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INTRODUCTION TO SPECIAL PROCEEDINGS
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OLD RULES OF COURT F+1'0!#)!+!(+81'!#*!+(&,#)!! E#&!5+1'0!#)!+!(+81'!#*! C#6'!1$'(,+4!(,/,4!+(&,#)1!
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SECTION 1. Action Defined – Action means an ordinary suit in a court of justice,
by which one party prosecutes another for the enforcement or protection of a right, 9#%$81I!!
or the prevention or redress of a wrong.
Q: What is the extent of the jurisdiction of the RTC acting as a probate court
SEC. 2. Special Proceeding distinguished – Every other remedy, including one in special proceedings?
to establish the status or right of a party, or a particular fact, shall be by special A: The Court of First Instance [now RTC], as a probate court, has no jurisdiction to
proceeding. take cognizance of the petition for reconveyance. The remedy sought by petitioner
for the reconveyance to her of her share in the Hacienda upon the ground that the
! same was acquired by respondent through fraud or misrepresentation cannot be
Q: What are the distinctions between an ordinary action and a special obtained by a mere petition in the probate proceedings.
proceeding?
A: There is a distinction between an "action" and a "special proceeding," and that The court of first instance, acting as a probate court, has limited jurisdiction and can
when the Legislature used the word "action" it did not mean "special proceeding." take cognizance only of "matters of probate, both testate and intestate estates, xxx
and all such special cases and proceedings are not otherwise provided for." The
An action - is a formal demand of one's legal rights in a court of justice in the jurisdiction of a probate court is limited and special, and this should be understood
manner prescribed by the court or by the law. It is the method of applying legal to comprehend only cases related to those powers specified in the law, and cannot
remedies according to definite established rules. extend to the adjudication of collateral matters. The petition for reconveyance has
The term "special proceeding" - may be defined as an application or proceeding given rise to a controversy involving rights over a real property which would require
to establish the status or right of a party, or a particular fact. Usually, in special the presentation of evidence and the determination of legal questions that should be
proceedings, no formal pleadings are required, unless the statute expressly so ventilated in a court of general jurisdiction. (Mangaliman vs. Gonzales)
provides. The remedy in special proceedings is generally granted upon an
application or motion. It is a well-settled rule in this jurisdiction, sanctioned and reiterated in a long line of
decisions, that "when questions arise as to ownership of property alleged to be a
Illustrations of special proceedings, in contradistinction to actions, may be given: part of the estate of a deceased person, but claimed by some other person to be his
Proceedings for the appointment of an administrator, guardians, tutors; contest of property, not by virtue of any right of inheritance from the deceased, but by title
wills; to perpetuate testimony; to change the name of persons; application for adverse to that of the deceased and his estate, such questions cannot be
admission to the bar, etc., etc. (Bliss on Code Pleading, 3d ed., sec. 1.) determined in the courts of administrative proceedings. The Court of First Instance,
(Hagans vs. Wislizenus) acting, as a probate court, has no jurisdiction to adjudicate such contentions, which
must be submitted to the Court of First Instance in the exercise of its general
! jurisdiction as a court of first instance." (Baybayan vs. Aquino)
!"#$%&"'()*+$,%-( ./0*$&1(2",*00#$%3-( ./0*$&1(4$5$1()*+$,%-(
Natcher vs. CA - An action is a formal demand of one’s right in a court of justice
"#!$%#&'(&!#%!')*#%('!+!%,-.&! 3)/#4/'1!&.'!'1&+54,1.6')&! 9,/,4!:(&,#)!185;'(&!&#! in the manner prescribed by the court or by the law. It is the method of applying
#%!$%'/')&!#%!%'0%'11!+! #*!+!%,-.&7!1&+&817!#%!*+(&!! 1$'(,*,(!%84'1<!! legal remedies according to definite established rules. The term “special
2%#)-!! proceeding” may be defined as an application or proceeding to establish the status
or right of a party, or a particular fact. Usually, in special proceedings, no formal
3)/#4/'!=!#%!6#%'!$+%&,'1!>! ?+@!,)/#4/'!#)4@!#)'!$+%&@!>! 3)/#4/'1!&2#!#%!6#%'!$+%&,'1!!
pleadings are required unless the statute expressly so provides. In special
$4+,)&,**!+)0!0'*')0+)&!! &.'!$'&,&,#)'%!! proceedings, the remedy is granted generally upon an application or motion.
A#/'%)'0!5@!#%0,)+%@!%84'17! A#/'%)'0!5@!1$'(,+4!%84'17! B%0,)+%@!%84'1!+$$4@!
18$$4'6')&'0!5@!1$'(,+4! 18$$4'6')&'0!5@!#%0,)+%@! $%,6+%,4@!58&!185;'(&!&#! An action for reconveyance and annulment of title with damages is a civil action;
%84'1!! %84'1!! 1$'(,*,(!%84'1!! matters relating to settlement of the estate such as advancement of property made
3),&,+&'0!5@!+!(#6$4+,)&7!+)0! 3),&,+&'0!5@!+!$'&,&,#)!+)0! C#6'!+%'!,),&,+&'0!5@! by the decedent, partake of the nature of a special proceeding.
Applying these principles, an action for reconveyance and annulment of title with
$+%&,'1!%'1$#)0!&.%#8-.!+)! $+%&,'1!%'1$#)0!&.%#8-.!+)! (#6$4+,)&7!2.,4'!1#6'!+%'!
damages is a civil action, whereas matters relating to settlement of the estate of a
+)12'%!! #$$#1,&,#)!! ,),&,+&'0!5@!$'&,&,#)!! deceased person such as advancement of property made by the decedent, partake
D'+%0!5@!(#8%&1!#*!-')'%+4! D'+%0!5@!(#8%&1!#*!4,6,&'0! ! of the nature of a special proceeding, which concomitantly requires the application
;8%,10,(&,#)!! ;8%,10,(&,#)!! of specific rules as provided for in the Rules of Court. Clearly, matters which involve
3118'1!#%!0,1$8&'1!+%'!1&+&'0! 3118'1!+%'!0'&'%6,)'0!5@! ! settlement and distribution of the estate of the decedent fall within the exclusive
,)!&.'!$4'+0,)-1!#*!&.'! 4+2!! province of the probate court in the exercise of its limited jurisdiction.

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Questions as to advancement made or alleged to have been made by the deceased
to any heir may be heard and determined by the court having jurisdiction of the
estate proceedings; and the final order of the court thereon shall be binding on the
person raising the questions and on the heir.
Whether a particular matter should be resolved by the RTC in the exercise of its
general jurisdiction or its limited probate jurisdiction is not jurisdictional but a mere
question of procedure.
In Coca vs. Borromeo and Mendoza vs. Teh that whether a particular matter should
be resolved by the Regional Trial Court (then Court of First Instance) in the exercise
of its 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.”
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 third parties are not impaired, then the probate court
is competent to decide the question of ownership.
Q: May probate courts determine issues of ownership in a proceeding for
the settlement of estate of decedent? Explain.
A:
GR: No, because probate courts are courts of limited jurisdiction.
EXCEPT:
1. Provisionally, for the sole purpose of including the property in the inventory,
without prejudice to its final determination in a separate action;
2. When all the parties are heirs of the decedent and they agreed to submit the
issue of ownership to the probate court, provided that no rights of third persons are
prejudiced;
3. If the question is one of collation or advancement; or
4. If the parties consent to the assumption of jurisdiction by the probate court and
no rights of third parties are prejudiced. (Agpalo, Handbook on Special Proceedings,
pp. 10-12, 2003 ed.)
Vda. De Manalo vs. CA - In the determination of the nature of an action or
proceeding, the averments and the character of the relief sought in the complaint,
or petition, shall be controlling. A careful scrutiny of the Petition for Issuance of
Letters of Administration, Settlement and Distribution of Estate belies petitioners’
claim that the same is in the nature of an ordinary civil action. The petition contains
sufficient jurisdictional facts required in a petition for the settlement of estate of a
deceased person In addition, the reliefs prayed for in the said petition leave no room
for doubt as regard the intention of the petitioners to seek judicial settlement of the
estate of their deceased father.
The trial court, sitting as a probate court, has limited and special jurisdiction and
cannot hear and dispose of collateral matters and issues which may be properly
threshed out only in an ordinary civil action. In addition, the rule has always been to
the effect that the jurisdiction of a court, as well as the concomitant nature of an
action, is determined by the averments in the complaint and not by the defenses
contained in the answer. If it were otherwise, it would not be too difficult to have a
case either thrown out of court or its proceedings unduly delayed by simple
strategem.
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Article 222 of the Civil Code applies only to civil actions which are essentially
adversarial and involve members of the same family.
Art. 222. No suit shall be filed or maintained between members of the same
family unless it should appear that earnest efforts toward a compromise
have been made, but that the same have failed, subject to the limitations in
Article 2035.
The above provision of the law is applicable only to ordinary civil actions. This is
clear from the term “suit,” it refers to an action by one person or persons against
another or others in a court of justice in which the plaintiff pursues the remedy
which the law affords him for the redress of an injury or the enforcement of a right,
whether at law or in equity. An excerpt from the Report of the Code Commission
unmistakably reveals the intention to make that legal provision applicable only to
civil actions which are essentially adversarial and involve members of the same
family.
JURISDICTION
Changes under B.P. 129 (The Judiciary Reorganization Act of 1980
Section 9. Jurisdiction. – The Court of Appeals shall Exercise:
1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas
corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of
its appellate jurisdiction; . . .
Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive
original jurisdiction.
xxx
(4) In all matters of probate, both testate and intestate,where the gross value of the
estate exceeds One hundredthousand pesos (P100,000.00) or, in probate matters
inMetro Manila, where such gross value exceeds TwoHundred thousand pesos
(P200,000.00);
(5) In all actions involving the contract of marriage andmarital relations;
xxx
(7) In all civil actions and special proceedings falling within the exclusive original
jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian
Relations as now provided by law;
Sec. 21. Original jurisdiction in other cases. – Regional Trial Courts shall
exercise original jurisdiction:
(1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction which may be enforced in any part of their respective
regions;. . .
Sec. 23. Special jurisdiction to try special cases. – The Supreme Court may
designate certain branches of the Regional Trial Courts to handle exclusively
criminal cases, juvenile and domestic relations cases, agrarian cases, urban land
reform cases which do not fall under the jurisdiction of quasi-judicial bodies and
agencies, and/or such other special cases as the Supreme Court may determine in
the interest of a speedy and efficient administration of justice.
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal TrialCourts and
Municipal Circuit Trial Courts in Civil Cases.
 ! " # $ % & ' (
"(1) Exclusive original jurisdiction over civil actions and probate proceedings, testate
and intestate, including the grant of provisional remedies in proper cases, where the
value of the personal property, estate, or amount of the demand does not exceed
One hundred thousand pesos (P100,000.00) or, in Metro Manila where such
personal property, estate, or amount of the demand does not exceed Two hundred
thousand pesos (P200,000.00), exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses, and costs, the amount of which must be
specifically alleged:
Provided, That interest, damages of whatever kind, attorney's fees, litigation
expenses, and costs shall be included in the determination of the filing fees:
Provided, further, That where there are several claims or causes of actions between
the same or different parties, embodied in the same complaint, the amount of the
demand shall be the totality of the claims in all the causes of action, irrespective of
whether the causes of action arose out of the same or different transactions
Sec. 35. Special jurisdiction in certain cases. – In the absence of all the
Regional Trial Judges in a province or city, any Metropolitan Trial Judge, Municipal
Trial Judge, Municipal Circuit Trial Judge may hear and decide petitions for a writ of
habeas corpus or applications for bail in criminal cases in the province or city where
the absent Regional Trial Judges sit.
Sec. 39. Appeals. –
[The regular period of 15 days] shall not apply in appeals in special proceedings and
in other cases wherein multiple appeals are allowed under applicable provisions of
the Rules of Court.
NOTE: The period of appeal is still 30 days, and a record on appeal is still required
to be filed, as the original record should remain with the trial court.
- In habeas corpus cases, the period for appeal shall be forty-eight (48) hours from
the notice of the judgment appealed from.
Extent of Jurisdiction
1. Concurrent jurisdiction over adoption and guardianship cases was
eliminated; exclusive jurisdiction is now vested with the RTC.
2. MTC’s can also appoint guardians ad litem in proper cases, and where said
minor is not represented by his parents or judicial guardian.
3. MTC’s have exclusive jurisdiction over probate cases involving estate
whose gross value does not exceed P300,000 and P400,000 in Metro
Manila.
4. The writ of Habeas Corpus may be issued by the Supreme Court, the Court
of Appeals and the Regional Trial Court.
5. Special jurisdiction is conferred on Municipal Trial Court judges in the
absence of any RTC judge.
6. Family courts have exclusive original jurisdiction over petitions for
guardianship, custody, habeas corpus in relation to the latter, and
adoption of children and revocation thereof.
7. Publication of judicial orders and notices is often required in special
proceedings for jurisdictional purposes.
Fernandez vs. Maravilla – Under Sec. 2, Rule 75, the property to be
administered and liquidated in testate or intestate proceedings of the deceased
spouse is, not only that part of the conjugal estate pertaining to the deceased
spouse, but the entire conjugal estate. This Court has already held that even if the
deceased had left no debts, upon the dissolution of the marriage by the death of the
husband or wife, the community property shall be inventoried, administered, and
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liquidated in the testate or intestate proceedings of the deceased spouse. In a
number of cases where appeal was taken from an order of a probate court
disallowing a will, this Court, in effect, recognized that the amount or value involved
or in controversy therein is that of the entire estate, considering that the amount
involved therein is more than P200,000.00, the Court of Appeals cannot also have
original jurisdiction to grant the writs of certiorari and prohibition prayed for by
respondent in the instant case, which are merely incidental thereto.
The proceedings under review were for the annulment of the appointment of a
special co-administrator and to restrain the probate court from removing respondent
as special administrator. It is therefore, a contest for the administration of the
estate and, consequently, the amount or value of the assets of the whole estate is
the value in controversy (4 C.J.S. 204). It appearing that the value of the estate in
dispute is much more than P200,000.00, the Court of Appeals clearly had no original
jurisdiction to issue the writs in question.
NOTE: The procedure of appeal is the same in civil actions as in special proceedings.
(See Moran's Comments on the Rules of Court, Vol. II, 1957 Ed., p. 326.)
Manalo vs. Paredes - The proceeding for the probate of a will is one in rem, and
the court acquires jurisdiction over all the persons interested, through the
publication of the notice prescribed by section 630 of the Code of Civil Procedure,
and any order that may be entered therein is binding against all of them.
Through the publication of the petition for the probate of the will, the court acquires
jurisdiction over all such persons as are interested in said will; and any judgment
that may be rendered after said proceeding is binding against the whole world.
The court having jurisdiction over the subject-matter and all the persons interested
in the case, any error that it might have committed in rendering judgment cannot
be corrected through mandamus, but by the proper appeal presented in due time
and manner.
RULE 72 - SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES
SECTION 1. Subject matter of special proceedings.—Rules of special
proceedings are provided for in the following cases:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural children;
(l) Constitution of family home;
(m) Declaration of absence and death
(n) Cancellation or correction of entries in the civil registry.
 ! " # $ % & ' (
Q: What may be the subject of Special Proceedings?
A: See Sec. 1, Rule 72
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 and correction of entries in the civil registry
Other Special Proceedings:
1. Liquidation proceedings
2. Corporate rehabilitation
3. Recognition and enforcement of arbitration clause or award
4. Vacating, setting aside, correction or modification of an arbitral award
5. Application in the court for arbitration assistance and supervision.
NOTE: “Guardianship” is not limited to children but extends to incompetents.
“Declaration of Absence and Death” – There cannot be a special proceeding
instituted just to obtain a declaration of death. Actual or presumptive death cannot
be the subject of a judicial pronouncement/declaration if it is the only matter or
question involved. Such declaration may be made only in connection with
proceedings for the settlement of the estate of the alleged decedent.
SEC. 2. Applicability of rules of civil actions.—In the absence of special
provisions, the rules provided for in ordinary actions shall be, as far as practicable,
applicable in special proceedings.
NOTE: The distinction between final and interlocutory orders in civil actions for
determining the issue of appealability is not strictly applicable to orders issued in
special proceedings.
- Rule 33 on judgment by Demurrer to Evidence is applicable to special
proceedings.
Q: How should the rules governing special proceedings be construed?
A: Liberally. Since the rules provided for in special proceedings are part of the Rules
of Court, it follows that they should be liberally construed.
Lapses in the literal observance of a rule of procedure will be overlooked when they:
- Do not involve public policy
- When they arose from an honest mistake or unforeseen accident
- When they have not prejudiced the adverse party
- When they have not deprived the court of its authority.
Q: Does the Statute of Limitations apply to probate proceedings?
A: NO. To hold that the statute of limitations is applicable to the probate of wills
would be destructive of the right to testamentary disposition and violative of the
owner’s right of control over his property, within the legal limits. Rule 76
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prescribes that “any person interested in the estate may, at any time after the death
of the testator, petition the Court having jurisdiction to have the will allowed.”
Q: Is there a pre-trial in special proceedings?
A: YES. Pre-trial is applicable since there is no provision in the Rules of Court
limiting its applicability to civil actions.
Q: Is “judgment by default” applicable to proceedings for the probate of a
will?
A: NO. Default can only arise in contentious litigation, where a party who has been
pleaded is a defendant and, being properly served with process, fails to appear at
the time required in the summons or to answer at the time required.
The proceeding for probate is NOT a contentious litigation in any sense because
nobody is impleaded or served with process. It is a special proceeding and although
notice of the application is published, nobody is bound to appear, and no order of
judgment by default id ever entered.
If the application is not opposed, the court may allow the will on the testimony of
one of the subscribing witnesses only, provided none of the reasons for disallowance
of the will are found to exist. Although the action taken by the court in allowing or
disallowing a will is properly denominated as a judgment, it is not a judgment
rendered upon default even though no person appears to oppose the probate.
Q: What is the procedure of appeal in special proceedings?
A: In appeals in special proceedings and other cases where multiple appeals are
allowed, Rule 109 governs. The record of appeal is required to be submitted within
30 days.
- If a MNT/MR is filed and denied, the remaining period within which to file a record
on appeal may be too short; hence, a motion for extension of time to file the record
on appeal may be granted.
Fernandez vs. Maravilla
The procedure of appeal is the same in civil actions as in special proceedings
It has never been decided that a special proceeding is not a "civil case." On the
other hand, it has been held that the term "civil case" includes special proceedings.
Section 2, Rule 73, [now Rule 72] of the Rules of Court provides that the rules on
ordinary civil actions are applicable in special proceedings where they are not
inconsistent with, or when they may serve to supplement the provisions relating to
special proceedings. Consequently, the procedure of appeal is the same in civil
actions as in special proceedings. (See Moran's Comments on the Rules of Court, Vol.
II, 1957 Ed., p. 326.)
The cases cited by respondent where this Court ruled that the separate total claim of
the parties and not the combined claims against each other determine the appellate
jurisdictional amount, are not applicable, because Section 2, Rule 75 of the [Old]
Rules of Court is explicit that the amount or value involved or in controversy in
probate proceedings is that of the entire estate. Assuming, arguendo, that the rule
in the cases cited by respondent is here applicable, it should be noted that
respondent claims the whole estate of at least more than 3/4 thereof. Said claim,
reduced to a pecuniary standard, on the basis of the inventory, would amount to
more than P200,000.00 and, consequently, within the exclusive jurisdiction of the
Supreme Court [under the old rules on appellate jurisdiction].
 ! " # $ % & ' ( " ) * $ # # + % , - ! (
SETTLEMENT OF ESTATE OF DECEASED PERSONS
RULE 73 - VENUE AND PROCESS
Modes of Settlement of Estate of a Deceased Person:
1. EXTRAJUDICIAL SETTLEMENT OF ESTATE – without court intervention Venue Reglementary period Publication rule
2. JUDICIAL Resident: where residing; Record on appeal – 30 EJ settlement: 3 weeks
a. Summary settlement of estate of small value days pub (of fact of
b. Partition Non-resident: where settlement)
c. Probate of a will property is Summary settlement: 3
d. Petition for letters of administration in case of Intestacy weeks pub (of time and
date of hearing)
Q: Which court has jurisdiction over the estate of the deceased? [3 weeks successively for
proving will] Postal
Regional Trial Court Metropolitan Trial Court service 20 days before
Gross value of the estate exceeds Gross value of the estate does not hearing, personal service
400,000 (within Metro Manila) or exceed 300,000/400,00 10 days before hearing
300,000 (outside Metro Manila) Claims: 3 weeks
successively, posted: 4
PROCEDURE IN JUDICIAL SETTLEMENT PROCEEDINGS public places in province,
2 in municipality
Petition for Probate of a will, if any
SECTION 1. Where estate of deceased persons settled.—If the decedent is an
! inhabitant of the Philippines at the time of his death, whether a citizen or an alien,
Court order fixing the time and place for hearing for his will shall be proved, or letters of administration granted, and his estate settled,
probate in the Regional Trial Court in the province in which he resides at the time of his
death, and if he is an inhabitant of a foreign country, the Regional Trial Court of any
! province in which he had estate. The court first taking cognizance of the settlement
Publication of Notice of hearing for 3 consecutive of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other
weeks. Notice shall also be given to the courts. The jurisdiction assumed by a court, so far as it depends on the place of
designated/known heirs, legatees and devisees, and residence of the decedent, or of the location of his estate, shall not be contested in a
the executor (if the one petitioning for a will is not the suit or proceeding, except in an appeal from that court, in the original case, or when
testator) the want of jurisdiction appears on the record.

!
Issuance of letters testamentary/administration Q: What are the steps in determining which court has jurisdiction over the
(special administrator may also be appointed) probate of a will?
A: The following must first be determined:
1. WON the decedent is a resident of the Philippines;
!
2. Gross Value of the estate [determines whether MTC/RTC and whether it
Publication of Notice for filing claims could be subject to summary settlement];
3. Residence of the decedent to determine the venue;
! 4. WON the decedent left any debt;
Period for filing claims/filing of claims 5. WON the decedent left a will.
!
Issuance of Order of Payment or Sale of properties Q: What is the nature of the jurisdiction of a probate court?
A: It is purely statutory; therefore, it is limited and special, and all acts in excess of
! the statutory power conferred are nugatory and do not bind those who have invoked
Payment of Claims: Sale/mortgage/Encumbrance of its authority or submitted to its decisions. Authority/jurisdiction cannot expand to
estate properties collateral matters not arising out of/in any way related to the settlement and
adjudication of the properties of the deceased.
!
Distribution of remainder, if any [NOTE: this can be Q: When does the court acquire jurisdiction in the settlement of the estate
done earlier if a bond is filed by the heirs] of a deceased person who died with a will?

