COLLATION

Collation had its inception in Roman Law and was a part of the law of ancient
France. Most of the collation provisions of our Civil Code were derived from the Code
Napoleon. Despite this long history, some aspects of our law of collation remain in an
unsatisfactory state. Among these are the collation of donations mortis causa, the time
for collation, prescription of the right to demand collation and the obligation of children
to collate debts owed by a predeceased parent to a grandparent.1
The Spanish Civil Code also contain provisions on collation. Article 1035 of the
Code provides that the forced heir who stands to inherit an estate together with other
heirs, must bring to the estate any property or securities received from the decedent
during the latter’s life, as dowry, gift or pursuant to any other gratuitous title, to
account for it in the regulation of any forced shares and in the partition account. 2
Article 1036 of said Code also provides that collation shall not take place
between forced heirs if the donor should have expressly provided it, or if the donee
should reject the inheritance, save in the event that the donation is to be reduced as
a result of being inofficious.3
The Code also provides that any property left by testament shall not be deemed
subject to collation unless otherwise provided by the testator, in any event respecting
any forced shares.4
In the said Code, grandchildren inherit from their grandparents in representation
of the parent, and stand to inherit together with their uncles or cousins, they shall bring
to collation all which the parent ought to have collated if he had been alive, even if
they should not have inherited it. They shall also bring to collation what they received
from the decedent during his life, unless otherwise provided by the testator, in which
case the latter’s intentions must be respected unless it should prejudice the co-heirs’
forced share.5
The Code also provides that parents shall not be obliged to bring to collation the
inheritance of their ascendants the property given by the latter to their children.6

1
Leslie J. Clement Jr.. Some Aspects of Collation (1974). Accessed from <
https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=3993&context=lalrev> on December 3,
2017.
2
Spanish Civil Code. Article 1035. Accessed on <
http://www.wipo.int/wipolex/en/text.jsp?file_id=221319#LinkTarget_6401> on December 3, 2017.
3
Id. Article 1036.
4
Id. Article 1037.
5
Id. Article 1038.
6
Id. Article 1039.
 Article 1040 of the Code also provides that gifts made to the child’s spouse shall
also not be brought to collation; however, it they should have been made by the parent
jointly to both of them, the child shall be obliged to bring to collation half of the thing
given.7
Expenses relating to support, education, illness, even extraordinary illness,
learning or ordinary equipment, or the usual presents, shall not be subject to collation.
Neither shall expenses incurred by parents and ascendants to cover the special needs
of their children or descendants with disabilities be subject to collation. 8 While
expenses incurred by the parent to give his children a professional or artistic career
shall not be brought to collation unless the parent should provide it or they should
prejudice the forced share; however, if they are to be brought to collation, the amount
which the child would have spent living in the home and in the company of his parents
shall be deducted therefrom.9
Amounts paid by the parent to prevent his children being drafted into the
military, to pay their debts, obtain an honorific title and other similar expenses shall
be subject to collation.10 Wedding presents consisting of jewellery, dress and
equipment shall not be reduced as inofficious save in the part exceeding one tenth or
more of the amount available by testament.11
It is not required to bring to collation or to the partition the things which were
given themselves, but their value at the time of appraisal of the estate. Any physical
accretion or impairment subsequent to the gift, and even its total loss by accident or
negligence shall be at the donee’s account and risk or benefit.12
The dowry or gift made by both spouses shall be brought to collation by halves
to the estate of each of them. The gift made by only one of them shall be brought to
collation in his inheritance.13 The donee shall reduce his share in the estate to the
extent that he has already received property, and his co-heirs shall receive the
equivalent, if possible, in property of the same nature, species and quality. 14
The Code also provides that if the property given should be immovable property,
the co-heirs shall be entitled to receive the same amount in cash or securities at their
listed price; and, in the absence of money or listed securities in the estate, other
properties shall be sold in a public auction to obtain the necessary amount. Where the
property subject to gift should be immovable property, the co-heirs shall only be
entitled to receive the same amount in other movable property of the estate at its fair

7
Id. Article 1040.
8
Id. Article 1041.
9
Id. Article 1042.
10
Id. Article 1043.
11
Id. Article 1044.
12
Id. Article 1045.
13
Id. Article 1046.
14
Id. Article 1047.
value, at their discretion.15 Fruits and interest of the property subject to collation shall
not be owed to the estate until the date on which the succession is opened. The income
and interest of the property in the estate of the same species as the property brought
to collation shall be taken into account in its regulation. 16 If any dispute should arise
among the co-heirs regarding the obligation to bring to collation or the objects which
must be brought to collation, the partition shall not be interrupted for this reason, with
the obligation to provide the corresponding bond.17
The New Civil Code of the Philippines adopted the provisions of the Spanish Civil
Code. Collation is governed by Article 1061 to 1077 of the New Civil Code.

