Rule 73: The intestate case should be consolidated with
the testate proceeding and the judge assigned
SETTLEMENT OF ESTATE OF DECEASED
PERSONS
Section 1. Where estate of deceased
persons settled. If the decedents is an
inhabitant of the Philippines at the time of
his death, whether a citizen or an alien, his
will shall be proved, or letters of
administration granted, and his estate
settled, in the Court of First Instance in the
province in which he resides at the time of
his death, and if he is an inhabitant of a
foreign country, the Court of First Instance
of any province in which he had estate. The
court first taking cognizance of the
settlement of the estate of a decedent, shall
exercise jurisdiction to the exclusion of all
other courts. The jurisdiction assumed by a
court, so far as it depends on the place of
residence of the decedent, or of the
location of his estate, shall not be
contested in a suit or proceeding, except in
an appeal from that court, in the original
case, or when the want of jurisdiction
appears on the record.
Notes:
In a special proceeding for the settlement of
estate, petitioner merely seek to establish a
status, a right or particular fact. The fact of
death, to be recognized as heirs of the
deceased so that they could validly exercise
their right to participate in the settlement and
liquidation of the estate of the decedent
consistent with the limited and special
jurisdiction of probate court.
If in the course of intestate proceedings, it is
found out that the decedent had left a last will,
proceedings for the probate of the latter should
replace the intestate proceedings even if at
that stage, an administrator had already been
appointed, the latter being required to render a
final account and turn over the estate in his
possession to the executor subsequently
appointed (revocation in re: Rule 82 Sec. 1).
This, however, is understood to be without
prejudice that the proceeding shall continue as
an intestacy.( Uriarte vs CFI of negros
occidental )
to the testate proceeding should continue
hearing the 2 cases.
Revocation of letters of administrator last until
the Will has been proved and allowed.
**Jurisdiction of Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit
Trial Courts in Civil Cases:
RA 7691 Section 3:
Outside Metro Manila - Php100,000.00 Below,
Metro manila - Php200,000.00 Below,
**VENUE AND JURISDICTION*( cuenco vs
CA/ URIARTE VS CFI OF NEGROS OCC GR
L-21938-39):
VENUE -
a) Citizen - residency at the time of his death
b) Alien - RTC of any province in which he
had estate
Resides - should be viewed and understood in
its poplar sense, meaning, the personal, actual
or physical habitation of a person, actual
residence or place of abode. It signifies
physical presence in a place and actual stay
thereat. No particular length of tie of residence
is required though; however, the residence
must be more than temporary.
In order to preclude different courts which may
properly assume jurisdiction from doing so,
and prevent conflict among the different courts
which otherwise may properly assume
jurisdiction from doing so, the Rule specifies
that the court first taking cognizance of the
settlement of the estate of a decedent shall
exercise jurisdiction to the exclusions of all
other courts.
PROBATE COURT; POWERS AND DUTIES:
The court orders the probate of the will of the
decedent, grant letters of administration,
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.
Probate jurisdiction covers all matters relating
to the settlement of estates and the probate of
wills of deceased persons, including the
appointment and the removal of administrators
and executors. It also extends to matters
incidental and collateral to the exercise of a
probate courts recognized powers such as
selling, mortgaging or otherwise encumbering
realty belonging to the estate.
In re: Heirs of Sps. Remedios R. Sandejas v.
Alex A. Lina GR 141634 February 5, 2001 -
Where the motion for approval of sale was
meant to settle the decedents obligation to
respondent; hence, that obligation clearly falls
under the jurisdiction of the settlement court.
Jurisdiction of Probate Court Limited,
Special and Exclusive:
Jurisdiction of the RTC as a probate or
intestate court relates only to matters having to
do with the settlement of the estate and
probate of will of deceased persons and the
appointment and removal of administrators,
executors, guardians and trustees but does
not extend tot he determination of question of
ownership that arise during the
proceedings.*ramos vs ca 180 scra 635
The intestate court may pass upon the title to a
certain property for the purpose of determining
whether the same should or should not be
included in the inventory but such
determination is not conclusive and is subject
to final decision in a separate action regarding
ownership which may be constituted by the
parties.* Reyes vs mosqueda 187 scra 661
1990
ILLUSTRATIVE CASES:
a) When questions arise as to ownership of
property alleged to be part of the estate of