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 ! " # $ % & ' (
A: Jurisdiction of a probate court over the estate of the testator attaches when its
limited jurisdiction is invoked by the presentation to the court a proper petition by
some person entitled to take such action.
Evidence must be presented:
1. That a person died leaving a will;
2. In case of a resident, that he died in the province where the court
exercises territorial jurisdiction;
3. In case of a non-resident, that he has left an estate/property in the
province where the court is situated;
4. That the testament or last will of the deceased has been delivered to the
court and is in the possession thereof. (Salazar vs. CFI)
- The law is silent as to the specific manner of bringing the jurisdictional
allegations before the court but practice and jurisprudence have established that
they should be made in the form of an application and filed with the original of the
will attached thereto. It has been the practice in some courts to permit attachment
of a mere copy of the will to the application, without prejudice to producing the
original at the hearing or when the court so requires.
NOTE: The payment of the fees of the clerk of court for all services to be rendered
by him in connection with the probate of the second will and for the successive
proceedings and orders to be issued, is not jurisdictional in the sense that its
omission does not deprive the court of its authority to proceed with the probate of a
will. It is the inevitable duty of the court, when a will' is presented to it, to appoint
hearing for its allowance and to cause notices thereof to be given by publication.
The duty imposed by said section is imperative and noncompliance therewith would
be a mockery at the law and the last will of the testator.
Salazar vs. CFI - When the court ordered that the second will be set for hearing,
that publication be made thereof and that said will be heard in the same proceeding
jointly with the first will, it merely ordered the consolidation of the two applications
and the two hearings on the probate of both wills, instead of conducting separate
hearings.
The court acquired jurisdiction from the moment the counter-petition was presented
and the second will came to its possession and under its control and, consequently,
it likewise had full discretion to order the probate thereof in the proceeding already
instituted in order to later render only one decision. The consolidation so ordered
was the form most convenient for and beneficial to the parties as well as to the
court, because if the first will were opposed on the ground that it was revoked by
the second will, the best evidence of the revocation would be the second will, and
once the publications are made, if the second will was executed with the formalities
prescribed by law, the court could order the probate thereof, without the necessity
of multiplying the proceedings.
Q: State the rule on venue in judicial settlement of estate of deceased
persons.
Resident Decedent Non-Resident Decedent
Court of the province/city where the Court of the province/city in which he
deceased resided at the time of death, had an estate.
whether a citizen or alien
Q: What is venue?
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A: Under the Rules of Court, venue is the province where the estate of the deceased
shall be settled.
Q: Which court has jurisdiction to take cognizance of the settlement of the
estate of a non-resident?
A: The settlement of the estate of Adoracion Campos was correctly filed with the
Court of First Instance of Manila where she had an estate since it was alleged and
proven that Adoracion at the time of her death was a citizen and permanent resident
of Pennsylvania, United States of America and not a “usual resident of Cavite” as
alleged by the petitioner.
Moreover, petitioner is now estopped from questioning the jurisdiction of the
probate court in the petition for relief. It is a settled rule that a party cannot invoke
the jurisdiction of a court to secure affirmative relief, against his opponent and after
failing to obtain such relief, repudiate or question that same jurisdiction.
(Cayetano vs. Leonidas)
Q: Is the residence of the deceased in probate proceedings jurisdictional?
A: NO. The question of residence is determinative only of the venue and does not
affect the jurisdiction of the court. Thus, institution of the proceeding in a province
wherein the decedent neither has residence nor estate does not vitiate the action of
the probate court. As venue is waivable, the submission of all affected parties to the
said proceeding amounts to a waiver of any objections to this error.
NOTE: Jurisdiction under Rule 73 does not relate to jurisdiction per se but to venue.
Hence institution in the court where the decedent is neither an inhabitant nor had
his estate may be waived (Uriarte v. CFI), as in where the defendant, knowing from
the very beginning that venue was improperly laid, allows the trial to be held
against him, cannot, after the rendition of an unfavorable judgment, validly question
the courts jurisdiction on appeal.
Testate proceedings take precedence over intestate proceedings for the same estate.
If in the course of the intestate proceeding, it is found that the decedent had left a
last will, proceedings for the probate of the latter should replace the intestate
proceedings even if at that state, an administrator had already been appointed.
(Uriarte vs. CFI)
[Sy Oa vs. Co Ho] In the Matter of the Estate of the Late Kaw Singco -
Section 600 of Act No. 190, providing that the estate of a deceased person shall be
settled in the province where he had last resided, could not have been intended as
defining the jurisdiction of the probate court over the subject matter, because such
legal provision is contained in a law of procedure dealing merely with procedural
matters, and procedure is one thing and jurisdiction over the subject matter is
another.
The law of jurisdiction confers upon Court of First Instance jurisdiction over all
probate cases independently of the place of residence of the deceased. Since,
however, there are many courts of first instance in the Philippines, the law of
procedure, Act No. 190, section 600, fixes the venue or the place where each case
shall be brought. Thus, the place of residence of the deceased is not an element of
jurisdiction over the subject matter but merely of venue. And it is upon this ground
that in the new Rules of Court the province where the estate of a deceased person
shall be settled is properly called "venue."
 ! " # $ % & ' (
Q: What should the court do if the objection of improper venue is
seasonably raised?
A: The petition for probate should be dismissed and the proceeding thereafter
instituted in the proper court.
Q: What is the remedy of a party if the court refuses to dismiss the petition
for probate despite a timely objection on the ground of improper venue?
General Rule: The probate jurisdiction of a court, depending on the place of
residence of the deceased or the location of his estate, cannot be contested in a
certiorari proceeding, but only in an appeal from the original case.
Except: When the want of jurisdiction appears on the record [then certiorari may
be resorted to].
REMEDY if Venue is improperly laid:
General Rule: Ordinary Appeal
Exception: If the want of jurisdiction appears on the record of the case,
CERTIORARI
NOTE: Testate proceedings take PRECEDENCE over intestate proceedings for the
same estate.
- If during the pendency of intestate proceedings a will of the decedent is discovered,
proceedings for the probate of a will shall replace the intestate proceedings (even if
an administrator has already been appointed therein).
Q: X filed a petition for probate of the will of B. In his petition, he alleges
that B is a resident of Makati, but he files the same in Manila. Y opposes on
the ground that B is a resident of Makati. Decide.
A: The petition should be dismissed on the ground of improper venue. Based upon
the allegations in the petition, it is clear that venue has been improperly laid.
Q: What if the court denies the opposition and allows the will to be
presented for probate. What is the remedy?
A: The remedy is to file certiorari proceedings under R. 65 before the CA because it
is clear that the lower court has no jurisdiction; as alleged in the petition, B was a
resident of Makati, while the petition was filed in Manila. [Appeal is not the proper
remedy because it would only have the effect of questioning the correctness and
wisdom of the lower court’s judgment, while at the same time recognizing the
jurisdiction of the lower court].
Q: X filed a petition to probate the will of Y in the CFI of Makati alleging
that the latter was a resident of Makati at the time of his death. Z opposed
on the ground that venue was improperly laid as the decedent was a
resident of Manila. Decide.
A: Since the jurisdictional defect is not clear from the records/allegations, then the
general rule should apply, which states that the probate jurisdiction of a court,
cannot be contested in a certiorari proceeding, but only in an appeal from the
original case.
Q: What is the meaning of “resides” under §1 R. 73?
A: The term “resides” connotes ex vi termini “actual residence” as distinguished
from “legal residence or domicile.” This term “resides,” like the terms “residing” and
“residence,” is elastic and should be interpreted in the light of the object or purpose
of the statute or rule in which it is employed.
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In the application of venue—Section 1, Rule 73 of the Revised Rules of Court is of
such nature—residence rather than domicile is the significant factor, x x x In other
words, “resides,” should be viewed or understood in its popular 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. (Garcia
Fule vs. CA)
Q: What is the rule when the settlement of the estate of a deceased
resident are instituted in 2 or more courts, and the question of jurisdiction
is raised before the same? When does the court acquire exclusive
jurisdiction in the settlement of the estate of a decedent?
A: Section 1, Rule 73 on venue does not state that the court with whom the testate
or intestate petition is first filed acquires exclusive jurisdiction. The Rule precisely
and deliberately provides that “the court first taking cognizance of the settlement of
the estate of a decedent, shall exercise jurisdiction to the exclusion of all other
courts.”
A fair reading of the Rule indicates that the court with whom the petition is first filed,
must also first take cognizance of the settlement of the estate in order to exercise
jurisdiction over it to the exclusion of all other courts. Conversely such court may,
upon learning that a petition for probate of the decedent’s last will has been
presented in another court where the decedent obviously had his conjugal domicile
and resided with his surviving widow and their minor children, and that the
allegation of the intestate petition before it stating that the decedent died
intestate, may actually be false, may decline to take cognizance of the petition and
hold the petition before it in abeyance, and instead defer to the second court which
has before it the petition for probate of the decedent’s alleged last will.
This is exactly what the Cebu court did. Upon petitioner-widow’s filing with it a
motion to dismiss Lourdes’ intestate petition, it issued its order holding in abeyance
its action on the dismissal motion and deferred to the Quezon City court, awaiting
its action on the petition for probate before that court. Implicit in the Cebu court’s
order was that ‘if the will was duly admitted to probate by the Quezon City court,
then it would definitely decline to take cognizance of Lourdes’ intestate petition
which would thereby be shown to be false and improper, and leave the exercise of
jurisdiction to the Quezon City court, to the exclusion of all other courts. (Cuenco
vs. CA)
Q: Can a court with concurrent or coordinate jurisdiction interfere by
injunction over a proceeding in another court?
A: NO. It is settled by an overwhelming weight of authority that no court has power
to interfere by injunction with the judgments or decrees of a court of concurrent or
coordinate jurisdiction having equal power to grant the relief sought by injunction.
The various branches of the Court of First Instance of Manila are in a sense
coordinate courts and to allow them to interfere with each other's judgments or
decrees by injunctions would obviously lead to confusion and might seriously hinder
the administration of justice.
Ongsingco vs. Tan - The dispute is between petitioner and respondent
administrator involving the ownership of two parcels of land situated in Santa Rosa,
Nueva Ecija, and this question has been squarely raised in a civil action pending in
the court of first instance, which was instituted precisely because of the dispute that
had arisen. Therefore the Court held that the respondent [probate] court exceeded
its jurisdiction in acting upon the question in its capacity as probate court.
 ! " # $ % & ' (
"The question of ownership of property is one which should be determined in an
ordinary action and not in probate proceedings, and this applies whether or not
the property is alleged to belong to the estate.” Another case held that "The general
rule is that questions as to title to property cannot be passed upon in testate or
intestate proceedings" or, stating the rule more elaborately, "when questions arise
as to the ownership of property alleged to be a part of the estate of 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
and his estate, such questions cannot be determined in the courts of administrative
proceedings. The Court of First Instance, acting as a probate court, has no
jurisdiction to adjudicate such contentions, which must be submitted to the court in
the exercise of its general jurisdiction.
Q: In the settlement of the estate of a decedent, what is the applicability of
the provision conferring concurrent and exclusive jurisdiction?
A: In granting the court first taking cognizance of the case exclusive jurisdiction
over the same, said provision of the Rules of Court evidently refers to cases triable
before 2 or more courts with concurrent jurisdictions. It could not have possibly
deprive a competent court of the authority vested therein by law, merely because a
similar case had been previously filed before a court to which jurisdiction is denied
by law, for the same would then be defeated by the will of one of the parties.
More specifically, said provision refers mainly to non-resident decedents who have
properties in several provinces in the Philippines, for the settlement of their
respective estates may be because said courts then have concurrent jurisdiction –
and hence, the one first taking cognizance of the case shall exclude the other courts
– but also, because the statement of this effect in said Section 1 Rule 75 (now 73)
of the Rules of Court immediately follows the last part of the next preceding
sentence, which deals with non-resident decedents, whose estate may be settled
before the court of first instance of any province in which they have properties.
(Eusebio v Eusebio)
Q: Once the court assumes jurisdictions, can it be deprived of its
jurisdiction?
A: The CFI where a deceased was residing at the time of his death acquires
exclusive jurisdiction to settle the testate estate of said deceased and over the heirs
of other persons interested in his estate from the moment the application for the
probate of the decedent’s will is filed with said court, and the publications required
by law are made. The heirs could not divest said court of its already acquired
jurisdiction by the mere fact of dividing and distributing extrajudicially the estate of
the deceased among themselves. (Sandoval v Santiago)
NOTE: Jurisdiction already vested in a court may not be divested by the act of a
private individual or by the action of another court of the same rank.
Q: Are judgment orders in special proceedings subject to collateral attack?
A: The validity of a judgment or order of a court entered in a proceeding can not be
assailed collaterally unless the ground is for lack of jurisdiction of the court entering
such judgment or order of fraud by the party sought to be charged with its
procurement. The remedy of the aggrieved party is to appeal from such order or
judgment, or if final, to apply for relief under Rule 38, which is also applicable to
special proceedings.
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Q: Can jurisdiction assumed by the court be contested or questioned?
A: The jurisdiction assumed by a CFI for the settlement of an estate, so far as it
depends on the place of residence of a person, or of the location of his estate,
cannot 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. (Vda de
Manzanero v CFI Batangas)
Q: In the exercise of probate jurisdiction, what matters may the court
consider?
A: Any incident which might arise in connection with special proceedings, such as
impugning the validity of a will, or objecting to the authentication thereof, and all
demands and claims filed by an heir, legatee, or party in interest to a testate or
intestate succession, shall be acted upon and decided in the same special
proceedings, and not in a separate action, and the judge who has jurisdiction of the
administration of the inheritance, and who, when the time comes, will be called
upon to divide and adjudicate it to the interested parties, shall take cognizance of all
such questions. (Benedicto v Javellana)
Q: Give examples of matters within the jurisdiction of probate courts:
A: 1) Questions as to who are the heirs of the decedent.
2) Recognition of a natural child.
3) Validity of disinheritance effected by testator.
4) Status of a woman of hereditary rights.
5) Validity of a waiver of hereditary rights.
6) Matters incidental or collateral to the settlement and distribution of the estate,
such as the determination of the status of each heir and whether the property in the
inventory is conjugal or exclusive property of the deceased spouse.
Q: Can a probate court, in an intestate proceeding, entertain petition for the
probate of a will?
A: The probate court has no jurisdiction to entertain the petition for the probate of
the alleged will of Adriana Maloto in an intestate proceeding. It is not proper to
make a finding in an intestate proceeding that a discovered will has been revoked.
The more appropriate remedy of the petitioners in the premises stated in the
petition is for them to initiate a separate proceeding for the probate of the alleged
will in question. (Casiano v Maloto)
NOTE: A petition for the probate of an alleged will is NOT barred by previously
initiated intestate proceedings.
Q: Can a probate court adjudicate or determine title or ownership to
properties claimed to be part of the estate equally claimed to belong to
outside parties?
A: It is well settled that a probate court or one in charge of proceedings whether
testate or intestate cannot adjudicate or determine title to properties claimed to be
a part of the estate and which are equally claimed to belong to outside parties. All
that the said court could do as regards said properties is to determine whether they
should or shouldn’t be included in the inventory or list of properties to be
administered by the administrator. If there is no dispute, well and good; but if there
is, then the parties, administrator and the opposing parties have to resort to an
ordinary action for a final determination of the conflicting claims of title because the
probate court cannot do so. (Cuizon v Ramolete)
 ! " # $ % & ' (
Q: Is there any exception to this rule?
A: While as a general rule, question of title to property cannot be passed upon on
testate or intestate proceedings, except where one of the parties prays merely for
the inclusion or exclusion from the inventory of the property, in which case, the
probate court may pass provisionally as to title to property, and when submitted,
said probate court may definitely pass judgment thereon. (Bernardo v CA)
SEC. 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.
Q: When both spouses have died, where should the conjugal partnership be
liquidated?
A: Act No. 3176 only amends the former law in the sense that upon the death of
any of the spouses, the community property shall be liquidated in the testamentary
or intestate proceedings of the deceased spouse. But whatever law might be
applicable, and even assuming that it was that prior to Act No. 3176, the intestate
estate of Ramon del Rosario not having been commenced upon his death in 1895
until his widow Florencia Arcega also died in 1933, and the testamentary
proceedings of Florencia having been subsequently initiated, wherein among other
things, the liquidation of her conjugal properties with the deceased Ramon should be
made, the pendency of these testamentary proceedings of the deceased wife
excludes any other proceeding aimed at the same purpose. (Del Rosario v Del
Rosario).
The partition should be made with the intervention of all the interested parties
according to law. All the debts and administration expenses shall first be paid. The
conjugal properties of the first marriage shall be liquidated so as to determine
those corresponding to the deceased. Likewise, the conjugal properties of the
second marriage shall be liquidated, so as to determine the half corresponding to
the surviving widow and the other half corresponding to the deceased. The
properties corresponding to the deceased, acquired during his 1st and 2nd marriages,
constitute his estate, which should be partitioned among his heirs, namely, his
children by his two marriages and his widow. There being forced heirs, the legacy
should be taken from the free 3rd only without touching the obligatory legitime.
The procedure for the partition of the decedent’s estate are:
1. All debts and administration expenses shall first be paid
2. Conjugal properties of 1st marriage must be liquidated to determine the
shares of the children (as heir of wife #1) and the deceased. Conjugal
properties of 2nd marriage must also be liquidated to determine the share
of wife #2 and that of the deceased.
3. Properties corresponding to the deceased (from process (b) and (c))
constitute his estate.
4. Estate shall be partitioned among the ff heirs:
a. Children by 1st and 2nd marriage
b. Wife #2
5. As there are forced heirs, the legacy should be taken from the free portion
only (remaining 1/3). The heirs may deliver to the legatee (Bishop of Jaro)
properties equivalent to the 1/3 free portion since the legacy is by way of
usufruct.
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6. The fruits of the property already received or to be received shall answer
for the legacy with respect to 1/3 portion only. The remaining 2/3 shall
accrue to the heirs.
7. The legal usufruct of wife #2 shall be taken from the “third available for
betterment”. (Dolar v Roman Catholic)
Q: Upon the death of one of the spouses, where should the liquidation of
the conjugal partnership be made? Who is charged with such liquidation?
A: When a conjugal partnership is dissolved by the death of the husband (or wife), it
must be liquidated in the proceedings for the settlement of the estate of the
husband. The administrator appointed in such proceedings is charged with such
liquidation under the direction of the court and may maintain an action against a
third person to recover possession of property belonging to the dissolved conjugal
partnership. (Alfonso v Natividad, et. al)
Q: Must liquidation always be made in a special proceeding for the
settlement of the estate of the deceased?
A: NO. When there are no debts to pay, the liquidation and partition of the property
of the conjugal partnership, dissolved by the death of one of the spouses, may be
made in an ordinary action instituted for that purpose. (Cruz vs. De Jesus)
Q: In liquidating the conjugal partnership, what is the basis in making an
inventory of the conjugal property?
A: In liquidating a conjugal partnership an inventory of the actual property
possessed by the spouses at the time of the dissolution must be made. It is error to
determine the amount to be divided by adding up the profits, which had been made
in each year of its continuance and saying that the result is that amount. (De la
Rama vs. De la Rama)
Q: is inventory and liquidation always necessary?
A: NO. Where the interested parties (i.e., the children of the deceased and the
widow) had already reached a compromise whereby for valuable consideration the
widow renounced in favor of the children all her interest and rights in the estate of
the deceased as well as her participation in the conjugal partnership, it is no longer
necessary to prepare an inventory of the conjugal properties and make a liquidation.
(Villacorte vs. Mariano)
Q: Upon dissolution of the conjugal partnership by reason of the death of
one spouse, from whom may conjugal deabts be recovered?
A: The husband, having ceased as legal administrator of the conjugal property had
with his wife upon the latter’s demise; no complaint can be brought against him in
an ordinary action for the recovery of a debt chargeable against the conjugal
property, and the action for this purpose should have been instituted in the
testamentary proceedings of the deceased wife in the manner provided by law, by
filing the claim with the committee on claims and appraisal. (Calma vs. Toledo)
The Court of Appeals held that the mortgage contract was superseded, through
novation, by the option agreement for the repurchase of the property mortgaged,
which the appellants contend was error because the Husband had no authority to
enter into that agreement after the death of his wife. To this contention the SC
agreed.
The decisions laying down the rule that, upon the dissolution of the marriage by the
death of the wife, the husband must liquidate the partnership affairs, are now
 ! " # $ % & ' (
obsolete. The present rule is that when the marriage is dissolved by the death of
either husband or wife, the partnership affairs must be liquidated in the testate or
intestate proceedings of the deceased spouse (Rule 75, sec. 2; 2 Moran, Comments
on the Rules of Court, 3rd ed., p. 324). (Ocampo vs. Potenciano)
Q: What is the basis in the appraisal of real property?
A: In appraising the real property of the conjugal partnership, it is not the purchase,
but the market, or in default thereof, the assessed, value at the time of the
liquidation that must be taken into account. (Art. 1428, in connection with art. 1367,
of the Civil Code)
(Prado vs. Natividad)
Q: Who determines the sufficiency of the evidence of the value of the
conjugal property?
A: The admission in evidence, without objection, of an inventory purporting to set
forth the amount and value of certain property, does not bind the trial court to
accept as true the contents of such inventory in a case wherein the amount and
value of the property in question is at issue, and where other evidence as to its
amount and value has been submitted.
In such a case the document is admitted for what it is worth as evidence, and is not
to be held as conclusive of the truth of its contents if there is other evidence in the
record disclosing its inaccuracy or failure truly to set forth the value and quantity of
the property. (De la Rama vs. De la Rama, 1913)
Q: When can a claim for segregation of a spouse’s separate property be
made?
A: When the wife's own private property or that brought by her to marriage, of the
nature of paraphernalia, has been included among the property of the conjugal
partnership, a claim or demand for its segregation on the part of its legitimate
owner can only be properly made after the making of the inventory of the property
which forms the assets of the partnership dissolved by the death of the husband.
If it be not conclusively proven that certain property is paraphernal, or that it
belongs exclusively to a widow, the same must be deemed to be conjugal
partnership property and liable for the debts and obligations of the partnership,
saving always the right of the said widow to have her own personal property of
every kind excluded. (Fulgencio vs. Gatchalian)
SEC. 3. Process.—In the exercise of probate jurisdiction, Regional Trial Court may
issue warrants and process necessary to compel the attendance of witnesses or to
carry into effect their 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.
Q: Can probate courts issue writs of execution?
A:
General Rule: NO, because its orders usually refer to the adjudication of claims
against the estate which the executor or administrator may satisfy without the
necessity of resorting to a writ of execution.
Except:
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1. To satisfy the contributive share of the devisees, legatees and heirs when
the latter had entered prior possession over the estate (Sec. 6, Rule 88);
2. To enforce payment of the expenses of partition (Sec. 3, Rule 90); and
3. To satisfy the costs when a person is cited for examination in probate
proceedings (Sec. 13, Rule 142; De Valera v. Hon. Ofilada, G.R. No. L-
27526, Sept. 19, 1974).
4. To satisfy the claim in a summary proceedings of creditors or heirs who
appear within two years from distribution.
SEC. 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.
Q: Which individuals can be presumed dead?
A:
Under the New Civil Code:
Art. 390. After an absence of seven years, it being unknown whether or not the
absentee still lives, he shall be presumed dead for all purposes, except for those of
succession.
The absentee shall not be presumed dead for the purpose of opening his succession
till after an absence of ten years. If he disappeared after the age of seventy-five
years, an absence of five years shall be sufficient in order that his succession may
be opened. (n)
Art. 391. The following shall be presumed dead for all purposes, including the
division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is
missing, who has not been heard of for four years since the loss of the vessel or
aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing
for four years;
(3) A person who has been in danger of death under other circumstances and his
existence has not been known for four years. (n)
Art. 392. 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; but
he cannot claim either fruits or rents. (194)
While it is true that a special proceeding is “an application or proceeding to
establish the status or right of a party, or a particular fact”, that remedy can be
invoked if the purpose is to seek the declaration of death of the husband, and not,
as in the present case, to establish a presumption of death. A petition for judicial
declaration that petitioner’s husband is presumed to be dead cannot be entertained
because it is not authorized by law, and if such declaration cannot be made in a
special proceeding much less can the court determine the status of petitioner as a
widow since this matter must of necessity depend upon the fact of death of the
husband.
The philosophy behind this ruling is that “A judicial pronouncement to that effect,
even if final and executory, would still be a prima facie presumption only. It is still
 ! " # $ % & ' ( " ) * $ # # + % , - ! (
disputable. It is for that reason that it cannot be the subject of a judicial 3. Sole adjudication by means of an affidavit
pronouncement or declaration, if it is the only question or matter involved in a case, 4. Summary settlement of an estate of small value
or upon which a competent court has to pass. It is, therefore, clear that a judicial 5. Ordinary action for partition
declaration that a person is presumptively dead, because he had been unheard from
in seven years, being a presumption juris tantum only, subject to contrary proof, PROCEDURE IN EXTRAJUDICIAL SETTLEMENT BY AGREEMENT AMONG HEIRS
cannot reach the stage of finality or become final.” (Lukban vs. Republic)
Division of the estate in a public instrument or affidavit of
Q: What is the reason behind the presumption? adjudication
A: The presumption is an arbitrary one rendered on the grounds of public policy in
order that the rights depending on one long absent and unheard of may be settled. !
The presumption is based on the general accepted fact that a normal person will not,
The public instrument or affidavit of adjudication is filed with the
if alive, remain away from home for 7 years without communicating with family or
proper registry of deeds
friends.
!
Q: When does the period begin to run?
A: The period that must elapse in order to give rise to the presumption of death Publication of notice of the fact of extrajudicial settlement once a
runs from the time the absent person is last known to have been alive. week for 3 consecutive weeks in a newspaper of general circulation

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 filed 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 next succeeding
section; but no extrajudicial settlement shall be binding upon any person who has
not participated therein or had no notice thereof.
General Rule: The settlement of the estate of the decedent should be judicially
administered through an administrator or executor.
Except: The heirs may resort to
1. Extrajudicial settlement of estate; or
2. Summary settlement of estate
Q: What are the different modes of settlement of INtestate succession?
1. Intestate Proceedings
2. Extrajudicial Settlement by agreement among the heirs
!
Filing of a bond equivalent to the value of the personal property
received
Q: What are the requisites of a valid extrajudicial settlement?
A:
Substantive
1. Decedent died intestate;
2. There are no outstanding debts at the time of the settlement;
3. The heirs are all of age, or the minor heirs are represented by their judicial
guardians or legal representatives;
Procedural
4. Settlement is made in a public instrument, stipulations or affidavit
5. Duly filed with the register of deeds;
6. The fact of such extrajudicial settlement must be published in a newspaper
of general circulation in the province, once a week for 3 consecutive
weeks; and
7. A bond is required when personal property is involved in the extrajudicial
partition [Real Estate shall be subject to a lien in favor of creditors etc].
Q: A, the decedent, left 2 heirs, X and Y, and a creditor B. What happens if X
and Y pay B?
A: This means that the estate is now free from liability and X and Y can validly enter
into an extrajudicial settlement.
Q: Suppose in the above example, only one of the heirs (Y) pays B. Can the
heirs still enter into a valid extrajudicial settlement?
A: YES. In this case, there is only a substitution in the person of the creditor. The
parties are not prevented from entering into an extrajudicial settlement, but Y will
be entitled to reimbursement. This will prevent administration of the estate or the
unnecessary prolongation of the proceedings.
Q: May the heirs enter into an extrajudicial settlement when the deceased
left a will?
A: NO. The rules specifically provide that it may only be “if the decedent left no will.’
Thus, it cannot be availed of in testate proceedings. If the decedent left a will and

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no debts, and heirs and legatees desire to make an extrajudicial partition of the Q: Why is a bond required?
estate, they must first present the will to the court for probate and divide the estate A: The parties to an extrajudicial settlement, whether by public instrument or by
in accordance with the will. stipulation in a pending action for partition, or the sole heir who adjudicates the
entire estate to himself by affidavit, are now required to file simultaneously and as a
The law enjoins the probate of the will and public policy requires it; because unless condition precedent to the filing of the public instrument, a stipulation in the action
the will is probated and notice thereof given to the whole world, the right of the for partition, or the affidavit in the office of the Register of Deeds, a bond [with the
person to dispose of his property by will may be rendered nugatory. Absent legatees said Register of Deeds] in an amount equivalent to the value of the personal
or devisees or such of them as may have no knowledge of the will, could be cheated property involved, as certified to under oath by the parties concerned, conditioned
of their inheritance through collusion of some of the heirs who might agree to the upon the payment of any just claim that may be filed under §4 Rule 74.
partition of the estate among themselves to the exclusion of all others.
Q: Why is it required that the parties concerned, file an affidavit, wherein
Q: Distinguish Extrajudicial settlement from Summary settlement of estates they shall certify under oath the value of the personal property?
A: The affidavit is required to enable the Register of Deeds to determine the
Extrajudicial Settlement by Summary Settlement of estate of sufficiency of the bond.
agreement among heirs small value
No court intervention required Requires summary adjudication Q: What is the rationale behind the requirement that the amount of the
bond be equivalent to the value of the personal property involved?
The value of the estate is immaterial Gross value of the estate must not A: The bond is meant for the protection of any heir who may be unlawfully deprived.
exceed P10,000 Such bond is intended to answer for any claim which may arise subsequent to the
extrajudicial settlement.
Allowed only in intestate succession Allowed in both testate and intestate
succession
Q: What is meant by an “ordinary action for partition”?
There must be no outstanding debts of Available even if there are debts, it is
A: An ordinary action for partition is filed by persons who are co-owners of a certain
the estate at the time of the settlement the court which will make provision for
property. Pursuant to Art. 493 of the New Civil Code, “each co-owner may demand
its payment
at any time the partition of the thing owned in common, insofar as his share is
Resorted at the instance and by May be instituted by any interested concerned.” And as provided in Art. 496, “partition be made by… judicial
agreement of all heirs party even a creditor of the estate proceedings.”
without the consent of all the heirs
Amount of bond is equal to the value of Amount of bond is to be determined by Q: Are the heirs compelled by the Rules to enter into an extrajudicial
personal property the court settlement if all the requisites are present?
A: NO. The Rules state that “the parties may… divide the estate amongst
Q: What is the purpose of the requirement that the extrajudicial partition themselves;” hence the rule is permissive NOT mandatory.
be put in a public instrument or affidavit and registered with the Register of
Deeds? Q: What is meant by “stipulation in a pending action”?
A: The requirement of registration is accomplished by making an entry in the A: This means that there is already a pending action for settlement before the
daybook of the Register of Deeds. If the subject matter of the settlement involves courts, yet the parties nonetheless agree to enter into an extrajudicial settlement.
real property, a transcription at the back of the certificate is a further requirement.
The object of such registration is to serve as constructive notice to others. The Q: What is the rule with respect to the administration of the estate of the
purpose is to inform third parties of the fact of partition, especially those who may decedent?
subsequently acquire the properties subject of the partition. Such party will be put A: The Rules of Court provide in part that “if no executor is named in the will, or if a
on notice that the property he is buying is subject to an encumbrance of 2 years. person dies intestate, administration shall be granted. This provision enunciates the
general rule that when a person dies leaving property in the Philippines, his property
Q: Is it permissible to have an oral partition? shall be judicially administered and the competent court should appoint a qualified
A: §1 Rule 74 provides that “the parties may, without securing letters of administrator, in the order established in the section. In case the deceased left no
administration, divide the estate among themselves as they see fit by means of a will, or in case he had left one, should he fail to name an executor therein. (Utulo
public instrument filed in the office of the register of deeds” and “If there is only one vs. Vda de Garcia)
heir, he may adjudicate to himself the entire estate by means of an affidavit filed in
the office of the register of deeds.” But, as in all contracts required by law to be in Q: Is the rule subject to exceptions?
writing, partial execution of an oral contract removes the same from the operation A: The rule, is subject to the exceptions established by §1 and 2 Rule 74.
of the Statute of Frauds. - According to the first, 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
Q: What constitutes “partial execution” instituting the judicial administration or applying for the appointment of an
A: This means that there must be possession coupled with the exercise of ownership. administrator. [Extrajudicial Settlement]

