JOYA|LIM|MARANAN|RIGOR|ZARAGOZA

Special Proceedings 2018

SPECIAL PROCEEDINGS specpro, regardless of whether it is included in

MIDTERM REVIEWER the foregoing enumeration.

SpecPro under special laws:

Ordinary Action Special Proceeding 1. Summary proceedings under FC
Act by whicj one sues Act by which one 2. Family Courts:
another in a court of seeks to establish the a. Declaration of absolute nullity and
justice for the status or right of a annulment
enforcement or party, or a particular b. Legal Separation
protection of a right, fact thru petition c. Support, custody and administration
or the prevention or of common property
redress of a wrong d. Violence against women and their
thru a formal demand children and protection orders
if a right by one 3. Child and youth welfare act
against another a. Declaration of status of
abandoned, dependent or
neglected child
b. Voluntary or involuntary
RULE 72 commitment of children
SUBJECT MATTER AND APPLICABILITY c. Suspension, termination,
OF GENERAL RULES restoration of parental authority
4. Domestic adoption
Sec. 1. – Subject matter of special 5. Inter-country adoption
proceedings. 6. Corporate rehabilitation
1. Settlement of estate of a deceased
7. Liquidation
person
8. Writ of amparo
2. Escheat
9. Writ of habeas corpus
3. Guardianship and custody of children
10. Writ of kalikasan
4. Trustees
11. Arbitration
5. Adoption
12. Recognition and enforcement of an
6. Rescission and revocation of adoption
arbitral award
7. Hospitalization of insane persons
8. Habeas corpus
Sec. 2. – Applicability of rules of civil actions.
9. Change of name
– Rules on ordinary civil actions are applicable
10. Voluntary dissolution of corporations
in specpro where they are not inconsistent with,
11. Judicial approval of voluntary
or when they may serve to supplement the
recognition of minor children
provisions relation to specpro
12. Constitution of family home
13. Declaration of absence and death
NOTE: The requirement in maintaining an
14. Cancellation or correction of entries
action against a family member that earnest
in the civil registry
efforts toward a compromise have been made,
but the same have failed, does not apply to a
NOTE: This is not an exclusive list of what may
specpro.
be considered as specpro. As long as the remedy
seeks the establishment of a right, status, or a
Certification of non-forum shopping for
particular fact, then such may be called a
complainants and initiatory pleadeings, a written

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explanation for non-personal service and filing, Venue:

and the payment of filing obstruct probate  Resident of the Philippines at the time
proceedings, thus, they are applicable to specpro of his death – citizen or alien, estate
such as the settlement of the estate of a deceased must be settled in the decedent’s place of
person in the present case. residence
 Non-resident – any place where any of
SETTLEMENT OF ESTATE OF the decedent’s property are located
DECEASED PERSONS
Once a special proceeding for the settlement of
Art. 777 – the rights to succession are the estate of a decedent is file in one of such
transmitted from the moment of the death of the court, that court has exclusive jurisdiction over
decedent said estate and no other special proceedings
involving the same subject matter may be filed
Modes of settlement of estate: before any other court
1. Extrajudicial settlement – deceased has
left no will, no debts and whose heirs are all of G.R.: Once the court assumes jurisdiction, it
legal age. shall not be contested so far as it depends on the
2. Judicial settlement: decedent’s place of residence or the location of
a. Summary settlement of estate of small the estate.
value EXPN:
b. Partition 1. In an appeal from the court, in the
c. Settlement through letters of testamentary original case
or letters of administration with or without the 2. When the want of jurisdiction
will annexed appears on the record

Residence - actual or physical residence; one’s

RULE 73 personal, actual or physical habitation, or actual
VENUE AND PROCESS residence or place of abode, which may not
necessarily be one’s legal residence or domicile
Sec. 1. – Where estate of deceased persons provided one resides therein with continuity and
settled. consistency

Jurisdiction over settlement of estate Domicile – applies in election cases

 MTC – gross value does not exceed
Php300,000.00, Php400,000.00 within
Metro Manila.
 RTC – exceeds the amount. All other
special proceedings are triable by, and
fall within its exclusive original
jurisdiction
Robert’s Case - The intestate case should be
consolidated with the testate proceeding and the
judge assigned to the testate proceeding should
continue hearing the two cases.
Uriarte Case – did not followed Robert’s;
petitioner in the probate proceeding had
knowledge prior to filing the testate proceeding
that an intestate proceeding was already pending.
Thus, private respondents should have submitted
the decedent’s will for probate either on motion

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in the pending intestate proceedings or as a
separate proceeding.
Cuenco Case – Petition for probate was filed
without knowledge of an existing intestate
proceeding, which was filed a week later – 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 exlusion of all other courts.
Extent of jurisdiction of probate court
A probate court acting as such exercises limited
jurisdiction. Its main function is to settle and
liquidate the estates of decease persons either
summarily or through the process of
administration. It has the authority to:
1. Determine the heirs
2. Make a just and legal distribution
of the estate
Matters relating to the rights of a filiation and
heirship must be ventilated in the probate court
in a specpro instituted precisely for the purpose
of determining such rights.
EXPN: The need to institute a separate specpro
for the determination of heirship may be
dispensed with, if the parties in the civil case had
voluntarily submitted the issue to the trial court
and already presented their evidence regarding
the issue of heirship, and RTC had consequently
rendered judgment thereon, or when specpro had
been instituted but had been finally closed and
terminated, and hence, cannot be re-opened.
Jurisdiction over questions of title to property
(Interlocutory)
G.R.: Probate court cannot adjudicate or
determine title to properties claimed to be a part
of the estate and equally claimed as belonging to
outside parties
EXPN: For the purpose of determining whether
a certain property should or should not be
included in the inventory.
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NOTE: Questions of title may be passed on
provisionally, but the final determination of the
ownership of the property must be threshed out
in a separate civil action and not in the probate
court.
EXPN to probate court’s limited jurisdiction
1. The probate court may provisionally pass
upon intestate or testate proceeding the
question of inclusion in, or exclusion
from, the inventory of a piece of property
without prejudice to final determination
of ownership in a separate action.
2. If the interested parties are all heirs to the
estate, 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.
Sec. 2. – Where estate settled upon dissolution
of marriage.
Marriage is dissolved by death of a
spouse, ACP shall be inventoried, administered,
and liquidated, and the debts thereof paid, in the
testate or intestate proceedings of the deceased
spouse.
NOTE: The creditor cannot sue the surviving
spouse of a decedent in an ordinary proceeding
for claim against the conjugal property. His
remedy is to file a claim in the settlement of
estate of the deceased.
If both died, the conjugal partnership
shall be liquidated in the testate or intestate
proceedings of either.
Sec. 3. – Process.
Probate 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 by law.
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If the person does not perform an order or
judgment, the court ma issue a warrant for the
apprehension and imprisonment of such person
until he performs such.
Sec. 4. Presumption of death.
If the person who was presumed dead
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.
NCC - Absence of 7 years is sufficient for the
presumption of death to arise for all purposes
except for succession. An absence of 10 years is
necessary for purposes of opening up the
absentee’s succession.
EXPN: disappeared after the age of 75, 5 years
is enough
Absence of 4 years is adequate for the
presumption of death to arise if:
1. On board a vessel lost during a sea
voyage, or an aeroplane which is missing
2. He is in the armed forces who has taken
part in war and has been missing
3. Has been in danger of death under other
circumstances and his existence has not
been known for 4 years
RULE 74
SUMMARY SETTLEMENT OF ESTATES
Sec. 1. – Extrajudicial settlement by
agreement between heirs.
Requisites:
1. Decedent died intestate
2. No outstanding debts at the time of
settlement
3. Heirs are all of legal age, or minors
represented by judicial guardians or legal
representatives
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4. Settlement is made in a public instrument
or means of an affidavit, duly filed with
RD
5. Publication of extrajudicial settlement in
newspaper of general circulation in the
province once a week for 3 consecutive
weeks
6. Filing a bond equivalent to value of
personal property posted with RD
If the decedent left a will and no debts, and heirs
desire to make an extrajudicial partition of the
estate, the must first present the will to the court
for probate and divide the estate in accordance
with the will.
Persons who did not participate nor had
notice of an extrajudicial settlement will not be
bound thereby.
Publication of the settlement does not
constitute constructive notice to the heirs who
had no knowledge or did not take part in it
because the same was noticed after the fact of
execution. Publication here is geared for the
protection of creditors and was never intended to
deprive heirs of their lawful participation in the
decedent’s estate.
If there is only 1 heir, it suffices that the heir
executes an affidavit of self-adjudication.
NOTE: Heirs may enter into an oral partition of
the decedent’s estate notwithstanding the
requisite that the extrajudicial settlement must be
in a public instrument
Failure to file the extrajudicial settlement
or the affidavit of self-adjudication does not
affect its validity when there are no creditors or
when rights of creditors are involved.
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Sec. 2. – Summary settlement of estates of No outstanding Available even if there

small value debts at the time of are debts; court which
the settlement will make provision for
Sec. 3. – Bond to be filed by distributes. its payment
Resorted to at the Instituted by any
Requisites: instance of and by interested party, even a
1. Complaint must allege that the gross agreement of all creditor of the estate
value of the estate of the deceased heirs without the consent of
does not exceed Php 10,000.00 all the heirs
2. Bond has been duly filed in an Amount of bond is Amount of bond is to be
amount fixed by the court equivalent to the determined by the court
3. Proper hearing is held not less than 1 value of the
month nor more than 3 months from personal property
the date of last publication of the
notice Sec. 4. – Liability of distributes and estate