a deceased person, but claimed by some
other person to be his property, not by
virtue of any right of inheritance from the
deceased but by title adverse to that of the
deceased to that of the deceased and his
estate, such questions cannot be
determined in the courts of administration
proceedings. Questions of title or
ownership, which results in inclusions or
exclusion from the inventory of the
property, can only be settled in a separate
action.*ongsingco vs Tan
b) A probate court is a tribunal of limited
jurisdiction. It act on matters pertaining to
the estate but never on rights to property
arising from contract. It approves contracts
entered into for and on behalf of the estate
or the heirs to it but this is fiat of the Rules
of Court. In that case, judicial approval is
necessary for the validity of such contracts.
It cannot, however, adjudicate the rights
and obligations of the parties thereto.
Compliance with the terms and conditions
thereof may be compelled by specific
performance, jurisdiction over which is
vested in the RTC, acting as court of
general jurisdiction.
c) In the Barreto case, the respondent had
bound himself under an agreement with
the court separate and distinct from that
which he had with the decedent. In other
words, what the (Probate) court had
sought to enforce (in rescinding the
contract) was not the contract executed on
behalf of the estate but the respondents
agreement with the court itself to obtain the
best terms of the estate, and consequently,
his authority to enter into such a contract.
But far from repealing the long-standing
rule that a probate court is one of limited
jurisdiction, Pio Barretto, infact reinforced
it. The case of Pio Barretto vs CA* GR No.
L-62431, August 3, 1984, did not broaden
the jurisdiction of a probate court. On the
contrary, it underscored the limited
character of its jurisdiction (the limited
jurisdiction of a probate court prohibits it
from determining rights to property left by a
decedent which depends on the contract).
Since the probate court has no jurisdiction
over the question of title and ownership of
the properties, the respondents may bring
a separate action, if they wish to question
the petitioners titles and ownership.
Though an order of the probate court
approving the sale of the decedents
property is final, the respondent may file a
complaint in the proper court for the
rescission of the sale. Likewise, the initial
question of respondent regarding the
propriety of including the properties in
question in the inventory of the probate
court as he claims ownership thereof may
therein be finally and conclusive settled.
The respondent has ample protection of
 his rights for the province of the probate
court remains merely the settlement of the
estate and may not be extended beyond.
d) The approval of the probate court of the
conditional sale is not a conclusive
determination of the intrinsic or extrinsic
validity of the conditional sale but a mere
recognition of the right of an heir to
dispose of her rights and interests over her
inheritance even before partition. The
approval by the probate court of the
conditional sale was without prejudice to
the filing of the proper action for
consolidation of ownership prescription
and/or reformation of instrument in the
proper court within the statutory period of
limitation.
For purpose of determining whether a certain
property should or should not be included in
the inventory of estate proceeding, the probate
court may pass upon the title thereto, but such
determination is provisional, not conclusive,
and is subject to the final decision in a
separate action to resolve title. However, the
purchaser of the property under administration
is a forced intervenor in the intestate
proceeding and should answer the amended
petition for the annulment of the sale.
Lease subject to approval of court:
An order of a probate court which has the
effect of depriving a lessee of part of the estate
without the lease contract having been
terminated or annulled in a separate action
instituted for the purpose is null and void. The
probate court cannot, without any legal ground
and without proper proceedings for the
purpose, annul the lease. The allegation that
the lease has been breached and should
therefore be declared terminated, is a question
that must be ventilated in a separate civil
action for that purpose, as the same is not
within the competence of the court in the
exercise of its probate jurisdiction.*llamas v
moscoso 95 phil 599
In a late case, the probate court authorized the
administrator to increase the area of the
subdivision under administration. The lessee
objected on the ground taht the enlargement of
the subdivision would reduce the land leased
to him, that he is in possession of a valid
contract, under express authority and may not
be deprived of his leasehold summarily upon a
simple motion. The court held that the act of
giving the property to a lessee is an act of
administration subject to the approval of the
court. If the probate court has the right to
