum of P
1,000.00, to be recovered in a proper action, and may also be punished by the court or judge as for
contempt. (Sec. 16)

Discharge

When prisoner to be discharged

When the judge is satisfied that the prisoner was unlawfully imprisoned or restrained, he shall
forthwith order the prisoner's discharge from confinement. However, such discharge shall not be effective
until a copy of the order has been served on the officer or person detaining the prisoner. If the officer of
person detaining the prisoner does not desire to appeal (appeal must be made within 48 hours;
Habaluyas v. Japson, 30 May 1986), the prisoner shall be forthwith released.
A person set at liberty upon a writ of habeas corpus shall not be again imprisoned for the same
offense unless by lawful order or process of a court having jurisdiction over the offense. A person who
violates this rule shall forfeit to the aggrieved party the sum of P1,000.00 (to be recovered in a proper
action) and may also be punished by the court granting the writ as for contempt. (Sec. 17)

When prisoner not to be released, discharged or bailed

The prisoner shall not be released, discharged or bailed if it appears that he has been lawfully
committed and he is plainly and specifically charged in the warrant of commitment with an offense
punishable by death.
If the charge is not punishable by death, the prisoner may be recommitted to imprisonment or
admitted to bail in the discretion of the judge.
If admitted to bail, the detainee shall file a bond in such sum as the court
deems reasonable considering the circumstances of prisoner and nature of the
offense charged. The judge shall certify the proceedings, together with the bond,
forthwith to the proper court.
If a bail bond is not filed, the prisoner is recommitted to confinement. (Sec.
14)

Removal of prisoner from one custody to another

As a general rule, a person committed to prison, or in custody of an officer for any criminal matter
shall not be removed therefrom into the custody of another officer.
However, Sec. 18 lists the following exceptions:
(1) When the transfer of custody is by legal process;
(2) When the prisoner is to be delivered to an inferior officer to carry to jail;
(3) When the proper court or judge issues an order for such transfer from one place to
another within the Philippines for trial; and
(4) When there is fire, epidemic, insurrection, or other necessity or public calamity
Any person who violates this provision shall forfeit to the aggrieved party the sum of P 1,000.00, to
be recovered in a proper action.

When costs charged

(1) To the government

When a person confined under color of proceedings in a criminal case is discharged, the
cost shall be taxed against the government of the Philippines and paid out of its treasury.
(2) Against an individual
When a person in custody by virtue or under color of proceedings in a civil case
is
discharged, the costs shall be taxed against him, or against the person who signed the
application for the writ, or both, as the court shall direct. (Sec. 19)

Trustees
Trust defined

A trust is the right, enforceable solely in equity, to the beneficial enjoyment of property, the legal
title to which is vested in another.

Parties to a trust
(1) The trustor is the person who establishes the trust.
(2) The trustee is a person in whom confidence is reposed as regards property, or one
who takes and holds legal title to the trust property for the benefit of another.
The trustee's duties are governed by the intention of the trustor or parties, in
contrast to an executor or administrator whose duties are fixed and limited by law.

(3) The beneficiary is the person for whose benefit the trust has been created.

Kinds of trusts

There are 2 kinds of trusts:

(1) Express- those created by the intention of the trustor or of the parties. Express trusts
are governed by Articles 1443-1446 of the Civil Code.

(2) Implied - those that come into being by operation of law. Implied trusts are governed by
Articles 1447-1457 of the Civil Code.
The provisions of Rule 98 refer to express trusts.

Appointment of trustee

Appointing court
A trustee necessary to carry into effect the provisions of a written instrument shall be appointed by
the Regional Trial Court of the province in which the property or some portion thereof affected by the trust
is situated. (Rule 98, Sec. 1) If the written instrument is a will, it shall be the RTC in which the will was
allowed which shall appoint the trustee.
The court may likewise appoint a new trustee to act alone or jointly with others when a trustee
under a written instrument declines, resigns, dies or is removed before the objects of the trust are
accomplished, and no adequate provision is made in such instrument for supplying the vacancy. (Rule
98, Sec. 3)

Who may file petition

The following persons may file a petition for appointment as trustee:
(1) Executor / administrator of a decedent's estate;
(2) Person appointed as trustee in the will or written instrument.