It may be initiated by the heirs, creditors, or Remedies of aggrieved parties after the
other interested persons filing a petition with the extrajudicial or summary settlement of estate:
court 1. Assail its validity – for heir or interested
person who was able to participate in the
Notice must also be given to other interested extrajudicial or summary settlement of
persons as may be directed by the court estate – 2 years after the settlement and
distribution
The court may proceed summarily and even 2. Action for reconveyance – heir who is
without the appointment of an executor and deprived of one share in the estate
administrator, to determine who are the persons because one did not participate – within
legally entitled to participate in the estate and to 10 years -- shall commence upon the
apportion and divide it among them after the issuance of a new title over the property
payment of such debts of the estate as the court in question or from the time of actual
shall then find to be due. notice in case of unregistered deed
EXPN: Imprescriptible, when the plaintiff, the
The court has the power to make orders as may legal owner, and not the defendant registered
be just with regard to the cost of the proceedings, owner, is in possession of the land to be
recording in the office of the clerk all orders and reconveyed
judgments made or rendered in the course of the EXPN to the EXPN: cannot be availed of once
hearings, and recording in the office of the the property has passed to an innocent purchaser
register of deeds when the estate involves real for value. Thus, his remedy is to file a claim for
estate. damages against co-heirs who have perpetrated
the fraud
Extrajudicial Summary
No court Judicial adjudication NOTE: Publication of the settlement does not
intervention although summary constitute constructive notice to the heirs who
Value – immaterial Gross value of the estate had no knowledge or did not take part in it. This
must not exceed 10,000 is especially true for extrajudicial settlement,
Intestate succession Allowed in both testate where publication is made after the fact of its
and intestate succession

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execution, when the heirs had already executed
the extrajudicial settlement.
RULE 75
PRODUCTION OF WILL; ALLOWANCE
OF WILL NECESSARY
Sec. 1. – Allowance necessary. Conclusive as
to execution.
Will - an act whereby a person is permitted, with
the formalities prescribed by law, to control to a
certain degree the disposition of his estate, after
hi death
Interpretation of wills – testator’s intention is to
be ascertained from the words of the will
Probate – judicial act whereby an instrument is
adjudged valid and is ordered to be recorded. Its
purpose is to settle all quostions re:
1. Capacity of testator
2. Proper execution
3. Witness
- Designed to protect the testator’s express
wishes, which are entitled to respect as a
consequence of the decedent’s ownership and
right of disposition within legal limits
The allowance of a will is only
conclusive as to its due execution, because the
authority of the probate court is limited to
ascertaining whether the testator, being of sound
mind, freely executed the will in accordance with
the formalities prescribed by law.
Due Execution (extrinsic):
1. The formalities of the law have been
complied with
2. The capacity of the testator has been
established
3. The will is genuine
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Consequence of allowance –cannot be
impugned on any of the grounds authorized by
law
EXPN: Fraud – separate or independent civil
action
G.R.: Probate proceedings are limited to the
examination of, and resolution on, the extrinsic
validity of the will
EXPN: Intrinsic validity of the will
subject thereof because “practical
considerations” so determined (Nuguid vs
Nuguid)
Sec. 2. – Custodian of will to deliver
Custodian – a person who receives a will with
knowledge, or under such circumstance that he
ought to have known that he was receiving
custody of a will
- mere possession of the will does not
make the holder thereof a custodian of the will.
- chosen by a testator in advance,
entrusted with the custody of a will by mutual
agreement with the testator.
- to keep and preserve the will safely for
the benefit of the testator.
- 20 days after knowing the death of the
testator, deliver the will either to the clerk in the
place where the decedent last resided or to the
executor named in the will
Sec. 3. – Executor to present will and accept
or refuse trust
Executor – named in the will
- 20 days from either knowledge of the
testator’s death or knowledge that one has been
named as executor to present the will to the court
having jurisdiction, unless the will reached the
court in some other manner
Sec. 4. & Sec. 5 – both penal in nature
- When a person is sought to be
committed to prison for violation of Section 5,
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the court cannot impose the penalty of fine based
on Section 4 as an additional penalty
- Mandamus cannot be availed of to
compel another person to produce the will of the
deceased, there being another plain, speedy and
adequate remedy in the ordinary course of law
PROBATE OF WILL
RULE 76
ALLOWANCE OR DISALLOWANCE OF
WILL
Sec. 1. – Who may petition for the allowance
of will.
Sec. 2. – Contents of petition:
1. Jurisdictional facts
a. Testator’s death
b. Testator’s residence at the time of
death
c. Place where the testator left
estate, if he is a non-resident
d. Will has been delivered to the
court and is in the possession
thereof, unless not yet delivered
e. Value of the estate to determine
the court with jurisdiction
2. Names, ages, and residence of the
heirs, legatees and devisees of the
testator or decedent
3. Probable value and character of the
property of the estate
4. Name of the person for whom letters
are prayed
5. If the will has not been delivered to
the court, the name of the person
having custody of it
NOTE: No defect in the petition shall render the
allowance of the will, or the issuance of letters,
void.
Sec. 3. – Court to appoint time for proving
will. Notice thereof to be published.
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How jurisdiction acquired
1. Attachment of a copy of the will to
the petition
2. Delivery of the will to the court
NOTE: The court may act upon the mere
delivery
Notice of hearing – obligations of the court
after the delivery of the will:
1. Fix the time and place for proving the
will where all concerned may appear
2. Cause the notice of the time and place
to be published in for three successive
weeks in a newspaper of general
circulation in the province
Sec. 4. –Heirs, devisees, legatees, and
executors to be notified by mail or personally
Court to send notice to the designated or
other KNOWN heirs who are residents
Personal Service – 10 days
Registered Mail – 20 days
Persons who are neither compulsory nor
testate heirs of the decedent need not be notified
by the court in a petition for probate.
“It is the publication of such notice that
brings in the whole world as a party in the case
and vests the court with jurisdiction to hear and
decide it. Thus, even though petitioners were not
mentioned in the petition for probate, they
eventually became parties thereto as a
consequence of the publication of the notice of
hearing. (Alaban vs CA)”
Sec. 5. Proof at hearing. What sufficient in
absence of contest
Petitioner should present, to the satisfaction of
the probate court, the ff:
1. Evidence that the order of the court
fixing the date and place for proving
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the will has been published for 3
successive weeks prior to the time
appointed
2. Evidence that a notice of such hearing
has been served upon the known
heirs, legatees, devisees of the
resident teastator at least 20/10 days
prior
3. If the petitioner is not the executor,
evidence that notice has been served
upon him, if his/her place of
residence is known
4. Testimonies of the subscribing
witnesses in support of the will
Sec. 6. – Proof of lost or destroyed will.
Certificate thereupon.
May be proved by a photocopy of the
same coupled with the testimony of subscribing
witnesses
G.R.: The original holographic will must be
presented to the court during the settlement
proceedings as it is the best and only evudence.
EXPN: A photocopy of the testator’s
holographic will may be presented in lieu of the
original that was lost/ (Bonilla vs Aranza)
If loss or destroyed, if may only be proved if:
1. Its execution and validity are
established
2. It must have been in existence at the
time of the testator’s death, or is
shown to have been fraudulently or
accidentally destroyed during the
lifetime of the testator without his
knowledge
3. Its provisions must be clearly and
distinctly proved by at least two
credible witnesses
Sec. 7. – Proof when witnesses do not reside in
province.
The court may, on motion, direct the
taking of deposition of one or more witnesses
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who do not reside in the province, and may
authorize a photographic copy of the will to be
made and to be presented to the witness on his
examination.
Deposition may be resorted to if the
deponent lives at least 100 kilometers away from
the territorial jurisdiction of the probate court.
Sec. 8. – Proof when witnesses dead or insane
or non-resident.
G.R.: The courts must examine the testimony of
the subscribing witnesses
EXPN:
1. Insane
2. Dead
3. None of them reside in the
Philippines
It shall not prevent the court from admitting the
will into probate if it falls with the enumerated
exceptions, as long as the testator’s sanity and
the due execution of the will are proved
Sec. 10. - Contestant to file grounds of contest
Grounds must be stated in a written
opposition and the contestant must serve a copy
of the opposition to the petitioner and other
parties interested in the case
Interested Party – one who would be benefited
by the estate such as an heir or one who has a
claim against the estate like a creditor
Sec. 11. – Subscribing witnesses produced or
accounted for where will contested
Sec. 12. – Proof where testator petitions for
allowance of holographic will
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Summary of required testimonies: Legal Formalities- Art. 804-819, NCC

Uncontested Contested Testamentary Capacity:

Notarial Testimony of All witnesses 1. Nature of the estate to be disposed of
1 subscribing and notary 2. Objects of his bounty
witness only public 3. Characteristics of the testamentary act
Holograp at least 1 who At least 3
hic knows the witnesses who Sec. 13. – Certificate of allowance attached to
handwriting know the hand prove will. To be recorded in the Office of the
and signature writing of the Register of Deeds
of the testator testator
Absence of such, if the court Once the will is admitted to probate:
deems necessary, expert 1. Judge to issue a certificate of
testimony may be resorted to. allowance of the will, which must be
Holograp The fact that Burden of signed by the judge and attested by
hic, he affirms the disproving the the seal of the court
testator is will and the genuineness and 2. Clerk must record and file the
the signature are due execution certificate of allowance
petitioner in his own, shall be on the 3. Will must be recorded in the
shall be contestant registered of deeds of the province
sufficient where the land is located
evidence Testator may
present
additional proof. RULE 77
ALLOWANCE OF WILL PROVED
Sec. 9. Grounds for disallowing will: OUTSIDE OF PHILIPPINES AND
1. If not executed and attested as ADMINISTRATION OF ESTATE
required by law (legal formalities) THEREUNDER
2. If the testator was insane, or
otherwise mentally incapable to make Sec. 1. – Will proved outside Philippines may
a will, at the time of its execution be allowed here. – When a person executes a
(testamentary capacity) will that produces effects in the Philippines, the
3. If it was executed under duress, or the will must be reprobated in the Philippines to
influence of fear, or threats (due effectuate its provisions.
execution)
4. If it was procured by undue and Reprobate – a special proceeding to establish
improper pressure and influence, on the validity of a will proved in a foreign country.
the part of the beneficiary, or of some
other person for his benefit (due Palaganas vs. Palaganas – “But our laws do not
execution) prohibit the probate of wills executed by
5. If the signature of the testator was foreigners abroad although the same have not as
procured by fraud or trick, and he did yet been probated and allowed in the countries of
not intend that the instrument should their execution. A foreign will can be given legal
be his will at the time of fixing his effects in our jurisdiction. Art. 816 NCC states
signature thereto (due execution) that the will of an alien who is abroad produces
effect in the Philippines if made in accordance