approve the lease, so also may it order its
revocation, or the reduction of the subject of
the lease.*timbol vs cano, 111 phil 923 926
PROVISIONAL DETERMINATION OF
OWNERSHIP:
a) Probate proceeding is restricted to the
extrinsic validity of the will, i.e., whether the
testator, being of sound mind, freely
executed the will in accordance with the
formalities prescribed by law. As a rule, the
question of ownership is an extraneous
matter which the probate court cannot
resolve with finality.
b) The probate court has no jurisdiction to
make pronouncement regarding the
existence or non-existence of
encumbrances or to cancel a mortgage on
real property in its order approving the sale
of the estate under administration. A
probate court cannot adjudicate or
determine title to properties claimed to be
part of the estate and which are equally
claimed to belong to 3rd parties.
c) The allegations concerning the signature
on the real estate mortgage documents
were forged may be ventilated in a
separate proceeding, requiring the
presentation of clear and convincing
evidence.
d) Claims for title to, or right of possession of,
personal or real property, made by the
heirs themselves, by title adverse to that of
the deceased, or made by the 3rd persons,
cannot be entertained by the (probate)
court.
The exception to the rule that the probate court
has jurisdiction to resolve the issue of
ownership when the parties interested are all
heirs of the deceased and they submitted the
question of title to the property, without
prejudice to 3rd persons does not apply where
the probate court allowed the introduction of
evidence on ownership for the sole purpose of
determining whether the subject properties
should be included in the inventory which is
within the probate courts competence. **GR
139587
Where the determination by the probate court
of the question of title to the property was
merely provisional, it can not be the subject of
execution, and where Torrens title to the
property is not in the decedents name but in
others.
Distinguish Collation from Order of Exclusion
from Inclusion in Inventory: An order of
collation before an order of distribution is
merely and order to include the properties in
the inventory and is merely interlocutory.
Whether collation exists or not are issues to be
made determined later when an order for
distribution of the estate is to be made after
determination of the net remained of the estate
is made.** De leon vs CA GR 128781
Since the determination by the Probate court
of the question of title to the fishpond was
merely provisional, not binding on the property
with any character of authority, definiteness or
permanence, having been made only for
purposes of inclusion in the inventory and
upon evidence adduced at the hearing of a
motion, it cannot be the subject of execution,
as against its possessor who has set up title in
himself or adversely to the decedent and
whose right to possess has not been ventilated
and adjudicated in an appropriate action.
Jurisprudence tells us that, in the exercise of
the RTCs general jurisdiction or its limited
probate jurisdiction is not a jurisdictional issue
but a mere question of procedure. In essence,
it is a procedural question involving a mode of
practice which may be waived.
Hence, although generally, a probate court
may not decide a question of title or
ownership, yet if the interested parties are all
heirs, or the question is one of collation or
advancement, or the parties consent to the
assumption of jurisdiction by the probate court
and the rights of 3rd parties are not impaired,
then the probate court is competent to decide
the question of ownership. When the parties
are all heirs of the decedent, it is optional upon
them to submit to the probate court the
question of title to the property. Questions of
title to any property apparently still belonging
to estate of the deceased may be passed upon
the probate court, with consent of all the
parties, without prejudice to 3rd persons.
Unless the claimant and all other parties
having legal interest in the property consent,
expressly or impliedly, to the submission of the
question to the probate court for adjudication
or the interests of 3rd persons are not thereby
prejudice, the reason for the exception being
that the question of whether or not a particular
matter should be resolved by the court in the
exercise of its general or limited jurisdiction as
a special court (e.g., probate, land registration,
etc.,), is in reality not a jurisdictional but in
essence of procedural one involving a mode of
practice which may be waived.
Thus, the probate court may allow a complaint
in intervention after obtaining the consent of all
interested parties to its assumption of
jurisdiction over the question of title or
ascertaining the absence of objection thereto.
Small estates should be decided in summary
procedure dispensing with the appointment of
an administrator together with the other
involved and cumbersome steps ordinarily
required in the determination of the assets of