Proceedings where trustee of land situated in Phil is appointed abroad

(1)

Trustee shall file petition before RTC of the province where the land is situated for
appointment as trustee.

(2) Notice to all persons interested must be given.

(3) Neglect or refusal to apply to the court for appointment will result in the courts declaration of
the vacancy of the trust and court will appoint a new trustee.

Filing of bond
Before entering on the duties of his trust, a trustee shall file with the clerk of court a bond in the
amount fixed by the judge, payable to the Government of the Philippines and sufficient and available for
the protection of any party in interest. A trustee who neglects to file such bond shall be considered to
have declined or resigned the trust.
However, the court may until further order exempt a trustee under a will from giving a bond when:
(1)

when testator directed or requested the exemption in the will;

(2)

when all persons beneficially interested in the trust, being of full age,
request the exemption.

Such exemption may be cancelled by the court at any time and the trustee required to forthwith file a
bond.

Conditions of the bond

The following conditions shall be deemed to be a part of the bond whether written therein or not:

(1) to make and return a true inventory of the properties of the trust;
When trustee is appointed as successor to a prior trustee, return and making of
inventory, if one has been filed, may be dispensed with.

(2) to manage and dispose of all the estate and faithfully discharge the trust according to the
law and will of testator or instrument appointing him as trustee;
(3) to render upon oath at least once a year until trust is fulfilled, a true account of property
in his hands including management and disposition thereof;
(4)

to settle his accounts in court and pay over and deliver all remaining estate to the
persons entitled upon expiration of the trust.
It is the duty of a trustee to deliver the trust property to the cestui que trust free from
liens and encumbrances. (De Leon v. Molo-Peckson, December 29, 1962)

Compensation
The compensation of the trustee to be determined by court if not determined from the instrument
creating the trust.
The reasonableness of the fees of trustees depends upon variable circumstances such as: (1)
the character and powers of the trusteeship; (2) the risk and responsibility; (3) time; (4) labor and skill
required in the administration of the trust. (Araneta v. Perez, 27 Feb 1963)

Grounds for removal

A trustee may be removed after due notice and hearing when:
(1)

Removal appears essential to the interests of the beneficially interested

parties;

(2) Trustee has become insane;

(3) Trustee has become incapable of discharging the trust;
(4) Trustee is evidently unsuitable for the trust.

Hospitalization of Insane Persons

Who may file
The Director of Health may file a petition for commitment of a person to a hospital or other place
for the insane where in his opinion, such hospitalization is for the public welfare or for the welfare of the
person to be committed, and the person or the one having in charge of him opposes his being taken to a
hospital or place for the insane. (Rule 101, Sec. 1)
The provincial or city fiscal has the duty to prepare the petition for the Director of Health and
represent him in all proceedings. (Sec. 5)

Jurisdiction and venue

The petition shall be filed in the RTC of the province where the person alleged to be insane is
found.

Proceedings

(1) Court shall fix date of hearing upon receipt of the petition and copy served on the
person alleged to be insane and to the one in charge of him, or to his relatives
residing in the province or city.
(2) Person alleged to be insane shall be produced on the date of hearing, if possible.
(3) Court shall order commitment upon finding that:
(a) Commitment is for the public welfare or welfare of the insane person
and
(b) His relatives are unable for any reason to take proper custody and
care of the person.

Discharge of Insane

A petition for discharge of the insane may be filed by the Secretary of Health with the RTC which
ordered the commitment when in his opinion the person to be committed is either: (a) temporarily or
permanently cured, or (b) may be released without danger.