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with the formalities prescribed by the law of the
place where he resides, or according to the
formalities observed in his country.
Sec. 2. – Notice of hearing for allowance. –
- Petition for allowance of a will that is
already admitted into probate in a
foreign country should be
accompanied by an authenticated
copy of the will and an authenticated
decree of the allowance
- Should be filed by the executor or
other person interested in the court
where he had estate, R73S1
Petitioner must present evidence before the
reprobate of the will:
1. Due execution of the will in accordance
with the foreign laws
2. Testator has his domicile in the foreign
country and not in the Philippines
3. The will has been admitted to probate in
such country
4. The fact that the foreign tribunal is a
probate court
5. The laws of a foreign country on
procedure and allowance of wills
NOTE: A person who seeks to reprobate a will
executed in a foreign country must prove the law
and procedure of that foreign country on wills
because foreign laws do not prove themselves,
and our courts do not take judicial notice of them
Doctrine of Processual Presumption – Courts
will presume that the foreign law is the same as
local law.
- Foreign law – not pleaded or, even if
pleaded, is not proved, apply the
doctrine.
Sec. 3. – When will allowed, and effect
thereof. –
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If it appears at the hearing that the will should be
allowed in the Philippines, the court shall:
1. So allow it
2. A certificate of its allowance shall be
filed and recorded by the Clerk
3. Shall have the same effect as if originally
proved and allowed in court
Certificate of allowance – signed by the judge,
attested by the seal of the court, to which shall be
attached a copy of the will
Requisites before a will proved abroad may be
allowed in the Philippines:
1. Testator was domiciled in a foreign
country
2. Will has been admitted to probate in such
country
3. 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. Legal requirements in said country for
the valid execution of the will have been
complied with
6. Filing a petition in the Philippines with
copy of the will and of its decree of
allowance
7. Notice and hearing.
Sec. 4. – Estate, how administered. –
Admission of a foreign will to probate shall have
the following effects:
1. The court shall grant letters testamentary
or letters of administration with the will
annexed
2. The said letters shall extend only to the
testator’s estate located in the Philippines
3. The estate shall be disposed of following
the will after just debts and expenses of
administration are paid
4. Residue shall be disposed of as provided
for estates in the Philippines belonging to
persons who do not reside in the country
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- XPN: (Guerrero vs. Tan) The courts

Domiciliary administrator – does not have the
power to administer properties located outside
the Philippines by virtue of the will
- Administer appointed in one state or country
has no power over property in another state or
country
should not consent to the appointment of
persons as administrators or executors
who are not personally subject to the
jurisdiction of our courts here.
3) In the opinion of the court to be unfit to
execute the duties of trust by reason of
i) drunkenness,

RULE 78 – LETTERS OF ii) improvidence,

TESTAMENTARY AND OF iii) want of understanding or integrity,
ADMINISTRATION or
Q: When and to whom letters of iv) by reason of conviction of an offense
administration are granted? involving moral turpitude.
A: Letters Testamentary – issued to an executor EXECUTOR – a person nominated a testator in
named in the will, if s/he is competent, accepts his will to carry out his direction and request
the trust, and gives the required bond. (Rule 78, thereof and to dispose of the property according
Sec. 4) to his testamentary provisions after his death.
Letters of Administration – issued to an ADMINISTRATOR – person appointed by the
administrator when: probate court to administer and settle intestate
1) The will did not appoint an executor estates and such other testate estates where no
executor is named, or the executors named are
2) The executor appointed in the will is incompetent, refuses the trust or fails to give a
incompetent, refused the appointment, or bond.
failed to give a bond
EXECUTOR ADMINISTRATOR
3) The will was disallowed How Appointed
Nominated by the Appointed by the court
4) The testator died intestate testator and appointed in the ff. instances:
by the court 1) The will did not
appoint an
Q: Who are incompetent to serve as executors executor
or administrators? 2) The executor
appointed in the
A: Rule 78, Sec. 1 will is
incompetent,
1) Minors; refused the
appointment, or
- No legal capacity
failed to give a
2) Not a resident of the Philippines; and bond

- No statutory requirement that only 3) The will was

residents may be appointed as executors disallowed
or administrators. 4) The testator died

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intestate to serve under a previous appointment. (Rule

Obligation to present the will to court 78, Sec. 3)
Required to present the No such requirement
will to the court within Authorities issued by the Court – The authority
20 days after knowledge issued by the court will depend on whether the
of testator’s death or testator names and executor in the will and the
after he knows he was executor’s competence, willingness to accept the
appointed as executor trust, and compliance with the bond required by
(Rule 75, sec. 3) the rules.
Bond
Testator may direct that Always required to serve 1) Letters Testamentary
the executor may serve a bond
without bond or with - The authority issued to the executor
only his individual bond named in the will to manage and
conditioned only to pay administer the estate.
the testator’s debts; but - Issued when the executor named in the
the court may require will is:
the executor to execute - Competent
a bond in case of a - Accepts the trust; and
change in circumstance - Gives required bond
or for other sufficient
case. (Rule 81, Sec. 2)
2) Letters Administration with the Will
Amount of compensation
If the testator makes a Fixed by Rule 85, Sec.
Annexed
provision in the will for 7. 3)
the compensation of his - The authority issued to a competent
executor, that provision person to administer the estate of the
shall be a full deceased uf the executor named in the
satisfaction for his will refuses to accept the office, or is
services, unless he incompetent.
renounces by a written - Issued when there is a will but the
instrument the entire executor is:
claim to the - Incompetent
compensation as
- Refuses the trust; or
provided in the will.
(Rule 85, Sec. 7) - Fails to give the bond required by the
An executor of an executor may not, as such, rules
administer the estate of the first testator.
(Rule 78, Sec. 2) 4) Letters of Administration
- The authority issued by the court to a
REMEDY – When the executor dies his competent person to administer the estate
executor cannot administer the estate of the first of the estate of the will who died
testator, the court may appoint an administrator intestate.
de bonisnon as the new administrator. - Issued when:
- Decedent dies intestate;
A married woman may serve as an executrix
- The will is void or is not admitted to
or administratrix, and the marriage of a
probate
single woman shall not affect her authority so

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(Rule 78, Sec. 4) the estate, such as a creditor; thus interest must
ORDER OF PREFERENCE be immaterial and direct, nor merely indirect or
1) Surviving Spouse; contingent.
2) Next of Kin/Heirs;
3) Persons requested by the surviving spouse or GROUNDS:
next of kin; 1) Incompetence of the person/s named in
4) Principal Creditors; or the will as executor/s; or
5) Other persons selected by the court (Rule 78,
Sec. 6) 2) Contestant’s right to the administration.
Interested party (Rule 79, Sec. 4)
– One who would be benefitted in the estate, FORM REQUIRED: State in writing the
such as an heir, or one who goes against the grounds why letter should not issue; the court
estate, such as a creditor. shall then hear and pass upon sufficiency of such
grounds. (Rule 79, Sec. 1)
Next of Kin
– Those whose relationship with the decedent is CONTENTS:
such that they are entitled to share in the estate as
1) Jurisdictional facts
distributees.
- Those entitled under the statute of 2) Name, age, and residence of heirs and of
distribution, to the decedent’s property. creditors

GENERAL RULE: The court cannot set aside 3) Probable value of the estate
order of preference. 4) Name of person to whom letter is prayed
EXCEPTIONS: If the person enjoying such (Rule 79, Sec. 2)
preferential rights is:
1) Unsuitable JURISDICTIONAL FACTS REQUIRED:
2) Incompetent 1) Death of testator;
3) Unwilling
4) Neglect to apply for letters 30 days after 2) Residence at the time of death in the
the death of decedent province where the probate court is
located;
3) If the decedent was a bin resident, the
fact of being a resident of a foreign
RULE 79 – OPPOSING ISSUANCE OF country and that the decedent left an
LETTERS TESTAMENTARY, PETITION estate in the province where the court is
AND CONTEST FOR LETTERS OF sitting.
ADMINISTRATION
PUBLICATION & NOTICE
Q: Who may oppose?
- Publication of notice for 3 weeks
A: Any person interested in the will. (Rule 79, successively and notice to heirs, creditors
Sec. 1) and interested persons are jurisdictional
Q: Who is an interested person? - The court has the ff. obligations as soon
A: One who would be benefited by the estate, as a petition for letters of administration
such as an heir, or one, who has a claim against is filed:

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i) Fix the time and place of hearing amounting to lack or

excess of jurisdiction.
ii) Cause notice of the time & place of
hearing to be given to: One of the obligations Not empowered to
is to pay and pay the estate’s debts
(1) Decedent’s know heirs; discharge all debts of
(2) Decedent’s known creditors; the estate.
Instances when the Instances when the
(3) Other persons believed to have appointment is made appointment is made
interest in the estate (Rule 79, by the court: by the court:
Sec. 3)  Decedent dies  There is delay
SIMULTANEOUS FILING OF intestate; in granting of
OPPOSITION AND OF PETITION  Decedent fails the letters
to appoint and testamentary
A petition may, at the same time, may be filed executor in or
for letters of administration to himself, or to any the will; administration;
competent person or persons named in the  When the
opposition. (Rule 79, Sec. 4)  The will was executor or
disallowed administrator
Lack of interest in the proceedings = lack of
is a claimant
legal capacity to institute proceedings
against the
Appointment of Regular Administrator is final estate, but only
and thus, appealable. as to the
portion over
which there is
RULE 80 – SPECIAL ADMINISTRATOR a claim