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According to the second, if the property left does not exceed six thousand pesos,
the heirs may apply to the competent court, after the required publications, to
proceed with the summary partition and, after paying all the known obligations, to
partition all the property constituting the inheritance among themselves pursuant to
law, without instituting the judicial administration and the appointment of an
administrator. [Summary Settlement of estates of small value]
Q: Is the requirement that the settlement should be made in a public
instrument necessary for the validity of the extrajudicial partition?
A: On general principle, independent and in spite of the statute of frauds, courts of
equity have enforced oral partition when it has been completely or partly performed.
Section 1 of Rule 74 contains no express or clear declaration that the public
instrument therein required is to be constitutive of a contract of partition or an
inherent element of its effectiveness as between the parties. And this Court had no
apparent reason, in adopting this rule, to make the efficacy of a partition as
between the parties dependent on the execution of a public instrument and its
registration. 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. Note that the last sentence
of the section speaks of debts and creditors. The object of registration is to serve as
constructive notice, and this means notice to others. It must follow 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. No
rights of creditors being 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. (Hernandez vs. Andal)
Q: What is the effect of the existence of debts?
A: It is only when debts exist and there is no way of collecting them extrajudicially,
because the creditors have not reached an amicable settlement with the heirs, that
they can compel the filing of special proceedings before the court, for the liquidation
of said debts. However, while the rule provides that the decedent must not have left
any debts, it is sufficient if any debt that may have been left have been paid at the
time the extrajudicial settlement is entered into.
The subsequent bare allegation that "the estate has an existing debt from third
persons" without specifying the creditor and other details in regard thereto cannot
be considered a concise statement to constitute a cause of action; nor does the
unverified statement that there are other properties, not included in the deed of
extrajudicial partition, in the possession of one of the heirs, justify the institution of
administration proceedings, because such questions can be litigated in an ordinary
action for partition. (Torres vs. Torres)
Q: If the estate had no debts or obligations, are they precluded from
instituting administration proceedings?
A: Section 1 of Rule 74 does not preclude the heirs from instituting administration
proceedings, even if the estate has no debts or obligation, if they do not desire to
resort for good reasons to an ordinary action of partition. While section 1 allows the
heirs to divide the estate among themselves as they may see fit, or to resort to an
ordinary action of partition, it does not compel them to do -so if they have good
reasons to take a different course of action.
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Said section is not mandatory or compulsory as may be gleaned from the use made
therein of the word may. If the intention were otherwise the framer of the rule
would have employed the word shall as was done in other provisions that are
mandatory in character. Note that the word may is used not only once but in the
whole section which indicates an intention to leave the matter entirely to the
discretion of the heirs. (Arcillas vs. Montejo)
Q: Is the partition entered into by the parties final?
A: The division or partition should be considered a final settlement of the estate of
the deceased, and no administrator can thereafter be appointed to take charge of
and administer the estate. Unless and until it is shown that there were debts
existing against the estate, which have not been paid, the division is conclusive.
Even if unpaid debts are later discovered, such discovery does not destroy the
partition made. It simply furnishes ground for the application by the creditor for the
appointment of an administrator or for the payment of his credit, as provided for in
§4 or Rule 74. Further, §1 provides that: “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.”
Q: What is the remedy of the aggrieved party after an extrajudicial
settlement is approved by the court?
A: The aggrieved party has the alternative remedy of either filing a [1] Petition for
Relief from Judgment under Rule 38; or [2] a new action to annul the settlement
within the period established by the Statute of Limitations.
NOTE: The action to annul a deed of extrajudicial settlement on the ground of fraud
should be filed within 4 years from discovery of the fraud.
SEC. 2. Summary settlement of estates 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 if made to appear to the Regional Trial
Court 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 interested 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 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.
Q: What is the nature of a summary settlement?
A: Summary settlement or distribution is a procedure by which, in a summary
manner, the estate of the deceased is valued, his debts if any, are paid, his will, if
any, is allowed, heirs and legatees are declared, and distribution is made; all in a
single hearing and in a single order, as far as this is practicable, without the
 ! " # $ % & ' (
appointment of any executor or administrator. This is done with the least possible
delay, though not necessarily in one hearing.
Q: What are the requisites for a valid summary settlement of estate of
small value?
A: The requisites for a valid summary settlement of an estate of small value are:
1. The allegation of the complaint must contain an allegation of the gross
value of the estate of the deceased [must not exceed P10,000];
2. That there are no existing debts;
3. That a bond has been duly filed [in an amount fixed by the court]; and
4. A proper hearing is held
a. The hearing shall be set by the court not less than 1 month nor
more than 3 months from date of last publication of notice.
Q: When is summary settlement proper?
A: Summary settlement may be resorted to regardless of whether the deceased
person died intestate or testate, as long as the gross value does not exceed P10,000.
Q: Where is the petition for the summary settlement of an estate of small
value filed?
A: BP 129 has conferred exclusive jurisdiction in the inferior courts [the MTC, MCTC,
MTCC], in all matters of probate, both testate and intestate, where the gross value
does not exceed 20,000. This has resulted in investing inferior courts with
exclusive jurisdiction in the summary settlement of estates of small value.
Q: What are the steps for the summary settlement of estates of small
value?
A:
1. Determine the gross value of the estate [if the gross value is less than
P10,000];
2. Hearing is set to determine the existence of debts [if debts exist, the court
shall order the payment of debts];
3. If the deceased died with a will, it should be presented for probate; and
4. Distribute the estate in accordance with the will or the rules on intestacy,
as the case may be.
PROCEDURE IN SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE
Application for Summary Settlement alleging that the gross value of
the estate does not exceed P10,000
!
Publication of notice of the fact of summary settlement once a week
for 3 consecutive weeks in a newspaper of general circulation [the
court may also order notice to be given to other interested persons as
such court may direct]
! Q: What is the remedy of a person unduly deprived of his lawful
Hearing held not less than 1 month not later than 3 months from the
date of the last publication of notice
! the estate it appears that there are outstanding debts, or that an heir or other
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Court to proceed summarily, and make such orders as may be
necessary such as:
Grant the allowance of a will, if any;
Determine the persons entitled to the estate;
Pay the debts of the estate that are due;
!
Filing of a bond fixed by the court
!
Partition of the estate
Q: What happens after the court issues an order granting the allowance of a
will?
A: The distributees in their own right if they are of age, or by their guardians and
trustees legally appointed, shall be entitled to receive and enter into possession of
the portions awarded to them.
Q: Can a claim of ownership of property, adverse to that of the decedent, be
adjudicated in a summary settlement?
A: The policy of the law is to terminate proceedings for the settlement of the estate
of deceased persons with the least loss of time. This is specially true with small
estates for which the rules provide precisely a 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 adverse
claims of ownership of any property ostensibly belonging to the decedent’s estate.
While there are settled exceptions to this rule as applied to regular administrations
proceedings, it is not proper to delay the summary settlement of a deceased person
just because an heir or a third person claims that certain properties do not belong to
the estate but to him. Such claim must 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. Medelo)
Q: What happens if no appeal is taken from the order of summary
settlement?
A: When no appeal is taken from the order of summary settlement, which declares
that the dispositions in the will, insofar as the shares of the heirs, devisees and
legatees are concerned, are in accordance with law; it will no longer be disturbed if
there is no showing that procedural requirements laid down under §2 Rule 74 have
not been followed.
participation in the estate?
A: The summary distribution of the estate of a deceased person ordered by the
competent court is final and definitive, unless, within 2 years after the distribution of
person has been unduly deprived of his lawful participation from the estate. In
 ! " # $ % & ' (
which case, any creditor, heir or interested person may compel the judicial
distribution and partition of the said estate in the ordinary manner.
Other Notes on Summary Settlement of estates of small value:
1. Instituted by any interested party and even by a creditor of the estate,
without the consent of all the heirs.
2. The date for hearing, shall be set by court not less than 1 month nor more
than 3 months from date of publication of last notice and the order of
hearing be published once a week for 3 consecutive weeks in a newspaper
of general circulation.
3. Notice shall be served upon such interested persons as the court may
direct.
4. Bond in an amount fixed by the court (not value of the personal property)
conditioned upon payment of just claims under sec. 4.
SEC. 3. Bond to be filed by distributees.—The court, before allowing a partition
in accordance with the provisions of the preceding section, may 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.
Q: Compare the bond required to be filed under §1 of the Rule for
extrajudicial settlement with the bond required for summary settlement
A:
Summary settlement proceedings Extrajudicial settlement
The amount of the bond required to be The amount of the bond is equal to the
filed by the distributees of personal value of the personal property as
property in summary settlement established by the instrument of
proceedings are determined by the court adjudication.
BUT in both cases, the bond cannot replace the lien on real property.
Q: When is the bond required under §3 Rule 74?
A: Although the section requires the filing of a bond in connection with summary
administration and distribution of the estate of a decedent, the same may be
required only where personal property is distributed and not where realty is the
subject of partition.
Q: Why is a bond required for personalty and not realty?
A: No bond is necessary in real estate, for the lien as recorded is sufficient security
for any claim which may be filed under §4 Rule 74.
SEC. 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,
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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.
Q: What is the rationale behind the rule that the property shall be subject
to an encumbrance of 2 years?
A: 2 years is believed to be a reasonable time for creditors and other interested
parties to be on notice of the extrajudicial settlement.
Q: When can settlement of estates in the court be compelled?
A:
1. If there is undue deprivation of lawful participation in the estate
2. The existence of debts against the estate
3. If there is an undue deprivation of lawful participation payable in money
Q: Must the lien be annotated in the certificate of title?
A: YES. The lien must be annotated in the certificate of title for the protection of
unpaid creditors and heirs unlawfully deprived of their participation. Otherwise, a
purchaser in good faith of the property may defeat the lien constituted for their own
protection.
Q: What is the effectivity of the lien created in favor of unpaid creditors or
heirs unduly deprived of lawful participation?
A: The lien, established in section 4 of Rule 74 of the Old and Revised Rules of Court,
in case of summary settlement of a decedent's estate, is effective only for a period
of two years, After the two-year period, such lien becomes functus oficio1 and it may
be cancelled at the instance of the transferee of the land involved. (Carreon vs.
Agcaoili)
Q: When is the 2 year effectivity period of the lien reckoned?
A: It is valid from the date and time the inscription is placed on the title.
Q: Must you go to court to have the annotation in the certificate of title
cancelled after the lapse of 2 years?
A: NO. The lien annotated therein becomes functus officio, which means it has
already performed its function.
Q: May the lien be substituted by a bond?
A: NO. Such lien cannot be discharged nor the annotation cancelled within the 2
year period even if the distributees offer to post a bond to answer for the contingent
claims for which the lien is established.
Q: What is the remedy if fraud is alleged?
A: If “annulment of a deed of extrajudicial settlement” is sought on the ground of
fraud in the execution thereof, the action may be field within 4 years from the
discovery of the fraud. Such discovery is deemed to have taken place when the
instrument was filed with the Register of Deeds and a new certificate of title was
issued; for such registration constitutes constructive notice to the whole world.
((((((((((((((((((((((((((((((((((((((((((((((((((((((((
1
When the instrument has fulfilled the power of its creation/having served its purpose.
 ! " # $ % & ' (
Q: What is the effect of the discovery of unpaid debts after the extrajudicial
settlement has been effected?
A: The partition provided for in these sections is binding and valid even though not
all of the debts actually outstanding were paid before the partition was made. The
discovery of an unpaid obligation after partition does not destroy the partition. It
simply furnishes ground for the application of the creditor for the appointment of an
administrator. (McMicking vs. Sy Conbieng)
Q: What are the remedies under §4 Rule 74 when a creditor or heir is
excluded?
Excluded creditor –
claim against the bond or real estate (brought within 2 years after
settlement and distribution of the estate)
GROUNDS: (Section 4, Rule 74)
a. If there is undue deprivation of lawful participation in the estate;
b. Existence of debts against the estate.
Letters for administration – compel the settlement of the estate in
court (brought within 2 years after settlement and distribution of the
estate)
Excluded heir
o Petition for Relief from Judgment (Summary Settlement) – Rule 38
on the fround of FAME (within 60 days after petitioner learns of the
judgment, and not more than 6 months from its entry).
o Reopening by Intervention – anytime prior to rendition of judgment, so
long as it is within the 2-year period
o Petition for probate of estate – compel the settlement of the estate in
court (brought within 2 years after settlement and distribution of the
estate)
o Rescission – 4 years [in the case of preterition of a compulsory heir in a
partition tainted with bad faith (Art. 1104, NCC)]
o Action to annul a deed of Extrajudicial settlement on the ground of
fraud – filed within 4 years from the discovery of the fraud
o Action reivindicatoria – Independent civil action by an heir deprived of
his share, based on an implied or constructive trust (10 years from
registration/discovery of fraud).
Q: Will the entire property be under administration?
A: NO. The discovery of a debt after partition does not permit the whole property in
possession of the partitioning parties to be thrown into administration. Only so much
of the property is subject to such administration as is sufficient to pay the claim
discovered, leaving the partitioning persons in undisturbed possession of the
remainder.
NOTE: An heir deprived of his share may file an action for reconveyance based on
an implied or constructive trust, which prescribes 10 years from the date of
registration of title, or from actual discovery of fraud if made with bad faith
(Marquez vs. CA)
Q: Is administration the only remedy?
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A: NO. Even after the discovery of a debt subsequent to partition, the partitioning
persons may prevent any administration whatever by paying the debt discovered,
thereby preserving the partition intact in all its parts.
Q: What is the effect of an extrajudicial partition after an administrator has
already been appointed?
A: Where, after the appointment of an administrator with the will annexed of a
deceased person and the due making of the inventory of the property and the taking
possession thereof by such administrator, and agreement is made between the
owners thereof; the delivery of the property to such partitioning owners by such
administrator, under proper proceedings and order of court and after compliance
with the provisions, is, in effect, a discharge of such administrator as to all future
obligations and responsibilities in relation to said property.
Q: What is the effect of the reopening of the partition after the discovery of
unpaid debts?
A: While at any time within two years after such partition the property, or a portion
thereof, then in possession of the partitioning parties, may be placed again in
administration in the event of the discovery of unpaid debts "within two years after
such settlement and distribution of the estate," it would not be the same estate
represented by the prior administrator, and he would not be the administrator of the
new estate by virtue of his appointment in the old. It would be necessary to appoint,
upon proper application and notice, another administrator for the purposes set forth
in said sections. (McMicking vs. Sy Conbieng)
SEC. 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
disability is removed.
Q: What does §5 provide?
A: The section provides for the exception to the rule that unpaid creditors and heirs
unlawfully deprived of their participation in the estate have 2 years within which to
file a claim. If on the date of the expiration of the period of two years prescribed,
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 year after
such disability is removed.
NOTE: This is subject to the proviso that the disability existed during the 2 year
period. Moreover, the disability must exist at the expiration of the 2 year period.
RULE 75 - PRODUCTION OF WILL; ALLOWANCE OF WILL NECESSARY
SECTION 1. Allowance necessary. Conclusive as to execution.—No will shall
pass either real or personal estate unless it is proved and allowed in the proper
court. Subject to the right of appeal, such allowance of the will shall be conclusive
as to its due execution.
Q: What is the meaning of “probate of a will”?
A: The probate of a will is a judicial act whereby an instrument is adjudged valid and
is ordered to be recorded. It is the statutory method of establishing the proper
execution of an instrument and giving notice of its contents.
 ! " # $ % & ' (
Q: What is the purpose of probate?
A: To establish conclusively as against everyone, once and for all, the fact that a will
was duly executed with the formalities prescribed by law and that the testator was
not incapacitated to make a will.
- To settle all questions concerning the capacity of the testator and the proper
execution of his will, irrespective of whether its provisions are valid and enforceable.
(Fernandez v. Dimagiba)
Q: What does due execution refer to?
A: Due execution means:
1. The formalities of the law have been complied with
2. The capacity of the testator has been established
3. The will is genuine
NOTE: The conclusiveness only refer to the extrinsic validity of the will. Intrinsic
validity is governed by the law on legitimes.
Q: What is the nature of the proceeding for the probate of a will?
A: The probate of a will is a proceeding in rem. The provision on notice by
publication as a prerequisite to the allowance of a will provides constructive notice
to the whole world; and when probate is granted, the judgment of the court is
binding upon everyone, even the State.
MANDATORY- No will shall pass either real or personal property unless it is proved
and allowed in the proper court.
Note: However, a will may be sustained on the basis of Article 1080 of the NCC,
which states that, “if the testator should make a partition of his property by an act
inter vivos or by will, such partition shall stand in so far as it does not prejudice the
legitime of the forced heir. (Mang- Oy v. CA)
IMPRESCRIPTIBLE- because of the public policy to obey the will of the testator.
DOCTRINE OF ESTOPPEL DOES NOT APPLY- the probate of the will is mandatory.
The presentation and probate of the will is required by public policy. It involves
public interest. (Fernandez v. Dimagiba)
Q: What sort of instruments must be probated?
A: All instruments of a testamentary character must be probated in order to become
operative to transfer title to either real or personal property. An instrument which
neither disposes of property nor appoints an executor is not testamentary in
character, and consequently is not entitled to probate, although it may have been
executed with all the formalities provided by law. An instrument which makes no
disposition of property but appoints an executor is entitled to probate. A codicil
should be probated although it contains nothing but the revocation of a former will.
The revoked will however, cannot be probated.
Q: When must a will be presented for probate?
A: Under §1 Rule 76, a will may be probated:
1. At a reasonable time after the death of the testator;
2. During the lifetime of the testator, upon petition by him to the court
having jurisdiction for the allowance of his will.
Q: What is the extent of the court’s jurisdiction in the probate of a will?
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A: A probate decree finally and definitively settles all questions concerning capacity
of the testator and the proper execution and witnessing of his last will and
testament, irrespective of whether its provisions are valid and enforceable or
otherwise.
As such, the probate order is final and appealable; and it is so recognized by
express provisions of Section 1 of Rule 109, that specifically prescribes that “any
interested person may appeal in special proceedings from an order or judgment xxx
where such order or judgment: (a) allows or disallows a will.” (Fernandez v.
Dimagiba)
Q: What is the effect of the allowance of a will?
A: "The probate of a will by the probate court having jurisdiction thereof is usually
considered as conclusive as to its due execution and validity, and is also conclusive
that the testator was of sound and disposing mind at the time when he executed the
will, and was not acting under duress, menace, fraud, or undue influence, and that
the will is genuine and not a forgery."
It cannot be impugned on any of the grounds authorized by law, except that of
fraud, in any separate or independent action or proceeding. Criminal action will not
lie in this jurisdiction against the forger of a will which had been duly admitted to
probate by a court of competent jurisdiction since it is clear that a duly probated will
cannot be declared a forgery without disturbing in some way the decree allowing the
will to probate.
The allowance of the will creates a conclusive presumption as to its due execution
and validity. Conclusive presumptions are inferences which the law makes so
peremptory that it will not allow them to be overturned by any contrary proof
however strong. The will in question having been probated by a competent court the
law -will not admit any proof to overthrow the legal presumption that it is genuine
and not a forgery. (Mercado vs. Santos)
Q: Does the probate court have jurisdiction to inquire into the intrinsic
validity of the will?
A: In petitions for probate, the Court’s area of inquiry is limited to the extrinsic
validity of the will, as the testamentary capacity and the compliance with the formal
requisites or solemnities prescribed by law are the only questions presented for the
resolution of the court. Any inquiry into the intrinsic validity or efficacy of the
provisions thereof or the legality of any devise or legacy is premature.
An alleged disposal by testator prior to his death of the properties involved in his will
is no ground for the dismissal of the petition for probate. Probate is one thing; the
validity of the testamentary provisions is another. The first decides the execution of
the document and the testamentary capacity of the testator; the second relates to
descent and distribution. (Sumilang vs. Ramagosa)
Q: Is the probate court absolutely precluded from passing upon the intrinsic
validity of the will?
A: NO. In certain cases where the provisions of a will are of dubious legality, the
probate court may pass upon the intrinsic validity of the will even before its formal
validity had been established. 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. (Balanay vs. Martinez citing Nuguid
vs. Nuguid)
Q: Does the probate court look into the intrinsic validity of the will?
A:
General Rule: The jurisdiction of probate court is limited to the examination and
resolution of the extrinsic validity of a will.
Exception: Principle of practical considerations wherein the court may pass upon
the intrinsic validity of the will:
1. If the case were to be remanded for probate of the will, it will result to
waste of time, effort, expense, plus added anxiety; as in the case of
absolute preterition (Nuguid v. Nuguid).
2. Where the entire or all testamentary dispositions are void and where the
defect is apparent on its face (Nepomuceno v. CA).
NOTE: Principle does not apply where the meat of the controversy is not the intrinsic
validity of the will.
Q: Can the probate court pass upon questions of ownership with respect to
properties allegedly forming part of the estate?
A: In a special proceeding for the probate of a will, the issue by and large 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. Thus, for the purpose of determining whether a
certain property should or should not be included in the inventory of estate
properties, 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. (Pastor Jr. vs. CA)
SEC. 2. Custodian of will to deliver.—The person who has custody of a will shall,
within twenty (20) days after he knows of the death of the testator, deliver the will
to the court having jurisdiction, or to the executor named In the will.
Q: Who is a custodian?
A: In order to hold one liable as custodian of a will under a rule which requires the
production of a will by the person having it in custody, it must be shown that he
received the will with knowledge, or under such circumstances that he ought to have
known he was receiving custody of a will. By accepting the custody of a will of
another, a person does not obligate himself to exercise diligence to discover the
death of the testator, so as to disclose possession of the will and to produce it for
probate within a reasonable time after such death, unless he agreed to perform such
obligation or else made representation that he was well-equipped to obtain
information as to the death of the maker of the will in his custody.
Q: Suppose X works as a secretary of his father. One day, he sees his
fathers will on the floor. X takes the will and keeps it on his table. Is X a
custodian of his fathers will?
A: X in this case is NOT a custodian. Mere possession of a will does not constitute
custody of the instrument within the meaning of this rule. A custodian is a person
chosen in advance and entrusted with the custody of a will. One becomes a
custodian by agreement between the testator and the person to whom the will is
entrusted.
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Q: What is the nature of such agreement between the testator and the
custodian?
A: The delivery and acceptance of the will for safekeeping constitutes a bailment
which terminates on the death of the testator or bailor. One accepting custody of a
will for safekeeping accepts the responsibilities of such custodianship to preserve the
will safely for the testator until his death and not to reveal its contents, or return it
to its maker on demand.
NOTE: Generally there is no required form for the acceptance of the custody of a will,
but it is recommended that the acceptance be in writing.
Q: What is the duty of a custodian of a will?
A: It is the duty of the person who has custody of a will to deliver the same within
20 days after he knows of the death of the testator, to the court having jurisdiction
or to the executor named in the will. Violation of this duty is made punishable by §4
Rule 75.
Q: To whom is the delivery of the will made?
A: Delivery is made to the clerk of the trial court having jurisdiction over the estate
or to the executor named in the will.
Q: What if the custodian is also the executor named in the will, does he still
have to produce the will?
A: The rule making it the duty of the custodian to deliver a will to the court after the
death of the testator is designed to exact the discovery of wills and to discourage
their concealment. Thus, the custodian of a will must comply with the statute even if
he is named the executor.
Q: Suppose the custodian refuses or fails to deliver the will within the
reglamentary period?
A: Under 2 and 3 of this Rule, the fact that a will is not presented to the court after
the specified 20-day period therein does not prevent it from being probated. On the
contrary Rule 76 §1 provides that “[a]ny executor, devisee, or legatee named in a
will, or any other person interested in the estate, may, at any time after the death
of the testator, petition the court having jurisdiction to have the will allowed,
whether the same be in his possession or not, or is lost or destroyed.” In such a
case probate will proceed through secondary evidence.
Q: Is probate of a will mandatory?
A: YES. The law enjoins the probate of the 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, as is attempted
to be done in the instant case. Absent legatees and devisees, or such of them as
may have no knowledge of the will, could be cheated of their inheritance thru the
collusion of some of the heirs who might agree to the partition of the estate among
themselves to the exclusion of others.
Even if the decedent left no debts and nobdy raises any question as to the
authenticity and due execution of the will, none of the heirs may sue for the
partition of the estate in accordance with that will without first securing its
allowance or probate by the court, first, because the law expressly provides that "no
will shall pass either real or personal estate unless it is proved and allowed in the
proper court"; and, second, because the probate of a will, which is a proceeding in
rem, cannot be dispensed with the substituted by any other proceeding, judicial or
extrajudicial. (Guevara vs. Guevara and Buison)
 ! " # $ % & ' (
Q: Can probate proceedings be barred by the Statute of Limitations or
estoppel by laches?
A: Reason and precedent reject the applicability of the Statute of Limitations to
probate proceedings, because these are not exclusively established in the interest of
the surviving heirs, but primarily for the protection of the testator’s expressed
wishes, that are entitled to respect as an effect of his ownership and right of
disposition. Inasmuch as the probate of will is required by public policy, the State
could not have intended to defeat the same by applying thereto the Statute of
Limitations. (Guevara vs. Guevara and Quinto)
SEC. 3. Executor to present will and accept or refuse trust.—A person named
as executor in a will shall, within twenty (20) days after he knows of the death of
the testator, or within twenty (20) days after he knows that be is named executor if
he obtained such knowledge after the death of the testator, present such will to the
court having jurisdiction, unless the will has reached the court in any other manner,
and shall, within such period, signify to the court in writing his acceptance of the
trust or his refusal to accept it.
Q: What is the duty of the executor?
A: When a will has been duly executed and delivered to the one named as executor
therein, a moral obligation in the nature of a trust is imposed upon such person. It is
a moral duty because it is more of a personal obligation.
SEC. 4. Custodian and executor subject to fine for neglect.—A person who
neglects any of the duties required in the two last preceding sections without excuse
satisfactory to the court shall be fined not exceeding two thousand pesos.
Q: When can the fine provided for in this section be imposed?
A: This provision can only be applied when a court is acting in the exercise of its
jurisdiction over the administration of the estate of deceased persons; and where
administration proceedings are not already pending, the court, before taking action,
should require that there be some petition, criminal information, or affidavit, of such
character as to make action by the court under this section appropriate.
The fact that this penal provision is contained in the Code of Civil Procedure does
not make the proceeding to enforce the penalty a civil proceeding in any sense. The
remedy provided in section 629 of the Code of Procedure is evidently a totally
different remedy, having no relation with that provided in section 628; and it is in
our opinion not permissible in a prosecution under the last mentioned
section to superimpose upon the penalty of fine therein prescribed the
additional penalty of imprisonment prescribed in section 629.
In applying the remedy provided in section 629 in a prosecution under section 628,
to enforce the production of the will by the accused, would virtually compel him to
convict himself, since his production of the will would be conclusive that he had
possession of it as charged in the criminal complaint. (UNS vs. Chui Guimco)
SEC. 5. Person retaining will may be committed.—A person having custody of a
will after the death of the testator who neglects without reasonable cause to deliver
the same, when ordered so to do, to the court having jurisdiction, may be
committed to prison and there kept until he delivers the will.
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Q: When can the court commit a person to prison for retaining will?
A: A court cannot make a valid order committing a person to jail for failure to
produce the will of a deceased person, pursuant to this section, except when acting
in the exercise of its jurisdiction over the estates of deceased persons.
NOTE: The remedy in §4 is different from that provided in §5. Accordingly, in a
prosecution under 4, it is not permissible to superimpose upon the penalty of fine
therein prescribed the additional penalty of imprisonment imposed by §5.
RULE 76- ALLOWANCE OR DISALLOWANCE OF WILL
SECTION 1. Who may petition for the allowance of will.—Any executor,
devisee, or legatee named in a will, or any other person interested in the estate,
may, at any time after the death of the testator, petition the court having
jurisdiction to have the will allowed, whether the same be in his possession or not,
or is lost or destroyed.
The testator himself may, during his lifetime, petition the court for the allowance of
his will.
Q: Who may file petition for allowance of will?
1. Executor (Sec. 1, Rule 76);
2. Devisee or legatee named in the will (Sec. 1, Rule 76);
3. Person interested in the estate; e.g. heirs
Note: An interested party is one who would be benefited by the estate, such
as an heir, or one who has a claim against the estate such as a creditor.
(Sumilang v. Ramagosa, G.R. No. L-23135, Dec. 26, 1967)
4. Testator himself during his lifetime (Sec. 1, Rule 76); or
5. Any creditor – as preparatory step for filing of his claim therein.
- Before any person may intervene in the proceedings for the probate of a will,
he would be required to show an interest in the will or in the property
affected thereby, as executor or otherwise. It is sufficient if he
shows/produces prima facie his/her relationship to the testator or his rights
to the latter/s estate.
Q: Who may intervene in a probate?
A: Essentially the same persons mentioned above.
Q: Who is an interested party?
A: “a petition for letters of administration must be filed by an ‘interested person.’ An
interested party has been defined in this connection as 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. And it is well settled in this jurisdiction that in civil actions as well as
special proceedings, the interest required in order that a person may be a party
thereto must be material and direct, and not merely indirect or contingent (Teotico
v Del Val)
Q: What is the effect of an assignment of interest in the estate upon an
heir’s right to petition for probate of a will?
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A: The mere fact that the share, title and interest of the estate pertaining to one of
the heirs have already been assigned to another doesn’t estop the said heir from
asking for the probate of the will of the deceased testator.
Q: WHEN must a will be presented for probate?
1. Anytime after the death of the testator
2. During the lifetime of the testator.
Can Estoppel apply to probate proceedings?
Yes. A person by his conduct may estop himself and his privies from subsequently
procuring the probate of a will. Long delay in propounding the will for probate during
which delay, the property of the estate might have been transferred to subsequent
purchasers for value and without notice of the will may be taken as estoppel to
apply for probate. BUT to raise estoppel on the ground of delay in propounding the
will, it must be shown that no obstacle to the assertion of the right to have the will
probated existed.
Q: Jongko made a will naming R as his voluntary heir. Can R, during
Jongko’s lifetime file a petition to have the will probated?
A: NO. Since the will is to be probated during the lifetime of the testator, only the
testator himself can file the petition.
Probate of a will during the lifetime of the testator is allowed:
1. To avoid fraud
2. The testamentary capacity of the testator is easily proved if he personally
appears before the court.
3. Any defects in the formalities can be corrected
4. Oppositions are minimized.
SEC. 2. Contents of petition.—A petition for the allowance of a will must show, so
far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, legatees, and devisees
of the testator or decedent;
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters are prayed;
(e) If the will has not been delivered to the court, the name of the person
having custody of it.
But no defect in the petition shall render void the allowance of the will, or the
issuance of letters testamentary or of administration with the will annexed.
Q: What are the contents of a petition for allowance of a will?
A:
1. Jurisdictional facts:
i. Death of the testator; and
ii. His residence at the time of his death; OR
iii. If non- resident, the province where the estate was left;
iv. That the will has been delivered to the court and is in the
possession thereof [unless not yet delivered] (Salazar v. CFI);
v. The value of the estate to determine the court with jurisdiction.
2. The names, ages and residences of the heirs, legatees and devisees of the
testator or decedent.
3. The probable value and character of the property of the estate.
4. The name of the persons for whom letters are prayed.
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5. The name of the person having custody of the will [if it has not been
delivered to the court].
NOTE: No defect in the petition shall render void the allowance of the will or the
issuance of letters testamentary or of administration with the will annexed.
- Practice and jurisprudence dictates that the jurisdictional allegations should
be made in the form of an application and filed with the original or a copy
of the will attached thereto, without prejudice to the production of the
original to the court at the hearing or upon the court’s request.
Fernando v. Crisostomo - Respondent judge had jurisdiction and did not exceed it
in appointing the other respondent, who are the brother and sister or nearest of kin
of the decedent, as administrators of the latter's estate. The jurisdictional facts
referred to in section 2 (a) Rule 80, are the death of the decedent, his having left
his estate in such province were probate court is sitting, or life he is an inhabitant of
a foreign country, his having left his estate in such province. The name or
competency of the person or persons for whim letters of administration are prayed
is not a jurisdictional fact, it is another additional fact to be alleged in the petition
(d); but "no defect in the petition shall render void the issue of letters of
administration" that is, shall divest the court of its jurisdiction to appoint the
administrator.
Salazar v. CFI - The payment of the fees of the clerk of court for all services
to be rendered by him in connection with the probate of the second will and for the
successive proceedings to be conducted and others to be issued, in accordance with
section 788, as amended, is not jurisdiction in the sense that its omission does
not deprive the court of its authority to proceed with the probate of a will, as
expressly provided for by section 630. It is the inevitable duty of the court, when a
will is presented to it, to appoint hearing for its allowance and to cause notice
thereof to be given by publication. The duty imposed by said section is imperative
and noncompliance therewith would be a mockery at the law and at last will of the
testator.
Q: Why is it necessary to state the name and residence of each heir etc. in
the petition for probate?
A: In order that the persons entitled to notice AND the manner of such notice may
be determined by the court.
Q: What is the effect of omission of any of the contents enumerated by this
section?
The omission from the petition of a statement of the names etc. cannot render the
order void for want of jurisdiction, any more that the omission from the petition of a
statement as to the proper value and character of the estate.
SEC. 3. Court to appoint time for proving will. Notice thereof to be
published.—When a will is delivered to, or a petition for the allowance of a will is
filed in, the court having jurisdiction, such court shall fix a time and place for
proving the will when all concerned may appear to contest the allowance thereof,
and shall cause notice of such time and place to be published three (3) weeks
successively, previous to the time appointed, in a newspaper of general circulation
in the province.
But no newspaper publication shall be made where the petition for probate has been
filed by the testator himself.
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Q: When does jurisdiction over the probate of the will become vested in the
court?
A:
1. Upon the filing of a petition for the proving of a will
2. Upon the delivery of a will to the court (even without an accompanying
petition)
NOTE: Upon the will being deposited, the court could, motu propio have taken steps
to fix the time and place for proving the will and issue the corresponding notices.
Where the petition for probate is made AFTER deposit of a will, the petition is
deemed to relate back to the time when the will was delivered.
Q: What are the jurisdictional requirements?
A:
1. Publication for 3 weeks successively of the order setting the case for
hearing; and
2. Notice to all persons interested
If the petition was initiated by the Testator himself (ante mortem probate)
1. No publication is necessary
2. Notice only to the compulsory heirs
Q: Once jurisdiction vests in the RTC, what must the Court do?
A: It is the duty of the court motu propio to appoint hearing for the will’s allowance
and to cause notices thereof to be given to participants. The duty given is
IMPERATIVE. Consequently, the court can motu propio set the time and place for
proving the will delivered to it.
SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or
personally.—The court shall also cause copies of the notice of the time and place
fixed for proving the will to be addressed to the designated or other known heirs,
legatees, and devisees of the testator resident in the Philippines at their places of
residence, and deposited in the post office with the postage thereon prepaid at least
twenty (20) days before the hearing, if such places of residence be known. A copy of
the notice must in like manner be mailed to the person named as executor, if he be
not the petitioner, also, to any person named as co-executor not petitioning, if their
places of residence be known. Personal service of copies of the notice at least ten
(10) days before the day of hearing shall be equivalent to mailing.
If the testator asks for the allowance of his own will, notice shall be sent only to his
compulsory heirs.
Q: Who are the people entitled to notice in a probate hearing?
A:
1. Designated or known heirs, legatees and devisees of the testator resident in the
Philippines at their places of residence, at least 20 days before the hearing, if such
places of residence be known.
NOTE: only if the residences of the abovementioned are known.
2. Person named executor, if he is not the petitioner.
3. To any person named as co-executor not petitioning, if their places of residence
be known.
4. If the testator asks for the allowance of his own will, notice shall be sent only to
his compulsory heirs. (Sec. 4, Rule 76)
Q: What if the petition is filed by the testator himself, is the rule the same?
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A: NO. If the testator himself asks for the allowance of the will, notice shall be sent
only to his compulsory heirs.
Q: What is the MODE of service and how do you prove them?
1. Registered Mail – proven by the registry return card (sent at least 20 days
prior to the hearing).
2. Personal Service – proven by the receipt of notice signed by the person
who received such. (at least 10 days prior to the hearing).
Q: Would the probate court lose jurisdiction over the case if the person who
filed the petition for probate withdraws from the case?
A: NO. It does not affect the jurisdiction of the court over the proceeding and over
all other persons interested therein. The proceeding for probate is in rem and the
court acquires jurisdiction over all the persons interested.
Q: Is service of notice on individual heirs jurisdictional?
A: NO. It is merely a matter of procedural convenience, so much so that even if the
names of some of the legatees or heirs have been omitted, and were therefore not
given notice, the decree allowing the will does not ipso facto become void for want
of jurisdiction. Indispensable to the jurisdiction of the court is the
PUBLICATION requirement.
Q: What should the notice of publication contain?
A:
1. Time of hearing
2. Place of hearing
3. Order of persons who have interest in the will to appear and show cause
why the petition should/should not be granted.
Q: What is the requirement of publication for “three weeks successively”?
A: Since a petition for probate of a will is a proceeding in rem, notice to the whole
world must be given in order to acquire jurisdiction. This is done through the
publication of the petition in a newspaper of general circulation once a week for
three consecutive weeks.
- This does not mean that the notice referred to therein should be published
for three full weeks prior to the date set for hearing. The first publication of
the notice need not be made 21 days before the hearing date
NOTE: Shortest possible amount of time to fulfill the 3 week requirement? 9 days.
Illustration:
January 21 (Saturday) – 1st publication
January 22 (Sunday) – 2nd publication
January 29 (Sunday) – 3rd publication
Total number of days elapsed: 9
Q: What is a newspaper of general circulation?
A: If it is published for the local dissemination of local news and general information,
if it has a bona fide subscription list of paying subscribers, and if its published a
regular intervals. No fixed number of subscribers is necessary to constitute a
newspaper of general circulation.
Q: How is notice by publication proved?
A: By presenting in court the affidavit of the publisher to such effect, as well as the
clippings of publication as it appeared in the newspaper.
 ! " # $ % & ' ( " ) * $ # # + % , - ! (
Q: Is publication still required if it was the testator himself who applied for Holographic
the probate of his will? Will At least one witness who The will shall be allowed if
A: NO. As stated in para.2 § 3 of Rule 76. knows the handwriting at least three witnesses who
and signature of the know the handwriting of the
SEC. 5. Proof at hearing. What sufficient in absence of contest.—At the hearing testator explicitly declares testator explicitly declare
compliance with the provisions of the last two preceding sections must be shown that the will and signature that the will and signature
before the introduction of testimony in support of the will. All such testimony shall are in the handwriting of are in the handwriting of the
be taken under oath and reduced to writing. If no person appears to contest the the testator. (Sec. 5, Rule testator. (Sec. 11, Rule 76)
allowance of the will, the court may grant allowance thereof on the testimony of one 76)
of the subscribing witnesses only, if such witness testify that the will was executed - In the absence of such,
as is required by law. if the court deems
necessary, expert
In the case of a holographic will, it shall be necessary that at least one witness who testimony may be
knows the handwriting and signature of the testator explicitly declare that the will resorted to.
and the signature are in the handwriting of the testator. In the absence of any such
competent witness, and if the court deem it necessary, expert testimony may be
Q: When no person appears to oppose the probate, what would be
resorted to.
required?
A: The testimony of only one of the attesting witnesses may be sufficient if it is able
Q: What is the effect of the probate court’s failure to require proof of to establish the due execution of the will. However, where an attesting witness
publication and/or service? appears to be hostile and adequate efforts are exerted to have him testify before
A: it is NOT a ground for dismissal and is a reversible error for the probate court to the court; his testimony may be dispensed with and the will allowed to probate if
hear the application without such proof of publication and/or notice. there is enough evidence to justify the allowance.
Q: What must be introduced as evidence at the hearing on the petition for Q: What are the instances when the court may admit the testimony of
the allowance of the will? witnesses other than the subscribing witnesses?
A: A:
1. Evidence that the order of the court fixing the time and place for proving 1. The subscribing witnesses are dead or insane; or
the will has been published for 3 successive weeks prior to the time 2. None of them resides in the Philippines. (Sec. 8, Rule 76)
appointed.
2. Evidence that a notice of such hearing has been served upon the known Q: What matters shall be testified on by the other witnesses?
heirs, legatees, devisees of the resident testator at least 20/10 days prior. A:
3. If the petitioner is not the executor, evidence that notice has been served 1. The sanity of the testator; and
upon the executor, if his/her place of residence is known. 2. Due execution of the will.
4. Testimony of the subscribing witnesses in support of the will. Note: The court may admit proof of handwriting of the testator and of the
subscribing witnesses, or any of them. (Sec. 8, Rule 76)

Uncontested Will Contested Will

Notarial will The court may grant
allowance thereof on the
testimony of one of the
subscribing witnesses only, if
such witness testifies that
the will was executed as is
required by law. (Sec. 5,
Rule 76)
SEC. 6. Proof of lost or destroyed will. Certificate thereupon.—No will shall be
All the subscribing witnesses
proved as a lost or destroyed will unless the execution and validity of the same be
and the notary public must
established and the will is proved to have been in existence at the time of the death
testify as to due execution
of the testator, or is shown to have been fraudulently or accidentally destroyed in
and attestation of the will.
the lifetime of the testator without his knowledge, nor unless its provisions are
(Sec. 11, Rule 76)
clearly and distinctly proved by at least two (2) credible witnesses. When a lost will
is proved, the provisions thereof must be distinctly stated and certified by the judge,
under the seal of the court, and the certificate must be filed and recorded as other
wills are filed and recorded.