Part V.
Appeals

Appeals in Special Proceedings

Orders or judgments of RTC from which appeals may be taken
(1) Allowance or disallowance of will
(2) Determination of who are the lawful heirs of a deceased person, or the distributive share of the
estate to which such person is entitled.
(3)

Allowance or disallowance, in whole or in part, of any claim against the estate of a deceased
person, or any claim presented on behalf of the estate in offset to a claim against it;

(4) Settlement of the account of an executor, administrator, trustee or guardian;

(5) Orders which constitutes a final determination, in the proceedings relating to the settlement of
the estate of a deceased person, or the administration of a trustee or guardian in the lower court,
of the rights of the party appealing, except that no appeal shall be allowed from the appointment
of a special administrator; and
(6)

Final order or judgment rendered in the case, and affects the substantial rights of the person
appealing, unless it be an order granting or denying a motion for a new trial or for reconsideration.
Enumeration is not exclusive.
Other cases wherein appeal is available:

(1) Approval of bond

(2) Declaration of incompetency for purposes of guardianship.
(3) Appeal by Surety
(4) Order for License to Sell
(5) Order Against Bond:
Such order constitutes a definite pronouncement as relates to his bond and to his
movable property of which he will be deprived.

(6) Order to contract Obligation:

It affects substantial rights of the parties and may unnecessarily prolong the admin of
the intestate estate to the detriment of the heirs.

(7) Order Appointing Administrator:

This is a final determination of the rights of the parties thereunder.
(8) Order Annulling Appointment of Guardian
(9) Order Removing a Guardian
(10) Inventories and Claims against the Estate
(11) Order refusing to permit a party to intervene

Orders that are not appealable

1. Order directing admin to take action to recover amount due to the estate.
This is purely interlocutory and cannot be the basis of an appeal.

2. Order made in administration proceedings relating to inclusion or exclusion of items of property in

the inventory of executor / administrator.
This is purely interlocutory and cannot be the basis of an appeal.

3. Order Appointing Special Admin/Receiver

Merely incidental to judicial proceedings. The court making the appoinment retains control
over it and it may modify, rescind, or revoke the same on sufficient grounds at any time before final
judgment.

Mode of Appeal
In special proceedings, generally, the period of appeals is 30 days, a record on appeal being
required.
Exception: Habeas corpus where appeal must be made within 48 hours [Habaluyas v. Japson, 30
May 1986].

Part VI.
Sample problems

Sample Problems
The sample problems have been culled from the past exams of Prof. Antonio Bautista in his
Remedial Law Review class, as well as his past mock bar exams.

Settlement of deceaseds estate

What are the liabilities of the distributees and the estate after extrajudicial or summary
settlement? For how long shall these liabilities subsist? (1999 Finals 8a)
The distributes and the estate shall be liable for the following claims within a period of two (2) years
after settlement and distribution of an estate, whether extrajudicially or summarily:
a.

For the claim of an heir or other person who has been judicially deprived of his lawful
participation in the estate;

b.

For the claim of an heir or other person who has been unduly deprived of his lawful
participation in the estate payable in money; and

c. For debts outstanding against the estate which have not been paid. (Sec. 4, Rule 74).
During his lifetime, T executed a document which he styled as last will and testament but which,
although in typewritten form and duly notarized, was not executed with the formalities prescribed
for a will. In this document, T divided his estate, which consisted of one parcel of land only,
between his two daughters, to one and to the other. Upon his death, Ts daughters divided
the property between them by a deed of extrajudicial partition following the distribution made in
Ts supposed last will and testament, but which document was not submitted for probate. Can
the daughters acquire title to their respective shares in Ts lot by virtue of the extrajudicial
partition? (5%) (2000)
Yes. The will not having been probated, is no will at all and the daughters take the property not
by virtue of this supposed will but by virtue of the extrajudicial partition. (See Mang-oy v. CA, 144 SCRA
33 [1986])
A & B filed a petition for partition of their deceased fathers estate against their sisters, C & D. The
brothers alleged that the four of them are the only heirs of their deceased father; that they could
not agree as to how their fathers estate should be divided; that their father left no will and that he
left no debts whatsoever. C & D filed a motion to dismiss insisting that the proper action should
be a petition for the issuance of letters of administration and not an ordinary action for partition.
Is the motion meritorious? (1996)
1986 bar exam. No. precisely their disagreement under the circumstances should be threshed
out in an ordinary action for partition since the deceased left no debts and no will. (Rule 47 Sec.1)