the deceased and the persons entitled to
inherit therefrom and the payment of his
obligations. Definitely, the probate court is not
the best forum for the resolution of the adverse
claims of ownership of any property ostensibly
belonging to the decedents estate. Such claim
should be ventilated in an independent action,
and the probate court should proceed to the
distribution of the estate, if there are no other
legal obstacles to it, for after all such
distribution must always be subject to the
results of the suit. For the protection of the
claimant, the appropriate step is to have the
proper annotation of his lis pendens entered.**
ermac vs mendelo 64 scra 358, 359-360
Jurisdiction to determine heirs: A judicial
declaration that a certain person is the only
heir of the decedent is exclusively within the
range of the administration proceedings and
cannot properly be made an independent
action. A separate action for the declaration of
heirs is not proper. ** litam vs espiritu
The probate court, in the exercise of its
jurisdiction to make distribution, has the power
to determine the propeortion or parts to which
each distributee is entitled.. The power to
determine the legality or illegality of the
testamentary provision is inherent in the
jurisdiction of the court making a just and legal
distribution of the inheritance.. To hold that a
seaparate and independent action is
necessary to that effect, would be contrary to
the general tendency of the jurisprudence of
avoiding multiplicity of suits; and is further,
expensive, dilatory, and impractical.
Section 2. Where estate settled upon
dissolution of marriage. When the
marriage is dissolved by the death of the
husband or wife, the community property
shall be inventoried, administered, and
liquidated, and the debts thereof paid, in
the testate or intestate proceedings of the
deceased spouse. If both spouses have
died, the conjugal partnership shall be
liquidated in the testate or intestate
proceedings of either.
**missing from the book
Thus when the marriage is dissolved by the
death of the husband or wife, the community
property shall be inventoried administered and
liquidated, and the debts thereof paid, in the
testatae or intestate proceedings of the
deceased spouse. In the settlement
proceedings of the estate of the deceased
spouse, the entire conjugal partnership
property of the marriage and not just the one-
half portion belonging to the deceased is under
administration.
REGALADO NOTES:
Where the proceeding was commenced
with a court of improper venue, as where
the decedent was neither a resident at the
time of his death nor had estate therein,
and such objection was seasonably raised
in the probate court, the petition should be
dismissed and the proceedings should be
instituted in the proper court.
The probate acquires jurisdiction over the
proceeding from the moment the petition
for settlement is filed with said court. It
cannot be divested of such jurisdiction by
the subsequent acts of the interested
parties, as by entering into an extrajudicial
partition of the estate or by filing another
petition for settlement in a proper court of
concurrent venue. However, the Supreme
Court may order a change of venue under
its supervisory authority over inferior
courts.
The conjugal partnership shall be
liquidated in the proceedings for the
settlement of the estate of the deceased
spouse or, if both have died, in the
proceedings for either estate. If separate
proceedings have been instituted for each
estate, both proceedings may be
consolidated if they were filed in the same
court. The probate court has jurisdiction to
determine whether the property is
conjugal as it has to liquidate the conjugal
partnership to determine the estate of the
decedent.
Upon the death of a spouse, no action can
be maintained against the surviving
spouse for the recovery of a debt
chargeable against the conjugal
partnership, as of the estate of the
deceased spouse. Neither may the
surviving spouse, after the death of the
other, enter into an agreement novatory of
a contract executed by both of them
during the lifetime of a deceased.
The estates of the deceased spouses may
be settled in a single proceeding, but in all
other instances, even if the deceased
persons are related as ascendants and
descendants, their separate estates must
be settled in dierent proceedings.
However, if in the determination of the
conjugal nature of such property a
question of title thereto is raised by a 3rd
person, the probate court has no
jurisdiction to determine the title to said
property.
The probate court may pass upon the
question of title to property only where:
a) the interested parties who are all heirs
of the deceased consent thereto and the
interest of 3rd parties are not prejudiced
as where the parties are all heirs of the
deceased.
b) in a provisional manner, to determine
whether the said property should be
included in or excluded form the inventory
without prejudice to the final
determination of title in a separate action.