( Q: What is the rule on proof of lost or destroyed will?

A: A notarial will, may be proven by a photostatic or xerox copy of the will coupled
with the testimonies of the attesting witnesses.
( If it is a holographic will, a photostatic copy or exerox copy of the lost will would
not suffice. But if there are no other copies available then a photostatic or xerox
Uncontested Will Contested Will copy would suffice to serve as a comparison to the standard writings of the testator.

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No testimonies of witnesses is allowed because the will was made entirely by the
testator himself. (Bonilla vs. Aranz, G.R. No. L-58509, Dec. 7, 1982)
Q: What are the requisites for allowance of a lost or destroyed will?
A: No will shall be proved as a lost or destroyed will unless:
1. Its execution and validity of the same must be established;
2. It must have been in existence at the time of the death of the testator, or
is shown to have been fraudulently or accidentally destroyed during the
lifetime of the testator without his knowledge; and
3. Its provisions must be clearly and distinctly proved by at least 2 credible
witnesses (Sec. 6)
NOTE: The first and third facts constitute secondary evidence in lieu of the original.
- The provision demand that the witnesses be both competent as well as
credible. Testifying from hearsay is neither.
- It is not necessary to prove the contents of the last will literally, but
substantial proof of such is all that is required; if only a part of the lost will
can be proved, such part may be admitted to probate.
Q: Secondary evidence NOT admitted in lieu of the original will?
A: The loss of the alleged will had not been sufficiently proven. The principal witness,
testified that he never saw the original of the will, as the same was retained by the
notary, and that and that he only saw a copy of the original. Further, the witness
also testified that the will contained only 2 signatures of witnesses.
As to the allegation that the same was burned by insurgents, no evidence was
presented to show that at the time the courthouse burned, there was in fact a
record of the alleged will. When the evidence presented is insufficient to establish in
a satisfactory manner the loss of the alleged will, secondary evidence to prove the
contents of the will can therefore NOT be allowed, as such is in violation of the best
evidence rule. (Araujo v. Celis)
Lim Billian v. Suntay - In our opinion, the evidence is sufficient to establish the
loss of the document contained in the envelope. Oppositors' answer admits that,
according to Barretto, he prepared a will of the deceased to which he later became a
witness together with Go Toh and Manuel Lopez, and that this will was placed in an
envelope which was signed by the deceased and by the instrumental witnesses. In
court there was presented and attached to the case an open and empty envelope
signed by Jose B. Suntay, Alberto Barretto, Go Toh and Manuel Lopez. It is thus
undeniable that this envelope Exhibit A is the same one that contained the will
executed by the deceased—drafted by Barretto and with the latter, Go Toh and
Manuel Lopez as attesting witnesses. These tokens sufficiently point to the loss of
the will of the deceased, a circumstance justifying the presentation of secondary
evidence of its contents and of whether it was executed with all the essential and
necessary legal formalities.
Rodelas v. Aranza - If the holographic will has been lost or destroyed and no other
copy is available, the will cannot be probated because the best and only evidence is
the handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator and the
handwritten will.
But, a photostatic copy or xerox copy of the holographic will may be allowed
because comparison can be made by the probate court with the standard writings of
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the testator. The probate court would be able to determine the authenticity of the
handwriting of the testator.
In the case of Gan vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and
the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will itself must be
presented; otherwise, it shall produce no effect. The law regards the document itself
as material proof of authenticity." But, in Footnote 8 of said decision, it says that
"Perhaps it may be proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before
the probate court."
Q: What is the effect of a lost will said to be seen last in the possession of
the testator?
A: Where a will which cannot be found is shown to have been in the possession of
the testator, when last seen, the presumption is, in the absence of other competent
evidence, that the same was cancelled or destroyed. The same presumption arises
where it is shown that the testator had ready access to the will and it cannot be
found after his death. It will not be presumed that such will has been destroyed by
any other person without the knowledge or authority of the testator. (Gago v.
Mamuyac)
Q: Who has the burden of proof to establish the existence and due
execution of the will?
A: In a proceeding to probate a will the burden of proof is upon the proponent
clearly to establish not only its execution but its existence. Having proved its
execution by the proponents, the burden is on the contestant to show that it has
been revoked. (Gago v. Mamuyac)
Q: What happens after the due execution and contents of a lost will are
duly proved?
A: § expressly states “When a lost will is proved, the provisions thereof must be
distinctly stated and certified by the judge, under the seal of the court, and the
certificate must be filed and recorded as other wills are filed and recorded.”
SEC. 7. Proof when witnesses do not reside in province.—If it appears at the
time fixed for the hearing that none of the subscribing witnesses resides in the
province, but that the deposition of one or more of them can be taken elsewhere,
the court may, on motion, direct It to be taken, and may authorize a photographic
copy of the will to be made and to be presented to the witness on his examination,
who may be asked the same questions with respect to it and to the handwriting of
the testator and others, as would be pertinent and competent if the original will
were present.
Q: What is the remedy if none of the subscribing witnesses resides in the
province where probate is being conducted?
A: A motion for taking of deposition of one or more of them. (Sec. 7, Rule 76)
Q: In such case, how may the will be proved?
A: The Court may also authorize a photographic copy of the will to be made and to
be presented to the witness on his examination, who may be asked questions with
respect to matters pertaining to the will. (Sec. 7, Rule 76)
 ! " # $ % & ' (
- The deponents may be asked the same questions with respect to the will,
and the handwriting of the testator and others, as would be pertinent and
competent if the original of the will were present.
Q: What is the distance rule to be followed in this case?
A: The witness must be at least 50km away from the territorial jurisdiction of the
court for it to order the taking of his deposition.
[Take note of the difference as to the 100-km rule in Ordinary Civil Proceedings]
SEC. 8. Proof when witnesses dead or insane or do not reside in the
Philippines.—If it appears at the time fixed for the hearing that the subscribing
witnesses are dead or insane, or that none of them resides in the Philippines, the
court may admit the testimony of other witnesses to prove the sanity of the
testator, and the due execution of the will; and as evidence of the execution of the
will, it may admit proof of the handwriting of the testator and of the subscribing
witnesses, or of any of them.
Q: What if all of the subscribing witness are either dead, incompetent or
unavailable?
A: This situation will NOT prevent the establishment of the due execution and
attestation of the will as long as the essential requisites are proved. A will may
generally be admitted upon other legal and satisfactory proof unless the law
provides that depositions must be taken. The signature and handwriting of the
testator and the witnesses must be duly proved.
Q: What if the proponent cannot present ALL the subscribing witnesses?
A: The proponent can establish a prima facie case as long as proof of the
authenticity of the signature of the attesting witnesses can be duly proved. The
remaining witnesses can testify as to its due execution, further substantiated by the
notary public who prepared and notarized the will.
- If the testimony of any of the surviving subscribing witnesses can be taken
(even through deposition) proof of the will by non-subscribing witnesses
cannot be authorized.
SEC. 9. Grounds for disallowing will.—The will shall be disallowed in any of the
following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a
will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on
the part of the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he
did not intend that the instrument should be his will at the time of fixing his
signature thereto.
NOTE: All of the formalities required by the statute are of equal importance, and the
courts have no discretion to dispense with them, or supply a defect caused by a
failure to comply with some of them. Parol or extrinsic evidence is not admissible to
show that a decedent intended to execute his will according to all the formalities
prescribed by statute.
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Q: What are the grounds for disallowance of will?
A:
1. If not executed and attested as required by law;
2. If the testator was insane, or otherwise mentally incapable to make a will,
at the time of its execution;
3. If it was executed under duress, influence of fear, or threats;
4. If it was procured by undue and improper pressure or influence, on the
part of the beneficiary, or of some other person for his benefit; or
5. If the signature of the testator was procured by fraud or trick, and he did
not intend that the instrument should be his will at the time of fixing his
signature thereto. (Sec. 9, Rule 76)
[NOTE: Exclusive list]
Q: What is the Substantial Compliance Rule?
A: If the will has been executed in substantial compliance with the formalities of the
law, and the possibility of bad faith and farud is obviated, said will should be
admitted to probate (Art. 809, New Civil Code).
Q: What is Testamentary Capacity?
A: Testamentary capacity is the capacity to comprehend the nature of the
transaction in which the testator is engaged at the time, to recollect the property to
be disposed of and the persons who would naturally be supposed to have claims
upon the testator, and to comprehend the manner in which the instrument will
distribute his property among the objects of his bounty.
- The mental capacity of the testator is determined as of the date of the
execution of his will.
- To constitute a sound and disposing mind, it is not necessary that the mind
shall be wholly unbroken, unimpaired, or unshattered by disease or
otherwise, or that the testator should be in the full possession of his
reasoning faculties. The question is not so much, what was the degree of
memory possessed by the testator, as, had he a disposing memory?
Is failure of memory, old age or eccentricities sufficient to indicate a lack of
testamentary capacity or unsoundness of mind?
A: Neither old age, physical infirmities, feebleness of mind, weakness of the
memory, the appointment of a guardian, nor eccentricities are sufficient singly or
jointly to show testamentary incapacity. The nature and rationality of the will is of
some practical utility in determining capacity. Each case rests on its own facts and
must be decided by its own facts.
- The evidence should be permitted to take a wide range in order that all facts may
be brought out which will assist in determining the question. The testimony of
subscribing witnesses to a will concerning the testator's mental condition is entitled
to great weight where they are truthful and intelligent. The evidence of those
present at the execution of the will and of the attending physician is also to be relied
upon.
Q: What if a guardian is named for the testator alleged to be incapacitated?
A: The presumption is that every adult is sane. But where the question of insanity is
put in issue in guardianship proceedings, and a guardian is named for the person
alleged to be incapacitated, a presumption of the mental infirmity of the ward is
created; the burden of proving sanity in such case is cast upon the proponents of
the will.
—The effect of an order naming a guardian for an incapacitated person is not
conclusive with respect to the condition of the person, pursuant to the provisions of
 ! " # $ % & ' (
section 306 of the Code of Civil Procedure. The decree does not conclusively show
that the testamentary capacity of a person under guardianship is entirely destroyed.
The presumption created by the appointment of a guardian may be overcome by
evidence proving that such person at the time he executed a will was in fact of
sound and disposing mind and memory.
Q: What is undue influence?
A: Undue influence as used in connection with the law of wills, may be defined as
that which compels the testator to do that which is against the will from fear, the
desire of peace, or from other feeling which he is unable to resist.
[N.B. All of the Q&A for §9 cited above are from the case of Torres and Lopez v.
Lopez]
SEC. 10. Contestant to file grounds of contest.—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.
Q: If someone wants to oppose probate, what must he do?
A: He should:
1. File an opposition in the court handling the probate, stating his objections
and the grounds therefore;
2. As well as serve a copy of the same to the proponent.
SEC. 11. Subscribing witnesses produced or accounted for where will
contested.—If the will is contested, all the subscribing witnesses, and the notary in
the case of wills executed under the Civil Code of the Philippines, if present in the
Philippines, and not insane, must be produced and examined, and the death,
absence, or insanity of any of them must be satisfactorily shown to the court. If all
or some of such witnesses are present in the Philippines but outside the province
where the will has been filed, their deposition must be taken. If any or all of them
testify against the due execution of the will, or do not remember having attested to
it, or are otherwise of doubtful credibility, the will may, nevertheless, be allowed if
the court is satisfied from the testimony of other witnesses and from all the
evidence presented that the will was executed and attested in the manner required
by law.
If a holographic will is contested, the same shall be allowed if at least three (3)
witnesses who know the handwriting of the testator explicitly declare that the will
and the signature are in the handwriting of the testator; in the absence of any
competent witness, and if the court deem it necessary, expert testimony may be
resorted to.
Q: What if one of the witnesses oppose probate?
A: The court may still allow probate of the will if there are other evidence sufficient
to prove the same.
Q: Is the proponent bound to present all the witnesses?
A: YES, especially if the will is contested. “If the proponent presents only one
witness, while the opposition present s the other 2, and the proponent himself fails
to oppose, it would clearly weaken the case for the will’s allowance.”
Aldanese v. Salutillo - The rule prevails that when a will is contested the attesting
witnesses must be called to prove the will or a showing must be made that they
cannot be had.
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- When an attesting witness to a will resides outside of the province where
the will is offered for probate and thirty miles or more from the place
where the probate proceedings are held, his testimony may be taken in the
form of a deposition in accordance with section 406 of the Code of Civil
Procedure.
Cabang v. Delfinado - In proving a contested will at Tayug only one attestor was
presented, although the record showed that the other two were living, one in Manila
and the other in Nueva Ecija. It was an error to admit the will to probate without
calling all the attesting witnesses or requiring a showing that they could not be
obtained.
Avera v. Garcia - When the petition for probate of a will is contested the proponent
should introduce all three of the attesting witnesses, if alive and within reach of the
process of the court; and the execution of the will cannot be considered sufficiently
proved by the testimony of only one, without satisfactory explanation of the failure
to produce the other two.
- Nevertheless, in a case where the attorney for the contestants raised no
question upon this point in the court below, either at the hearing upon the
petition or in the motion to rehear, it is held that an objection to the
probate of the will on the ground that only one attesting witness was
examined by the proponent of the will, without accounting for the absence
of the others, cannot be made for the first time on appeal.
SEC. 12. Proof where testator petitions for allowance of holographic will.—
Where the testator himself petitions for the probate of his holographic will and no
contest is filed, the fact that he affirms that the holographic will and the signature
are in his own handwriting, shall be sufficient evidence of the genuineness and due
execution thereof. If the holographic will is contested, the burden of disproving the
genuineness and due execution thereof shall be on the contestant The testator may,
in his turn, present such additional proof as may be necessary to rebut the evidence
for the contestant.
Q: What happens if after due execution, loss has been established?
A: The court will certify that the provisions of the lost will have been duly proved.
SEC. 13. Certificate of allowance attached to proved will. To be recorded in
the Office of Register of Deeds.—If the court is satisfied, upon proof taken and
filed, that the will was duly executed, and that the testator at the time of its
execution was of sound and disposing mind, and not acting under duress, menace,
and undue influence, or fraud, a certificate of its allowance, signed by the judge,
and attested by the seal of the court shall be attached to the will and the will and
certificate filed and recorded by the clerk. 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.
RULE 77 - ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND
ADMINISTRATION OF ESTATE THEREUNDER
SECTION 1. Will proved outside Philippines may be allowed here.—Wills
proved and allowed in a foreign country, according to the laws of such country, may
be allowed, filed, and recorded by the proper Regional Trial Court in the Philippines.
 ! " # $ % & ' (
Q: What is the effect of a will of an alien who is abroad?
A: [Art. 816. CC] The will of an alien who is abroad produces effect in the Philippines
if made with the formalities prescribed by the law of the place in which he resides,
or according to the formalities observed in his country, or in conformity with those
which this Code prescribes.
Q: What is the effect of a will made in the Philippines by a citizen of another
country?
A: A will made in the Philippines by a citizen or subject of another country, which is
executed in accordance with the law of the country of which he is a citizen or
subject, and which might be proved and allowed by the law of his own country, shall
have the same effect as if executed according to the laws of the Philippines. [Art.
817, CC]
Q: What is the effect of a will by a Filipino executed in a foreign country?
A: When a Filipino is in a foreign country, he is authorized to make a will in any of
the forms established by the law of the country in which he may be. Such will may
be probated in the Philippines. [Art. 815, CC]
Q: What is reprobate?
A: It is a special proceeding to establish the validity of a will proved in a foreign
country.
SEC 2. Notice of hearing for allowance.—When a copy of such will and of the
order or decree of the allowance thereof, both duly authenticated, are filed with a
petition for allowance in the Philippines, by the executor or other person interested
in the court having jurisdiction, such court shall fix a time and place for the hearing,
and cause notice thereof to be given as in case of an original will presented for
allowance.
Q: What should be filed?
A: A petition for allowance of will accompanied by:
1. An authenticated copy of the will
2. An authenticated decree of the allowance thereof
SEC. 3. When will allowed, and effect thereof.—If it appears at the hearing that
the will should be allowed in the Philippines, the court shall so allow it, and a
certificate of its allowance, signed by the judge, and attested by the seal of the
court, to which shall be attached a copy of the will, shall be filed and recorded by
the clerk, and the will shall have the same effect as if originally proved and allowed
in such court.
Q: What are the requisites before a will proven outside the Philippines be
allowed here?
A:
1. The testator was domiciled in a foreign country;
2. The will has been admitted to probate in such country;
3. The foreign court is, under the laws of said foreign country, a probate
court with jurisdiction over the proceedings;
4. Proof of compliance with the law on probate procedure in said foreign
country;
5. The legal requirements in said foreign country for the valid execution of
the will have been complied with;
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Restated: The laws of the foreign country on the procedure for
allowance of wills have been complied with. (Suntay v. Suntay)
6. Filing a petition in the Philippines with copy of the will and of its decree of
allowance; and
7. Notice and hearing. (PCIB v. Escolin, G.R. No. 76714, June 2, 1994)
Note: Under the doctrine of processual presumption, there must be evidence to
prove the existence of foreign law, otherwise the court should presume that the law
of the foreign country is the same as Philippine laws.
Q: What should be submitted?
A:
1. Petition for Reprobate
2. An authenticated certificate of allowance
3. A duly authenticated copy of the will.
Fluemor v. Hix – It is the theory of the petitioner that the alleged will was
executed in Elkins, West Virginia by Hix who had his residence in that jurisdiction,
and that the laws of West Virginia govern. To this end, there was submitted a copy
of section 3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, as
certified to by the Director of the National Library. But this was far from a
compliance with the law. The laws of a foreign jurisdiction do not prove themselves
in our courts. The courts of the Philippine Islands 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. The requirements of the law were not met. There was no showing
that the book from which an extract was taken was printed or published under the
authority of the State of West Virginia, as provided in section 300 of the Code of
Civil Procedure. Nor was the extract from the law attested by the certificate of the
officer having charge of the original, under the seal of the State of West Virginia, as
provided in section 301 of the Code of Civil Procedure. No evidence was introduced
to show that the extract from the laws of West Virginia was in force at the time the
alleged will was executed.
In addition, the due execution of the will was not established. The only
evidence on this point is to be found in the testimony of the petitioner… It was also
necessary for the petitioner to prove that the testator had his domicile in West
Virginia and not in the Philippine Islands. The only evidence introduced to establish
this fact consisted of the recitals in the alleged will and the testimony of the
petitioner.
Suntay v. Suntay - In the absence of proof that the municipal district court of
Amoy is a probate court and on the Chinese law of procedure in probate matters, it
may be presumed that the proceedings in the matter of probating or allowing a will
in the Chinese courts are the same as those provided for in our laws on the subject.
It is a proceeding in rem and for the validity of such proceedings personal notice or
by publication or both to all interested parties must be made.
Where it appears that the proceedings in the court of a foreign country were held for
the purpose of taking the testimony of two attesting witnesses to the will and the
order of the probate court did not purport to allow the will, the proceedings cannot
be deemed to be for the probate of a will, as it was not done in accordance with the
basic and fundamental concepts and principles followed in the probate and
allowance of wills. Consequently, the will referred to therein cannot be allowed, filed
and recorded by a competent court of this country.
 ! " # $ % & ' ( " ) * $ # # + % , - ! (
—The lack of objection to the probate of a lost will does not relieve the proponent RULE 78 - LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND
thereof or the party interested in its probate from establishing its due execution and TO WHOM ISSUED
proving clearly and distinctly the provisions thereof by at least two credible
witnesses, as provided for in section 6, Rule 77 of the Rules of Court. SECTION 1. Who are incompetent to serve as a executors or
administrators.—No person is competent to serve as executor or administrator
Q: What law governs testamentary dispositions? who:
A: The Civil Code provides that the national law of the testator will govern. (a) Is a minor;
(b) Is not a resident of the Philippines; and
Miciano v. Brimo - Article 10 of the Civil Code which, among other things, provides (c) Is in the opinion of the court unfit to execute the duties of the trust by reason of
the following: drunkenness, improvidence, or want of understanding or integrity, or by reason of
"Nevertheless, legal and testamentary successions, in respect to the order of conviction of an offense involving moral turpitude.
succession as well as to the amount of the successional rights and the intrinsic
validity of their provisions, shall be regulated by the national law of the person Q: What is an executor?
whose succession is in question, whatever may be the nature of the property or the A: A person nominated by a testator in his will to carry out his direction and
country in which it may be situated." request thereof and to dispose of the property according to his testamentary
provisions after his death. (If woman- Executrix)
But the fact is that the oppositor did not prove that said testamentary dispositions
are not in accordance with the Turkish laws, inasmuch as he did not present any Q: What is an administrator?
evidence showing what the Turkish laws are on the matter, and in the absence of A: A person appointed by the court of probate to administer and settle intestate
evidence on such laws, they are presumed to be the same as those of the estates and such testate estates where no executor is named, or the executors
Philippines. named are incompetent, refuses the trust or fails to give a bond. (If woman-
Administatrix).
SEC. 4. Estate, how administered.—When a will is thus allowed, the court shall
grant letters testamentary, or letters of administration with the will annexed, and Q: What is an administrator with a will annexed
such letters testamentary or of administration, shall extend to all the estate of the A: An administrator appointed by the court in cases when, although there is a will,
testator in the Philippines. Such estate, after the payment of just debts and the will does not appoint any executor, or if appointed, said person is either
expenses of administration, shall be disposed of according to such will, so far as incapacitated or unwilling to serve as such.
such will may operate upon it; and the residue, if any, shall be disposed of as is
provided by law in cases of estates in the Philippines belonging to persons who are Executor Administrator
inhabitants of another state or country. Nominated by the testator and Appointed by the court in case the will
appointed by the court. did not appoint an executor, or if he
Q: What is the extent of the power of administration of the estate granted refused appointment, or if the will was
by a court? disallowed or if the deceased died
A: The general rule universally recognized is that administration extends only to the without a will.
assets of a decedent within the state or country where it was granted (Domiciliary Must present the will to the court within none
Administrator), so that an administrator appointed in one state or country has no 20 days after knowledge of the death of
power over property located in another state or country (Leon and Ghezzi v. the testator, or after he knows that he
Manufacturers Life Ins. Co.) was appointed as executor (if he
obtained such knowledge after death),
Q: What are the effects of reprobate? unless the will has reached the court.
A: Testator may provide that the executor REQUIRED
1. The will shall have the same effect as if originally proved and allowed in serve without a bond (BUT the court
the Philippines (Sec. 3, Rule 77); may direct him to give a bond to pay
2. Letters testamentary or administration with a will annexed shall extend to debts incurred against the estate)
all estates of the testator in the Philippines (Sec. 4, Rule 77); and The amount of compensation to be Amount of compensation strictly
3. Such estate, after the payment of just debts and expenses of received may be provided for by the governed by §7, Rule 85.
administration, shall be disposed of according to the will, so far as such will, testator in the provisions of the will,
may operate upon it, and the residue, if any, shall be disposed of as otherwise §7, Rule 85 will be followed.
provided by law in cases of estates in the Philippines belonging to persons
who are inhabitants of another country (Sec. 4, Rule 77). Q: What is the nature of the office of an Executor/Administrator?
A: They are trustees, and funds of the estate are trust funds, and as such, they are
held to the same responsibilities and duties as a trustee. They occupy positions of
the highest trust and confidence; they are required to exercise reasonable diligence
and act in entire good faith in the performance of that trust.
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Q: What is the reason for the appointment of an Executor/Administrator?
A: It is a means provided by the rules to protect not only the estate of the deceased,
but also the rights of creditors in order that they may be able to collect their credit;
and for the heirs and legatees so that they may receive the portions of their
inheritance or legacies pertaining to them, after all the debts and expenses have
been paid. Hence the judicial administrator is the legal representative not only of
the testate or intestate estate, but also of the creditors and the heirs/legatees, in as
much as he represents their interest.
Q: Who are COMpetent to act as executors/administrators?
A: He must be capable of making a will or is not especially disqualified. A person or
association authorized to conduct the business of a trust company in the Philippines
may be appointed in the same manner as an individual. So, basically a person:
1. Of age
2. Resident of the Philippines
3. The court deems him fit (i.e. not a drunkard)
Q: Who are INcompetent to act as executors or administrators?
A: Under §1 R. 78, the persons who are disqualified or incompetent are the ff:
1. Minors
2. Non-residents of the Philippines
3. Those who, in the opinion of the court are unfit to exercise the duties of
the trust by reason of:
a. Drunkenness
b. Improvidence
c. Want of understanding
d. Want of integrity
e. Conviction of an offense involving moral turpitude.
Q: Why is a minor disqualified or incompetent to serve?
A: Because as a general rule, a minor is incapacitated to enter into contracts, and
needs the assistance of a guardian or legal representative to exercise any valid act.
Q: Why is a non-resident of the Philippines disqualified or incompetent to
serve?
A: There is nothing in the law which requires the courts to appoint residents only as
administrators or guardians. However, notwithstanding the fact that there are no
statutory requirements upon this question, the courts, charged with the
responsibilities of protecting the estates of deceased persons, wards of the estate,
etc., will find much difficulty in complying with this duty by appointing
administrators and guardians who are not personally subject to their jurisdiction.
Notwithstanding that there is no statutory requirement, the courts should not
consent to the appointment of persons as administrators and guardians who are not
personally subject to the jurisdiction of our courts here. (Guerrero v. Teran)
Q: What is the degree of drunkenness which would disqualify a person from
being an executor/administrator?
A: It is the degree that would impair a person’s sound judgment and reason and
which would necessarily affect his integrity and honesty.
Q: What is improvidence?
A: it generally connotes unwise or ill-advised spending. An executor or
administrator is entrusted with the management of an estate and an improvident
person lacks the good judgment and foresight required.
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Q: Is being a gambler a disqualification?
A: Although not enumerated as a ground, if it is of such a degree as to render him
unfit or unsuitable for the position of executor or administrator, then it amounts to a
disqualification.
Q: What is meant by “want of understanding”?
A: It means lacking the knowledge to know the nature of the functions of an
executor or administrator.
Q: What is meant by “lack of integrity”?
A: Generally connotes a person’s lack of credibility as to affect his honesty.
Q: What if the person possesses an antagonistic interest towards the
estate?
A: Mere antagonistic interest does not disqualify a person outright from being
appointed.
Q: Why are drunkards, convicts etc. disqualified or incompetent to serve?
A: The abovementioned may be unfit in the opinion of the court, to discharge the
duties of an executor or administrator. It must be noted however, that the unfitness
of a person depends solely on the discretion of the court.
Q: Can a corporation or an association act as an executor or administrator?
A: YES. If it is authorized to conduct the business of a trust company in the
Philippines, then it may be appointed as an executor, administrator, guardian of an
estate, or trustee, in like manner as an individual. However, it cannot be appointed
as a guardian over the person of the ward.
Q: Can the court add more disqualifications/use other grounds?
A: YES. The court has the discretion in determining whether a person is fit to be
appointed as an executor or administrator.
Navas L. Sioca v. Garcia - The determination of a person's suitability for the office
of administrator rests, to a great extent, in the sound judgment of the court
exercising the power of appointment and such judgment will not be interfered with
on appeal unless it appears affirmatively that the court below was in error.
Unsuitableness may consist in adverse interest of some kind or hostility to those
immediately interested in the estate as to render his appointment unadvisable. The
court below stated facts which may constitute sufficient grounds for setting aside
the appellant's preferential rights and which, in the absence of proof to the contrary,
must be presumed sufficient.
Q: X keeps on borrowing from the testator, and has no means to support
his own family, nevertheless he was named the executor of the estate. AS
judge, will you issue letters testamentary to X? What if he is appointed as
an administrator?
A: The will of the testator should be given respect by the probate court, since the
appointment of an executor lies solely within the discretion of the testator. Should
the court, given its discretion, determine that the unworthiness, incapacity,
ineptitude and unfitness of such person is manifest and real, it can disapprove such
appointment as directed by the testator.
- A person who has some liabilities to some heirs and to the estate as a whole
may likewise not be appointed as administrator because he cannot be
expected to compatibly perform the duties of the office. He would be
 ! " # $ % & ' (
considered as unsuitable for appointment since he would have an adverse
interest of some kind in the estate.
- Clerks of court and other court personnel of the probate court should not be
appointed as administrators or receivers of estates so as not to compromise
their objectivity and impartiality in the performance of their regular functions.
SEC. 2. Executor of executor not to administer estate.—The executor of an
executor shall not, as such, administer the estate of the first testator.
- This section provides that an executor of an executor cannot
administer the estate of the first testator.
Q: What is meant by administrator De Bonis Non?
A: One who is appointed as the new administrator after the death of an executor
who was not able to settle the estate of the first decedent during his lifetime.
i.e. A appoints B as executor. B in turn, appoints C in his own will as his executor. If
A and then B dies, C can only administer B’s estate, but not A’s.
However, C can be appointed by the court, as administrator of the estate of A.
SEC. 3. Married women may serve.—A married woman may serve as executrix
or administratrix, and the marriage of a single woman shall not affect her authority
so to serve under a previous appointment
- A change of status of a woman does not affect her qualification to act as
administatrix or executrix.
SEC 4 Letters testamentary issued when will allowed.—When a will has 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 bond as
required by these rules
Q: What authority is issued to the person who administers the estate?
A:
1. Letters testamentary – authority issued to an executor named in the will to
administer the estate;
2. Letters of administration – authority issued by the court to a competent person
to administer the estate of the deceased who died intestate; or
3. Letters of administration with a will annexed – authority issued by the court to
a competent person to administer the estate of the deceased if the executor
named in the will refused to accept the office, or is incompetent.
Q: Who issues Letters Testamentary?
A: The Clerk of Court by authority of a probate judge.
Q: When are they issued?
A: After the will has been filed and an appropriate probate proceeding had, where
the will was admitted.
Q: Is the date of issuance the point of reckoning regarding the effectivity
of the letters testamentary?
A: NO. The letters retroact to the testator’s death.
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Q: May an executor refuse the trust when in consideration of such refusal
the heirs “compensate” him? (i.e. bribe him)
A: NO. He may not refuse the trust by reason of public policy.
Q: Is §4 of Rule 78 mandatory in the sense that when a will has been
proved/allowed, the courts have no alternative but to issue letters
testamentary to the person named as executor therein?
A: When the retired bishop Monsignor Gorordo chose Father Mercado as executor
and administrator of his estate after his death, he must have had good and
sufficient reasons therefore, and his will must be respected. The evidence shows
that when the deceased bishop made his will naming said priest in preference to
anybody else, he was in the full enjoyment of his intellectual faculties. Under the
circumstances, it is not only just but also right to fully comply with his last will; and
this is precisely what the lower court did in confirming the appointment of Father
Mercado as executor.
However, the Court in the same case also held:
While it is true, as the appellants contend, that this provision of the law
should not be strictly interpreted because the court would be deprived of its power
not to appoint, in certain cases, one who is unworthy of the trust, notwithstanding
the fact that he was named as such by the testator; it is also true that in order to do
this, the unworthiness, incapacity, ineptitude and unfitness of such person must be
manifest and real and not merely imaginary. (Mercado v. Vda. De Jaen)
Q: So what is the extent of the court’s power over the testator’s choice?
A: The court itself CANNOT make an original appointment of an executor, since its
power is limited to recognizing and approving or disapproving an appointment by
the testator.
Q: When a will has been admitted to probate but was appealed, may a
special administrator be appointed in the meantime?
A: The choice of his executor is a precious prerogative of a testator, a necessary
concomitant of his right to dispose of his property in the manner he wishes. It is
natural that the testator should desire to appoint one of his confidence, one who can
be trusted to carry out his wishes in the disposal of the estate. The curtailment of
this right may be considered as a curtailment of the right to dispose. And as the
rights granted by will take effect from the time of death, the management of his
estate by the administrator of his choice should be made as soon as practicable,
when no reasonable objection to his assumption of the trust can be interposed any
longer. It has been held that when a will has been admitted to probate, it is the duty
of the court to issue letters testamentary to the person named as executor upon his
application. It is the testator that appoints his executor, as the question as to his
peculiar fitness for such a position or his want of ability to manage the estate cannot
be addressed to the discretion of the county judge.
And where the probate court pending appeal against its order admitting a
will to probate and appointing as judicial administrator, the person named therein as
executor, appoints as special administrator any person other than the executor
named in a will, it commits a grave abuse of discretion.
On Special Administrators: The appointment of special administrators is not
governed by the rules regarding the appointment of regular administrators. But
while the choice lies within the court's discretion, the discretion should not be a
whimsical one, but one that is reasonable and logical and in accord with
fundamental legal principles and justice. The fact that a judge is granted discretion
 ! " # $ % & ' (
does not authorize him to become partial, or to make his personal likes and dislikes
prevail over, or his passions to rule, his judgment. There is no reason why the
same fundamental and legal principles governing the choice of a regular
administrator should not be taken into account in the appointment of the
special administrator. (Ozaeta v. Pecson and BPI)
SEC. 5. Where some coexecutors disqualified others may act.—When all of
the executors named in a will can not 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 they may perform the duties and discharge the trust required by the will.
Q: What is the nature of the act of the executors in §5?
A: The act of one is the act of all. There is an equality of authority amongst
executors.
Q: What is the nature of liability of coexecutors?
A: Their liability is solidary or joint and several.
Q: May the court appoint more than one executor or administrator?
A: YES. More than one executor may be issued letters testamentary in accordance
with the nomination in the will. Also, while as a rule the court appoints only one
administrator in intestate estates, more than one MAY be appointed by the court.
Q: When there is more than one executor or administrator, what is the
extent of their authority?
A: The general practice is that each one exercises joint administration over the
estate. They have equal authority among themselves, since under the law they are
one person in representation of the testator. An agreement between the executors
or administrators that one of them alone shall manage the estate is VOID.
SEC. 6. When and to whom letters of administration granted.—If no executor
is named in the will, or the executor or executors are incompetent, refuse the trust,
or fail to give bond, or a person dies intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or both,
in the discretion of the court, or to such person as such surviving husband or wife,
or next of kin, requests to have appointed, if competent and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of kin, or the
person selected by them, be incompetent or unwilling, or if the husband or widow,
or next of kin, neglects for thirty (30) days after the death of the person to apply for
administration or to request that administration 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 competent and willing to serve, it may be granted to
such other person as the court may select.
Q: What are the instances wherein letters of administration are granted?
A: 1. Decedent WITH a will.
a. without appointing an executor
b. appoints an executor who is incompetent
c. the appointed executor refuses
d. the appointed executor fails to give a bond.
2. Decedent without a will
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Q: Does §6 require that the estate of a person who died leaving property in
the Philippines, must always be judicially administered?
A: Rule 74 establishes two exceptions [extra-judicial and summary settlement]
Q: What is required for the validity of the appointment of the
administrator?
A: A hearing of the petition for administration must be conducted and notices sent
to the other heirs and interested parties. The hearing and notification is essential to
the validity of the proceeding for the appointment of an administrator in order that
no person may be deprived of his rights or property without due process.
Moreover, a hearing is necessary to determine the suitability of the
applicant to the trust by giving him the opportunity to prove his qualifications and
affording oppositors, opportunity to contest.
Q: State the order of preference in granting letters of administration. (to
whom letters are granted)
A: If no executor is named in the will, or the executors are incompetent, refuse the
trust, or fail to give the bond, or a person dies intestate, administration shall be
granted to:
1. 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
[NOTE: Next of Kin – persons entitled by law to receive the decedent’s
property.]
2. The principal creditors, if competent and willing to serve, if the surviving
spouse or next of kin, or the person selected by them be incompetent or
unwilling or if the surviving spouse or next of kin neglects for 30 days after
the death of the person to apply for administration or to request that
administration be granted to some other person
3. Such other person as the court may select if there is no such creditor
competent and willing to serve. (Sec. 6)
NOTE: Order of preference may be disregarded for a valid cause.
Q: What is the basis or primary consideration in appointing an
administrator?
A: The principal consideration reckoned in the appointment of the administrator of
the estate is the interest in said estate, of the one to be appointed as such
administrator. This is the same consideration taken into account in establishing the
order of preference in the appointment of administrators for the estate (Nicolasa
De Guzman v. Angela Limcolioc)
Q: What is the rational behind the order of preference in appointing an
administrator?
The underlying assumption behind the rule 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 of mismanagement, have the highest
interest and most influential motive to administer the estate correctly. (Gonzales v.
Aguinaldo)
NOTE: Co-executors may be appointed for the benefit of the estate and those
interested therein.
Under both Philippine and American jurisprudence, the appointment of co-
administrators has been upheld for various reasons:
 ! " # $ % & ' (
(1) To have the benefit of their judgment and perhaps at all times to have
different interests represented;
(2) Where justice and equity demand that opposing parties or factions 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 for the best interests of the estate; and
(5) When a person entitled to the administration of an estate desires to have
another competent person associated with him in the office. (Gonzales v.
Aguinaldo, Gabriel v. CA)
Q: Why is the Surviving Spouse preferred above all others?
A: Since the principal consideration in appointing an administrator is the interest in
the estate, the surviving spouse is preferred since the law, takes in to account the
interest of the surviving spouse as a partner in the conjugal partnership.
Q: What is the effect of the invalidity of the marriage upon the surviving
spouse’s right to b appointed an administrator?
A: It is not affected by the fact that the marriage is VOIDABLE. But where the
marriage is VOID, the surviving spouse’s prior right is not recognized.
Q: Is preference of the surviving spouse a hard and fast rule?
A: NO. If the interest in the estate is what determines the preference in the
appointment of an administrator, and if, under the circumstances, it develops that
there is another who has more interest than the surviving spouse, the preference is
inapplicable.
An example would be if the whole/majority of the estate was acquired by
the decedent during his first marriage, children of the first marriage shall be
preferred to the childless widow of the second marriage in the selection of an
administrator. The order of preference established in §6 Rule 78 is founded on the
assumption that the persons preferred are suitable. If they are not, the court may
entirely disregard the preference thus provided.
NOTE: This only applies when the reasons for NOT appointing those stated in the
order of preference are positive and clear.
Q: What is meant by the term “next of kin”?
A: It means heirs under our laws of succession.
Q: Why are the next of kin preferred over the surviving spouse?
A: Because compulsory heirs are entitled to the decedent’s property. The nearest of