Claims Against the Estate

How shall an executor or administrator file his claim against the estate? When such claim is filed,
how shall the court adjudicate the claim? (1999 Finals 5a)
If the executor or administrator has a claim against the estate he represents, he shall give notice
thereof, in writing to the court, and the court shall appoint a special administrator, who shall, in the
adjustment of the claim, have the same power and be subject to the same liability as the general
administrator or executor in the settlement of other claims. The court may order the executor or
administrator to pay the special administrator funds to defend such claim. (Rule 86, Sec. 8)

Probate

May the probate court determine the intrinsic validity of the will?
Has the probate court jurisdiction to determine whether certain properties belong to the conjugal
partnership or to the surviving spouse alone? (1999 Finals 2a)
The question of whether or not certain properties belong to the conjugal partnership or to the
surviving spouse alone is a matter properly within the jurisdiction of the probate court which necessarily
has to liquidate the conjugal partnership in order to determine the estate of the decedent to be distributed
among the heirs. (Bernardo v. Court of Appeals, 7 SCRA 367 [1963])
Two years after testators will was admitted to probate, his compulsory heirs filed a motion in the
same proceeding to have the will declared intrinsically void, and after notice and hearing, the trial
court granted this motion. Is the order declaring the will intrinsically null and void valid? (5%)
(2000)
Yes. This order is not precluded by the order admitting probate, which order is conclusive only as
regards the extrinsic validity of the will. (See Quintana v. Angas, 91 O.G. p. 8081; [CA;1992])
A petition for probate of a will omitted the name of X, a compulsory heir. Hence, no notice of the
hearing on probate was sent to X. Notice, however was sent to all other heirs. Now, another heir,
Y, claiming also not to have been notified of the hearing, brings an action to have the order
allowing the will declared to have become ipso facto null and void for want of jurisdiction. Is Y
correct? (1996)
No. The court acquires jurisdiction over all persons interested in the estate through the
publication of the petition in the newspaper. Service and notice on individual heirs is a matter of
procedural convenience, not a jurisdictional requisite. (Perez vs. Perez, 105 Phil. 1132 [1959])
Is it possible to set aside a final order admitting a will to probate? (1996)
Yes. By a Rule 38 petition for relief. (Riera v. Palmaroli, 40 Phil. 105 [1919])
Before the hearing on a petition for probate of a will, the parties submitted a stipulation
withdrawing the application for probate and dividing the estate among themselves. Thereafter,
the court approved the stipulation and rendered judgment holding that the will could not be
probated and awarding the estate in accordance with the stipulation. Eight months later, one
claiming to be an heir, filed a new application for probate of the same will. May this new petition
be entertained? (1996)
No. The order denying probate is one in rem. If the petitioner was not satisfied with the order
denying probate, he should have timely appealed therefrom. (Manalo vs. Paredes, 147 Phil. 939 [1925])
On motion of the administrator, the probate court directed the sale of mortgaged realty of the
estate to pay the mortgage debt. Correct? (1999)
No. The Rules state the conditions under which real estate of the deceased may be sold for the
payment of debts. There is nothing in these Rules which indicate that the probate court has any power to
order the sale of a specific piece of real estate for the purpose of paying a mortgage debt which is a lien
thereon. The probate court may authorize the sale of the property, subject to the mortgage lien, for the
purpose of paying other debts of the estate, but it has no authority to sell it for the purpose of paying that
specific debt. Moreover, the sale here did not comply with the notice requirements in Rule 89 Section 7.
(Estate of Gamboa vs. Floranza, 12 Phil. 191 [1908])
Petition for probate of a will is opposed by B, adopted son of the deceased, on the ground that he
was disinherited in the will and by C, daughter, on the ground that she was preterited in the will.
Resolve the oppositions. (5%) (2000)

Bs opposition should be upheld. In preterition the annulment of the will is generally total,
whereas in disinheritance the nullity is limited to the portion of the estate of which the disinherited has
been legally deprived. Probate of a will deals solely with its extrinsic validity and the court will not pass
upon its intrinsic validity unless probate might become an idle ceremony if it appears on its face to be
intrinsically void. (Maninang v. CA, 114 SCRA 478 [1982])
X dies with a purported will. A and B are legatees under this will. If X dies without a will, C and D,
who are Xs compulsory heirs, will inherit the whole estate to the total exclusion of A and B. C and
D bring an action to contest the will. Can any of them A, B, C and D testify over objection
respecting the circumstances surrounding the execution of the supposed will? (1996)
Dead Mans Statute might preclude such testimony on the ground that all such persons are
claimants against Xs estate.