Section 3. Process. In the exercise of

probate jurisdiction, Courts of First
Instance may issue warrants and process
necessary to compel the attendance of
witnesses or to carry into effect theirs
orders and judgments, and all other powers
granted them by law. If a person does not
perform an order or judgment rendered by
a court in the exercise of its probate
jurisdiction, it may issue a warrant for the
apprehension and imprisonment of such
person until he performs such order or
judgment, or is released.

Section 4. Presumption of death. For

purposes of settlement of his estate, a
person shall be presumed dead if absent
and unheard from for the periods fixed in
the Civil Code. But if such person proves to
be alive, he shall be entitled to the balance
of his estate after payment of all his debts.
The balance may be recovered by motion in
the same proceeding.

Note:

Art 390 civil code

Art 391 CC
 Rule 74:
SUMMARY SETTLEMENT OF ESTATES
Section 1. Extrajudicial settlement by
agreement between heirs. If the
decedent left no will and no debts and the
heirs are all of age, or the minors are
represented by their judicial or legal
representatives duly authorized for the
purpose, the parties may without securing
letters of administration, divide the estate
among themselves as they see fit by means
of a public instrument filed in the office of
the register of deeds, and should they
disagree, they may do so in an ordinary
action of partition. If there is only one heir,
he may adjudicate to himself the entire
estate by means of an affidavit filled in the
office of the register of deeds. The parties
to an extrajudicial settlement, whether by
public instrument or by stipulation in a
pending action for partition, or the sole heir
who adjudicates the entire estate to himself
by means of an affidavit shall file,
simultaneously with and as a condition
precedent to the filing of the public
instrument, or stipulation in the action for
partition, or of the affidavit in the office of
the register of deeds, a bond with the said
register of deeds, in an amount equivalent
to the value of the personal property
involved as certified to under oath by the
parties concerned and conditioned upon
the payment of any just claim that may be
filed under section 4 of this rule. It shall be
presumed that the decedent left no debts if
no creditor files a petition for letters of
administration within two (2) years after the
death of the decedent.
The fact of the extrajudicial settlement or
administration shall be published in a
newspaper of general circulation in the
manner provided in the nest succeeding
section; but no extrajudicial settlement
shall be binding upon any person who has
not participated therein or had no notice
thereof.
NOTES and CASES:
GR: when a person dies leaving property, the
same should be judicially administered and the
competent court should appoint a qualified
administrator.
XP: When all the heirs are of lawful age and
there are no debts due from the estate, they
may agree in writing to partition the property
without instituting the judicial administration or
applying for the appointment of an
administrator.
Different modes for the settlement of the
estate of a deceased person under RoC:
1. Extrajudicial settlement of Estate (Rule 71,
sec 1)
2. Partition (Rule 69)
3. Summary Settlement of Estates of Small
Value (Rule 74, Sec 3)
4. Probate of Will (Rule 75 to 79)
5. Petition for letters of Administration in
cases of intestacy (Rule 79)
When a person dies without leaving pending
obligations to be paid, his heirs, whether of
age or not, are not bound to submit the
property to a judicial administration. The
administrator has no right to intervene in any
way whatsoever in the division of the estate
among the heirs when they are adults and
when there are no debts against the estate.
It should be noted that recourse to an
administration proceeding even if the estate
has no debts is sanctioned only if the heirs
have good reasons for not resorting to an
action for partition. Where partition is possible,
either in or out of court, the estate should not
be burdened with an administration proceeding
without good and compelling reasons.**pereira
vs ca
What constitutes good reason to warrant a
judicial administration of the estate of a
deceased when the heirs are all of legal age