Special Administrator is an officer of the court

who is subject to its supervision and control,
expected to work for the best interest of the
entire estate, with a view to its smooth
administration and speedy settlement.
REGULAR SPECIAL
ADMINSTRATOR ADMINISTRATOR
The Court’s order of The court’s order of
appointment may be appointment is
appealed. interlocutory and is
not appealable. The
appointment may only
be challenged through
a special civil action
for certiorari raising
as a ground grave
abuse of discretion
POWERS & DUTIES OF SPECIAL
ADMINISTRATORS
The special administrator’s powers are limited to
the following actions:
1) Possession and charge of the decedent’s
estate;
2) Preservation of decedent’s estate;
3) Commencement and maintenance of suits as
administrator;
4) Sale only of perishable and other property in
accordance with the court’s order;
5) Payment of the decedent’s debts if ordered
by the court;

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6) Prepare and return a true inventory of the
decedent’s estate that may come into his
possession or knowledge;
7) Render an accounting of the decedent’s
estate he received; and
8) Deliver the decedent’s estate to the person
appointed as executor or administrator or
such other person authorized to receive them.
(Rule 80, Sec. 2)
Q: When does powers of special
administrators cease?
A: Upon the grant of letters testamentary or
administration on the estate of the deceased.
(Rule 80, Sec. 3)
RULE 81 – BOND OF EXECUTORS &
ADMINISTRATORS
CONDITIONS BEFORE THE ISSUANCE
OF LETTERS TESTAMENTARY OR
ADMINISTRATION
E/A gives a bond in such sum as the court
directs, conditioned as follows:
a) To make and return to the court, within
3months, a true and complete inventory
of the decedent’s estate which shall come
in his possession or knowledge or the
possession of any other person for him;
b) To administer, according to these Rules,
the decedent’s estate which shall come in
his possession or knowledge or the
possession of any other person for him,
and from the proceeds to pay and
discharge all obligations thereon as shall
be decreed by the court;
c) To render a true and just account of his
administration to the court within 1yr,
and at any other time when required by
the court;
15
d) To perform all orders of the court by him
to be performed (Rule 81, Sec. 1)
GENERAL RULE: An executor is required to
give a bond conditioned on one’s performance of
the obligations enumerated in section 1.
EXCEPTION: When there is a provision in the
decedent’s will exempting the name of the
executor from giving a bond.
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. (Rule 81, Sec. 3)
RULE 82 – REVOCATION OF
ADMINISTRATION, DEATH,
RESIGNATION, AND REMOVAL OF
EXECUTORS OR ADMINISTRATORS
INSTANCES WHEN THE COURT MAY
REVOKE LETTERS OF
ADMINISTRATION THAT HAVE
ALREADY BEEN GRANTED:
1) When the decedent’s will is discovered
and admitted to probate; and
2) When letters of administration are
illegally issued without jurisdiction.
(Rule 82, Sec.1)
Mere discovery of will is not enough to revoke
the letters of administration. The decedent’s will
must be probated first before the court may
revoke the letters of administration.
EFFECTS OF REVOCATION OF LETTERS
OF ADMINISTRATION
1) All powers under the letters of
administration cease;
2) The administrator shall surrender the
letters to the court;
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3) The administrator must render his
account within the time given by the
court; and
4) Proceedings for the issuance of letters
testamentary or administration shall be
followed. (Rule 80, Sec. 1)
REMOVAL OR RESIGNATION OF
EXECUTOR OR ADMINISTRATOR
GROUNDS:
1) Neglect to render one’s account and settle
the estate according to law
2) Neglect to perform an order or judgment
of the court, or a duty to expressly
provided by the Rules of Court;
3) Abscond;
4) Becomes insane or otherwise incapable
or unsuitable to discharge the trust
Applies only to a regular administrator. Grounds
are not exclusive.
Q: Who may seek for removal of an
administrator?
A: A creditor of the decedent, even a contingent
one, would have personality to seek such relief,
STEPS IN RESIGNATION
1) The administrator submits a resignation
letter to the court;
2) The administrator prepares an inventory
of the properties in his possession.
POWERS OF NEW EXECUTOR OR
ADMINISTRATOR
1) Collect & settle the estate not
administered that the former executor or
administrator had;
2) Prosecute or defend actions commenced
by or against the former executor or
administrator; and
16
3) Execute on judgments recovered in the
name of such former executor or
administrator. (Rule 82, Sec. 4)
The new e/a:
- Cannot sell or mortgage the
decedent’s real estate pursuant to an
authority granted to the former e/a;
- Required to secure a renewal of such
authority from the court
RULE 84 GENERAL POWERS AND
DUTIES OF EXECUTORS AND
ADMINISTRATORS
Sec. 1. Refers to powers granted when the estate
involved belongs to a partner:
a. One shall have access to, and may
examine and take copies of, books and papers
relating to the partnership business.
b. Make examine and make invoices of
the property belonging to such partnership
Powers:
a. Possess and manage estate of the
deceased, to pay expenses of administration.
b. Have access to, and may examine and
take copies of, books and papers relating to the
partnership business, and examine and make
invoices of the property belonging to such
partnership.
Duties:
a. Maintain the estate in tenantable repair
b. Deliver the same to the heirs or devises
when directed by the court
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RULE 86 CLAIMS AGAINST ESTATE
Notice to creditors immediately after granting
letters testamentary or of administration, court
shall issue -NOTICE requiring all persons
having MONEY CLAIMS against the estate -to
FILE them in the office of the clerk of court
(Sec. 1).
1. Time within which claims shall be filed;
exception
· Time for filing claims not more than 12
months nor less than 6 months after date of
FIRST PUBLICATION of the notice (Sec. 2).
· New period allowed (Sec. 2, second
sentence)
At any time before order of distribution is
entered, creditor who failed to file his claim
within the time set may move to be allowed to
file such claim. Court may for good cause shown
and on such terms as are just allow such claim to
be filed within a period NOT EXCEEDING
ONE MONTH.
One month does not commence from expiration
of the original period for filing claims. It begins
from the date of the order of the courtallowing
said filing (Barredo vs. CA, 6 SCRA 620).
2. Statute of Non-Claims
Statute of Non-Claims (SNC) the period fixed
for the filing of claims against the estate.
1. Period fixed by probate court must not be
less than 6 months nor more than 12 months
from the date of first publication of the notice.
2. Such period once fixed by the court is
MANDATORY it cannot be shortened. ex.
Period fixed within 6 months
3. SNC supersedes statute of limitations even
if claim has not yet prescribed, it may be barred
by SNC.
· Ruling spirit of our probate law SPEEDY
SETTLEMENT of the estate of deceased persons
for the benefit of CREDITORS and those
17
entitled to the RESIDUE by way of
INHERITANCE or LEGACY after the debts and
expenses of administration have been PAID
(Sikat vs. Villanueva, 57 Phil. 486).
· Publication of notice to creditors (Sec. 3)
Immediately after notice to creditors is issued,
executor or administrator shall cause
1. publication of said notice 3 weeks
successively in newspaper of general circulation
in the province, and
2. posting for the same period in
a. 4 public places in the province and
b. 2 public places in the municipality where
decedent last resided
PUBLICATION OF NOTICE TO CREDITORS
CONSTRUCTIVE NOTICE TO THE WHOLE
WORLD
Hence, creditor cannot be permitted to file his
claim beyond the period fixed in the notice on
the ground that he had no knowledge of the
administration proceedings (Villanueva vs. PNB,
9 SCRA 145).
Claims that must be filed (Sec. 5)
1. Claims for money against the decedent
arising fromcontract, express or implied, whether
due, not due or contingent
2. Claims for funeral expenses and expenses
for last sickness of decedent
3. Judgment for money against decedent
a. The judgment must be presented as a claim
against the estate where the judgment debtor dies
before levy on execution of his properties
(Evangelista vs. La Provedra, 38 SCRA 379).
b. When the action is for recovery of money
arising from contract, and defendant dies before
entry of final judgment, it shall not be dismissed
but shall be allowed to continue until entry of
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final judgment. A favorable judgment obtained
by plaintiff shall be enforced under Rule 86
(Rule 3, Sec. 20).
Money claims against a deceased debtor
1. Section 5 of Rule 86 of the Rules of Court
expressly allows the prosecution of money
claims arising from a contract against the estate
of a deceased debtor. Those claims are not
actually extinguished. What is extinguished is
only the obligees action or suit filed before the
court, which is not then acting as a probate court.
In the present case, whatever monetary liabilities
or obligations Santos had under his contracts
with respondent were not intransmissible by their
nature, by stipulation, or by provision of law.
Hence, his death did not result in the
extinguishment of those obligations or liabilities,
which merely passed on to his estate. Death is
not a defense that he or his estate can set up to
wipe out the obligations under the performance
bond. (Stronghold Insurance Company, Inc. vs.
Republic-Asahi Glass Corporation, G.R. No.
147561, June, 2006)
2. Respondents monetary claim shall be
governed by Section 20 (then Section 21), Rule 3
In relation to Section 5, Rule 86 of the Rules of
Court. Thus, said money claims must be filed
against the estate of petitioner Melencio Gabriel.
(Gabriel vs. Bilon, G.R. No. 146989, February 7,
2007)
Must be filed within the time limited in the
notice, otherwise they are BARRED FOREVER.
Exception may be set forth as
COUNTERCLAIMS in any action executor or
administrator may bring against the claimants.
Rationale:
1) to protect the estate of the deceased by
informing the executor or administrator of the
claims against it, thus enabling him to examine
each claim and to determine whether it is a
proper one which should be allowed; 2) speedy
18
settlement of affairs of deceased; and 3) early
delivery of property to distributes, legatees, or
heirs (Union Bank of the Philippines vs.
SantibaHez, G.R. No. 149926, February 23,
2005).
A money claim against an estate is more akin to
a motion for creditors' claims to be recognized
and taken into consideration in the proper
disposition of the properties of the estate.
A money claim is only an incidental matter in the
main action for the settlement of the decedent's
estate; more so if the claim is contingent since
the claimant cannot even institute a separate
action for a mere contingent claim. Hence, herein
petitioner's contingent money claim, not being an
initiatory pleading, does not require a
certification against non-forum shopping.
(Sheker vs. Estate of Alice Sheker, G.R. No.
157912, December 13, 2007)
· Only MONEY CLAIMS may be presented in
the testate or intestate proceedings.
· NOT ALL MONEY CLAIMS but only those
arising upon a liability contracted by decedent
before his death.
· Claims arising after his death cannot be
presented EXCEPT -funeral expenses -expenses
for last sickness
N.B. Claims arising after decedents death may be
allowed as expenses of administration.