kin, whose interest is most preponderant, is preferred.
Q: Who are the creditors that may be appointed administrator?
A: One is a creditor within the rule if the decedent was indebted to him personally,
or by operation of law he becomes a legal owner of a claim against a decedent.
Moreover, when those to whom the estate would go under the law offer to pay the
claim and tender the same, all reasons for giving the creditor a preference for
appointment as an administrator ceases.
Q: What is the extent of the grant of letters of administration?
A: Extends only to the assets of the decedent found within the state or country
where it was granted.
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Q: So what happens if the decedent left properties in different
states/countries?
A: When a person dies intestate owning property in the country of his domicile as
well as in another country, administration is to be had in both countries.
1. Principal/ Domiciliary Administration - The one granted in the
jurisdiction of the decedent’s last domicile.
2. Ancillary Administration – any other administration granted where the
decedent has property. (Johannes v. Harvey)
Q: To whom are ancillary letters granted?
A: Ancillary letters may be granted in the Philippines according to the order of
preference stated in §6, if the person to be appointed is a resident of the Philippines
and is not incompetent. Otherwise, ancillary letters may be granted to the
domiciliary representative, if he applies therefore, or his nominee or attorney. There
being no express statutory requirement on the matter, the court may, in its
discretion appoint some other person.
Q: What is the duty of the ancillary administrator?
A: To pay the claims of the creditors if any, settle the accounts, and remit the
surplus to his domiciliary jurisdiction, for distribution among his next of kin.
Q: What is the territorial extent of the appointment of the ancillary
administrator?
A: The same as the extent of appointment of any other administrator, limited to
assets of the decedent within the state or country where it was granted.
RULE 79 - OPPOSING ISSUANCE OF LETTERS TESTAMENTARY. PETITION
AND CONTEST FOR LETTERS OF ADMINISTRATION
SECTION 1. Opposition to issuance of letters testamentary. Simultaneous
petition for administration.—Any person interested in a will may state in writing
the grounds why letters testamentary should not issue to the persons named therein
as executors, or any of them, and the court, after hearing upon notice, shall pass
upon the sufficiency of such grounds. A petition may, at the same time, be filed for
letters of administration with the will annexed.
Q: Who may oppose the issuance of letters testamentary or
administration?
A: Any person interested in the will may file a written opposition.
Note: He may attach thereto a petition for letters of administration and pray that
letters be issued to himself, or to any competent person named in the opposition
(Sec. 1, Rule 79).
Q: Who is an interested person?
A: Anyone who would be benefitted by the estate, such as an heir or one who has a
claim, such as a creditor.
Q: Who are heirs deemed interested persons?
A: Only forced heirs of the deceased are considered interested persons entitled to
intervene, in order to protect their interest insofar as they may have been
prejudiced by the will of the decedent. Non-forced heirs have no right to any part of
the property left by the testator once he had disposed of the same by will.
(Gutierrez del Campo v. Varela Calderon)
 ! " # $ % & ' (
Q: So what is the interest required in order to make a person a party?
A: The persons interest must be material and direct and not merely indirect or
contingent, so that he will be materially benefitted or injured by the court’s order or
judgment. (Trillana v. Crisostomo)
[This case held that nephews and nieces have no legal interest, because in this
case their interest is purely contingent and dependent on several uncertain and
future events]
Q: What is the effect of an execution of an heir of a Deed of Assignment of
his rights, interests and participation in the estate?
A: The rule is that every act intended to put an end to indivision (such as a deed or
assignment) among co-heirs, legatees or devisees is deemed to be partition,
although it should purport to be a sale, exchange, compromise or any other
transaction. Since these are in the nature of an extrajudicial partition, court
approval is imperative, and the heirs cannot divest the court of jurisdiction over the
estate and over their persons, by a mere act or assignment and desistance.
However, even if the partition had been judicially approved based on the alleged
deed of assignment, an aggrieved heir does not lose her standing in the probate
court.
In other words, if the settlement of the estate is already pending before
the probate court, mere assignment of one’s rights, interests and participation in the
estate does not have the effect of losing one’s standing or right in the probate court
whether or not such has been judicially approved. (Gutierrez v. Villegas)
Why? Because at the time of the assignment, the settlement court already
acquired jurisdiction over the properties of the estate. As a result, any assignment
has to be approved by the court. And since the approval of the court is not deemed
final until the settlement of the estate is closed, the assigning heir remains an
interested person even after approval of the assignment, which can be subsequently
vacated by the court.
Q: What is the effect of such an assignment?
A: If the assignment took place where no settlement proceeding was pending, the
properties subject matter of the assignment were not under the jurisdiction of the
settlement court. Consequently, the assigning heir is left without any interest
in the estate and cannot subsequently petition for its settlement.
- In the instant case, the assignment took place when no settlement proceeding
was pending. The properties subject matter of the assignment were not under the
jurisdiction of the settlement court. Allowing that the assignment must be deemed
a partition as between the assignor and assignee, the same does not need court
approval to be effective as between the parties. An extrajudicial partition is valid as
between the participants even if the requisites of Sec. 1, Rule 74 for extrajudicial
partition are not followed, since said requisites are for purposes of binding creditors
and non-participating heirs only.
Should it be contended that said assignment or partition was attended with fraud,
lesion or inadequacy of price, the remedy is to rescind or to annul the same in
an action for that purpose. And in the meanwhile, the assigning heir cannot
initiate a settlement proceedings, for until the deed of assignment is annulled or
rescinded, it is deemed valid and effective against him, so that he is left without that
"interest" in the estate required to petition for settlement proceedings. (Duran v.
Duran)
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Q: Is it necessary for the person filing an opposition that he himself should
be eligible for appointment?
A: NO. Where one has interest, the fact that he himself is not eligible for
appointment does not deprive him of his right to object to the appointment of
another.
Q: X died and was survived by sons Y and Z. X’s will named Y as executor.
Can Z, a minor, oppose the appointment of Y on the ground that Y is a
drunkard?
A: YES. Z can oppose his brother. His disqualification as a minor does not stop him
from filing an opposition if he believes reasonable grounds exist.
Q: Can a legatee file an opposition to the issuance of letters of
administration?
A: The Court has held that the legacy constituted in a will suffices to grant the
legatee personality necessary to ask that appropriate measures be taken for the
preservation of such rights, should the will be eventually be probated. This includes
the right to intervene in the manner of appointment of an administrator, whether
special or regular.
Q: In what form must an opposition be?
A: It must be in writing, signed by the applicant, stating the facts essential to give
the court jurisdiction over the case. It must state the grounds why the letters
testamentary should not issue to the persons named therein as executors.
Note: Letters of administration may be granted to any qualified applicant, though it
appears that there are other competent persons having better right to the
administration, if such persons fail to appear when notified and claim the issuance of
letters to themselves (Sec. 6, Rule 79).
Q: Suppose X died and was survived by Y, Z and A. Y was named
administrator, and Z filed an opposition thereto. Does the opposition of Z
bind A, or does A need to file a separate opposition?
A: Z’s opposition is binding upon A, who does not have to file another opposition. An
objection raised by one party invites to the benefit of all parties interested in the
subject.
Q: What must the court DO when an opposition to the issuance of letters
testamentary is filed by an interested party?
A:
1. Cause NOTICE to be given
2. SET DATE for hearing
3. PASS UPON the sufficiency of such grounds during the hearing.
SEC. 2. Contents of petition for letters of administration.—A petition for
letters of administration must be filed by an interested person and must show, so
far as known to the petitioner.
(a) The jurisdictional facts;
(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.
But no defect in the petition shall render void the issuance of letters of
administration.
 ! " # $ % & ' (
Q: What are the contents of a petition for letters of administration?
A:
1. Jurisdictional facts;
2. Names, ages and residences of the heirs, and the names and residence of the
creditors of the deceased;
3. The probable value and character of the estate (for initial inventory purpose);
4. Name of the person for whom letters of administration are prayed
NOTE: These are the same requirements when filing a petition for probate, and
similarly, no defect in the petition shall render the issuance of letters of
administration void.
Q: In a petition for letters administration, what jurisdictional facts must
be alleged?
A:
1. If the decedent is a resident, his last place of residence, which must be within
the territorial jurisdiction of the court before whom the petition is brought;
2. If the decedent is a non-resident, the place where he has an estate which
must be within the territorial jurisdiction of the court before whom the petition
is brought;
3. Names, ages and residences of possible heirs and creditors;
4. The probable value of the estate (for establishing proper court jurisdiction);
5. The name of the person for whom the letters is prayed for.
(De Guzman v. Angeles)
Q: How do you establish jurisdictional facts in court during the petition for
letters of administration?
A:
1. Order of notice
2. Affidavit of publication
3. Actual copies of the newspaper where the notice was published
4. Registry return card/Sheriff’s return
5. Death certificate of decedent
SEC. 3. Court to set time for hearing. Notice thereof.—When a petition for
letters of administration is filed in the court having jurisdiction, such 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, in the Manner provided in sections 3 and 4 of Rule
76.
Q: What must the court do when a petition for letters of administration is
filed?
1. Fix the time and place for hearing of the petition
2. Cause notice thereof to be given to:
a. Known heirs of the decedent
b. Known creditors of the decedent
c. Other persons believed to have an interest in the estate.
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Q: What kind of notices are required to be made before the hearing of the
petition for letters of administration?
A: The requirements are the same as the ones needed in the petition for the
probate of a will under Rule 76. Hence there must be:
1. Notice of the time and place of the hearing published for three weeks
successively prior to the time appointed, in a newspaper of general
jurisdiction in the province where the court has jurisdiction.
2. Notice of such must also be given to:
a. Known heirs
b. Creditors
c. Any other person who has an interest in the estate
How? Registered mail or Personal service.
Q: Why is there a need for such notice?
A: To bring ALL interested persons within the jurisdiction of the court, so that the
judgment therein becomes binding on all the world. Where no notice has been given
to people believed to have an interest in the said estate, the proceeding for the
settlement of the estate is VOID and should be annulled. Notice is essential to the
validity of the proceeding in order that no person may be deprived of his right to
property without due process of law. Notice through publication is jurisdictional,
the absence of which makes court orders affecting other persons, subsequent to the
petition, VOID. (De Guzman v. Angeles)
Q: What is the difference between the jurisdiction of the probate court over
the proceedings for the administration of the estate and its jurisdiction
over persons who are interested in the settlement?
A: For a court to acquire jurisdiction over the persons interested in the settlement of
the estate, notices by publication are essential.
Q: Is the order of Appointment of Regular Administrator final?
A: NO. The order of appointment of a regular administrator is appealable. Where no
notice is required by §3, Rule 79 of the Rules of Court has been given to persons
believed to have an interest in the estate of the deceased person; the proceeding for
the settlement of the estate is void and should be annulled. The requirement as to
notice is essential to the validity of the proceeding in order that no person may be
deprived of his right to property without due process of law.
Q: May the order FIXING THE DATE FOR HEARING appealable?
A: NO. It is merely an interlocutory order, deciding no controversy, affects no rights
and determines nothing. It simply gives the parties an opportunity to be heard, and
the court an occasion for action.
SEC. 4. Opposition to petition for administration.—Any Interested person may,
by filing a written opposition, contest the petition on the ground of the
incompetency of the person for whose letters are prayed therein, or on the ground
of the contestant’s own right to the administration, and may pray that letter issue to
himself, or to any competent person or persons named In the opposition.
Q: What are the grounds for opposing a petition for administration?
A: Any interested person may by filing a written opposition, contest the petition on
the ground of the:
1. Incompetency of the person for whom letters are prayed therein; or
2. Contestant's own right to the administration (Sec. 4, Rule 79).
 ! " # $ % & ' (
SEC. 5. Hearing and order for letters to issue.—At the hearing of the petition,
it must first be shown that notice has been given as hereinabove required, and
thereafter the court shall hear the proofs of the parties in support of their respective
allegations, and if satisfied that the decedent left no will, or that there is no
competent and willing executor, it shall order the issuance of letters of
administration to the party best entitled thereto.
Q: What is the duty of the court?
A: If the court is satisfied that:
1. The notice requirements under §3 have been duly complied with; and
2. The decedent left no will, and that there is no competent and willing
executor
It shall order the issuance of letters of administration to the person entitled thereto.
SEC. 6. When letters of administration granted to any applicant.–Letters of
administration may be granted to any qualified applicant, though it appears that
there are other competent persons having better right to the administration, if such
persons fail to appear when notified and claim the issuance of letters to themselves.
Q: TO whom may letters of administration be granted?
A: Under §6 of this rule it may be granted to any qualified applicant.
Q: Suppose Y, after filing a petition for letters of administration, was
named the administrator of A’s estate by the probate court because X, who
was named executor and who was more qualified, did not know of the
petition filed by Y and/or he did not know he was named as such. What is
the remedy of X?
A: File a motion to revoke in the same proceeding [if X had ben notified, he would
be bound by the order of the court appointing Y].
NOTE: The appointment of an administrator of an estate is not void because
another person seeking appointment has a better right to such.
So, the acts of the person erroneously appointed as the administrator remain
VALID, although the order appointing such person may be voidable in a direct
proceeding instituted by those having a superior right. [In this case, the
appointment of the wrong person is an irregularity, subjecting the order to direct
attack, but not the invalidation of acts done in pursuance of the law in the course of
the administration by him who has been erroneously appointed.]
Q: May a creditor be appointed an administrator?
A: YES. If the heirs of the debtor do not institute an estate proceeding to settle his
estate and fails to apply for letters of administration in order that the creditors claim
for money may be settled.
RULE 80 - SPECIAL ADMINISTRATOR
SECTION 1. Appointment of special administrator.—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, the court may appoint a special
administrator to take possession and charge of the estate of the deceased until the
questions causing the delay are decided and executors or administrators appointed.
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REGULAR SPECIAL ADMINISTRATOR
ADMINISTRATOR
Order of Appointment may be Order of Appointment is
the subject of an appeal interlocutory and hence not
appealable
One of the obligations is to Cannot pay the debts of the
pay the debts of the estate estate
Appointed when the Appointed when there is
deceased died intestate or did delay in granting letters
not appoint an executor in the testamentary or
will or the will was disallowed administration
Q: What are special administrators?
A: Special administrators are officers of the Court, subject to the control and
supervision of the probate court, and are expected to work in the best interest of
the entire estate, its smooth administration and earliest settlement.
Q: When may a special administrator be appointed?
A:
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 (Sec.
1, Rule 80); or
2. When the executor or administrator is a claimant against the estate he
represents (Sec. 6, Rule 86). In this case, the special administrator
administers only the portion over which there is such a claim.
Q: May two or more special administrators be appointed at the same time?
A: As under the law, only one general administrator may be appointed to administer,
liquidate and distribute the estate of a decedent. It clearly follows that only one
special administrator may be appointed to administer temporarily said estate.
Because a special administrator is but a temporary administrator appointed in lieu of
the general administrator (Roxas v. Pecson)
Q: Why is there a need for appointing a special administrator?
A: The principal object is to preserve the estate until it can pass into the hands of
persons fully authorized to administer it for the benefit of the creditors and heirs (De
Guzman v. Guadiz, G.R. No. L-48585, Mar. 31, 1980).
Q: What is the basis for appointing a special administrator?
A: As the law does not say who shall be appointed as special administrator and the
qualifications the appointee must have, the judge or court has discretion in the
selection of the person to be appointed, discretion which must be sound, that is, not
whimsical or contrary to reason, justice or equity.
Q: Is the preference accorded by §6 of Rule 78 in the appointment of an
administrator applicable to the appointment of a special administrator?
A:
NO. The preference accorded by Section 5 of Rule 78 of the Revised Rules of Court
to the surviving spouse, for appointment as administrator or administratrix of the
estate of the deceased, exists "if no executor is named in the will or the executor or
executors are incompetent, refuse the trust, or fail to give bond, or a person dies
 ! " # $ % & ' (
intestate." This right of preference refers to the appointment of a regular
administrator, not to that of a special administrator. (Pijuan v. Vda De Gurrea)
See also Roxas v. Pecson - It is well settled that the statutory provisions as to the
prior or preferred right of certain persons to the appointment of administrator under
section 1, Rule 81, as well as the statutory provisions as to causes for removal of an
executor or administrator under section 653 of Act No. 190, now section 2, Rule 83,
do not apply to the selection or removal of an special administrator.
Q: May the judge nevertheless use the preference in appointment of regular
administrators as a basis for the appointment of a special administrator?
A: YES. such order of preference may be followed by the judge in the exercise of
sound discretion (Matias v. Gonzales, G.R. No. L- 13391, May 25, 1960).
The fact that the judge is granted discretion does not allow him to become partial or
to make his personal dislikes and likes prevail over, or his passions to rule his
judgment. And there is no reason why the same legal and fundamental principles
governing the choice of a regular administrator should not be taken into account in
the appointment of a special administrator. After all, the consideration that
overrides the others in this respect is the beneficial interest of the appointee in the
estate of the decedent.
NOTE: The order appointing a special administrator lies within the discretion of the
probate court and is not appealable. [It is an interlocutory order]
Q: What is the remedy of the party aggrieved by an order granting a special
administrator?
A: Rule 65 based on GADALEJ. But such will delay the settlement even further.
Q: May the court motu propio appoint a special administrator?
A: YES. A special administrator may be appointed upon the application of any
interested party, as well as by the court upon its own motion without notice to the
parties.
SEC. 2. Powers and duties of special administrator.—Such special
administrator shall take possession and charge of the goods, chattels, rights,
credits, and estate of the deceased and preserve the same for the executor or
administrator afterwards appointed, and for that purpose may commence and
maintain suits as administrator. He may sell only such perishable and other property
as the court orders sold. A special administrator shall not be liable to pay any debts
of the deceased unless so ordered by the court.
Q: What are the powers and duties of a special administrator?
A:
Possess and take charge of the goods, chattels, rights, credits and estate of the
deceased, then:
1. Preserve the same for the executor or administrator afterwards appointed;
2. Commence and maintain suit for the estate;
3. Sell only perishable property and other property ordered sold by the court;
4. Pay debts only as may be ordered by the court. (Sec. 2, Rule 80)
5. Prepare and submit an inventory of the estate
6. Render an accounting of administration.
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Q: Can the special administrator sell perishable property without an order
by the court?
A: NO. The special administrator may sell or dispose of property of the estate, only
upon order of the court.
Q: May the special administrator be sued by a creditor for the payment of a
debt of the deceased?
A: NO. The suit must await the appointment of a regular administrator. However,
the special administrator may be made a defendant in a suit against the estate
where the creditor would suffer the running of the statue of limitations against them
if the regular appointment is delayed.
Q: What if the creditor already has a decision in his favor?
A: The creditor should apply for an order directing the special administrator to pay
the credit.
SEC. 3. When powers of special administrator cease. Transfer of effects.
Pending suits.—When letters testamentary or of administration are granted on the
estate of the deceased, the powers of the special administrator shall cease, and he
shall forthwith deliver to the executor or administrator the goods, chattels, money,
and estate of the deceased in his hands. The executor or administrator may
prosecute to final judgment suits commenced by such special administrator.
Q: When do the powers of special administrator cease?
A: After the questions causing the delay are resolved and letters testamentary or
administration are granted to executor or regular administrator. (Sec. 1)
Q: Are the grounds for removal of the regular administrator applicable to
the special administrator?
A: The statutory provisions as to the causes for removal of an executor or
administrator do not apply. The appointment and removal of a special administrator
rests entirely on the discretion of the court. The sufficiency of any ground for
removal should thus be determined by the court whose sensibilities are, in the first
place, affected by an act or in disregard of the rules or the orders of the court.
Q: Is an appointment of a special administrator appealable?
A: NO, this is expressly provided for in §1, Rule 109
NOTE: An appointment of a regular administrator, being a final order, may be
subject to an appeal.
RULE 81 - BONDS OF EXECUTORS AND ADMINISTRATORS
SECTION 1. Bond to be given before issuance of letters. Amount.
Conditions.—Before an executor or administrator enters upon the execution of his
trust, and letters testamentary or of administration issue, he shall give a bond, in
such sum as the court directs, conditioned as follows:
(a) To make and return to the court, within three (3) months, a true and complete
inventory of all goods, chattels, rights, credits, and estate of the deceased which
shall come to his possession or knowledge or to the possession of any other person
for him;
(b) To administer according to these rules, and, if an executor, according to the
will of the testator, all goods, chattels, rights, credits, and estate which shall at any
time come to his possession or to the possession of any other person for him, and
 ! " # $ % & ' (
from the proceeds to pay and discharge all debts, legacies, and charges on the
same, or such dividends thereon as shall be decreed by the court;
(c) To render a true and just account of his administration to the court within one
(1) year, and at any other time when required by the court;
(d) To perform all orders of the court by him to be performed.
Q: Why is the bond required before and executor or administrator enters
upon the execution of the trust?
A: This is intended as an indemnity to the heirs, creditors and the estate. The court
shall fix the amount thereof and hold it accountable for breach of duty on the part of
the administrator or executor. In other words, the bond is answerable for any failure
on the part of the executor or administrator to fulfill any of the conditions imposed
upon him in the execution of his trust.
Q: What is the effect of a failure to give a bond?
A: The standard of responsibility given to an executor or administrator is best
measured in relation to the responsibility of the bailee. Like the bailee, he must
pursue his discretion in honesty and good faith, or he will become personally liable
to those interested in the estate for waste, conversion or embezzlement. But where
an administrator or executor, entrusted with carrying on a an estate, acts in good
faith and in accordance with the usual rules and methods obtaining in such
business; he will not be held liable for any losses incurred. (Schouler on Wills,
Executors and Administrators, Chapter III; Allen and Hill vs. Shanks [1891],
90 Tenn., 359.)
- The general rule is that a personal representative will be protected in the
payment of a claim which has been duly allowed or ordered paid by the court,
although it should not have been paid in full, unless it is made to appear that such
allowance of the claim, or order for the payment thereof, was obtained through his
collusion or bad faith. (Tan v. Go Chiong)
Q: What are the duties or conditions imposed on the executor or
administrator?
A: To make and return to the court, within 3 months, a true and complete
inventory of all goods, chattel, rights, credits and estate of the deceased which shall
come to his possession or knowledge, or the possession of any other person for him:
1. To administer all goods, chattel, rights, credits and estate which shall at any
time come to his possession or to the possession of any other person for him
in accordance with the RoC, and in case of an executor, in accordance with the
will of the testator;
2. To pay and discharge all debts, legacies and charges upon the estate, or
such dividends thereon as shall be declared by the court from the proceeds of
the administration;
3. To render a true and just account of his administration within 1 year and at
any other time required by the court, and;
4. To perform all the orders of the court.
NOTE: The law does not impose upon an administrator a high degree of care in the
administration of the estate, but it does impose upon him ordinary and usual care,
for the want of which he is personally liable.
Q: What must an inventory made by the executor or administrator contain?
A: The inventory to be made and returned by an executor or administrator must
contain, not only a statement of all the properties of the deceased which have come
into his possession, but also such other property as may have come to his
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knowledge. Although he is not chargeable with the administration of the estate
which has not come into his possession, he is however accountable for a true and
complete inventory of all the property which has come into his knowledge.
Q: Who determines whether certain properties should or should not be
included in the inventory?
A: Although questions of title to real property cannot be determined in the
testate/intestate proceedings; for the purpose of determining whether or not a
certain property should be included in the inventory, the probate court may pass
upon title thereto, though such determination is not conclusive and is subject to
final determination in a separate action between the parties.
Q: What is the purpose of administration
A: The purpose is the liquidation of the estate and distribution of the residue
among the heirs, legatees and devisees. Liquidation means determination of all the
assets of the estate and payment of all the debts and expenses. An efficient
administration should therefore, consist not only in taking charge of the assets in a
manner which is safe and productive, but also the prompt payment of all the debts,
as well as expenses of administration incurred, with the view to an early distribution
of the remainder to the persons entitled thereto. The policy of these rules is to
close up the estate as promptly and as economically as possible.
Q: In the determination of the estate, may the executor or administrator
bind the estate by borrowing money or mortgaging any of the properties of
the estate to secure a debt to obtain a loan?
A: "It may be stated as a general proposition, that neither executors, unless
specially authorized by will, nor administrators, have the power to bind the estate of
the deceased by borrowing money." (The American Law of Administration, Woerner,
Vol. 2, sec. 345.)
In the case of Black vs. Dressel's Heirs, the Supreme Court of Kansas said:
"* * * That the statute grants no power to an administrator to borrow money upon
a mortgage of the real estate of the decedent, is not controverted. Indeed, such an
act is foreign to the policy and purpose of administration, which aims to close up,
not to continue an estate.” (Lizarraga Hermanos v. Abada)
Q: Within what span of time should the administration of estates be
settled?
A: §15 of Rule 88 provides that debts and legacies of the deceased should be paid
within 1 year, a period which may be extended to 2 years if the circumstances so
require.
Q: What is the effect of the executor or administrator’s failure to close up
the estate within the period prescribed by the rules?
A: While these sections may be considered as only directory, all Courts of First
Instance should exert themselves to close up estates within twelve months from the
time they are presented, and they may refuse to allow any compensation to
executors and administrators who do not actively labor to that end, and they may
even adopt harsher measures. (Lizarraga Hermanos v. Abada)
NOTE:
These harsher measures may be removal of the executor or administrator in
accordance with §2 Rule 82, or liability for damages under §5 Rule 85.
There can be no legal excuse for delaying the closure of administration to more
than 2 and a half years, as provided in §16 Rule 88.
 ! " # $ % & ' (
Q: In the administration of the estate, is the executor or administrator
authorized to continue the business in which the decedent was engaged at
the time of his death?
A: An executor or administrator ordinarily has no power to continue the business
in which the decedent was engaged at the time of his death; and this is true
although he acts in the utmost good faith and believes that he is proceeding for the
best interests of the estate. The penalty for continuing a business of the decedent
without authority is the imposition of a personal liability on the executor or
administrator so doing f or all debts of the business. The normal duty of the
personal representative in reference to such business is limited to winding it up, and
even where the beneficiaries are infants the court cannot authorize the
administrator to carry on the trade of the decedent.
- So great a breach of trust is it for the representative to engage in business with
the.funds of the estate that the law charges him with all the losses thereby incurred
without on the other hand allowing him to receive the benefit of any profits that he
may make, the rule being that' the persons beneficially interested in the estate may
either hold the representative liable for the amount so used with interest, or at their
election take all the profits which the representative has made by such unauthorized
use of the funds of the estate."
- However, an exception to the general rule is sometimes recognized; and
so it has been held that in order to settle an estate the personal representative may,
in some cases, be permitted to continue a busmess for a reasonable time. But even
in such cases the personal representatives are not, however, entitled to embark in
the business more of the testator's property than was employed in it at his death."
Q: May the bond be bound for the return of the money which the
administrator spent in good faith, and which he is unable to pay?
A: A surety upon an administrator’s bond is bound only for the faithful
administration of the estate, and not for the return of the money which the
administrator, in good faith, spent and which he is unable to repay. (Montemayor
v. Heirs of Gutierrez)
Q: In proceedings against a bond, is the surety entitled to due notice?
A: The surety is NOT entitled to notice of the proceeding against the administrator
but he may be allowed to intervene if he asks the court for leave to do so in due
time.
SEC. 2. Bond of executor where directed in will. When further bond
required.—If the testator in his will directs that the executor serve without bond, or
with only his Individual bond, he may be allowed by the court to give bond in such
sum and with such surety as the court approves conditioned only to pay the debts of
the testator; but the court may require of the executor a further bond in case of a
change in his circumstances, or for other sufficient cause, with the conditions named
in the last preceding section.
Q: May the testator exempt an executor from the requirement of posting a
bond by providing for such in his will?
A: Even if the testator provide in his will that his executor serve without a bond,
the court may still require him to file a bond conditioned only to pay the debts, and
thereafter, the court may require a further bond from the said executor to answer
for breaches in his administration.
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SEC. 3. Bonds of joint executors and administrators.—When two or more
persons are appointed executors or administrators the court may take a separate
bond from each, or a joint bond from all.
SEC. 4. Bond of special administrator.—A special administrator before entering
upon the duties of his trust shall give a bond, in such sum as the court directs,
conditioned that he will make and return a true inventory of the goods, chattels,
rights, credits, and estate of the deceased which come to his possession or
knowledge, and that he will truly account for such as are received by him when
required by the court, and will deliver the same to the person appointed executor or
administrator, or to such other person as may be authorized to receive them.
Q: What are the conditions of a special administrator’s bond?
A:
1. Make and return a true inventory of the estate of the deceased which comes to
his possession or to his knowledge.
2. Truly account for such as are received by him when required by the court.
3. Deliver the same to the persons appointed executor or regular administrator,
or to such other persons as may be authorized to receive them.
RULE 82 - REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND
REMOVAL OF EXECUTORS AND ADMINISTRATORS
SECTION 1. Administration revoked if will discovered. Proceedings
thereupon.—If after letters of administration have been granted on the estate of a
decedent as if he had died intestate, his will is proved and allowed by the court, the
letters of administration shall be revoked and all powers thereunder cease and the
administrator shall forthwith surrender the letters to the court, and render his
account within such time as the court directs. Proceedings for the issuance of letters
testamentary or of administration under the will shall be as hereinbefore provided.
Q: When may letters of administration issued by a court be revoked?
A:
1. When a newly-discovered will has been admitted to probate after the
issuance of letters of administration, such letters of administration may be
revoked, and;
2. When letters of administration have been issued illegally or without
jurisdiction, such letters of administration may be revoked by the probate
court.
Q: What are the effects of such revocation as provided for by §1 Rule 82?
A:
1. All powers of administration shall cease;
2. The administrator shall forthwith surrender his letters to the court
3. The administrator shall render his account within such time as the court
directs, and;
4. Proceedings for the issuance of letters testamentary or of administration
under the will shall be had.
NOTE: Whether the intestate proceeding already commenced should be discontinued
and a new proceeding under a separate number and title instituted in its stead is
 ! " # $ % & ' (
entirely a matter of form and lies within the sound discretion of the court (Reynoso
vs. Santiago)
Q: Does the mere discovery of a document purporting to be a will ipso facto
authorize the revocation of the letters of administration?
A: NO. Mere discovery of a document purporting to be a will and testament of the
decedent after appointment of an administrator upon the assumption that the
decedent died without a will, does not, in view of §1 Rule 82 ipso facto nullify the
letters already issued, or even authorize their revocation, until the will has been
proved and allowed.
SEC. 2. Court may remove or accept resignation of executor or
administrator. Proceedings upon death, resignation, or removal.—If an
executor or administrator neglects to render his account and settle the estate
according to law, or to perform an order or judgment of the court, or a duty
expressly provided by these rule., or absconds, or becomes insane, or otherwise
incapable or unsuitable to discharge the trust, the court may remove him, or, in its
discretion, may permit him to resign. When an executor or administrator dies,
resigns, or is removed, the remaining executor. or administrator may administer the
trust alone, unless the court grants letters to someone to act with him. If there is no
remaining executor or administrator, administration may be granted to any suitable
person.
Q: Distinguish revocation from removal
A: Strictly speaking, letters of administration are revoked where it is shown that
they should not have been issued, or were improperly issued due to grounds
existing before or at the time of the issuance, while the removal of an executor or
administrator should be for grounds which have arisen after the letters were issued.
Another distinction is that in removing an administrator, the law provides 6 grounds
as provided for in §2 Rule 72, while revocation arises when a will is proved and
allowed by the court.
Q: What are the grounds for the removal of an executor or administrator?
A:
1. Neglect to render an account and settle the estate according to law;
2. Neglect to perform an order or judgment of the court, or a duty expressly
provided by the Rules;
3. Absconds;
4. Becomes insane; or
5. Becomes incapable or unsuitable to discharge the trust (Sec. 2, Rule 82).
Note: These grounds are not exclusive. False misrepresentation by an administrator
in securing his appointment is a ground for his removal. This is so because the
position of administration is one of confidence. Once the court finds the appointee to
the position not entitled to such confidence, it is justified in withdrawing the
appointment and in giving no valid efficacy thereto. (Cobarrubias v. Dizon, G.R.
No. L-225, Feb. 26, 1946).
- The removal of the administrator lies within the sound discretion of the court
appointing him. 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/omission on the part of the administrator not conformable to/in disregard of the
rules or orders of the court.
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Q: What are the other grounds for removal of an executor or administrator?
A:
1. Death;
2. Resignation;
3. An administrator who disbursed funds of the estate without judicial
approval. (Cotia vs. Jimenez, 104 Phil. 960);
4. False representation by an administrator in securing his appointment
(Cabarubbias vs. Dizon, 76 Phil. 209);
5. An administrator who holds an interest adverse to that of the estate or by
his conduct showing his unfitness to discharge the trust (Garcia vs.
Vasquez, 32 SCRA 490);
6. An administrator who has the physical inability and consequent
unsuitability to manage the estate (De Borja vs. Tan, 93 Phil. 167).
Q: Are the grounds for removal of executor or administrator the same for
special administrator?
A: NO. The grounds for the removal of regular administrator do not apply strictly to
the special administrator as he may be removed by the court on other grounds upon
its discretion.
Thus the person named executor by the will need not necessarily be made the
special administrator so as to effectuate the desire of the testator. Nomination in the
will acquires imperative nature only after the will is admitted to probate in
accordance with the wishes of the testator, not before.
NOTE: special administrators are appointed with the discretion of the court, and an
order appointing one cannot be appealed.
Q: Give an example where the removal of an administrator constitutes
grave abuse of discretion?
A: M was appointed by the probate court in a special proceeding as one of the
administrators in the settlement of the estate of D. Subsequently, C filed a motion
for the removal of M on the ground that he is incompetent and negligent in the
management of the 5 haciendas under his charge.
During the reception of the evidence conducted by the probate court, C submitted
certain exhibits in support of his motion to oust M on Jan. 8, 1966. M filed a motion
objecting to the admission of evidence on various grounds.
On Jan 30 the court issued an order removing M as administrator. The order of the
probate court removing M is a nullity because it was issued by the judge without
affording M his day in court, depriving him of his right to due process. The probate
court issued the order without giving M the opportunity to adduce evidence despite
his reservation requesting such right in his behalf in the event of the dismissal of his
motion to dismiss/demurrer to evidence.
Such an act constitutes grave abuse of discretion which dooms the order as a nullity.
Q: How soon must the executor or administrator render his account?
A: Under §6 Rule 85, “every executor or administrator shall render an account of his
administration within 1 year from the time of receiving letters testamentary or
administration unless the court otherwise directs…” In connection with this, in one
case, the administrator filed his 1st account 2 years after his appointment as such,
and his 2nd account, after the next years. The 2nd account was disapproved and he
was ordered to file an amended account within 30 days. Despite an extension of 10
days after the lapse of the 30 day period, he still failed to file the amended account
required, he instead just re-filed the old account.
 ! " # $ % & ' (
- This, as well as some irregularities found in his accounting were held to be
sufficient grounds for his removal, since the court was convinced that such
person was unfit to be an administrator since he had NOT in fact, administered
the estate with due regard to the right of other persons in interest. (Gustilo v.
Sian)
Q: Is adverse interest a ground for removal?
A: YES. The appointment of an administrator may be revoked by reason of his
adverse interest to that of the estate and the interested parties, which makes him
unsuitable for the trust. (Degala vs. Ceniza and Umipig) Conflict between the
interest of the executor and the interest of the deceased is a ground for removal or
resignation of the former, who has thereby become unsuitable to discharge the trust.
Continuous conflicts and disputes arising between parties in the settlement
proceedings, which redound to the detriment of the properties under administration
is sufficient ground for the removal of an administrator who has shown
incompetence in the fulfillment of her duties, which gave rise to the filing of
inaccurate inventories and accounts.
- But the mere fact that the former administrator was disqualified on the ground
of adverse interest, and such former administrator happens to be the attorney
of the new administrator, does not necessarily mean that the latter is
disqualified. Any adverse interest the said attorney may have is exclusively
personal to him.
Q: Why is being a hostile or adverse administrator ground for removal as
such?
A: The nature of the office of administration is fiduciary in nature, and as such,
utmost good faith is required.
Q: At what point in time must one determine the unsuitableness of the
administrator for his removal?
A: Unsuitableness must be determined as of the day the petition for his removal is
filed.
Q: Who determines the sufficiency of any ground for removal?
A: The removal of an administrator/executor lies within the discretion of the court
appointing him. The sufficiency of any ground for removal should therefore be
determined by the 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 order of the court.
- Appellate tribunals are disinclined to interfere with the action taken by a
probate court in the matter of the removal of an executor/administrator unless
positive error or gross abuse of discretion is shown. (Degala vs. Ceniza and
Umipig)
Q: If it was subsequently discovered that the administrator was indebted to
the decedent, would this be a ground for removal?
A: NO. The mere fact that the administrator was indebted to the decedent is not a
ground for his removal as administrator, since even a stranger can be appointed as
such.
Can anyone be compelled to act as administrator?
A: No one may be compelled to act as administrator in any proceedings. But as
long as she accepted the appointment of administratrix, qualified as such, and led
the court and the heirs to believe that she would perform her duties as such and
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protect and serve the interests of said heirs and other interested parties, she was
bound to comply with her duties. If later on she found it difficult or impossible to
continue with her administration, at least she should have filed an inventory of the
properties she had administered and render an accounting of her administration,
particularly of the produce, fruits and income of the properties under administration,
and then ask the court that she be relieved of her duties. (Ledesma vs. Enriquez)
Q: What is the rule on proceedings upon death, resignation or removal of an
executor or administrator?
A: When an executor or administrator dies, resigns, or is removed the remaining
executor or administrator may administer the trust alone, unless the court grants
letters to someone to act with him. If there is no remaining executor or
administrator, the administration may be granted to any suitable person.
Q: In case of the removal or resignation of the executor/administrator,
AND there is no remaining executor/administrator, what must the court
do?
A: While §2, Rule 82 provides that if there is no remaining executor or
administrator, administration may be granted to any suitable person, such cannot
be used to justify the institution of an administrator even without a hearing. The
abovecited provision envisions a situation wherein after such removal, the probate
court is empowered merely to name a temporary administrator pending the
appointment of a new administrator after due hearing.
Q: If the administrator resigns, must his resignation be accepted by the
court?
A: YES.
NOTE: Upon resignation, the administrator must render an accounting.
Q: What are the steps necessary to enable an administrator to resign?
A: 1. The administrator must file his resignation letter with the court