and there are no creditors will depend on the
circumstances of each case.
a) dispute among heirs is not a good reason
b) multiplicity of suits is not a good reason
c) to have legal capacity to appear is not a
good reason
Validity of Oral Partition:
Partition although oral, is valid and binding. In
Hernandez vs Andal, the Court, interpreting
Section 1 of Rule 74 of the Rules of Court,
held that 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
others. It follows that the intrinsic validity of
partition not executed with the prescribed
formalities does not come into play when there
are no creditors or the rights of creditors are
not affected. Where no such rights are
involved, it is competent for the heirs of an
estate to enter into an agreement for
distribution in a manner and upon a plan
different from those provided by law.
In re Compromise Agreement: it has been held
that where the compromise agreement entered
into by and between the various heirs in their
personal capacity, the same is binding upon
them as individuals, upon the perfection of the
contract, even without previous authority of the
Court to enter into such agreement.**Borja vs
Vda. de Borja, 46 scra 577.
Heirs cannot Divest Court of its already
acquired Jurisdiction:** read further
The heirs of the deceased cannot divest the
court of its already acquired jurisdiction, viz.,
the filing of the application for probate of the
will and publication thereof by the mere fact of
dividing and distributing extrajudicially the
estate of the deceased among themselves;
Section 2. Summary settlement of estate of
small value. Whenever the gross value
of the estate of a deceased person, whether
he died testate or intestate, does not
exceed ten thousand pesos, and that fact is
made to appear to the Court of First
Instance having jurisdiction of the estate
by the petition of an interested person and
upon hearing, which shall be held not less
than one (1) month nor more than three (3)
months from the date of the last
publication of a notice which shall be
published once a week for three (3)
consecutive weeks in a newspaper of
general circulation in the province, and
after such other notice to interest persons
as the court may direct, the court may
proceed summarily, without the
appointment of an executor or
administrator, and without delay, to grant, if
proper, allowance of the will, if any there
be, to determine who are the persons
legally entitled to participate in the estate,
and to apportion and divide it among them
after the payment of such debts of the
estate as the court shall then find to be
due; and such persons, in their own right, if
they are of lawful age and legal capacity, or
by their guardians or trustees legally
appointed and qualified, if otherwise, shall
thereupon be entitled to receive and enter
into the possession of the portions of the
estate so awarded to them respectively.
The court shall make such order as may be
just respecting the costs of the
proceedings, and all orders and judgments
made or rendered in the course thereof
shall be recorded in the office of the clerk,
and the order of partition or award, if it
involves real estate, shall be recorded in
the proper register's office.
Jurisdiction of Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit
Trial Courts in Civil Cases:
RA 7691 Section 3:
Outside Metro Manila - Php100,000.00 Below
Metro manila - Php200,000.00 Below
Section 3. Bond to be filed by distributees.
The court, before allowing a partition in
accordance with the provisions of the
preceding section, my require the
distributees, if property other than real is to
be distributed, to file a bond in an amount
to be fixed by court, conditioned for the
payment of any just claim which may be
filed under the next succeeding section.
REGALADO NOTES:
Rule 74 provides for 2 exceptions to the
requirement that the estate of the
decedent should be judicially administered
through an administrator or executor, viz.:
a) Extrajudicial settlement
b) Summary settlement of estates of small
value
Distinctions:
 settlement is in a private instrument, it is
EJS: does not require court intervention
believed that the same is still valid and
SS: involves judicial adjudication although reformation of the instrument may be
in a summary proceeding
compelled.