Enumeration exclusive refers only to contractual
money claims
Only claims for money, debt or interest thereon,
arising from contract can be presented in the
testate or intestate proceedings.
Claims which survive death of accused
Claim for civil liability survives notwithstanding
death of accused if the same may also be based
 JOYA|LIM|MARANAN|RIGOR|ZARAGOZA
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on a source of obligation other than delict
(contract, law, quasi-contract, quasi-delict)
Separate civil action may be enforced either
against
a. Estate of accused (contract)
b. Executor/ administrator (law, quasi-contract,
quasi-delict) (People vs. Bayotas, 236 SCRA 239
[1994]).
Civil actions for tort or quasi-delict do not fall
within the class of claims to be filed under the
notice to creditors required under Rule 86. These
actions, being civil, survive the death of the
decedent and may be commenced against the
administrator pursuant to Section 1, Rule
87..(Hilado vs. Court of Appeals, G.R. No.
164108, May 8, 2009)
Execution of final judgment not proper remedy
but filing of claim
When judgment in a civil case has become final
and executory, execution not proper remedy to
enforce payment; claimant should PRESENT
CLAIM before probate court (Domingo vs.
Garlitos, June 29, 1963).
· Mandamus not available immediate payment
of claim by the administrator is NOT A
MATTER OF RIGHT (Echaus vs. Blanco, 179
SCRA 704 [1985]).
· Ordinary action for collection not allowed
(Nacar vs. Nistal, 119 SCRA 29)
· Judgment appealable (Sec. 13) judgment of
the court approving or disapproving a claim is
APPEALABLE as in ordinary actions
3. Claim of executor or administrator against the
estate
Rule 86, Sec. 8
1. If the executor or administrator has a claim
against the estate he represents,
19
2. he shall give notice thereof, in writing, to
the court
3. the court shall appoint a special
administrator, and
4. the special administrator 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 the
estate
From an estate proceeding perspective, the
Special Administrators commission is no less a
claim against the estate than a claim that third
parties may make. xxx The ruling on the extent
of the Special Administrators commission
effectively, a claim by the specialadministrator
against the estate is the lower courts last word on
the matter and one that is appealable. (Briones
vs. Henson-Cruz, G.R. No. 159130, August 22,
2008)
Rule 87 Actions by and against executors and
administrators
- Actions that may be brought against executors
and administrators
Sec. 1. Actions which may and which may not be
brought against executor or administrator.
Sec. 2. Executor or administrator may bring or
defend actions which survive.
1. NOT ALLOWED AGAINST EXECUTOR
OR ADMINISTRATOR action upon claim for
2. recovery of money or debt or interest
thereon. -MUST BE AGAINST ESTATE (Secs.
1, 2 & 5, Rule 86)
2. ALLOWED actions which survive
a. Actions to recover real or personal property or
interest thereon, or to enforce a lien thereon
Civil Case No. 2570 is an action for quieting of
title with damages whichis an action involving
real property. It is an action that
 JOYA|LIM|MARANAN|RIGOR|ZARAGOZA
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survivespursuant to Section 1, Rule 87 as the
claim is not extinguished by the death of a party.
(Saligumba vs. Palanog, G.R. No. 143365,
December 4, 2008)
Civil Case No. 3488, which is an action for the
recovery of Aa personal property, a motor
vehicle, is an action that survives pursuant to
Section 1, Rule 87 of the Rules of Court. As
such, it is not extinguished by the death of a
party. (Sarsaba vs. Vda. de Te, G.R. No. 175910,
July 30, 2009)
b. Actions to recover damages for an injury to
person or property, real or personal
· Executor or administrator may sue upon any
cause of action which accrued to the decedent
during his lifetime (Bayot vs. Sorbito, 39 Phil.
650).
· Any action affecting the property rights of a
deceased which may be brought by or against
him if he were alive, may be instituted and
prosecuted by or against the administrator, unless
by its very nature, it cannot survive, because
death extinguishes such right.
Sec. 3. Heir (and devisee) may not sue (executor
or administrator to recover title or
possession or for damages to property) until
share assigned.
-Before distribution is made or before any
residue known heirs and devisees have NO
CAUSE OF ACTION against the administrator
for recovery of property left by the deceased
(Lao vs. Dee, 90 Phil. 868).
When heirs may file action in court
General rule: heirs have no legal standing to sue
for recovery or protection of property rights of
the deceased.
Exceptions:
1. Pending the filing of administration
proceedings under Art, 777, rights to succession
20
are transmitted from the moment of death of the
decedent.
2. Administration proceedings have already
been commenced but administrator has not yet
been appointed.
3. Executor or administrator is unwilling or
refuses to bring suit.
4. Administrator is alleged to have participated
in the act complained of and he is made a party
defendant.
Sec. 8. Embezzlement before letters issued.
Double value rule
If before grant of letters testamentary or of
administration, a person embezzles or alienates
money or property of the deceased liable to an
action in favor of executor/administrator for
DOUBLE THE VALUE of the property sold,
embezzled or alienated.
3 Requisites before creditor may bring an action
for recovery of property fraudulently conveyed
by the deceased
Sec. 10. When creditor may bring action. Lien
for costs.
When there is
1. Deficiency of assets
2. Deceased in his lifetime had made or
attempted such a conveyance (with intent to
defraud creditors or to avoid any right, debt or
duty) as stated in Sec. 9, and
3. Executor or administrator has not
commenced the action provided in Sec. 9
(entitled Property fraudulently conveyed by the
deceased may be recovered. When executor or
administrator must bring action)
à Any creditor of the estate may, with the
permission of the court, commence and
prosecute to final judgment, in the name of the
executor or administrator, a like action for the
recovery of the subject of the conveyance or
attempted reconveyance for the benefit of the
creditors.
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a. Creditor should file a BOND executed to
the executor or administrator, in an amount
approved by the judge, conditioned to indemnify
the executor or administrator against the costs
and expenses incurred by reason of such action.
b. Creditor shall have a LIEN upon any
judgment recovered by him for reasonable costs
and expenses à When conveyance or attempted
conveyance made by deceased
PAYMENT OF DEBTS OF THE ESTATE
(RULE 88)
Requisites must concur BEFORE THE
EXECUTOR or ADMINISTRATOR MAY PAY
MONEY CLAIMS against the estate:
1. A HEARING is conducted;
2. The AMOUNTS of such claims are
ASCERTAINED; and
3. There are SUFFICIENT ASSETS to pay
the debt.
In any case where the provision in the will is
insufficient to cover the entire debt, that part of
the decedent’s estate not disposed of by the will
shall answer for such deficiency.
ORDER OF PREFERENCE FOR THE
PAYMENT OF THE ESTATE:
1. From the PORTION OR PROPERTY
DESIGNATED IN THE WILL;
2. From the PERSONAL PROPERTY; and
3. From the REAL PROPERTY.
In case of deficiency after the exhaustion of the
decedent’s estate, it shall be satisfied from the
contribution of devises, legatees, or heirs who
have been in possession of portions of the estate
before the debts and expenses have been settled
and paid.
EXCEPTIONS: when realty shall be charged
ahead of the decedent’s personal property:
1. When the decedent’s personal property is
INSUFFICIENT;
21
2. When the sale of personal property shall
be DETRIMENTAL TO THE
PARTICIPANTS OF THE ESTATE;
3. When the sale of personal property MAY
INJURE THE BUSINESS or
INTERESTS of those interested in the
estate;
4. When the testator has NOT MADE
SUFFICIENT PROVISIONS FOR
PAYMENT of such debts, expenses and
legacies;
5. When the decedent was, in his lifetime
UNDER CONTRACT, binding in law, to
deed real property to beneficiary; and
6. When the decedent during his lifetime,
HELD REAL PROPERTY IN TRUST
FOR ANOTHER>
Before such exceptions may apply, the following
must be complied with:
1. The Executor or Administrator makes an
APPLICATION in the COURT;
2. WRITTEN NOTICE given to the persons
interested; and
3. HEARING BY THE COURT.
(Sec 4-5)
A contingent claim is on that is subject to the
happening of a future uncertain event. The
requisites for the estate to be required to retain
estate to meet the contingent claim are as
follows:
1. The contingent claim is duly filed within
two-year period allowed for the creditor
to present claims;
2. The court is satisfied that the claims is
valid; and
3. The claim has become absolute.
When such contingent claims mature after two
years, the assets retained in the hands of the
executor or administrator not exhausted in the
payment of the claims, shall be distributed by
order of the court to the persons entitled to the
same.
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(Sec 8)
Several creditors – same preference and assets –
insufficient to pay all of them
--- the proceeds shall be prorated among the
creditors of the same preference.
(Sec 10)
When appeal is taken – the court may take either
of the following:
1. Suspend the order for the payment of the
debts; or
2. Order the distribution among the
creditors whose claims are definitely
allowed, leaving the E/A sufficient assets
to pay the claim disputed and appealed.
(Sec 13)
Courts power to make further orders for the
distribution of the estate:
1. If the whole of the debts are not paid on
the first distribution;
2. If the whole assets are not distributed; or
3. If other assets afterwards come to the
hands of E/A.
(Sec 15-16)
1. The E/A has an initial period of 1 year
from the issuance of letters testamentary
or administrator to:
A. dispose of the estate; and
B. to pay the debts and legacies of the
deceased.
2. The E/A may apply for an extension (not
exceeding 6 mos) for a single extension
after hearing and notice to all persons
interested.
3. The whole period allowed to the
ORIGINAL E/A – not exceed 2 years.
4. The successor of E/A who dies during the
settlement – may extend the time on
notice – not exceeding 6 mos beyond the
time allowed to the original E/A.
22
5. Total allowable period if E/A dies – 2
and a half years.
RULE 89 SALES, MORTGAGES AND
OTHER ENCUMBRANCES OF PROPERTY
OF THE DECEDENT
E/A
- PROHIBITED to sell personal property
of the decedent; even with heirs or
interested persons have consented thereto
– WITHOUT COURT ORDER
- May be held answerable for selling the
property without court order.
- Must APPLY with the Court,
- WRITTEN NOTICE to heirs and other
interested parties
- Must be SHOWN, that the sale is
NECESSARY
o For the payment of debts
o Expenses of administration
o Legacies
o Preservation of the property
COURT
- CANNOT motu proprio order the sale of
personal property.
- May authorize E/A to sell, mortgage or
otherwise encumber the decedent’s real
estate instead of personal property-
APPLICATION OF E/A
o Payment of debts
o expenses
o legacies
o such would be beneficial to the
person interest
- Must sell, mortgage or encumber ONLY
SO MUCH AS MAY BE NECESSARY
OF THE REAL ESTATE
- The WHOLE PROPERTY may be sold,
mortgaged or encumbered in the ff.
instances:
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1. If the sale, mortgage or encumbrance

of a part will injure those interested in
the remainder; and
2. If it is necessary under the
circumstances.