15
Id. Article 1048.
16
Id. Article 1049.
17
Id. Article 1050.
 EXECUTORS AND ADMINISTRATORS

The English law provides that an executor is a legal term referring to a person
named by the maker of a will or nominated by the testator to carry out the instructions
of the will. Typically, the executor is the person responsible for offering the will for
probate, although it is not required that they fulfill this. The executor's duties also
include disbursing property to the beneficiaries as designated in the will, obtaining
information of potential heirs, collecting and arranging for payment of debts of the
estate and approving or disapproving creditors' claims. An executor will make sure
estate taxes are calculated, necessary forms are filed, and tax payments are made.
They will also assist the attorney with the estate. Additionally, the executor acts as a
legal conveyor who designates where the donations will be sent using the information
left in bequests, whether they be sent to charity or other organizations. In most
circumstances, the executor is the representative of the estate for all purposes, and
has the ability to sue or be sued on behalf of the estate. The executor holds legal title
to the estate property, but may not use the title or property for their own benefit,
unless permitted by the terms of the will.18

A person who deals with a deceased person's property without proper authority
is known as an executor de son tort. Such a person's actions may subsequently be
ratified by the lawful executors or administrators if the actions do not contradict the
substantive provisions of the deceased's will or the rights of heirs at law. 19

When there is no will, a person is said to have died intestate—"without

testimony." As a result, there is no tangible "testimony" to follow, and hence there can
be no executor. If there is no will or the executors named in a will do not wish to act,
an administrator of the deceased's estate may instead be appointed. The generic term
for executors or administrators is personal representative. In England and Wales, when
a person dies intestate in a nursing home, and has no family members who can be
traced, those responsible for their care automatically become their executors. Under
Scottish law, a personal representative of any kind is referred to as an executor, using
executor nominate to refer to an executor and executor dative to an administrator. 20

Under the Spanish Civil Code, if an executor (albacea) has been named in the
will (under common law), he or she will administer the estate.The testator may also
appoint, in the will, an auditor (contador partidor) for the estate who will appraise the
estate and divide the property.21

18
Executor. Accessed from < https://en.wikipedia.org/wiki/Executor> on December 3, 2017.
19
Id.
20
Id.
21
European Judicial Network in civil and commercial matters. Accessed from < https://e-
justice.europa.eu/content_succession-166-es-maximizeMS_EJN-en.do?member=1#toc_9_1> on December 3,
2017.
 In general, three persons, namely: a.) executor; b.) auditor;and c.) administrator
may be appointed, all of whom have administrative powers that may be modified by
the testator or by the judge and, in some cases, by the heirs themselves.22

In common-law jurisdictions, administration of an estate on death arises if the

deceased is legally intestate, meaning they did not leave a will, or some assets are not
disposed of by their will.23

The English Law provides that where a person dies leaving a will appointing an
executor, and that executor validly disposes of the property of the deceased within a
particular area, then the estate will go to probate. However, if no will be left, or the
will is invalid or incomplete in some way, then administrators must be appointed. They
perform a similar role to the executor of a will but, where there are no instructions in
a will, the administrators must distribute the estate of the deceased according to the
rules laid down by statute and the common trust.24

Certain property falls outside the estate for administration purposes, the most
common example probably being houses jointly owned that pass by survivorship on the
first death of a couple into the sole name of the survivor. Other examples include
discretionary death benefits from pension funds, accounts with certain financial
institutions subject to a nomination and the proceeds of life insurance policies which
have been written into trust. Trust property will also frequently fall outside the estate,
but this will depend on the terms of the trust.25

Under the English Law, upon the death of a person intestate, or of one who left
a will without appointing executors, or when the executors appointed by the will cannot
or will not act, the Probate Division of the High Court of Justice or the local District
Probate Registry will appoint an administrator who performs similar duties to an
executor. The court does this by granting letters of administration to the person so
entitled, who must hire a lawyer to get this process started. Grants of administration
may be either general or limited. The order in which the court will make general grants
of letters follows the sequence:26

The surviving spouse, or civil partner, as the case may be;

The next of kin;

The Crown;

22
Id.
23
Administration (probate law). Accessed from < https://en.wikipedia.org/wiki/Administration_(probate_law)> on
December 3, 2017.
24
Id.
25
Id.
26
Id.
 A creditor;

A stranger.

Under the rules for distribution of estates without a will, where a child under 18
would inherit or a life interest would arise, the Court or District Probate Registry would
normally appoint a minimum of two administrators. On some estates, even under an
intestate, it is not clear who are the next-of-kin, and probate research may be required
to find the entitled beneficiaries.27

An administrator acts as the personal representative of the deceased in relation

to land and other property in the United Kingdom (UK). Consequently, when the estate
under administration consists wholly or mainly of land, the court will grant
administration to the heir to the exclusion of the next of kin. In the absence of any heir
or next of kin, the Crown has the right to property (other than land) as bona vacantia,
and to the land by virtue of the historic land rights of the Crown. If a creditor claims
and obtains a Grant of Administration, the court compels him or her to enter into a
bond with two sureties that he or she will not prefer his or her own debt to those of
other creditors.28

The appointment of an administrator (administrador) is not required under

Spanish law, however such appointment may be agreed in the process of division of the
inheritance, under certain circumstances.29

The main functions of the administrator of the estate are the following:30

1. representation of the estate;

2. periodic presentation of accounts;and
3. preservation of the property of the estate and any other management acts as
may be deemed necessary.

At present, the executors and administrators of estates are governed by the Rules of
Court particularly, rules 78 which governs letters testamentary and of administration, when
and to whom issued.31 Rule 79 governs opposing issuance of letters testamentary, petition and
contest for letters of administration.32 Moreover, special administrator is also governed by Rule
80.33 Rule 82 governs revocation of administration, death, resignation, and removal of

27
Id.
28
Id.
29
Id. European Judicial Network in civil and commercial matters.
30
Id
31
Rules of Court. Rule 78.
32
Id. Rule 79.
33
Id. Rule 80.
executors or administrators.34 Rule 84 covers general powers and duties of executors and
administrators.35 Accountability and compensation of executors and administrators is
governed by Rule 85.36 And Rule 87 covers actions by and against executors and
administrators.37

34
Id. Rule 82.
35
Id. Rule 84.
36
Id. Rule 85.
37
Id. Rule 87.