EJS: the value of the estate is immaterial

While the Rule provides that the decedent
SS: applies only where the gross estate must not have left any debts, it is
does not exceed Php10,000.00. This sucient if any debts he may have left
amount is jurisdictional.
have been paid at the time the pjs is
entered into. It is presumed that the
EJS: allowed only in intestate succession
decedent left no debts if no creditor files a
SS: allowed in both testate and intestate petition for letters of administration within
estates
2 years after the death of the decedent.
Such presumption is rebuttable.

EJS: proper where there are no

outstanding debts of the estate at the time A bond is required only when personalty is
of the settlement
involved in the extrajudicial partition, as
SS: available even if there are debts, as the real estate is subject to a lien in favor
the court will make provisions for the of the creditors, heirs or other persons for
payment thereof.
the full period of 2 years from such
distribution and such lien cannot be
EJS: can be resorted to only at the substituted by a bond. The value of the
instance and by agreement of all the heirs
personal property which must be covered
SS: may be instituted by any interested by the bond is determined from the sworn
part and even by a creditor of the estate, declaration of the parties in the instrument
without the consent of all the heirs.
of settlement or adavit of adjudication or,
if not mentioned therein, in an adavit
Requisites of a valid EJS:
stating such valuation which the register
of deeds shall require them to execute.

a) decedent died intestate

b) no debts at the time of settlement

The amount of the bond filed by the
c) heirs are all of age, or the minors are distributes of personal property in
represented by their judicial guardians or summary settlement proceedings is
legal representatives
determined by the court, unlike that in ejs
d) settlement is made in public instrument, wherein the amount of the bond is equal
stipulation or adavit duly filed with the to the value of the personal property as
register of deeds
established by the instrument of
e) the fact of such extrajudicial settlement adjudication.

must be published in a newspaper of

general circulation in the province once a Although as a rule, the probate court
week for 3 consecutive weeks.
cannot pass upon the issue of title in
summary proceedings when one of the
EJS presupposes concurrence among all heirs asserts an adverse claim to the
the heirs to the partition of the estate as property involved therein, where it is clear
provided in the instrument. If they cannot that the property really belongs to the
agree on the manner of partition, they may decedent the probate court may
institute an action for partition unless the determine in a summary settlement who
same is prohibited by an agreement, by are the parties entitled thereto since in
the donor or testator, or by the law.
such a proceeding it is directed to act
summarily and without delay.