(Sec 3)

ANY PERSON INTERESTED – may prevent

the sale, mortgage or encumbrance of the real or
personal property
- By giving a bond fixed by the court.

(Sec 4)

COURT – MAY AUTHORIZE SALE

- If beneficial to the heirs, devisees,
legatees or other interested persons
- Any proceeds from such sale shall be
assigned to the persons entitled to the
estate in the proper portions.

DISTRIBUTION OF RESIDUE OF ESTATE TWO REQUISITES BEFORE DISTRIBUTION

(RULE 90)
In settlement of estate proceedings, the
distribution of the estate properties can only be
made:
1. After all debts, funeral charges, expenses
of administration, allowance to the
widow, and estate tax have been paid; or
2. Before payment of said obligations only
if the distributees or any of them gives a
bond in a sum fixed by the court
conditioned upon the payment of said
obligations within such time as the court
directs, or when provision is made to
meet the obligation.
OF THE ESTATE
1. LIQUIDATION – refers to the
determination of all assets of the estate
and payment of all debts and expenses.
2. DECLARATION OF HEIRS –
undertaken to determine to whom the
residue of the estate should be
distributed. The declaration is made in
the same proceeding.
Although the right of an heir over the property is
INCHOATE, as long as the estate has not been
fully settled and partitioned, the law allows a co-
owner to exercise rights of ownership over such
inchoate right.

An heir of the deceased may sell his undivided or

Payment of debts,
funeral charges, and
expenses of
administration,
allowance the widow
and inheritance tax, if
any, chargeable to the
estate in accordance
with law. (Sec 1, Rule
Bond by the ideal share during pendency of the estate
distributes, or any of proceedings without the prior approval of the
them, in a sum fixed
probate court, he being the CO-OWNER with
by the court,
conditioned on the 23
payment of the
obligations (Sec 1,
Rule 90)
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the other heirs of the estate, COURT
APPROVAL is necessary only if specific
property of the estate is sold.
REMEDY OF HEIR ENTITLED TO RESIDUE
BUT NOT GIVEN HIS SHARE
1. A MOTION in the same probate or
administration proceedings; or
2. A MOTION TO REOPEN THE
SETTLEMENT PROCEEDINGS if it
had already been closed.
 If the proceeding is already closed and it
involves persons who are non-parties to
the partition, a motion to reopen may be
filed by a non-party WITHIN 15 DAYS
OR BEFORE THE ORDER CLOSING
THE PROCEEDING BECOMES
FINAL.
 Parties to a partition agreement who have
not received their share, FILE A
MOTION FOR EXECUTION WITHIN
5 YEARS.
PRETERITED HEIR – the intestate proceedings,
although closed and terminated can still be
opened within the prescriptive period upon
which petition by the preterited heir. (10
YEARS)
- Judgment became final, file an
independent suit against the parties and
all other heirs for the recovery of her
share in the estate.
WRIT OF EXECUTION
GENERAL RULE: Probate Court CANNOT
issue a writ of execution.
EXCEPTIONS:
1. To satisfy the contributive shares of the
devisees/legatees/heirs when the latter
had entered prior possession over the
estate. (Rule 88, Section 6)
2. To enforce payment of the expenses of
partition (Rule 90, Section 3)
24
3. To satisfy the costs when a person is
cited for examination in probate
proceedings (Rule 142, Section 13)
RULE 91: ESCHEAT – a proceeding whereby
the state, by virtue of its sovereignty steps in and
claims the REAL and PERSONAL PROPERTY
of a person who died intestate, leaving no heirs.
3 KINDS OF ESCHEAT:
1. Person dies intestate with Real Property
within the Philippines (Sec 1, Rule 91)
2. Petition for reversion of property
alienated in violation of the Constitution
or stature (Sec 5, Rule 91)
3. Act NO. 3936, Unclaimed balances in
banks
REQUISITES:
1. Person died intestate;
2. He has no heirs; and
3. Deceased left his properties
ALL PERSONS alleged to have a direct right or
interest in the property sought to be escheated
(INTERESTED PARTY)
- RESPONDENT
THE COURT ACQUIRE JURISDITION
Upon PUBLICATION OF THE PETITION OF
THE ESCHEAT
o Court does not have the power to
order, to proceed with, the
distribution of the estate of the
decedent and adjudicate the
properties to the oppositors.
ESCHEAT PROCEEDING MAY BE WAIVED
- expressly
-impliedly
FILE A PETITION
(Where) RTC
1. Where the decedent last resided
2. Non Resident – Where he had estate
(Who) PETITIONER - Solicitor General or his
representative
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BOARD NOTES:
SPECIAL PROCEEDINGS:
- No Adverse Party
COURT ORDER - Jurisdiction over person is not needed, and is
- Fix a date and place for hearing acquired through publication
- Not more than 6 months after entry of the - Action in Rem
order SUBJECT MATTER
A. Settlement of Estate (Jurisdiction and Venue)
Rule 72 – 90
PUBLICATION Juridical Settlement:
(Jurisdictional requirement) Through petition of:
- Once a week for 6 consecutive A. Letters of Administration (No executor)
weeks B. Letters of Testamentary (Appointed
Executor)
HEARING Partition: Rule 69
1. Proof of publication Summary Settlement

PETITIONER MUST ESTABLISH: B. Escheats

(Requisites) No heirs
1. Person died intestate Property Distribution
2. Seized of real or personal property in the State will inherit
Philippines
3. Leaving no heir or person entitled to the C. Trustee/s
same Court appointment is needed

D. Guardianship
PAYMENT OF DEBTS AND CHARGES
Appointment by Court
Scope: Person and or Property
COURT ORDER
E. Adoption
RESIDENT Domestic Adoption
PERSONAL PROPERTY – Municipal/City Inter-Country Adoption
where he last resided
F. Habeas Corpus
REAL PROPERTY – Municipal/City where the Writ of Amparo
property is situated Writ of Kalikasan
Habeas Corpus
NON RESIDENT
Where the property is located G. Change of Name
Rule 9048
Rule 103
FILE CLAIMS Rule 108
- Devisee, Legatee, Heir, Widow, Widower
or Other persons entitled to such estate Special Proceeding – remedy to which a party seeks
to establish a particular fact, right, or status.
- File a claim with 5 years from date of Purpose of Settlement Estate:
such judgment

25
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1. To have a just distribution of the estate of
the decedent
2. Establish the right of an heir
3. Allow or disallow a will
4. Seeks to establish the death of the
decedent
Powers of the Probate Court:
1. Determine ownership, limited only (as an
exception) only in purposes of inclusion
or exclusion. Provisional only, to be
ascertained in an ordinary action separate
to the special proceeding case.
2. Liquidate, administer the distribution.
Nature of the order – provisional and not final
Multiple appeals are allowed
Record on Appeal
Petition for Certiorari – Remedy for an interlocutory
order
Exception when the court can actually determine who
is the actual owner of the property: upon voluntary
submission of the party
Determination of Jurisdiction of Probate Court
Jurisdiction over Special Proceeding (consider the
value of the property)
1. Regional Trial Court
2. Municipal Trial Court
*Gross value – total value of the estate
*Net value – gross value less the debts to be
deducted
*Venue – the place where the location of the
court
*Jurisdiction – authority of the court to hear
and decide a case
(In special proc, venue is jurisdictional and it
can be waived)
1. How much is estate? To determine
jurisdiction
2. How to determine Residence?
A. Philippine prior to his death: Province he
resided prior to his death
B. Outside the Ph: Where his estate is
located
Residence: Personal, actual, physical
habitation. This is different from Election
Laws.
Exclusionary Rule: one who first takes
cognizance with the exclusion of the other
court.
26
3. What will be the venue if for example the
petition was filed on the same day and time?
How will you file the exclusionary rule? -
who actually complied with the JD
requirement.
Special Proceedings: In Rem
It acquires jurisdiction upon publication.
A. Manila Court (Intestate)
B. After being notified by probate court, filed
for probate proceedings which court acquires
jurisdiction (testate) preference? –
exclusionary rule: Manila; what kind of
proceeding: Preference – testate; if not
allowed – intestate
4. Is there a possibility that the court may defer
the probate of the will? – Yes depends on the
compliance with the jurisdictional
requirements.
5. H&W survived by A&B. H died. A filed
letters of administration. W opposed, alleging
conjugal property, can the court decide on the
ownership of the property?
Rule 73, Section 2
TESTATE/INTESTATE
Court can determine conjugal ownership/Community
property of Sps., it shall be resolved.
Extrajudicial – Self – adjudication, etc.
Juridical – Summary Settlement; Escheat, Partition,
etc.
Procedure:
1. If there’s a will: probate; if there’s none:
testate/intestate.
2. No liability/debts: notice – 2 year period
from death of deceased
3. Number of Heirs – must all be represented;
partition/distribution. If only one: self-
adjudication; if two or more – deed of extra
judicial settlement.
4. RD Annotation/Registration
5. Bond
6. Publication/Notice: one publication for 3
weeks; not jurisdictional since no court
intervention.
Summary Settlement
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- Estate of the decedent Jurisdiction: delivery, attached copy

