SPECIAL

PROCEEDINGS

REGALADO Notes
General Provision
RULE 72: SUBJECT MATTER AND APPLICABILITY OF
GENERAL RULES
72.1

A special proceeding is an application to establish the status or right of a party or a

particular fact, or any remedy other than an ordinary suit in a court of justice.
o It is generally commenced by application, petition or special form of pleading as
may be provided for by the particular rule or law.

Although (c) refers only to children, guardianship is not limited to children but extends
to incompetents.
o Proceedings for custody of a child whose parents are separated may be an
independent proceeding or an incident in any other proceeding
o But that for a vagrant or abused child is an independent proceeding in itself

While (m) speaks of declaration of absence and death there cannot be a special
proceeding instituted just to obtain a declaration of death
o Actual or presumptive death cannot be the subject of a judicial pronouncement or
declaration if it is the only question or matter involved in a case or upon which a
competent court has to pass
o Such declaration may be made only in connection with the proceedings for the
settlement of the estate of the alleged decedent
o Rule 107 (absentees) is only limited to a declaration of absence.
o Family code authorizes a summary proceeding for the declaration of the
presumptive death of the absentee spouse to enable the spouse present to contract
a subsequent marriage.

72.2

FP
L

There are certain specific provisions for special proceedings allegations required to be
contained in the pleadings, venue and service of pleadings and processes.

Distinction between final and interlocutory orders in civil actions for purposes of
determining appealability is not strictly applicable to orders in special proceedings.
o Rule 109 specifies appealable orders, some of which are interlocutory in civil
actions.

Rule 33 regarding judgment on demurrer to evidence is applicable to specpro.

Settlement of the Estates of Deceased

Persons RULE 73: VENUE AND
PROCESS
73.1, 73.2

Residence of decedent at time of his death is determinative of the venue of the proceeding.
o Residence means his personal, actual or physical habitation, his actual residence or
place of abode and not his permanent legal residence or domicile.

It is only where the decedent was a non-resident of the Philippines at the time of his death
that venue lies in any province in which he had estate.
o CFI thereof first taking cognizance acquires jurisdiction to the exclusion of other
courts.
o Subject to preferential jurisdiction of the court where testate proceedings are filed.

Question of residence is determinative only of the venue and does not affect jurisdiction
of the court.
o Venue may be waived, submission of affected parties to proceeding is a waiver of
objection to error in venue.

The branch of the court first taking cognizance of proceeding acquires exclusive
jurisdiction to resolve all questions concerning the settlement of the estate to exclusion of
all other courts or branches of same court (even questions of venue seasonably filed).

The probate court acquires jurisdiction over the proceeding from the moment the petition
for settlement is filed. It cannot be divested of such jurisdiction by subsequent acts of the
interested parties, as in entering into an extrajudicial partition of the estate or by filing
another petition for settlement in a proper court of concurrent venue.
o SC may however order a change of venue under its supervisory authority.

Conjugal partnership shall be liquidated in the proceedings for the settlement of the estate
of the deceased spouse, or if both died, in proceedings for either estate.
o If separate proceedings were instituted, they may be consolidated if filed with the
same court.
o Probate court has jurisdiction to determine whether the property is conjugal as it
has to liquidate the conjugal partnership to determine the estate of the decedent.
o Since liquidation may be made in either proceeding where both are still pending, it
is a matter of sound judicial discretion in which one it should be made.

Upon death of spouse no action can be maintained against the surviving spouse for
recovery of a debt chargeable against the conjugal partnership, claim should be filed in
the settlement proceeding of the estate of the deceased spouse.
o Neither may surviving spouse enter into an agreement novatory of a contract
executed by both of them during lifetime of deceased.

o Estates of deceased spouses may be settled in one proceeding.

o In all other instances, even if they are related as ascendants and descendants, their
separate estates must be settled in different proceedings.

If in determination of conjugal nature of such property a question of title thereto is raised

by a third person, the probate court has no jurisdiction to determine the title to said
property as the issue should be threshed out in a proper action.
o Especially true in summary proceedings and to avoid delay, as distribution is
always subject to the results of the appropriate suit and the claimants rights can
be protected by notice of lis pendens.

The probate court may pass upon the question of title to property only where
a. interested parties who are all heirs of the deceased consent thereto and interests of
third parties are not prejudiced (as where the parties are all heirs of the deceased)
b. in a provisional manner, to determine whether the property should be included in or
excluded from the inventory, without prejudice to the final determination of title in a
separate action (especially where property is in possession of a third party who has
certificate of title thereto)

Probate court has the power to determine questions as to

o who are the heirs of the decedent
o the recognition of a natural child
o the validity of disinheritance effected by the testator
o and the status of a woman who claims to be the lawful wife of the decedent
o also jurisdiction to pass upon validity of waiver of hereditary rights
o whether property in the inventory is conjugal or exclusive property of the deceased
spouse.