The present Rules require a public

instrument for purpose of ejs. If the
Section 4. Liability of distributees and
estate. If it shall appear at any time
within two (2) years after the settlement
and distribution of an estate in accordance
with the provisions of either of the first two
sections of this rule, that an heir or other
person has been unduly deprived of his
lawful participation in the estate, such heir
or such other person may compel the
settlement of the estate in the courts in the
manner hereinafter provided for the
purpose of satisfying such lawful
participation. And if within the same time of
two (2) years, it shall appear that there are
debts outstanding against the estate which
have not been paid, or that an heir or other
person has been unduly deprived of his
lawful participation payable in money, the
court having jurisdiction of the estate may,
by order for that purpose, after hearing,
settle the amount of such debts or lawful
participation and order how much and in
what manner each distributee shall
contribute in the payment thereof, and may
issue execution, if circumstances require,
against the bond provided in the preceding
section or against the real estate belonging
to the deceased, or both. Such bond and
such real estate shall remain charged with
a liability to creditors, heirs, or other
persons for the full period of two (2) years
after such distribution, notwithstanding
any transfers of real estate that may have
been made.
Notes and Cases:
1. Rule on Limitations Not Applicable to
Those who had no knowledge of the
Settlement:
The provisions of Section 4 Rule 74, barring
distributes or heirs from objecting to an extra-
judicial partition after the expiration of 2 years
from such extrajudicial partition is applicable
only; 1) to persons who have participated or
taken part or had notice of the extrajudicial
partition, and, in addition, 2) when the
provisions of Section 1 of 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 are represented by
themselves or through guardians.
It is only a bar against the parties who had
taken part in the extrajudicial proceedings, but
not against 3rd persons not parties thereto.
Read briones v platon
To annul an extrajudicial settlement on the
ground of fraud, one should make a distinction
between an action to annul the extrajudicial
partition based on fraud, from an action for
reconveyance based on an implied or
constructive trust. The first prescribes in 4
years from the discovery of the fraud, the latter
prescribes in 10 years.
GR: an Action for reconveyance based on
implied or constructive trust prescribes in 10
years from the alleged fraudulent registration
or date of issuance of the certificate of title
over the property. Registration of real property
is a constructive notice to all persons and,
thus, the 4-year period should be counted
therefrom.** GSIS vs Santiago GR 155206
XP: Prescriptive period for the filing of the
action for reconveyance based on implied trust
should be reckoned from the actual discovery
of the fraud where the registration where there
was bad faith in securing the certificates of
titles, and, is therefore a holder of the said
certificate in bad faith. The Torrens title does
not furnish a shield for fraud.
An action for rescission is also the proper
action in case of an alleged preterition of a
compulsory heir by reason of alleged bad faith
or fraud of the other persons interested. Art
1104.
Exception to Prescription of Actions:
There is one instance when prescription
cannot be invoked in an action for
reconveyance. That is, when the plaintiff is in
possession of the land to be reconveyed. In
those cases, the Court permitted the filing of
an action for reconveyance despite the lapse
of 10 years and declared that said action,
when based on fraud, is imprescriptible as
long as the land has not passed to an innocent
purchaser for value. The common factual
backdrop in those cases was that the
registered owners were never in possession of
the disputed property. Instead, it was the legal
owners of the land who had always been in
possession of the same. Thus, the Court
allowed the action for reconveyance to prosper
despite the lapse of 10 years from the
issuance of title to the land. The exception was
based on the theory that registration
proceedings could not be used as a shield for
fraud enriching a person at the expense of the
other.** GR 128254
Section 5. Period for claim of minor or
incapacitated person. If on the date of
the expiration of the period of two (2) years
prescribed in the preceding section the
person authorized to file a claim is a minor
or mentally incapacitated, or is in prison or
outside the Philippines, he may present his
claim within one (1) year after such
An ejs, despite the publication thereof in a
newspaper, shall not be binding on any
person who has not participated therein or
who had no notice thereof. A summary
settlement is likewise not binding upon
heirs or creditors who were not parties
therein or had no knowledge thereof. Said
heirs or creditors may vindicate their rights
either by proceeding against the estate,
the distributes or against the bond within
the 2 year period, or even thereafter but
within the statute of limitations, but, this
time, they can no longer proceed against
the bond.

disability is removed.
If special proceedings are pending or
there is a need to file one, for the
REGALADO NOTES:
determination of heirship, that issue
should be determined in said special
The 2 year lien upon the real property
proceedings.

distributed by pjs or summary settlement

shall be annotated on the title issued by
the distributes and, after the lapse of the
period, may be cancelled by the register
of deeds without the need of a court order.
Such lien cannot be discharged nor the
annotation cancelled within the 2 year
period even if the distributes oer to post
a bond to answer for the contingent
claims for which the lien is established.

The discovery of unpaid debts after the

pjs has been eected does not ipso facto
invalidate the partition. In such a case, the
creditor may ask for administration of
enough property of the estate sucient to
pay the debt, but the heirs can prevent
such administration by paying the
obligation; or the creditor can file an
ordinary action against the distributes for
his claim.

Where the estate has been summarily

settled, the unpaid creditor may, within the
2 year period, file a motion in the court
wherein such summary settlement was
had for the payment of his credit. After the
lapse of the 2 year period, an ordinary
action may be instituted against the
distributes within the statute of limitations,
but not against the bond.