- Do not exceed Php 10,000.00 Jurisdictional Hearing
- One month to three months - Proof of notice
- Will is immaterial (can be probated /juridical - Present witness
settlement of estate) - Prove due execution
- MTC has jurisdiction
- Faster: Publication; Administrator/Executor Lost will
need not to be appointed - Copy of will
- Proof of loss
Powers of the Court: - Testimony of existence of will
- Approval - Execution of will prior death of testator
- Disposition of the Estate Contents of will
- Rights of the Heirs: determination of heirs - Testimony of 2 witness attested and signed
- Settlement of debts by Judge
Holographic
Bond - 1 witness to prove
- Necessary in Personal Property - Contested: 3 witnesses
Notarial Will
Real Property - Subscribing witnesses
- Registration to RD - Contested: 3 subscribing and notary public
- If testator: prove his own
Remedies of the Heirs: Witnesses
- 2 years of summary settlement, filed a bond - In case of absence of witness required: within
- If more than 2 years file for petition for the Philippines
reconveyance: if minor, mental capacitated, - Disposition of witness (witness 100 kms
outside the Philippines at the time of away)
expiration (2 years). Characteristic:
- Petition for Relieve - Not insane
- File for damages (in case of good faith) - Credible
Transfer - Knows the handwriting

Probate – an act where the will has been sufficiently RULE 78

recognized; the extrinsic validity of the will. Qualification: Executor or Administrator
Executor – appointed by the court 1. Must not be a minor
Custodian – who has custody of the will (take note of 2. Resident of the Philippines
duties) 3. The court must see the person to be fit to be
Executor dutes: also to deliver the will within 20 days an executor or administrator
to the court, penalty enforced: fine. The court may consider a person unfit for the
following reasons:
Who? A. Drunkenness
Heirs, deemed interested, devisee, legatees, testators, B. Improvidence
executor C. Want of understanding or integrity
Contents? D. Conviction of a crime involving moral
Death, name and addresses of the heir, name and turpitude
addresses of the custody of the will; amount of the
Estate, Residence of decedent -if the executor of testator: Judge’s remedy: appoint
Publication? administrator
Court order – petition will cause Executor:
3 consecutive weeks, once a week (take note of A. Allowance
exception)

27
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B. Must deliver the will for probate within 20 6. Claims arising from sources of
days obligations
C. Must be competent - Sources of obligations:
D. Acceptance of trust 1. Delicts – it cannot be claimed as money
E. Payment of bond (XPN: if there’s a provision claim
in the will; xpn to xpn: charges of provision)
*If one of the requisite is not present: there will be a Duties of Defendant
petition for letters of administration (XPN: if there 1. Notify about death
are other executors) 2. Inform the court about the death
3. Appointment of administrator, substitution of
Administrator: heirs, etc.
- Petition for issuance of letter of 4. Tardy Claim
administration 5. 1 month extension – as determined by the
Reference: court (exception: counterclaim)
1. Surviving Spuse
2. Next of kin REMEDY: File a contingent claim
3. Person requested by the surviving spouse or Purpose:
next of kin 1. Protection of the estate
4. Principal creditors 2. The properties may be distributed
5. Other persons selected by the court 3. For the court to set aside a portion of the
estate for the claims.
XPN:
1. Discretion of the court - Revival of judgment:
2. When the person does not appear despite Separate and distinct from the original action
notice File a contingent claim (after the revival of
the judgment)
Special Administrator
1. Where there is a delay in the issuance of - Statute of Limitation (collection suit/
letter of testamentary/letter of administration ordinary civil action)
2. When the administrator is also a claimant - Claim Secured by Mortgage:
- Not appealable, not subject to interlocutory A. Abandon the mortgage and prosecute the
order claim
- Any person, as long as it does not posses any B. Foreclose and deficiency
disqualification C. Rely solely upon the mortgage.

RULE 86 – Claims Against the Estate If the estate is sufficient:

1. Notice to Interested parties 1. There is hearing for money claims
- Creditors requiring them to present their 2. If will provide for a provision, apply it
claims 3. If none, by personal property or by real
2. Within 6 – 12 months aftr notice property

- Money claims: Exhaustion of personal property – not absolute

1. Outstanding debts, due or not due during
the lifetime of decedent
2. Must be contracted before his death
3. Contingent – subject to happening or not
happening
4. Funeral expenses
5. Medical expense of last sickness of
decedent
XPN: When real property is preferred
1. Detrimental to participants of the estate
Contingent Claim: filed within 2 years
All money claims: must be filed within statute of
non-claims
Statute of Non-Claims  2 years

28
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 after the lapse of 2 years:

Court is required to distribute to creditors
To prevent the distribution the remedy of the
petitioner is to file a motion to dismiss and file a
money claim.

Non-Resident
- So long as the properties are in the PH
- Debts and obligations must be satisfied
- List submitted by probate court
- Order of distribution maybe appealed
- 2 option of the court:
1. Suspend the order of payment of debt
2. Order the distribution to the creditor
- Procedural Requirement to sale of Real
Property: Give notice to the heir.