2. The administrator must make an inventory of the properties in his possession.
NOTE: The resignation becomes operative upon acceptance by the court
SEC. 3. Acts before revocation, resignation, or removal to be valid.—The
lawful acts of an executor or administrator before the revocation of his letters
testamentary or of administration, or before his resignation or removal, shall have
the like validity if there has been no such revocation resignation, or removal.
Q: What is the effect of the revocation of the letters
testamentary/administration or the resignation/removal of the executor or
administrator?
A: This terminates the authority of the executor/administrator. But the lawful acts
of the executor/administrator done in good faith, prior to such, will be protected and
held valid as if there had been no such revocation, resignation or removal.
Q: As soon as the administrator is removed, what can/cannot he do?
A: The administrator cannot perform acts of administration such as contracting with
other persons, nor can he apply to the court to have the transactions approved
between the estate and 3rd persons.
Q: What is the effect of removal insofar as creditors are concerned?
A: The administrator cannot bring suit, nor can he be made a defendant in any suit
against the estate.
 ! " # $ % & ' (
Q: In cases where there are 2 administrators of the state, what is the effect
when 1 administrator is removed?
A: The remaining administrator becomes the administrator of the whole estate,
unless a new co-administrator is appointed.
SEC. 4. Powers of new executor or administrator. Renewal of license to
sell real estate.–The person to whom letters testamentary or of administration are
granted after the revocation of former letters, or the death, resignation, or removal
of a former executor or administrator, shall have the like powers to collect and settle
the estate not administered that the former executor or administrator had, and may
prosecute of defend actions commenced by or against the former executor or
administrator, and have execution on judgments recovered in the name of such
former executor or administrator. An authority granted by the court to the former
executor administrator for the sale or mortgage of real estate may be renewed in
favor of such person without further notice or hearing.
Q: What does §4 of Rule 82 provide?
A:
1. The power to collect and settle the estate not administered that the former
executor or administrator had;
2. To prosecute or defend actions commenced by or against the former executor
or administrator; and
3. To recover execution on judgments in the name of former executor or
administrator.
However, before a new executor or administrator may exercise the power to sell or
mortgage real estate, which power had been granted to the former executor or
administrator, the same must be renewed in favor of the new executor or
administrator. In renewing such power, further notice or hearing is no longer
necessary.
Q: With respect to the right of the administrator to dispose of the real
properties of the estate [assuming the administrator is removed], what is
the right of the new administrator to continue the transaction?
A: The new administrator, upon securing the proper authority from the court, will
continue the negotiations initiated by the former administrator.
- NO hearing is required if the new administrator merely continues the acts of
administration, but he must always first secure authority from the court to continue
the negotiations.
RULE 83 – INVENTORY AND APPRAISAL, PROVISION FOR SUPPORT OF
FAMILY
SECTION 1. Inventory and appraisal to be returned within three months.—
Within three (3) months after his appointment every executor or administrator shall
return to the court a true inventory and appraisal of all the real and personal estate
of the deceased which has come into his possession or knowledge. In the
appraisement of such estate, the court may order one or more of the inheritance tax
appraisers to give his or their assistance.
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Q: What is the duty of every executor or administrator?
A: Under this provision, it is the duty of the executor or administrator to present an
inventory of the real estate and of all the goods, chattels, rights and credit of the
deceased which have come into his possession or knowledge.
- As to property which came to his knowledge but NOT in his possession, he may
bring such action as he may deem necessary for the purpose of obtaining possession
thereof. (Chua Tan vs. Del Rosario)
Q: What is the purpose of the inventory and appraisal of the estate?
A: To aid the courts in revising the accounts and determining the liabilities of the
executor or administrator in making a final and equitable distribution of the estate,
and otherwise facilitate the administration of the estate.
Q: Is inventory and appraisal conclusive of the value of the estate?
A: NO. The inventory and appraisal when regularly returned, while generally treated
as prima facie evidence of the value of the estate, is NOT conclusive, either as
against 3rd persons, or the executor/administrator. Even a decree of the court
accepting the inventory will not be conclusive upon the executor or administrator.
Q: Who determines what properties should be included in the inventory?
A: For the purpose of determining whether a certain property should or should not
be included, the probate court may pass upon the title of such properties.
Q: What is the nature of such determination by the probate court?
A: The probate court can only make a prima facie determination of whether certain
property, claimed by other persons, is considered part of the assets of the state for
the purpose of determining whether it should be included/excluded from the
inventory. Said determination is NOT final in nature and cannot prejudice the right
of interested parties in a proper and separate title to determine actual title.
Q: Why is such a determination by the probate court provisional in
character?
A: Under the Rules, the probate jurisdiction of the Court of First Instance relates
only to matters having to do with "the settlement of estates and probate of wills of
deceased persons, the appointment and removal of guardians and trustees, and the
powers, duties, and rights of guardians and wards, trustees, and cestuis que trust."
As may be seen, the law does not extend the jurisdiction of a probate court to the
determination of questions of ownership that arise during the proceeding. Such
questions must be submitted to the court in the exercise of its general jurisdiction.
- "The mere fact that one of the parties is an executor or administrator of a certain
estate does not give exclusive jurisdiction to the probate court wherein the estate is
being settled, in questions arising between such executors or administrators and
third persons, as to the ownership of specific property. (Adapon vs. Maralit)
Q: Is the 3-month period for inventory and appraisal mandatory?
A: NO. The fact that an inventory was filed after the three month period would not
deprive the court of jurisdiction to approve it. However, an administrator’s
unexplained delay in filing the inventory may be a ground for his removal (Sebial vs.
Sebial)
SEC. 2. Certain articles not to be inventoried.—The wearing apparel of the
surviving husband or wife and minor children, the marriage bed and bedding, and
such provisions and other articles as will necessarily be consumed in the subsistence
of the family of the deceased, under the direction of the court, shall not be
 ! " # $ % & ' (
considered as assets, nor administered as such, and shall not be included in the
inventory.
Q: What should NOT be included in the inventory?
A:
1. Wearing apparel of the surviving spouse
2. Wearing apparel of the minor children
3. Marriage bed and bedding
4. Other provisions and articles as will necessarily be consumed in the
subsistence of the family of the deceased.
SEC. 3. Allowance to widow and family.—The widow and minor or incapacitated
children of a deceased person, during the settlement of the estate, shall receive
therefrom, under the direction of the court, such allowance as are provided by law.
Q: May allowance be granted when the liabilities of the estate exceed the
assets of the estate of the decedent?
A: NO. When the liabilities exceed the assets of the deceased husband's intestate
estate and that his widow had not contributed any property to the marriage, she
cannot be granted support [not for herself] nor the minor children for that matter,
pending the liquidation of the intestate estate, because said support, having the
character of an advance payment to be deducted from the respective share of each
participant is without legal basis under Article 1430 of the Civil Code when there is
no property to be partitioned. (Moore & Sons Mercantile Co. vs. Wagner)
Q: Can children of the deceased who are not minors, nor incapacitated, be
granted allowance or support during the settlement of the estate?
A: YES. The fact that private respondents are of age, gainfully employed, or
married is of no moment and should not be regarded as the determining factor of
their right to allowance under Art. 188 [now Art. 1332 of the Family Code]. While the
Rules of Court limit allowances to the widow and minor or incapacitated children of
the deceased, the New Civil Code gives the surviving spouse and his/her children
without distinction.
Since the provision of the Civil Code, a substantive law, gives the surviving spouse
and to the children the right to receive support during the liquidation of the estate of
the deceased, such right cannot be impaired by Rule 83 Sec. 3 of the Rules of Court
which is a procedural rule. Be it noted however that with respect to "spouse," the
same must be the "legitimate spouse" (not common-law spouses who are the
mothers of the children here). (Santero vs. CFI of Cavite)
Q: Are grandchildren entitled to such allowance pending the settlement of
the estate?
A: Neither the RoC nor the New Civil Code or the Family Code include grandchildren
among those who may be granted an allowance pending the settlement of the
estate.
((((((((((((((((((((((((((((((((((((((((((((((((((((((((
2
Art. 133. From the common mass of property support shall be given to the
surviving spouse and to the children during the liquidation of the inventoried
property and until what belongs to them is delivered; but from this shall be
deducted that amount received for support which exceeds the fruits or rents
pertaining to them. (188a)
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Q: Who determines what amount the widow, minor or incapacitated
children should receive?
A: The court has jurisdiction to determine the respective amounts.
Q: What factors are considered by the court in determining what amount is
received?
A:
1. Financial status of the family
2. Probable value of the estate
NOTE: The primary consideration is the solvency of the estate
Q: When does delay in the giving of allowance commence?
A: Delay can only commence after demand. No demand no delay.
RULE 84 - GENERAL POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS
SECTION 1. Executor or administrator to have access to partnership books
and property. How right enforced.—The executor or administrator of the estate
of a deceased partner shall at all times have access to, and may examine and take
copies of, books and papers relating to the partnership business, and may examine
and make invoices of the property belonging to such partnership; and the surviving
partner or partners, on request, shall exhibit to him all such books, papers, and
property in their hands or control. On the written application of such executor or
administrator, the Court having jurisdiction of the estate may order any such
surviving partner or partners to freely permit the exercise of the rights, and to
exhibit the books, papers, and property, as in this section provided, and may punish
any partner failing to do so for contempt.
SEC. 2. Executor or administrator to keep buildings in repair.—An executor
or administrator shall maintain in tenantable repair the houses and other structures
and fences belonging to the estate, and deliver the same in such repair to the heirs
or devisees when directed so to do by the court.
SEC. 3. Executor or administrator to retain whole estate to pay debts, and
to administer estate not willed.—An executor or administrator shall have the
right to the possession and management of the real as well as the personal estate of
the deceased so long as it is necessary for the payment of the debts and the
expenses of administration.
Q: What are the rights of the executor or administrator of the deceased
partner’s estate?
A:
1. He shall at all times have access to, and may examine and take copies of
books and papers relating to the partnership;
2. He can examine and make invoices of the property belonging to the
partnership, and the surviving partner or partners on request; and
3. The books, papers, and property in the partnership’s hands or control shall be
exhibited to such executor or administrator. (Sec. 1, Rule 84)
 ! " # $ % & ' (
Q: What are the general powers of an administrator or an executor?
A:
1. To have access to, and examine and take copies of books and papers relating
to the partnership in case of a deceased partner
2. To examine and make invoices of the property belonging to the partnership in
case of a deceased partner
3. To maintain in tenantable repairs, houses and other structures and fences and
to deliver the same in such repair to the heirs or devisees when directed so to
do by the court
4. To make improvements on the properties under administration with the
necessary court approval except for necessary repairs
5. To possess and manage the estate when necessary:
i) For the payment of debts; and
ii) For the payment of expenses of administration
Q: In general, what acts may the executor or administrator validly perform?
A: The executor/administrator has the power of administering the estate for the
purpose of liquidation and distribution. Therefore, he may exercise all the acts of
administration without special authority of the court.
Q: Can the executor or administrator lease any of the properties of the
estate under his administration? Does he need court approval to do so?
A: YES. The contract here in question, being a mere act of administration, could
validly be entered into by the administratrix within her powers of administration,
even without the court's previous authority.
And the court had no power to annul or invalidate the contract in the intestate
proceedings wherein it had no jurisdiction over the person of the lessee. A separate
ordinary action is necessary to that effect. (De Hilado vs. Nava)
Q: If the lease is to be recorded in the Registry of Property, is judicial
approval necessary?
A: NO. Under Article 1647 of the present Civil Code, it is only when the lease is to
be recorded in the Registry of Property that it cannot be instituted without special
authority. Thus, regardless of the period of lease, there is no need of special
authority unless the contract is to be recorded in the Registry of Property.
On the contrary, Rule 85, Section 3, of the Rules of Court authorizes a judicial
administrator, among other things, to administer the estate of the deceased not
disposed of by will. Commenting on this Section in the light of several Supreme
Court decisions, Moran says: 'Under this provision, the executor or administrator
has the power of administering the estate of the deceased for purposes of
liquidation and distribution. He may, therefore, exercise all acts of administration
without special authority of the Court. For instance, he may lease the property
without securing previously any permission from the court [whether or not the lease
is to be recorded in the registry of property]. And where the lease has formally been
entered into, the court cannot, in the same proceeding, annul the same, to the
prejudice of the lessee, over whose person it had no jurisdiction. The proper remedy
would be a separate action by the administrator or the heirs to annul the lease. x x “
(San Diego vs. Nombre)
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Q: If the lease is for a period exceeding one year, is judicial approval
necessary?
A: NO. Under Art. 1878 of the Civil Code on Agency, a special power of attorney is
necessary to lease any property of the principal to another person for more than 1
year. But an executor or administrator of an estate is NOT an agent.
While it may be admitted that the duties of a judicial administrator and an agent are
in some respects, identical, the provisions on agency should not apply to a judicial
administrator. A judicial administrator is appointed by the Court. He is not only the
representative of said Court, but also the heirs and creditors of the estate (Chua Tan
v. Del Rosario). A judicial administrator before entering into his duties, is required to
file a bond. These circumstances are not true in case of agency. The agent is only
answerable to his principal. The protection which the law gives the principal, in
limiting the powers and rights of an agent, stems from the fact that control by the
principal can only be thru agreements, whereas the acts of a judicial administrator
are subject to specific provisions of law and orders of the appointing court. (San
Diego vs. Nombre)
Q: Can the executor or administrator deal with himself as an individual
(auto contracting) in any transaction concerning the property of the estate?
A: NO. It has been broadly stated that an administrator is not permitted to deal with
himself as an individual in any transaction concerning trust property. An executrix
holds the property or her testator's estate as a trustee. The opinion of some
commentators that there is no express provision of law prohibiting an administrator
from appointing himself as his own agent, even if correct, cannot and should not
apply to administrators of decedent's estates, in view of the fiduciary relationship
that they occupy with respect to the heirs of the deceased and their responsibilities
toward the probate court. A contrary ruling would open the door to fraud and
maladministration, and once the harm is done, it might be too late to correct it.
(Jaroda vs. Cusi Jr.)
Q: Is the right of an executor/administrator to the possession and
management of property of the deceased absolute?
A: No, it can only be exercised so long as it is necessary for the payment of debts
and expenses of administration (Ruiz v. CA, G.R. No.118671, Jan. 29, 1996).
Q: What are the restrictions on the powers of administrator or executor?
A:
1. He cannot acquire by purchase, even at public or judicial action, either in
person or mediation of another, the property under administration;
2. He cannot borrow money without authority from the court;
3. He cannot speculate with funds under administration, nor place them where
they may not be withdrawn at once by order of the court [even if it means
depositing the funds in a current account with a lower interest rate];
4. He cannot lease the property under administration for more than 1 year;
NOTE: The administrator has the power to enter into lease contracts involving
the properties of the estate even without prior judicial authority and approval.
(Mananquil v. Villegas)
5. He cannot continue the business of the deceased unless authorized by the
court; and
NOTE: If he does so, he is chargeable for all the losses without allowing to
receive the benefits of any profit he might make
6. He cannot profit by the increase or decrease in the value of the property under
administration;
 ! " # $ % & ' (
7. He cannot exercise the right of legal redemption over a portion of the property
owned in common sold by one of the other co-owners. (Herrera, Vol. III-A, pp.
116-117, 2005 ed.)
Q: What is the care required in the management of the estate by the
executor or administrator?
A: The law does not impose any higher degree of care, but only requires ordinary
and usual care, the want of which he would be personally liable for.
Q: When is an executor or administrator entitled to possession of the
property of the deceased?
A: He shall have the right to take possession of the properties of the deceased only
so long as it is necessary for the payment of debts and expenses of administration.
(Estate of Hilario Ruiz vs. CA)
When there are NO debts to be paid, the estate should pass to the heirs.
Q: When is the property of the executor or administrator answerable for his
debts?
A: In case of the death of an executor or administrator who has contracted debts,
his own property which he left at death is directly liable for payments of such debts.
The creditor may direct his action against the said executor or administrator’s heirs.
Until all the creditors of a deceased person have been paid, there can be no net
inheritance divisible among the heirs.
RULE 85 - ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND
ADMINISTRATORS
SECTION 1. Executor or administrator chargeable with all estate and
income.—Except as otherwise expressly provided in the following sections, every
executor or administrator is chargeable in his account with the whole of the estate
of the deceased which has come into his possession, at the value of the
appraisement contained in the inventory; with all the interest, profit, and income of
such estate; and with the proceeds of so much of the estate as is sold by him, at the
price at which it was sold.
Q: What is the extent of the executor or administrators accountability?
A: He is accountable for the whole of the estate of the deceased which has come
into his possession, but not for the estate which he has never possessed.
- As distinguished from his duty to present an inventory, the executor or
administrator is accountable for a correct and complete inventory not only of
all the property of the estate which has come into his possession, but also of
the properties which has come to his knowledge.
Q: When is the executor or administrator accountable even for properties
he has never possessed?
A: If he failed to take possession of the said properties through his fault, as where
through negligence, no action was brought for the recovery of the same, he is
accountable for the property so lost.
Q: If the executor is in Manila and the real property of the deceased is in
Cebu, how can the executor take possession?
A: The executor can take possession of the property in Cebu by an annotation of lis
pendens on the TCT of the real property. Generally, the court already has
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jurisdiction over the real property, but the annotation of lis pendens serve as
further protection.
SEC. 2. Not to profit by increase or lose by decrease in value.—No executor
or administrator shall profit by the increase, or suffer loss by the decrease or
destruction, without his fault, of any part of the estate. He must account for the
excess when he sells any part of the estate for more than the appraisement, and if
any is sold for less than the appraisement, he is not responsible for the loss, if the
sale has been justly made. If he settles any claim against the estate for less than its
nominal value, he is entitled to charge in his account only the amount he actually
paid on the settlement.
Q: What is the extent of the accountability of the executor or
administrator?
A: He is chargeable with the estate in such condition as it is found and not in that
as the heirs and creditors desire it to be. While on the other hand he shall not profit
by the increase of the estate, on the other hand he shall not be held liable for any
decrease the estate, without his fault, might have sustained.
In addition, it is the duty of the executor or administrator to handle and marshal
the assets of the estate in a business-like manner, and he is responsible for any
unreasonable or unnecessary delay in the settlement and closing of the estate.
Q: Is the administrator liable for the loss, of personal properties under his
administration, through a fortuitous event?
A: NO. The administrator in an administration proceeding is not responsible for the
loss, by a fortuitous event, of the personal properties under administration in the
absence of proof that said loss was due to his negligence.
- Taking into account the fact that that fire occurred in a calamitous time, for, as
appears from the evidence, it was caused by the North American forces who
were fighting the Philippine revolutionists, we find that the disaster could not
have been prevented by the defendant. It might be said that he could have
foreseen it, but it does not appear just how and where those properties could
have been kept absolutely safe by the defendant, it not having been proven
that the town of San Pablo, the place of residence of the defendant, was any
safer than that of Santo Nino. It was not shown that such properties were
destroyed through the negligence of the defendant. (Garcia vs. Escudero)
Q: How does one make the executor or administrator liable?
A: The executor or administrator could be made liable by going against the bond he
filed in court.
One could go against the bond by applying to the court, which granted the letters
administration/testamentary, for the application of the bond.
SEC. 3. When not accountable for debts due estate.—No executor or
administrator shall be accountable for debts due the deceased which remain
uncollected without his fault.
Q: What kinds of debts are contemplated under §3 of Rule 85?
A: These are confined to money claims.
 ! " # $ % & ' (
Q: If there is a mortgage to be foreclosed and the administrator was not
able to foreclose the same, and a loss to the estate results as a
consequence; is this the kind of debt contemplated?
A: NO. Because the loss to the estate in this particular instance does not amount to
money debt.
Q: Is the executor or administrator accountable for uncollected debts?
A: The executor or administrator shall not be accountable for debts due to the
deceased which remain uncollected without his fault. However, whether the debts
remain uncollected without the executor or administrator’s fault must be shown by
him, the presumption being that the debt could have been collected, for such is the
natural course of things, and in the absence of proof to the contrary, he is
accountable therefor.
Q: Is the executor or administrator accountable for debts which are
uncollected due to his fault?
A: YES. There exists a prima facie presumption of fault on his part.
SEC. 4. Accountable for income from realty used by him.—If the executor or
administrator uses or occupies any part of the real estate himself, he shall account
for it as may be agreed upon between him and the parties interested, or adjusted by
the court with their assent; and if the parties do not agree upon the sum to be
allowed, the same may be ascertained by the court, whose determination in this
respect shall be final.
Q: Can an administrator be a lessee of the estate he is administering?
A: YES, under §4 of Rule 85. There is however, a qualification to this rule. If the
administrator was the original lessee before he was named administrator, then the
lease remains perfectly valid. However, if the lease was constituted during the
pendency of the administration, then it would not be allowed because it amounts to
self-dealing and would fall within the realm of auto-contracting. Furthermore, the
wording of §4 is in the present tense as can be gleaned from the use of the words
“uses” or “occupies.”
Q: Reconcile the provisions of the New Civil Code (Art. 14913 and 16464)
with §4 of Rule 85
A: Contracts for occupation should not be for lease. Contracts of bailment should not
be between the administrator and himself, as for the payment of a debt to him.
SEC. 5. Accountable if he neglects or delays to raise or pay money.—When
an executor or administrator neglects or unreasonably delays to raise money, by
collecting the debts or selling the real or personal estate of the deceased, or
neglects to pay over the money he has in his hands, and the value of the estate is
thereby lessened or unnecessary cost or interest accrues, or the persons interested
suffer loss, the same shall be deemed waste and the damage sustained may be
((((((((((((((((((((((((((((((((((((((((((((((((((((((((
3
Art. 1491. The following persons cannot acquire by purchase, even at a public or
judicial auction, either in person or through the mediation of another:
xxx
(3) Executors and administrators, the property of the estate under administration;
4
Art. 1646. The persons disqualified to buy referred to in Articles 1490 and 1491,
are also disqualified to become lessees of the things mentioned therein. (n)
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charged and allowed against him in his account, and he shall be liable therefor on
his bond.
Q: What is the liability of an executor or administrator who neglects or
incurs delay in raising money?
A: 1. When an executor or administrator:
a. neglects or unreasonably delays to raise money, by collecting
debts or selling the real or personal estate of the deceased, or
b. neglects to pay over the money he has in his hands, and
2. The value of the estate is thereby lessened, or
3. Unnecessary cost or interest accrues, or
4. The persons interested suffers loss,
The same shall be deemed waste and the damage sustained may be charged and
allowed against him, and he shall be liable therefor on his bond.
Q: Who has the right to run after the executor or administrator?
A: The heirs, devisees, legatees, creditors and other persons interested in the
estate of the deceased.
SEC. 6. When allowed money paid as costs.—The amount paid by an executor
or administrator for costs awarded against him shall be allowed in his administration
account, unless it appears that the action or proceeding in which the costs are taxed
was prosecuted or resisted without just cause, and not in good faith.
Q: What costs may the executor or administrator charge against the
estate?
A: Generally, costs charged or allowed against an executor or administrator in
actions brought or prosecuted by or against him should be paid out of the estate of
the deceased, unless he did not act in good faith. In other words, they are
considered costs of litigation.
Q: What costs MAY NOT be charged by the executor or administrator
against the estate?
A: Actions brought by the executor or administrator which is:
1. More for his personal benefit than for that of the estate;
2. When he contests the allowance of a will;
3. Sues for attorney’s fees; or
4. Brings litigation for the deliberate purpose of defrauding the heirs for his own
benefit;
Costs should be personally borne by him.
Q: How would money paid as costs be allowed?
A: To be allowed, costs must have been incurred in good faith.
Q: Are attorney’s fees paid by the administrator to his own lawyer, who is
acting in behalf of the administrator, chargeable as costs of administration?
A: NO, because attorney’s fees are considered part of the administration itself. The
yare incurred in the natural course of administration.
Q: Could it be argued that the services of an attorney are a necessary
expense?
A: It depends. If the services of counsel were incurred for collecting debts, or to
assist him in the execution of his trust, then it could be considered a necessary
 ! " # $ % & ' (
expense. If it was however, incurred to help the administrator or executor in his
personal capacity, then it is not a necessary expense.
SEC. 7. What expenses and fees allowed executor or administrator. Not to
charge for services as attorney. Compensation provided by will controls
unless renounced.—An executor or administrator shall be allowed the necessary
expenses in the case, management, and settlement of the estate, and for his
services, four pesos per day for the time actually and necessarily employed, or a
commission upon the value of so much of the estate as comes into his possession
and is finally disposed of by him in the payment of debts, expenses, legacies, or
distributive shares, or by delivery to heirs or devisees, of two per centum of the first
five thousand pesos of such value, one per centum of so much of such value as
exceeds five thousand pesos and does not exceed thirty thousand pesos, one-half
per centum of so much of such value as exceeds thirty thousand pesos and does not
exceed one hundred thousand pesos, and one-quarter per centum of so much of
such value as exceeds one hundred thousand pesos. But in any special case, where
the estate is large, and the settlement has been attended with great difficulty, and
has required a high degree of capacity on the part of the executor or administrator,
a greater sum may be allowed. If objection to the fees allowed be taken, the
allowance may be re-examined on appeal.
If there are two or more executors or administrators, the compensation shall be
apportioned among them by the court according to the services actually rendered by
them respectively.
When the executor or administrator is an attorney, he shall not charge against the
estate any professional fees for legal services rendered by him.
When the deceased by will makes some other provision for the compensation of his
executor, that provision shall be a full satisfaction for his services unless by a
written instrument filed in the court he renounces all claim to the compensation
provided by the will.
Q: What expenses and fees are allowed to the executor or administrator?
A: The executor or administrator is allowed:
1. The necessary expenses in the care, management and settlement of the
estate; and
2. Php 4/day for his services, or commission upon the value of so much of
the estate as has come into his possession and disposed of by him in
payment of debts ,expenses, legacies or distributive shares, or by delivery
to the heirs of the deceased.
Q: What are necessary expenses of administration?
A: They are such expenses of administration as are entailed for the preservation and
productivity of the estate, and for its management for purposes of liquidation, the
payment of debts, and the distribution of residue among the persons entitled
thereto.
Q: Are expenses on the anniversary of the death of the deceased
considered necessary expenses of administration?
A: NO. The expenses incurred by the administrator on the occasion of the
anniversary of the death of the deceased, amounting to P36.50, cannot be
considered a part of the funeral expenses nor treated as the erection of a
mausoleum which forms part of the sepulture of the deceased, because it bears no
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relation to the funeral, and therefore cannot be a necessary expense fo
administration. (Nicolas vs. Nicolas)
Q: What other expenses CANNOT be considered necessary expenses for
administration of the estate?
A:
1. Expenses incurred by a presumptive heir for her appearance and that of
her witnesses, at the trial to oppose the probate of an alleged will;
2. Expenses for the settlement of the question as to who are entitled to the
estate left by the deceased;
3. Expenses incurred by the executor or administrator to procure a bond.
NOTE: However, expenses for the renovation an improvement of the family
residence, incurred to preserve the family home and to maintain the family’s social
standing in the community, are allowable as legitimate administration expenses of
the estate of the deceased. BUT the living expenses of an heir occupying the family
residence, are not legitimate administration expenses of the estate.
Q: When are attorney’s fees allowed?
A: They may be allowed as expenses of administration, when the attorney’s services
have been rendered to the executor or administrator to assist him in the execution
of his trust.
Q: What is the procedure for collection of attorney’s fees?
A:
1. Request the administrator to make payment and file an action against him
in his personal capacity should he fail to pay; or
2. Petition in the intestate/testate proceeding asking the court, after notice to
all persons interested, to allow his claim and direct the administrator to
pay it as an expense of administration.
Q: Who is directly liable for the payment of attorney’s fees when the yare
due?
A: Since the services for which attorney’s fees are claimed, are supposed to have
been rendered to the executor or administrator to assist him in the execution of his
trust, the liability for the payment of such fees rests upon the executor or
administrator. The attorney cannot hold the estate directly liable for his fees. BUT if
the said fees were paid by the executor or administrator and are reasonable and
beneficial to the estate, he is entitled to reimbursement from the estate. (Uy tioco
vs. Imperial and Panis)
In other words, it is the client who shoulders the attorney’s fees.
Attorney’s fees are also subject to certain standards, to wit:
1. The must be reasonable, that is to say, they must have a bearing on the
importance of the subject matter in controversy;
2. The extent of the services rendered;
3. The professional standing of the lawyer. (Lacson vs. Reyes)
Q: When can the executor or administrator seek reimbursement for
attorney’s fees incurred by him?
A: Only if the expenses were beneficial and reasonable. The estate cannot be held
liable for the costs of counsel fees arising out of litigation between the beneficiaries
amongst themselves, or in the protection of the interests of particular persons, or in
 ! " # $ % & ' (
the favor of an administrator who brings litigation for his own benefit and for the
purpose of defrauding the heirs. (Dacanay vs. Hernandez)
- an administrator may employ competent counsel on questions which affect his
duties as administrator and on which he is in reasonable doubt, and reasonable
expenses for such services may be charged against the estate subject to the
approval of the court.
Q: What is the amount of the compensation of an executor if there is
nothing provided for in the will?
A:
1. Php 4/day for the time actually and necessarily employed
2. Commission
3. A greater sum may be allowed if:
a. The estate is large
b. The settlement has been attended with great difficulty
c. The settlement has required a high degree of capacity of the
executor.
NOTE: The executor or administrator is entitled to the per diem of Php 4 OR to a
commission. He is entitled to either but not both. However, he may be denied
compensation for his services where the prolongation of the settlement of the estate
was due entirely to the efforts of the administrator to defraud the legitimate heirs.
Moreover, his services for the period in question would have been unnecessary if he
had not, by his fraudulent acts, prevented the settlement of the estate. The rule is
that the per diem compensation of an administrator can only be allowed for
necessary services. (Dacanay vs. Hernandez)
Q: What is the basis of the per diem compensation?
A: The rules allow the executor or administrator to collect the sum of Php 4/day for
every day actually and necessarily spent by him in the administration and care of
the estate, NOT for every act or task he might perform, even if it were to take only
a few minutes to do so.
Q: What is the basis of the commission?
A: The commission is based upon the value of so much of the estate as comes to his
possession, and is finally disposed of by him in the payment of debts, expenses,
legacies or distributive shares, or by delivery to heirs or devisees.
The amount of commission is as follows:
1. 2% for the first P5,000;
2. 1% of more than P5,000 but less than P30,000;
3. ! % of more than P30,000 but less than P100,000;
4. " % of more than P100,000
Q: If the executor or administrator is a lawyer, would it be sufficient
ground to increase his compensation?
A: NO. Under §7 Rule 85, When the executor or administrator is an attorney, he
shall not charge against the estate any professional fees for legal services rendered
by him. An administrator or executor may be allowed fees for the necessary
expenses he has incurred as such, but he may not recover attorney’s fees from the
estate. His compensation is fixed by the rule, but such is in the nature of executor’s
or administrator’s commissions, and never as attorney’s fees. (Lacson vs. Reyes)
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Q: What is the rule when the testator makes provisions for how the
executor should be compensated in his will?
A: When the deceased by will makes some other provision for the compensation of
his executor, that provision shall be a full satisfaction for his services, unless by a
written instrument filed in the court the latter renounces all claim to the
compensation provided by the will. (Lacson vs. Reyes)
Q: What is the effect of an agreement between the executor or
administrator and the interested parties as to the former’s compensation?
A: Where at the time of his appointment, all of the parties in interest stipulated that
R should have a compensation of P1,000 per month for his services as executor of
the estate of E, and the court approved the stipulation, such facts do not constitute
a valid and binding contract which runs throughout the whole administration of the
estate, and in such a case, the court, on a proper showing of changed conditions,
may increase or decrease the monthly compensation of the executor.
NOTE: The amount of an executor's fee allowed by the Court of First Instance in
"any special case" is a matter largely in the discretion of the probate court, which
will not be disturbed on appeal, except for an abuse of discretion. (Rosenstock vs.
Elser)
SEC. 8. When executor or administrator to render account.—Every executor
or administrator shall render an account of his administration within one (1) year
from the time of receiving letters testamentary or of administration, 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; and he shall render
such further accounts as the court may require until the estate is wholly settled.
Q: Is the period of 1 year mandatory?
A: The provision in the rule is merely directory, but all courts should exert
themselves to close up the estate within 12 months from the time they are
presented. Furthermore, when there have been extensions of time for presenting
claims against, paying debts of the estate, or in disposing of the same, the court
may direct a period longer than 1 year.
NOTE: The fact that the final accounts had been approved does not divest the
courts of jurisdiction to require supplemental accounting for, aside from the initial
accounting; the Rules provide that “he shall render such further accounts as the
court may require until the estate is wholly settled.”
Q: If the administration of the estate has ceased as the heirs have agreed
to a partition of the estate, is the administrator still bound to render an
accounting?
A: YES. The duty of an administrator to render an account is not a mere incident of
an administration proceeding which can be waived or disregarded when the same is
terminated, but that it is a duty that has to be performed and duly acted upon by
the Court before the administration is finally ordered closed and terminated.
The fact that all the heirs of the estate have entered into an extrajudicial settlement
and partition in order to put an end to their differences cannot in any way be
interpreted as a waiver of the objections of the heirs to the accounts submitted by
the administrator not only because to so hold would be a derogation of the pertinent
provisions of our rules but also because there is nothing provided in said partition
 ! " # $ % & ' (
that the aforesaid accounts shall be deemed waived or condoned. (Joson vs.
Joson)
SEC. 9. Examinations on oath with respect to account.—The court may
examine the executor or administrator upon oath with respect to every matter
relating to any account rendered by him, and shall so examine him as to the
correctness of his account before the same is allowed, except when no objection is
made to the allowance of the account and its correctness is satisfactorily established
by competent proof. The heirs, legatees, distributees, and creditors of the estate
shall have the same privilege as the executor or administrator of being examined on
oath on any matter relating to an administration account.
Q: What can the court do to verify the accounting done by the executor or
administrator?
A: The court may examine the executor or administrator under oath in order to
verify the accounting he has done. The same privilege shall be extended to the heirs,
legatees, distributes and creditors.
Q: Who will conduct the examination?
A: The probate court
Q: When may the examination be dispensed with?
A: Examination may be dispensed with when:
1. No objection is made to the allowance of the account; and
2. Its correctness is satisfactorily established by competent proof.
SEC. 10. Account to be settled on notice.—Before the account of an executor or
administrator is allowed, notice shall be given to persons interested of the time and
place of examining and allowing the same; and such notice may be given personally
to such persons interested or by advertisement in a newspaper or newspapers, or
both, as the court directs.
Q: How will the court call the executor or administrator?
A: Notice may be sent to the executor or administrator or to the interested parties.
SEC. 11. Surety on bond may be party to accounting.—Upon the. settlement
of the account of an executor or administrator, a person liable as surety in respect
to such account may, upon application, be admitted as party to such accounting.
Q: May the surety be part of the proceedings?
A: YES, but only in the settlement of the account of executors or administrators,
and not in the settlement proceedings.
Q: Is the surety privy to the proceedings against the executor or
administrator?
A: From the very nature of the obligation entered into by the surety on an
administrator’s bond, he (surety) is bound and concluded, in the absence of fraud
and collusion, by a judgment against his principal, even though said surety was not
a party to the proceedings against the administrator, nor notified in connection
therewith prior to the issuance of the court order for the confiscation of the bond.
(Phil. Trust Co. vs. Luzon Surety Inc.)
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Q: Is the surety entitled to notice in the proceeding for the settlement of
the account of the executor or administrator?
A: NO. According to Section 11, Rule 86 of the Rules of Court, upon the settlement
of the account of an executor or administrator, his sureties “may upon application,
be admitted as a party to such accounting.” The import of this provision is that the
sureties are not entitled to notice but may be allowed to intervene in the settlement
of the accounts of the executor or administrator if they ask for leave to do so in due
time.
RULE 86 - CLAIMS AGAINST ESTATE
SECTION 1. Notice to creditors to be issued by court.— Immediately after
granting letters testamentary or of administration, the court shall issue a notice
requiring all persona having money claims against the decedent to file them in the
office of the clerk of said court.
Q: What is the duty of the court immediately after granting letters
testamentary/administration?
A: §1 Rule 86, makes it the duty of the court to give notice to all persons having
money claims against the decedent to present them for allowance. Such claim must
be filed in the office of the clerk of court.
NOTE: Such notice may be issued only after letters testamentary/administration has
been granted. Further, to be sufficient, the statutory requirements of such notice
must be substantially complied with.
Q: Must the claim be filed in any specific form?
A: A claim against the decedent’s estate need not be in any particular form; it is
sufficient if it states the character and amount of the claim, enables the
representative to provide for its payment, and serves to bar all other claims by
reason of its particularity of designation. It need not conform to the technical rules
on pleadings, and the facts need not be set out with the particularity of a complaint,
but is generally required to be in writing.
Q: What kinds of claims may be presented in court under §1 of Rule 86?
A: Only money claims may be presented in court. This means any claim for “money,
debt or interest thereon.” NOT all money claims may, however, be presented, but
only those which are proper against the decedent, that is, claims upon a liability
contracted by the decedent before his death.
Q: So what are included as claims under §1 of Rule 86?
A: The word “claim” as used in some statutes to the allowance and payment of
claims against the decedent’s estate includes every species of liability which an
executor or administrator can be called upon to pay, or provide fro payment out of
the general fund of the estate, or to such debts or demands against the decedent as
might have been entered against him in his lifetime by personal actions for the
recovery of money, and on which a money judgment could have been rendered.
Q: Does this section include claims originating after the decedent’s death?
A: NO. Claims originating after the decedent’s death may be allowed as expenses of
administration. Such expenses may be collected from the executor or administrator
personally or upon motion in the testate or intestate proceeding, without the
formality and limitations provided for money claims against the decedent.
 ! " # $ % & ' (
Similarly, claims for taxes due and assessed after the death of the decedent need
NOT be presented in the form of a claim. The court, in the exercise of its
administrative control over the executor or administrator, may direct him to pay
such taxes. And the heirs, even after distribution, are liable for such tax.
Q: What other claims are NOT included in this section?
A: Claims other than for money, debt, or interest thereon cannot be presented. Thus,
the court cannot entertain claims for title to a right of possession of personal or real
property, made by the heirs themselves by title adverse to that of the deceased, or
made by 3rd persons.