Executors / Administrators

Petition for probate of alleged will of C instituting P as the sole and universal heir and naming him
as executor. X, Y and Z moved to dismiss the petition on the ground that all the properties of the
estate are now owned by them by virtue of a deed of donation executed by C in their favor. The
probate court deferred resolution of the motion to dismiss until presentation of evidence and in
the meanwhile it denied the motion for appointment of a special administrator on the ground that
X, Y and Z are already in possession of the estate properties. Did the probate court rule correctly?
(10%) (2000)
No. The probate court should have appointed a special administrator. The phrase by any
cause in Rule 80 Section 1 includes instances like here where there is a delay in the probate of the will
and in granting of letters testamentary. The appointment of a special administrator is justified because
the deed of donation may have to be annulled in an action for this purpose filed by P. The possession by
X, Y and Z is a partisan possession of litigants and is different from a neutral possession of a special
administrator. (De Guzman vs. Guadiz, Jr., 96 SCRA 938 [1980])
G died leaving an alleged will in which he named P as executor thereof and disinherited his widow
and their son. P duly filed a petition for probate of the will and, on his motion, was appointed
special administrator. The widow asked that she be appointed as special administratrix. Was the
appointment of P as special administrator correct? (1999)
Yes. The appointment of P as special administrator is correct. The preference for the surviving
spouse in Rule 78, Section 6 refers to the appointment of a regular administrator, not to that of a special
administrator. The order appointing a special administrator lies within the discretion of the probate court
and is not appealable. Anyway, by language of Rule 78, Section 6, the widow does not qualify as special
administratrix because an executor had been named in the will and this executor did not refuse the trust.
(Pijuan vs. Vda. De Gurrea, 18 SCRA 898 [1966])
In the proceedings for the settlement of an estate, the heirs of the decedent filed a motion asking
that the administrator be declared in contempt for his failure to render an accounting of his
administration. The administrator replied that no accounting could be submitted until X, one of
the heirs, deliver to him a fleet of taxicabs belonging to the estate. The administrator countermoved for the return of these taxicabs after which the probate court ordered X to deliver the
taxicabs to the estate and for this purpose issued the corresponding execution writ. Was the
execution writ properly issued? (1999)
No. The probate court determination of title was merely provisional and so it could not be the
subject of execution as against the possessor who had set up title in himself or in another adversely to the
decedent. (Valera v. Inserto, 149 SCRA 522 [1987])

Administration

Why should an heir opt to petition for letters of administration where the decedent left no debts
and no will?

When is ancillary administration proper?

Where the decedent dies in a country other than that of his domicile and he leaves property to be
administered in that country.
Is execution a proper procedure for payment of debts and expenses of administration?
(1999 Finals 6b)
No, because the specific procedure provided by the Rules is for the court to order the sale of
personal estate or the sale or mortgage of real property of the deceased and all debts shall be paid out of
the proceeds of said sale or mortgage. (Aldamiz v. CFI of Mindoro, 85 Phil. 228) Execution may issue
only where the heirs, devisees and legatees have entered into the possession of their respective portions
in the estate prior to payment of debts and expenses of administration and it is later ascertained that there
are still debts and expenses to be paid, in which case the court having jurisdiction, after hearing, may
order the heirs, devisees and legatees to contribute to the payment, and may issue execution if
circumstances require. (Sec. 6, Rule 88)
X as administrator of the deceased D, after submitting his inventory, files a motion in the
administration proceedings praying for an order directing Y to deliver to X the house and lot
included in Xs inventory. How should the court resolve the motion? (1996)
Favorably, if Y does not claim title adverse to D. Otherwise, i.e., if Y has such an adverse claim of
the title, the issue cannot be determined by the probate court in the course of administration proceedings
unless Y is an heir and all the heirs agree to submit the issue of title to the probate court.