29
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CASES DOCTRINES:
Silverio v. Silverio
A sale by an administrator of property of the
deceased, which is not authorized by the probate
court is null and void and title does not pass to
the purchaser.
There is hardly any doubt that the probate court
can declare null and void the disposition of the
property under administration, made by private
respondent, the same having been effected
without authority from said court. It is the
probate court that has the power to authorize
and/or approve the sale (Section 4 and 7, Rule
89), hence, a fortiori, it is said court that can
declare it null and void for as long as the
proceedings had not been closed or terminated.
To uphold petitioner’s contention that the
probate court cannot annul the unauthorized sale,
would render meaningless the power pertaining
to the said court. (Bonga vs. Soler, 2 SCRA
755). (italics ours) Our jurisprudence is therefore
clear that (1) any disposition of estate property
by an administrator or prospective heir pending
final adjudication requires court approval and (2)
any unauthorized disposition of estate property
can be annulled by the probate court, there being
no need for a separate action to annul the
unauthorized disposition.
San Luis v. San Luis
An "interested person" has been defined 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. The interest must be material
and direct, and not merely indirect or contingent.
Agtarap v. Agtarap
GENERAL RULE: a probate court or one in
charge of estate proceedings, whether testate or
intestate, cannot adjudicate or determine title to
properties claimed to be a part of the estate and
which are claimed to belong to outside parties,
not by virtue of any right of inheritance from the
deceased but by title adverse to that of the
30
deceased and his estate. All that the said court
could do as regards said properties is to
determine whether or not they should be
included in the inventory of properties to be
administered by the administrator. If there is no
dispute, there poses no problem, but if there is,
then the parties, the administrator, and the
opposing parties have to resort to an ordinary
action before a court exercising general
jurisdiction for a final determination of the
conflicting claims of title.
EXCEPTIONS:
First, the probate court may provisionally pass
upon in an intestate or a testate proceeding the
question of inclusion in, or exclusion from, the
inventory of a piece of property without
prejudice to the final determination of ownership
in a separate action. [Second, if the interested
parties are all heirs to the estate, 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 resolve issues on ownership.
Suntay III v. Cojuangco – Suntay
This order of preference, which categorically
seeks out the surviving spouse, the next of kin
and the creditors in the appointment of an
administrator, has been reinforced in
jurisprudence.8
The paramount consideration in the appointment
of an administrator over the estate of a decedent
is the prospective administrator’s interest in the
estate.9 This is the same consideration which
Section 6, Rule 78 takes into account in
establishing the order of preference in the
appointment of administrator for the estate. The
rationale behind the rule is that those who will
reap the benefit of a wise, speedy and
economical administration of the estate, or, in the
alternative, suffer the consequences of waste,
improvidence or mismanagement, have the
highest interest and most influential motive to
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administer the estate correctly.10 In all, given
that the rule speaks of an order of preference, the
person to be appointed administrator of a
decedent’s estate must demonstrate not only an
interest in the estate, but an interest therein
greater than any other candidate.
In a number of cases, we have sanctioned the
appointment of more than one administrator for
the benefit of the estate and those interested
therein.13 We recognized that the appointment
of administrator of the estate of a decedent or the
determination of a person’s suitability for the
office of judicial administrator rests, to a great
extent, in the sound judgment of the court
exercising the power of appointment.14
Under certain circumstances and for various
reasons well-settled in Philippine and American
jurisprudence, we have upheld the appointment
of co-administrators: (1) to have the benefits of
their judgment and perhaps at all times to have
different interests represented;15 (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;16 (4) to have all
interested persons satisfied and the
representatives to work in harmony for the best
interests of the estate;17 and when a person
entitled to the administration of an estate desires
to have another competent person associated
with him in the office.
The collected teaching is that mere
demonstration of interest in the estate to be
settled does not ipso facto entitle an interested
person to co-administration thereof. Neither does
squabbling among the heirs nor adverse interests
necessitate the discounting of the order of
preference set forth in Section 6, Rule 78.
Indeed, in the appointment of administrator of
the estate of a deceased person, the principal
consideration reckoned with is the interest in
said estate of the one to be appointed as
31
administrator.
Lee v. RTC of Quezon City
The intestate court has the power to execute its
order with regard to the nullity of an
unauthorized sale of estate property, otherwise
its power to annul the unauthorized or fraudulent
disposition of estate property would be
meaningless. In other words, enforcement is a
necessary adjunct of the intestate or probate
courts power to annul unauthorized or fraudulent
transactions to prevent the dissipation of estate
property before final adjudication.
The sale of any property of the estate by an
administrator or prospective heir without order
of the probate or intestate court is void and
passes no title to the purchaser.
Heirs of Hilario Ruiz vs. Edmond Ruiz
It is settled that allowances for support under
Section 3 of Rule 83 should not be limited to the
minor or incapacitated children of the deceased.
Article 18813 of the Civil Code of the
Philippines, the substantive law in force at the
time of the testators death, provides that during
the liquidation of the conjugal partnership, the
deceaseds legitimate spouse and children,
regardless of their age, civil status or gainful
employment, are entitled to provisional support
from the funds of the estate.14 The law is rooted
on the fact that the right and duty to support,
especially the right to education, subsist even
beyond the age of majority.15
Be that as it may, grandchildren are not entitled
to provisional support from the funds of the
decedents estate. The law clearly limits the
allowance to widow and children and does not
extend it to the deceaseds grandchildren,
regardless of their minority or incapacity.16 It
was error, therefore, for the appellate court to
sustain the probate courts order granting an
allowance to the grandchildren of the testator
pending settlement of his estate.
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In settlement of estate proceedings, the
distribution of the estate properties can only be
made: (1) after all the debts, funeral charges,
expenses of administration, allowance to the
widow, and estate tax have been paid; or (2)
before payment of said obligations only if the
distributees or any of them gives a bond in a sum
fixed by the court conditioned upon the payment
of said obligations within such time as the court
directs, or when provision is made to meet those
obligations.
The right of an executor or administrator to the
possession and management of the real and
personal properties of the deceased is not
absolute and can only be exercised so long as it
is necessary for the payment of the debts and
expenses of administration,27 Section 3 of Rule
84 of the Revised Rules of Court.
Union Bank v. Santibanez
The filing of a money claim against the
decedent’s estate in the probate court is
mandatory. This requirement is for the purpose
of protecting the estate of the deceased by
informing the executor or administrator of the
claims against it, thus enabling him to examine
each claim and to determine whether it is a
proper one which should be allowed.
Garcia – Quiazon v. Belen
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. In the application of venue statutes
and rules – Section 1, Rule 73 of the Revised
Rules of Court is of such nature – residence
rather than domicile is the significant factor.13
Even where the statute uses word "domicile" still
it is construed as meaning residence and not
domicile in the technical sense.14 Some cases
32
make a distinction between the terms "residence"
and "domicile" but as generally used in statutes
fixing venue, the terms are synonymous, and
convey the same meaning as the term
"inhabitant."15 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.16 It signifies physical presence in a
place and actual stay thereat.17 Venue for
ordinary civil actions and that for special
proceedings have one and the same meaning.18
As thus defined, "residence," in the context of
venue provisions, means nothing more than a
person’s actual residence or place of abode,
provided he resides therein with continuity and
consistency.
An "interested party," in estate proceedings, is
one who would be benefited in the estate, such as
an heir, or one who has a claim against the
estate, such as a creditor. Also, in estate
proceedings, the phrase "next of kin" refers to
those whose relationship with the decedent Is
such that they are entitled to share in the estate as
distributees.
Pilapil v. Heirs of M. Briones
it should be borne in mind that the settlement of
estate, whether testate or intestate, is a
proceeding in rem and that the publication in the
newspapers of the filing of the application and of
the date set for the hearing of the same, in the
manner prescribed by law, is a notice to the
whole world of the existence of the proceedings
and of the hearing on the date and time indicated
in the publication. The publication requirement
of the notice in newspapers is precisely for the
purpose of informing all interested parties in the
estate of the deceased of the existence of the
settlement proceedings, most especially those
who were not named as heirs or creditors in the
petition, regardless of whether such omission
was voluntarily or involuntarily made.
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Sadidong v. Solas
The rationale advanced for the prohibition is that
public policy disallows the transactions in view
of the fiduciary relationship involved, i.e., the
relation of trust and confidence and the peculiar
control exercised by these persons.32 "In so
providing, the Code tends to prevent fraud, or
more precisely, tends not to give occasion for
fraud, which is what can and must be done."33
For the prohibition to apply, the sale or
assignment of the property must take place
during the pendency of the litigation involving
the property.34 Where the property is acquired
after the termination of the case, no violation of
paragraph 5, Article 1491 of the Civil Code
attaches.35
In the case at bar, when respondent purchased
Lot 11-A on November 21, 1994, the Decision in
Civil Case No. 14706 which was promulgated on
May 31, 1983 had long become final. Be that as
it may, it can not be said that the property is no
longer "in litigation" at that time considering that
it was part of the Hodges Estate then under
settlement proceedings (Sp. Proc. No. 1672).
A thing is said to be in litigation not only if there
is some contest or litigation over it in court, but
also from the moment that it becomes subject to
the judicial action of the judge.36 A property
forming part of the estate under judicial
settlement continues to be subject of litigation
until the probate court issues an order declaring
the estate proceedings closed and terminated.
The rule is that as long as the order for the
distribution of the estate has not been complied
with, the probate proceedings cannot be deemed
closed and terminated.37 The probate court loses
jurisdiction of an estate under administration
only after the payment of all the debts and the
remaining estate delivered to the heirs entitled to
receive the same.38 Since there is no evidence to
show that Sp. Proc. No. 1672 in the RTC of
Iloilo, Branch 27, had already been closed and
terminated at the time of the execution of the
33
Deed of Sale With Mortgage dated November
21, 1994, Lot 11 is still deemed to be "in
litigation" subject to the operation of Article
1491 (5) of the Civil Code.
This notwithstanding, we hold that the sale of
Lot 11 in favor of respondent did not violate the
rule on disqualification to purchase property
because Sp. Proc. No. 1672 was then pending
before another court (RTC) and not MTCC
where he was Clerk of Court.
Aranas v. Mercado
The prevailing rule is that for the purpose of
determining whether a certain property should or
should not be included in the inventory, the
probate court may pass upon the title thereto but
such determination is not conclusive and is
subject to the final decision in a separate action
regarding ownership which may be instituted by
the parties. All that the said court could do as
regards the said properties is determine whether
they should or should not be included in the
inventory or list of properties to be administered
by the administrator. If there is a dispute as to
the ownership, then the opposing parties and the
administrator have to resort to an ordinary action
for a final determination of the conflicting claims
of title because the probate court cannot do so.
Under Section 6(a), Rule 78 of the Rules of
Court, the letters of administration may be
granted at the discretion of the court to the
surviving spouse, who is competent and willing
to serve when the person dies intestate. Upon
issuing the letters of administration to the
surviving spouse, the RTC becomes duty–bound
to direct the preparation and submission of the
inventory of the properties of the estate, and the
surviving spouse, as the administrator, has the
duty and responsibility to submit the inventory
within three months from the issuance of letters
of administration pursuant to Rule 83 of the
Rules of Court.
The general rule is that the jurisdiction of the
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trial court, either as a probate court or an
intestate court, relates only to matters having to
do with the probate of the will and/or settlement
of the estate of deceased persons, but does not
extend to the determination of questions of
ownership that arise during the proceedings. The
patent rationale for this rule is that such court
merely exercises special and limited jurisdiction.
As held in several cases, a probate court or one
in charge of estate proceedings, whether testate
or intestate, cannot adjudicate or determine title
to properties claimed to be a part of the estate
and which are claimed to belong to outside
parties, not by virtue of any right of inheritance
from the deceased but by title adverse to that of
the deceased and his estate. All that the said
court could do as regards said properties is to
determine whether or not they should be
included in the inventory of properties to be
administered by the administrator. If there is no
dispute, there poses no problem, but if there is,
then the parties, the administrator, and the
opposing parties have to resort to an ordinary
action before a court exercising general
jurisdiction for a final determination of the
conflicting claims of title.
However, this general rule is subject to
exceptions as justified by expediency and
convenience.
First, the probate court may provisionally pass
upon in an intestate or a testate proceeding the
question of inclusion in, or exclusion from, the
inventory of a piece of property without
prejudice to final determination of ownership in
a separate action. Second, if the interested parties
are all heirs to the estate, 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 resolve issues on ownership. Verily, its
jurisdiction extends to matters incidental or
collateral to the settlement and distribution of the
estate, such as the determination of the status of
34
each heir and whether the property in the
inventory is conjugal or exclusive property of the
deceased spouse.27 (Italics in the original; bold
emphasis supplied)
Butiong v. Plazo
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.
It must be recalled that the general rule is that
when a person dies intestate, or, if testate, failed
to name an executor in his will or the executor o
named is incompetent, or refuses the trust, or.
Fails to furnish the bond equipped by the Rules
of Court, then the decedent's estate shall be
judicially administered and the competent court
shall appoint a qualified administrator the order
established in Section 6 of Rule 78 of the Rules
of Court. 29 An exception to this rule, however,
is found in the aforequoted Section 1 of Rule 4
wherein the heirs of a decedent, who left no will
and no debts due from is estate, may divide the
estate either extrajudicially or in an ordinary
action or partition without submitting the same
for judicial administration nor applying for the
appointment of an administrator by the court. 30
The reasons that where the deceased dies without
pending obligations, there is no necessity for the
appointment of an administrator to administer
the. Estate for hem and to deprive the real
owners of their possession to which they are
immediately entitled.
when a person dies without leaving pending
obligations to be paid, his heirs, whether of age
or not, are not bound to submit the property to a
judicial administration, which is always long and
costly, or to apply for the appointment of an
administrator by the Court. It has been uniformly
held that in such case the judicial administration
and the appointment of an administrator are
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Special Proceedings 2018

superfluous and unnecessary proceedings.

Alvarico v. Sola
a private individual may not bring an action for
reversion or any action which would have the
effect of canceling a free patent and the
corresponding certificate of title issued on the
basis thereof, such that the land covered thereby
will again form part of the public domain. Only
the Solicitor General or the officer acting in his
stead may do so.

Malios v. Heirs of Eusebio Borromeo

remedy of reversion is not the same as the
remedy of declaration of nullity of free patents
and certificate of title. In reversion, the
"allegations in the complaint would admit State
ownership of the disputed land[,]"149 while in
an action for the declaration of nullity of free
patent and certificate of title, the allegations
would include "plaintiffs ownership of the
contested lot prior to the issuance of [the] free
patent and certificate of title[.]"150

Since an action for reversion presupposes that

the property in dispute is owned by the state, it is
proper that the action be filed by the Office of
the Solicitor General, being the real party-in-
interest.

35