NOTE: However, for the purpose merely of inclusion in or extension from the
inventory, the probate court may pass upon a question of title in real or personal
property without prejudice to a final determination of the same question in a
separate action.
Q: What is the remedy of a creditor having a debt chargeable against the
conjugal property upon the death of one of the spouses?
A: Upon the death of the wide no action may be brought against the husband for
the recovery of a debt chargeable against the conjugal property, and any judgment
rendered against him in such action is void. The proper action should be in the form
of a claim to be filed in the testate or intestate proceedings of the deceased wife.
(Calma vs. Toledo)
Q: Is execution a proper procedure to enforce a claim against the estate?
A: The ordinary procedure by which to settle claims of indebtedness against the
estate of a deceased person, as an inheritance tax, is for the claimant to present a
claim before the probate court so that said court may order the administrator to pay
the amount thereof.
The legal basis for such a procedure is the fact that in the testate or intestate
proceedings to settle the estate of a deceased person, the properties belonging to
the estate are under the jurisdiction of the court and such jurisdiction continues until
said properties have been distributed among the heirs entitled thereto. During the
pendency of the proceedings all the estate is in custodia legis and the proper
procedure is not to allow the sheriff, in case of the court judgment, to seize the
properties but to ask the court for an order to require the administrator to pay the
amount due from the estate and required to be paid. (Domingo vs. Garlitos and
Price)
Q: May a testator provide in his will for claims against his estate to be
settled in a manner other than that provided by §1, Rule 86?
A: NO. Directions in the testator’s will that such claims and debts, or any of them,
shall be settled in some manner other than that provided by law are void for being
against public policy, at least where the heirs are by force of law [compulsory].
Q: A deceased testator expressly acknowledged a debt in his will and
specifically directed his executor to pay that debt after his death. Is the
claimant still obliged to file a claim under 1 Rule 86?
A: A creditor's claim against the estate of a deceased person, admitted by the
committee on appraisal and claims, whose report has been approved by the court,
without any appeal having been taken from said approval, is a lawful [equitable] lien
on the estate of said decedent. And such lien continues until the debts are
extinguished by payment, prescription or satisfaction of the claim by one of the
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modes recognized by law. His representatives or successors are bound to pay said
claim with the property they have inherited from him. (Montinola vs. Villanueva)
SEC. 2. Time within which claims shall be filed.—In the notice provided in the
preceding section, the court shall state the time for the filing of claims against the
estate, which shall not be more than twelve (12) nor less than six (6) months after
the date of the first publication of the notice. However, at any time before an order
of distribution is entered, on application of a creditor who has failed to file his claim
within the time previously limited, the court may, for cause shown and on such
terms as are equitable, allow such claim to be filed within a time not exceeding one
(1) month.
Q: What should the notice contain?
A: The rule provides that: “In the notice provided in the preceding section, the
court shall state the time for the filing of claims against the estate, which shall not
be more than twelve (12) nor less than six (6) months after the date of the first
publication of the notice.”
Q: Is the period prescribed under §2 Rule 86 mandatory?
A: NO. The period prescribed in the notice to creditors is not exclusive; that money
claims against the estate may be allowed at any time before an order of distribution
is entered, at the discretion of the court for the cause and upon such terms as are
equitable. (Quisumbing vs Guison)
Q: What is the period within which the creditors may file a claim against
the estate?
A: The range of period specified in Sec.2 of Rule 86 is intended to give the court
the discretion to fix the period for the filing of the claims. The probate court is
permitted by the rule to set the period as long as it is within the limitation provided
[not less than 6 months nor more than 12 months from the first publication of the
notice thereof]. Such period once fixed by the courts is mandatory. (Heirs of
Pizzaro Sr. vs. Consolacion)
Q: What is the object of the law in fixing a time within which a claim shall
be filed?
A: The object of the law, in fixing a period within which claims against an estate
must be presented, is to insure a speedy settlement of the affairs of the deceased
person and the early delivery of the property, to the persons entitled to receive it.
The speedy settlement of the estate and the early distribution of the estate of
deceased persons should not be unnecessarily delayed by the lethargy and
negligence of those who have a direct interest in the same.
The purpose of the rule is to settle the affairs of the estate with dispatch, so that the
residue may be delivered top the persons entitled thereto without their being
afterwards called upon to respond in actions for claims, which under the ordinary
statute of limitations, have not yet prescribed. (Tan Se Guan vs. Ga Siu San
citing In re Estate of Tangco)
Q: What is the statute of non-claims?
A: It is a definite period fixed by the rules for the filing of claims against the estate
of the decedent; and such claims, if not filed within said period, are barred.
 ! " # $ % & ' (
Q: When should claims be filed?
A:
General Rule: Within the time fixed in the notice, which shall not be more than 12
months nor less than 6 months after the date of the first publication. Such period
once fixed by the court is mandatory. Otherwise, the claims are barred forever.
Exception: Belated claims.
Q: What is the rule on Belated Claims?
A: Belated claims may be filed even beyond the period fixed by the court:
1. On application of a creditor who has failed to file his claim within the time
previously limited, at any time before an order of distribution is entered, the
court may, for just causes [showing why permission for the belated claim
should be granted], allow such claim to be filed not exceeding 1 month from
the order allowing belated claims; or (Sec. 2 , Rule 86)
2. Where the estate filed a claim against the creditor or claimant who failed to
present his claim against the estate within the period fixed by the probate
court for the settlement of such claims, the creditor will be allowed to set up
the same as a counterclaim to the action filed by the estate against him.
NOTE: Statute of non-claims supersedes the Statute of Limitations insofar as the
debts of deceased persons are concerned because if a creditor fails to file his claim
within the time fixed by the court in the notice, then the claim is barred forever.
However, both statute of non-claims and statute of limitations must concur in order
for a creditor to collect.
Q: When may a claim be allowed even if filed after the lapse of the period
for filing claims?
A: There is no question that the contingent claim was filed two (2) days beyond the
six-month period stipulated in the order, which directed all persons having money
claims against the estate to file them. However, the question on the timeliness of
the filing of the claim was raised only seven years after. In the interregnum, the
administratrix had acquiesced to the entertainment of the claim by filing an answer
thereto, and again by asking for postponement of the hearing wherein she was to
present her rebuttal evidence. She is not only estopped by her conduct but laches
also bar her claim. (The lntestate Estate of Dominador Danan vs.
Buencamino)
Q: Distinguish the case of Heirs of Pizzaro Sr., vs. The lntestate Estate of
Dominador Danan
A: In the Heirs of Pizzaro, the trial court set the period for filing the claims within
6 months after publication of 1st notice. This was markedly short of the minimum
time limit of 6 months provided for by law from the time of the 1st publication of
notice. Since the notice issued and the period set by the TC was not in accordance
wit the requirements under the rules, what should then apply is the period provided
for under §2 Rule 86, which provides for a period of not less than 6 months nor
more that 12 months from the day of the first publication of the notice.
In the case of the Intestate Estate of Danan, the court also set the period for
filing of claims within 6 months after the publication of the 1st notice. Although the
claims were filed 2 days beyond the 6-month period stipulated in the order, the LC
correctly allowed the claim because the administatrix had acquiesced to the
entertainment of the claim by filing an answer and by asking for postponement of
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the hearing in order to present rebuttal evidence. In the latter case, she is not only
estopped by her conduct, but laches also bar her claim.
In the case of Danan, although the lower court set the period for filing of claims
within 6 months after publication of the 1st notice, in the same manner as in the
case of Pizzaro, the SC made no comment about it.
This does not mean that the lower courts interpretation of the setting of the period
in the Danan case is correct. It was just that the lower court accepted the claim in
the Danan case in contrast to the refusal in the Pizarro case, that is why the court
did not dwell on the issue of whether the period set in Danan was proper.
NOTE: The Pizarro case is a later case than Danan, and the proper interpretation
for setting the period was squarely raised in the Pizarro.
Q: When may the extension of the period for filing claims be granted by the
court?
A: The period prescribed in the notice to creditors is not exclusive; that money
claims against the estate may be allowed any time before an order of distribution is
entered, at the discretion of the court, for cause and upon such terms as are
equitable. This extension of the period shall not exceed one month from the
issuance of the order authorizing such extension.
In this case, when the claimant could not have filed a money claim against the
estate of a deceased person before the promulgation of the decision of the Court of
Appeals because although the lower court in that case upheld her right to the
ownership and possession of the building subject thereof, no damages were
adjudged in claimant’s favor until after the decision of the said appellate court, it is
held that the action taken by the lower court, before an order of distribution has
been made, granting an extension of the period within which to file her claim,
cannot be considered an abuse of discretion. (De Rama vs. Palileo)
Q: From what time is the one month extension period counted from in case
of Belated Claims?
A: Under the De Rama case, the SC held that the 1 month extension period is
counted from the time an extension has been authorized by the lower court.
Although the SC held in the Danan case, which was promulgated later than De Rama,
that the 1 month was counted from the expiration of the period previously fixed by
the court, this was a mere obiter, and so the De Rama case is still controlling.
The case of Quisumbing vs. Guison decides the issue similarly to De Rama,
stating that “the 1 month period for filing belated claims is the same granted
claimants, which begins from the order authorizing the filing of the claims. It does
not mean that the extension of 1 month begins from the expiration of the original
period fixed by the court for the presentation of claims. The reason is that under the
aforementioned rule, there is no limitation as to the time within which a creditor
who has failed to file his claim within the time previously limited, may file an
application for extension of time within which to file his claim”, nor is there a
limitation as to the time within which such may be granted, provided the application
is presented before the order of distribution is entered.
Q: What are the conditions for the filing of a belated claim?
A: The rule clothes the court with authority to permit the filing of a claim after the
lapse of 12 months, or at any time before the order of distribution is entered,
subject to the following conditions:
1. Application of a creditor who has failed to file his claim
 ! " # $ % & ' (
2. Just cause [showing why permission for the belated claim should be
granted]
3. The extension of time granted for filing the claim must not exceed one
month.
Q: What cause shall be considered sufficient to allow a belated claim to be
filed?
A: The last sentence of section 2, Rule 87, provides that the court may, for cause
shown and on such terms as are equitable, allow such claim to be filed within a time
not exceeding one month. As it does not state what cause shall be considered
sufficient for the purpose, it is clear that it is left to the discretion of the court to
determine the sufficiency thereof; and when the court allows a claim to be filed for
cause or causes which it considers as sufficient, on appeal this court can not reverse
or set aside the action of the court below unless the latter has abused its discretion.
(Quisumbing vs. Guison)
Q: IS it necessary to file an application for extension of time for filing a
claim before such can be granted?
A: NO. Although the claim against the estate of the decedent is not filed within the
time allowed by the notice to creditors, it may be allowed by the court after hearing
both parties, without necessity on the part of the claimant to file a previous
applications for, and on the part of the court to grant, an extension of time.
(Quisumbing vs. Guison)
Q: When may an extension NOT be granted?
A: The courts can extend the period within which to present claims against the
estate, even after the period allowed in the notice to creditors, but such extension
could only be granted under exceptional circumstances. The pendency of a claim
before the NLRC is not a sufficient excuse for the belated filing of the disputed claim.
Q: Does a grant of an extension of time to file a claim imply legality of the
claim?
A: NO. A grant of an extension of time within which to file acclaim against the
decedent’s estate does not constitute adjudication that such is a legal claim.
Q: May the presentment of a probate claim be waived
A: Though presentment of probate claims is imperative, it is generally understood
that it may be waived by the estate's representative. And, waiver is to be
determined from the administrator's "acts and conduct." Certainly, the
administrator's failure to plead the statute of non-claims, his active participation,
and resistance to plaintiff's claim, in the civil suit, amount to such waiver.
Where a money claim was continued against the administrator of the decedent's
estate, who was substituted for the deceased defendant, the estate waived thereby
its right to relitigate the same claim in the intestate proceedings. The judgment
against the administrator should be allowed as a claim against the estate. It is not
subject to the statute of non-claims.
Where a money claim, which was still being litigated in a civil action, was filed in the
intestate proceeding after the expiration of the period fixed in the notice to creditors
but before the order of final distribution was issued, the pendency of the civil action
was a good excuse for the tardy filing of the claim. The probate court did not abuse
its discretion in ordering the payment of the claim. The order for its payment
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impliedly granted the creditor an extension within which to file said claim. (Ignacio
vs. Pampanga Bus Co., Inc.)
In Echaus vs. Blanco, a civil case for a money claim, was instituted during the
lifetime of C. N. Hodges. During its pendency and before a decision could be
rendered by the Regional Trial Court, Hodges died. Upon his death, he was
substituted by PCIB as administrator of his estate. Being a money claim, the civil
case should have been dismissed and instituted as a money claim in the intestate
estate of the deceased.
However, citing Ignacio, the case held that: “Whether the original suit for the
recovery of money—as here—proceeds to its conclusion, or is dismissed and the
claim covered thereby filed with the probate court, one thing is certain: no
substantial rights of the parties are prejudiced.” Therefore, the court held that the
pendency of that [civil] case, is a good excuse for tardiness in the filing of the claim.
(In pari materia: De Rama v. Palileo). And the order of the final distribution is still to
be given.” (Ignacio v. Pambusco)
SEC. 3. Publication of notice to creditors.—Every executor or administrator
shall, immediately alter the notice to creditors is issued, cause the same to be
published three (3) weeks successively in a newspaper of general circulation in the
province, and to be posted for the same period in four public places in the province,
and in two public places in the municipality where the decedent last resided.
Q: What is the duty of the executor or administrator under §3, Rule 86?
A: It is the duty of the executor or administrator to give notice to the creditors of
the decedent and cause such notice to be:
- Published 3 weeks successively in a newspaper of general circulation in the
province where the decedent last resided; and
- Posted for the same period in:
o 4 public places in the province; and
o 2 public places in the municipality where the deceased last resided.
NOTE: The statutory requirements of such notice should be substantially complied
with in order for the notice to be sufficient.
Q: What is the effect of failure on the part of the executor or administrator
to publish the statutory notice to the creditors?
A: It will afford additional time for the presentation of claims. This seems to be the
case where the statute in direct terms allows a designated period for presenting
claims after the publication of the notice.
Q: What is a newspaper of general circulation?
A: If it is published for the local dissemination of local news and general information,
if it has a bona fide subscription list of paying subscribers, and if its published a
regular intervals. No fixed number of subscribers is necessary to constitute a
newspaper of general circulation.
Q: What is the requirement of publication for “three weeks successively”?
A: This does not mean that the notice referred to therein should be published for
three full weeks prior to the date set for hearing. The first publication of the notice
need not be made 21 days before the hearing date. When notice was made on Dec.
4, 11 and 18, and the hearing was on the 19th, the requirement would have been
satisfied.
 ! " # $ % & ' (
SEC. 4. Filing copy of printed notice.—Within ten (10) days after the notice has
been published and posted n accordance with the preceding section, the executor or
administrator shall file or cause to be filed in the court a printed copy of the notice
accompanied with an affidavit setting forth the dates of the first and last publication
thereof and the name of the newspaper in which the same is printed.
Q: What is the purpose of the filing of a copy and proof of publication of
the notice?
A: This sis done in order to inform the creditors that notice has been given and to
inform the court that it has been properly published and so that the court can make
an order stating that the notice has been given.
NOTE: Notice must be proved within 10 days after publication.
SEC. 5. Claims which must be filed under the notice. If not filed, barred;
exceptions.—All claims for money against the decedent, arising from contract,
express or implied, whether the same be due, not due, or contingent, all claims for
funeral expenses and expenses for the last sickness of the decedent, and judgment
for money against the decedent, must be filed within the time limited in the notice;
otherwise they are barred forever, except that they may be set forth as
counterclaims in any action that the executor or administrator may bring against the
claimants. Where an executor or administrator commences an action, or prosecutes
an action already commenced by the deceased in his lifetime, the debtor may set
forth by answer the claims he has against the decedent, instead of presenting them
independently to the court as herein provided, and mutual claims may be set off
against each other in such action; and if final judgment is rendered in favor of the
defendant, the amount so determined shall be considered the true balance against
the estate, as though the claim had been presented directly before the court in the
administration proceedings. Claims not yet due, or contingent, may be approved at
their present value.
Q: What are the claims which must be filed within the time limited in the
notice?
A: Only claims which survive such as:
1. All claims for money against the decedent, arising from contract, express or
implied, whether the same be due, not due, or contingent;
2. All claims for funeral expenses;
3. Expenses for the last sickness of the decedent; or
4. Judgment for money against the decedent. (Sec. 5, Rule 86)
NOTE: Action on contractual claims such as favorable judgment obtained by the
plaintiff in an action for recovery of money arising from contract, express or implied,
and the defendant dies before entry of final judgment may be filed against the
estate of the decedent. (Sec. 20, Rule 3)
Action which survives like an action to recover real or personal property or an
interest therein from the estate may be commenced against the executor or
administrator under Rule 87.
Q: What if the effect of claims not filed?
A: As expressly provided by the rule, all claims not presented within the time
herein provided are barred.
Except they may be set up as counterclaims in any action that the executor or
administrator may bring against the claimants.
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Q: Does the court have jurisdiction to order the payment of a debt for
which no claim has been filed?
A: In the instant case, there was no claim made, filed or presented to the probate
commissioners by anyone, and for such reason, the allowance of an alleged claim by
them on their own volition was null and void ab initio.
In such a case the allowance of an alleged claim by the probate commissioners
acting without jurisdiction is not conclusive, and such allowance of a claim may be
attacked for want of jurisdiction, fraud, or mistake in an original proceeding
commenced within a reasonable time after the time for appeal has expired.
(Gotamco vs. Chan Seng and Razon)
Q: What alternative does a claimant against the estate have within the
period fixed in the notice to creditors?
A: The claims may also be set forth by answer where the executor or administrator
commences an action or prosecutes an action already commenced by the deceased
in his lifetime, when the period for filing has not yet expired. The answer shall have
the same effect as a filing of claims under the notice to creditors. In such actions,
mutual claims are allowed to be set-off against each other. If final judgment is
rendered in favor of the defendant, the amount so determined shall be considered
the true balance against the estate as though the claim has been presented directly
before the court in the administration proceedings.
Q: Does the expression “must be filed within the time on the notice”
include the extension of time granted in accordance with §2?
A: YES. §2 was incorporated for the purpose of affording a chance to those who, for
good cause shown and for equitable reasons, before an order of distribution of the
decedent’s estate is entered, failed to file just claims. If the creditor, after having
ben granted the opportunity as specified in the second part of §2 still failed to file
his claim, then it is barred forever. This must be so since the law does not give a
premium on the negligence and lack of interest of the creditor.
Q: What is the purpose of presentation of claims against the decedent’s
estate?
A: Presentation is required in order to protect the estate of the deceased by
informing the executor or administrator of claims against it, thus enabling him to
examine which ones are proper and should be allowed. The provision requiring
presentation is primarily to apprise the administrator and the court of the claim, so
a proper and timely arrangement for payment can be made; in full or pro rata in the
course of administration.
Q: Why are claims that are not filed barred forever?
A: The statute on non-claims and limitations have been set up since it is a matter of
public policy that estates should be speedily determined.
Q: Must a claim be filed even if there is a direction in the will for the
payment of debts?
A: It is generally held that such direction, which does not create an express trust
does not obviate he necessity on the part of the creditor of presenting, probating or
prosecuting his claim within the period fixed. Where however the direction in the
will is specific as to the debt to be paid, or the property wherefrom the payment is
to be made, it may create an express trust; and it has been held that there is no
necessity for the creditor to present, probate, prove or prosecute his claim within
 ! " # $ % & ' (
the time designated by the non-claim statute. The will furnished the evidence of
indebtedness incurred during the lifetime of the decedent.
Q: What is the scope of claims for money under this section?
A: With the phrase “All claims for money against the decedent, arising from contract,
express or implied,” it is not enough that the claim against the deceased be for
money. It is also necessary that the claim must arise from either an express or
implied contract. This includes all purely personal obligations, other than those
which have their source in delict or tort.
Q: What are claims for funeral expenses and expenses for the last illness of
the decedent?
A: These are legal and proper expenses of administration. They are also required to
be filed within the time specified. Claims for funeral expenses are the only ones
arising after the death of the decedent that can be allowed against the estate.
Q: What is contingent claim?
A: These are claims where liability depends on a future uncertain event, and which
makes it uncertain whether or not there will be any liability at all. It has reference to
the uncertainty of liability and NOT to the uncertainty of collecting. (Gaskell vs.
Tan Sit)
Q: How should a contingent claim be presented in the administration
proceedings?
A: In the same manner as an ordinary claim. When the contingency arises and
converts the contingent claim into a valid claim, the courts should be informed that
the claim has already matured. (Buan and Paras vs. Laya)
( creditor from filing a claim within the limit prescribed by law?
Q: Distinguish a contingent claim from an absolute claim
Contingent Claim Absolute Claim
Is one which by its nature in necessarily Is not subject to any contingency and
dependent upon an uncertain event for would be the proper subject of
its existence or validity, and makes it immediate legal action if contested
uncertain whether or not there will be between living persons.
any liability
- The word “contingent” conveys the
idea of ultimate uncertainty as to the
happening of the event when the liability
will arise.
Q: Should a judgment for money be presented?
A: YES. A judgment rendered against the decedent during his lifetime must be
presented for allowance as a claim against the estate in order to preserve the right
to have it discharge out of the assets upon which it does not constitute a specific
lien.
Q: Is execution a proper remedy to enforce a money judgment against the
deceased?
A: NO. A writ of execution is not the proper procedure for the payment of debts and
expenses of the administration. The proper procedure is for the court to order the
administratrix to make the payment; and if there is no sufficient cash on hand, to
order the sale of the properties and out of the proceeds to pay the debts and
expenses of the administration. We hold that the same rule must be applied in
connection with money judgments against the deceased that have already become
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final. No writ of execution should issue against the properties of the deceased. The
claim for satisfaction of the money judgment should be presented in the probate
court for payment by the administrator. (Paredes vs. Moya)
Py eng Chong vs. Herrera - Had the levy been made before the death of the
judgment debtor, the sale on execution could have been carried to completion in
accordance with Section 7(c) of Rule 39 which provides that in case the judgment
debtor dies after execution is actually levied upon any of his property, the same
may be sold for the satisfaction of the judgment.
Q: When is execution proper in enforcing a money judgment against the
decedent?
A: The property levied upon in case the judgment debtor dies after the entry of
judgment, may be sold for the satisfaction of the judgment in case death occurs
“after execution is actually levied.”
On the other hand, Section 5 of Rule 86 provides that a judgment for money against
the decedent must be filed with the court in the proceeding for the settlement of the
estate. In other words, the cut-off date is the date of actual levy of execution. If the
judgment debtor dies after such levy, the property levied upon may be sold; if
before, the money judgment must be presented as a claim against the estate,
although of course the same need no longer be proved, the judgment itself being
conclusive. But the judgment creditor will share the estate with other creditors,
subject only to such preferences as are provided by law. (Evangelista vs.
Proveedora)
Q: Does the fact that no settlement proceedings were pursued, exempt a
A: NO. The creditor himself may initiate proceedings under §1 Rule 76 if the
decedent dies intestate, or §6(b) Rule 78 if he died with a will.
Q: Should taxes due and assessed after the death of the decedent be
presented in the form of a claim?
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SEC. 6. Solidary obligation of decedent.—Where the obligation of the decedent
is solidary with another debtor, the claim shall be filed against the decedent as if he
were the only debtor, without prejudice to the right of the estate to recover
contribution from the other debtor. In a joint obligation of the decedent, the claim
shall be confined to the portion belonging to him.
Q: What does §6 Rule 86 provide?
A: This rule requires a solidary obligation to be filed against the estate as if he were
the only debtor. If he estate pays, it can recover contribution from the other solidary
debtor. However, if the obligation is joint, the claim should be confined to the
portion belonging to him.
 ! " # $ % & ' (
Q: What is the effect of a failure to file a claim for solidary obligation
against the estate of the deceased debtor?
A: Failure to file the claim for solidary obligation against the estate of the deceased
bars it. Where two persons are bound in solidum for the same debt and one of them
dies, the whole indebtedness can be proved against the estate of the latter; and if
the claim is not presented to the committee appointed to allow claims against the
estate within the time contemplated in the Rules, the same will be barred as against
such estate. (Jaucian vs. Querol)
Q: When is §6 Rule 86 NOT applicable?
A: The provision must be deemed not applicable when no proceeding for the
administration of the estate of the deceased has been filed, despite the lapse of
more than 2 years after the latter’s death.
Q: Is the creditor precluded from proceeding against the other solidary
debtors?
A: NO. Nothing in Section 6, Rule 86 prevents a creditor from proceeding against
the surviving solidary debtors. Said provision merely sets up the procedure in
enforcing collection in case a creditor chooses to pursue his claim against the estate
of the deceased solidary debtor. The rule has been set forth that a creditor (in a
solidary obligation) has the option whether to file or not to file a claim against the
estate of the solidary debtor.
Article 1216 of the New Civil Code is the applicable provision in this matter. The
provision gives the creditor the right to “proceed against anyone of the solidary
debtors or some or all of them simultaneously.” The choice is undoubtedly left to the
solidary creditor to determine against whom he will enforce collection. In case of the
death of one of the solidary debtors, he (the creditor) may, if he so chooses,
proceed against the surviving solidary debtors without necessity of filing a claim in
the estate of the deceased debtors. To require the creditor to proceed against the
estate, making it a condition precedent for any collection action against the
surviving debtors to prosper, would deprive him of his substantive right provided by
Article 1216. (PNB vs. Asuncion)
SEC. 7. Mortgage debt due from estate.—A creditor holding a claim against the
deceased secured by mortgage or other collateral security, may abandon the
security and prosecute his claim in the manner provided in this rule, and share in
the general distribution of the assets of the estate; or he may foreclose his
mortgage or realize upon his security, by action in court, making the executor or
administrator a party defendant, and if there is a judgment for a deficiency, after
the sale of the mortgaged premises, or the property pledged, in the foreclosure or
other proceedings to realize upon the security, he may claim his deficiency
judgment in the manner provided in the preceding section; or he may rely upon his
mortgage or other security alone, and foreclose the same at any time within the
period of the statute of limitations, and in that event he shall not be admitted as a
creditor, and shall receive no share in the distribution of the other assets of the
estate; but nothing herein contained shall prohibit the executor or administrator
from redeeming the property mortgaged or pledged, by paying the debt for which it
is held as security, under the direction of the court, if the court shall adjudge it to be
for the best interest of the estate that such redemption shall be made.
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Q: How may a creditor holding a claim against the deceased secured by a
mortgage or other collateral security secure the payment of his credit?
A: A creditor holding a claim against the deceased secured by a mortgage or other
collateral security against the estate of the deceased can take any of three courses:
1. He may abandon the security and prosecute his claim in the manner provided
in Rule 86, and share in the general distribution of the assets of the estate.
2. He may foreclose his mortgage or realize upon his security, by an action in
court, making the executor or administrator a party defendant; and if there sis
a judgment for deficiency after the sale of the mortgaged property, he may
claim his deficiency judgment in the manner provided for in this rule; or
3. He may rely upon his mortgage or other security alone, and foreclose the
same at any time within the period of the statute of limitations. In such an
event he shall not be admitted as a creditor, and shall receive no share in the
distribution of the other assets of the estate.
NOTE: the above remedies however, do not preclude the executor or administrator
from redeeming the property mortgaged or pledged, by paying the debt for which it
is held as security, under the direction of the court, provided that the court shall
adjudge it to be in the best interest of the estate for such a redemption to be made.
Q: Are these remedies exclusive?
A: It is clear by the provisions of §7 Rule 86 that a person holding a mortgage
against the estate of the deceased may abandon such security and prosecute his
claim in the probate court and share in the distribution of the general assets of the
estate. He may also, at his own election, foreclose the mortgage and realize upon
his security. But the rule does not provide that he may have both remedies.
If he elects one he must abandon the other. He is not permitted under this section
to annoy those interested in the estate of the deceased by instituting 2 actions for
exactly the same purpose. Multiplicity of actions is abhorrent to the law and is not
permitted by equity and justice.
Q: What happens if the mortgagee files an action for recovery of money
and the debtor dies before trial?
A: And although at the bottom of the promissory note sued upon and before the
signature of the obligor there appears the following: "The payment of this note is
secured by mortgage on personal property," yet it does not appear that the plaintiff
sought to foreclose it. The action being one for recovery of money, the debtor
interest thereon did not survive the death of the defendant. (Macondray and Co.
vs. Dungao)
Q: May an extrajudicial foreclosure proceed even after the death of the
mortgagor?
A: From the foregoing provision of the Rules it is clearly recognized that a
mortgagee has three remedies that may be alternately availed of in case the
mortgagor dies, to wit:
(1) to waive the mortgage and claim the entire debt from the estate of the
mortgagor as an ordinary claim;
(2) to foreclose the mortgage judicially and prove the deficiency as an ordinary
claim; and
(3) to rely on the mortgage exclusively or other security and foreclose the same at
anytime, before it is barred by prescription, without the right to file a claim for any
deficiency.
From the foregoing it is clear that the mortgagee does not lose its right to
extrajudicially foreclose the mortgage even after the death of the mortgagor as a
 ! " # $ % & ' (
third alternative under Section 7, Rule 86 of the Rules of Court. (Vda. De Jacob vs.
CA)
Q: What is the effect of abandonment by the creditor of his security?
A: A person holding a mortgage against the estate of a deceased person may
abandon such security and prosecute his claim in the manner provided by this Rule
and share in the distribution of the general assets. But if he thus abandons his
claims on the mortgage, he cannot later maintain an action upon the mortgage to
foreclose it.
Q: Who is the party defendant in an action by the mortgage creditor to
foreclose his mortgage?
A: In such action, the executor or administrator should be made a party defendant.
Where real property registered under the Torrens system is mortgaged, with the
approval of the court, the administrator or his successor is the sole indispensable
party defendant in a proceeding to foreclose the mortgage. The heirs of the
decedent, even supposing them to be proper parties, are not indispensable parties
in such a case.
Q: What if the mortgage creditor has a deficiency judgment?
A: He may claim his deficiency judgment against the estate.
Q: State the nature of a judgment allowing a claim?
A: The judgment allowing the claim shall direct the executor or administrator to pay,
in due course of administration, the amount ascertained to be due, and it shall not
create a legal lien upon the property of the estate or give to the judgment creditor
any priority payment. All claimants shall share pro rata in the liquidation of the
estate of the deceased.
SEC. 8. Claim of executor or administrator against an estate.—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 such 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 to the special administrator necessary funds to defend such claim.
Q: What should be the action of the executor or administrator if he has a
claim against the estate?
A: When the executor or administrator has a claim against the estate he represents,
he is required to give notice thereof to the court in writing. The court shall thereafter
appoint a special administrator who is vested with the same powers and subject to
the same liability as the general administrator or executor only insofar as it pertains
to the adjustment of such claim. (Sec. 8, Rule 86).
Q: May an executor or administrator simply pay to himself the claims
which he may have against the deceased?
A: NO. It is neither proper nor lawful for an executor or administrator of an estate
to pay to himself claims he may have against the deceased and to take possession
of property of the same to which he thinks he is entitled, without observing the
procedure fixed by the rules. No legal provision in the Rules of Court, which treats of
the duties of executors and administrators, confers upon them such authority. On
the contrary, Rule 86 provides that claims for the collection of debts against the
testate or intestate succession must be presented to the court.
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SEC. 9. How to file a claim. Contents thereof Notice to executor or
administrator.—A claim may be filed by delivering the same with the necessary
vouchers to the clerk of court and by serving a copy thereof on the executor or
administrator. If the claim be founded on a bond, bill, note, or any other instrument,
the original need not be filed, but a copy thereof with all indorsements shall be
attached to the claim and filed therewith. On demand, however, of the executor or
administrator, or by order of the court or judge, the original shall be exhibited,
unless it be lost or destroyed, in which case the claimant must accompany his claim
with affidavit or affidavits containing a copy or particular description of the
instrument and stating its loss or destruction. When the claim is due, it must be
supported by affidavit stating the amount justly due, that no payments have been
made thereon which are not credited, and that there are no offsets to the same, to
the knowledge of the affiant. If the claim is not due, or is contingent, when filed, it
must also be supported by affidavit stating the particulars thereof. When the
affidavit is made by a person other than the claimant, he must set forth therein the
reason why it is not made by the claimant. The claim once filed shall be attached to
the record of the case in which the letters testamentary or of administration were
issued, although the court, in its discretion, and as a matter of convenience, may
order all the claims to be collected in a separate folder.
Q: What is the procedure in filing a claim?
A:
1. A claim may be filed by delivering the same, with the necessary vouchers to
the clerk of court
2. A copy of the claim must be served upon the executor or administrator
3. If the claim is founded on an instrument, a copy thereof shall be attached to
the claim and filed therewith
4. When the claim is due, it must be supported by affidavit stating:
a. The amount justly due
b. That no payments had been made thereon which are not credited
c. That there are no offsets to the same to the knowledge of the affiant
5. If the claim is not due, or is contingent when filed, it must be supported by
affidavit stating the particulars thereof.
6. When a person other than the claimant makes the affidavit, he must set forth
therein the reason why the claimant did not make it.
Q: What is the purpose of statutes relating to forms of claims?
A: They are to be applied in light of their purpose, which is to enable the executor
and the judge to pass upon the claim presented.
Q: What is meant by “voucher”?
A: The word “voucher” as used in the rule means the affidavit of the claimant to the
effect that the amount claimed is justly due.
Q: What is the rule regarding claims based upon a written document?
A: Where the claim is founded upon a written document, either the original or a
copy thereof must accompany it when the claim is presented for allowance, and is
held to be jurisdictional. The purpose of the requirement is to enable the personal
representative to pass intelligently upon the merits of the claim.
SEC. 10. Answer of executor or administrator. Offsets.—Within fifteen (15)
days after service of a copy of the claim on the executor or administrator, he shall
file his answer admitting or denying the claim specifically, and setting forth the
 ! " # $ % & ' (
substance of the matters which are relied upon to support the admission or denial.
If he has no knowledge sufficient to enable him to admit or deny specifically, he
shall state such want of knowledge. The executor or administrator in his answer
shall allege in offset any claim which the decedent before death had against the
claimant, and his failure to do so shall bar the claim forever. A copy of the answer
shall be served by the executor or administrator on the claimant. The court in its
discretion may extend the time for filing such answer.
Q: What is the period for filing an answer to the claim?
A: Within 15 days after service of a copy of the claim on the executor or
administrator, he shall file his answer to the claim. The court, in its discretion, may
extend the time for filing such answer.
Q: Why must an answer be filed?
A: The claim filed may be considered equivalent to an action against the executor or
administrator and therefore, the latter must file an answer.
Q: What are the contents of the answer?
a. Admit or deny the claim specifically, and set forth the substance of the matters
which are relied upon to support the admission or denial. If he has no
knowledge sufficient to enable him to admit or deny specifically, he shall state
such want of knowledge;
b. The executor or administrator in his answer must allege in offset any claim
which the decedent before death had against the claimant
NOTE: A copy of the answer must be served upon the claimant.
SEC. 11. Disposition of admitted claim.—Any claim admitted entirely by the
executor or administrator shall immediately be submitted by the clerk to the court
who may approve the same without hearing; but the court, in its discretion, before
approving the claim, may order that known heirs, legatees, or devisees be notified
and heard. If upon hearing, an heir, legatee, or devisee opposes the claim, the court
may, in its discretion, allow him fifteen (15) days to file an answer to the claim in
the manner prescribed in the preceding section.
Q: May a claim be admitted without hearing?
A: Any claim admitted entirely by the executor or administrator shall be
immediately submitted by the clerk of court to the court who may approve such
claim without hearing; but the court in its discretion before approving such claim,
may order that known heirs, legatees and devisees be notified and heard.
Q: What is the amount of claim that the court may allow?
A: The court can allow less but not more than the amount of the claim presented
against the estate of the deceased.
Q: Do the heirs have the right to intervene in the administration of the
estate?
A: The intervention of heirs is permitted in the discretion of the court for the
purpose of preventing any possible collusion between the claimant and the executor
or administrator.
SEC. 12. Trial of contested claim.—Upon the filing of an answer to a claim, or
upon the expiration of the time for such filing, the clerk of court shall set the claim
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for trial with notice to both parties. The court may refer the claim to a
commissioner.
Q: When does the duty of the clerk of court to set the claim for trial arise?
A: The duty of the clerk of court to set the claim for trial arises upon:
1. The filing of an answer to the claim
2. The expiration of time for such filing
NOTE: The clerk of court must also notify both parties of the trial.
SEC. 13. Judgment appealable.—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. A judgment
against the executor or administrator shall be that he pay, in due course of
administration, the amount ascertained to be due, and it shall not create any lien
upon the property of the estate, or give to the judgment creditor any priority of
payment.
Q: What shall be the judgment of the court upon allowance of the claim?
A: A judgment against the executor or administrator shall be that he pay, in due
course of administration, the amount as ascertained to be due. The judgment
approving s claim shall NOT create a lien, or give to the judgment creditor any
priority of payment.
Q: Is the administrator personally liable for the payment of a claim?
A: A personal representative will be protected in the payment of a claim which has
been duly allowed or ordered by the court, although it should not have been paid in
full, unless it its made to appear that such allowance of the claim, or order for
payment thereof was obtained through his collusion or bad faith.
Q: May a judgment allowing/rejecting a disputed claim be appealed?
A: YES. Appeal may be taken as in ordinary cases.
SEC. 14. Costs.—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, if he fails to obtain a more favorable judgment, he
cannot recover costs, but must pay to the executor or administrator costs from the
time of the offer. Where an action commenced against the deceased for money has
been discontinued and the claim embraced therein presented as in this rule
provided, the prevailing party shall be allowed the costs of his action up to the time
of its discontinuance.
Q: What does §14 Rule 86 provide?
A: It provides for a case where the claimant is not entitled to recover costs from
the executor or administrator. It further provides for an instance when the
prevailing party may be allowed the costs of his action.
Q: When is the claimant NOT entitled to recover costs?
A: When an 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. If he fails to obtain a more favorable judgment, he cannot recover costs,
but must pay the executor or administrator the costs. The liability of the claimants
for costs in this case starts from the time the executor or administrator made the
offer to pay.
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Sample Petition for Letters of Administration:

Republic of the Philippines

REGIONAL TRIAL COURT
National Capital Judicial Region
Branch 27, Manila

In the Matter of the Intestate Estate of

SAN ANDRES JR.,
Sp. Proc. No.: 96-147807
MIKA ANDRES,
Petitioner.
x-----------------------------------x

For: Administratorship

PETITION

COMES NOW, the petitioner by the undersigned counsel and unto this Honorable
Court respectfully alleges:
1. That the petitioner is of legal age, single, and resident of 16 st. Ever
Gotesco Morayta Manila
2. The she is the legitimate spouse of deceased who died intestate in the City
of Manila on March 1 2007.
3. That the deceased SAN ANDRES JR.. left the following legal heirs, to wit:
[NAME AGE RELATION TO DECEASED ADDRESS]
MIKA ANDRES 55 Wife Morayta Manila
4. That the deceased left the following real and personal properties, to wit:
[CHARACTER LOCATION PROBABLE VALUE]
Residential Lot Pateros Metro Manila P30,000,000.00
5. That, as far as petitioner knows, the following are the names of the
creditors of the decedent, to wit:
[NAME ADDRESS AMOUNT OF CREDIT]
Ray Quizon Makati City P1,000.00
Philip Salvador San Juan 500.00
6. That decedent died leaving neither descendants nor ascendants whether
legitimate or otherwise, and petitioner is the surviving spouse of said
decedent.

WHEREFORE, it is prayed that, after due notice and hearing aNd the giving of a
bond in the sum fixed by this Honorable Court, letters of administration of the estate
of the deceased SAN ANDRES JR., be issued to petitioner MIKA ANDRES.

Manila, Philippines, April 28, 2007

MARIA LOPEZ
Attorney for Petitioner
LOPEZ & ASSOCIATES LAW OFFICES
2nd Floor, RCBC Plaza, Ayala Avenue, Makati City
Roll No. 123456
P.T.R. No. 1234567 / Manila / January 10, 2008
IBP No. 123456/ Manila / January 20, 2008 + VCNFS
MCLE Compliance No. 123456

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Sample petition for Probate of a Notarial Will: Sample petition for Probate of a Holographic Will:

Republic of the Philippines Republic of the Philippines

REGIONAL TRIAL COURT REGIONAL TRIAL COURT
National Capital Judicial Region National Capital Judicial Region
Las Pinas City-Branch _______ San Juan-Branch 300

RE : PROBATE OF THE HOLOGRAPHIC

RE : PROBATE OF THE NOTARIAL WILL OF CHERRY PIE CANONIGO
WILL OF CRIS GALANG,
SP PROC. No. 0055
SP PROC. No.________ LUISITO ESPINOSO CANONIGO,
ARMAN GALANG, Petitioner,
Petitioner, x ------------------------------------ x
x ------------------------------------ x
PETITION FOR PROBATE OF NOTARIAL WILL PETITION FOR PROBATE OF HOLOGRAPHIC WILL

PETITIONER, by counsel, respectfully states that: PETITIONER, by counsel, respectfully states that:

1. Petitioner is a Filipino citizen and the widow of the deceased. 1. Petitioner is a Filipino citizen and the widow of the deceased.

2. On 15 January 2008, Chris Galang, died; having previously executed
a notarial will. A copy of the will is attached as ANNEX A.
3. Any of the subscribing witnesses; namely, Jome Comaejos, Tony B.
Comejos, and Kiboy Jolly Bee, may be called to testify that the will
was executed as required by law.
4. The heirs of the deceased are Arman Galang (39 years old, resident of
1 Pilar Ave., Las Pinas City) and Bagong Silang (18 years old, resident
of 1 Pilar Ave., Las Pinas City).
5. The deceased left real property (house and lot) at 2 Pilar Ave, Las
Pinas, valued at P960,000,000.
WHEREFORE, it is respectfully prayed that after due notice and publication,
this Honorable Court fix the date for the probate of the notarial will and that letters
testamentary be issued in favor of the herein petitioner and thereafter adjudicate
the properties of the deceased in accordance with the said notarial will.
Las Pinas City; 14 February 2008
2. On 14 February 2008, CHERRY PIE CANONIGO died having previously
executed a holographic will in his own handwriting and in a language known to him.
A copy of the will is attached as ANNEX A. The handwriting may be attested to as
his by his secretary of long standing, CHICHI BULMA.
2. The deceased left a house and lot located at No. 123, Salmon Street,
Marinara Subdivision, Quezon City and cash amounting to Five Hundred Thousand
Pesos (P500,000); he had no debts.
3. The deceased’s only heirs are herein petitioner and their son,
CHRISTOPHER CANONIGO., both of whom are residing at No. 123, Salmon Street,
Marinara Subdivision, Quezon City.
WHEREFORE, it is respectfully prayed that after due notice and publication
this Honorable Court fix the date for the probate of the holographic will and that
letters of administration be issued in favor of the herein petitioner and thereafter
adjudicate the properties of the deceased in accordance with the said holographic
will.
Quezon City; 21 February 2008

(Sgd.) + VCNFS
Counsel for the Plaintiff
23 Pilar Street, BF Homes
Las Pinas
+ VCNFS

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