Its jurisdiction extends to matters incidental or collateral to the settlement and distribution
of the estate.

Probate court generally cannot issue writs of execution because its orders usually refer to
adjudication of claims against the estate which the executor or administrator may satisfy
without the need of executor processes.

The rules specify instances wherein probate court may issue writ of execution
o To satisfy contributive shares of devisees, legatees and heirs in possession of
decedents assets
o To enforce payment of expenses of partition
o To satisfy costs when a person is cited for examination in probate proceedings

Inclusion unius est exclusion, these would be the only instances when probate court may
issue writ of execution.

73.3, 73.4

Absentee shall be presumed dead for purposes of opening his succession after absence of
10 years
o But if he disappeared after age of 75 years, 5 year absence is sufficient
o If absentee was on board vessel lost during sea voyage or airplane which is
missing, was in armed forces and has taken part in war or has been in danger of
death under other circumstances, only 4 years is required.
Taken conjointly with Art. 392 of the Civil Code, recover of the returning absentee of his
estate is subject to the conditions that
a. All his debts must have been paid
b. He shall recover his property in the condition in which it may be found, together with
the price of any property that may have been alienated or the property acquired
therewith
c. He is not entitled to fruits or rents.
RULE 74: SUMMARY SETTLEMENT OF ESTATES

74.1

This rule actually provides for two exceptions to the requirement that the estate should be
judicially administered through an administrator or executor
a. Extrajudicial settlement
b. Summary settlement of estates of small value

The salient distinctions between these two methods of settlement are as follows:
Extrajudicial settlement
Summary settlement
Does not require court
Involves
intervention
judicial
adjudication
Value is immaterial
Applies only where gross
estate value does not
exceed P10,000 (amt is
jurisdictional)
Only
in
intestate Allowed both in testate
succession
and intestate
Proper only when no Available even if there
outstanding debts at time are debts (court will
of settlement
make provisions for
payment thereof)
Only at the instance and May be instituted by any
by agreement of all heirs interested party and even
by a creditor without
consent of all the heirs

Bond is equal to the Bond determined by the

value
of
personal court
property as established
by
instrument
of

Requisites of a valid extrajudicial settlement

a. Decedent died intestate
b. No outstanding debts of the estate at time of the settlement
c. Heirs are all of age or the minors are represented by their judicial guardian or legal
representatives
d. Settlement made in a public instrument, stipulation or affidavit duly filed with the
register of deeds
e. The fact of such extrajudicial settlement must be published in a news paper

Extrajudicial settlement presupposes concurrence among all heirs to the partition of the
estate as provided in the instrument.
o If they cannot agree on the manner of the partition they may institute an action for
partition unless same is prohibited by an agreement, by the donor or testator, or by
law.
o If despite such action they subsequently arrive at an agreement, they may enter into
the corresponding stipulation and register the same with the register of deeds.
Where case is proper for extrajudicial settlement, a dissenting heir cannot insist on
instituting administration proceedings which would be superfluous and unnecessary
unless he can establish good reasons for not resorting to an action for partition.

Public instrument is now required for registration. If the settlement is in a private

instrument, it is believed that the same is still valid and reformation of the instrument
may be compelled (Art. 1359, CC).

While the rule provides that the decedent must have not left any debts, it is sufficient if
any debts he may have left have been paid at the time the extrajudicial settlement is
entered into.
o It is presumed that decedent left no debts if no creditor files a petition for letters of
administration within 2 years after death of decedent. (rebuttable presumption)
A bond is required only when personalty is involved in the extrajudicial partition, real
estate is subject to a lien in favour of creditors, heirs or other persons for the full period
of two years from such distribution and such lien cannot be substituted by a bond.
o Value of personal property which must be covered by bond is determined from
sworn declaration of the parties in the instrument of settlement or affidavit of
adjudication, or if not mentioned therein in tan affidavit stating such valuation
which the register of deeds shall require them to execute.
Minor distributee in an extrajudicial settlement should be represented therein by a judicial
guardian
o If property adjudicated to him is not worth more than P2,000 he may be represented
by his legal guardian

74.2, 74.3
Summary settlement of estates of small value is now within the jurisdiction of inferior
courts.

The amount of bond to be filed by the distributees of personal property in summary

settlement is determined by the court.

As a rule, probate court cannot pass upon issue of title in summary proceedings when one
of heirs asserts an adverse claim to the property involved therein,
o Where it is clear that the property really belongs to the decedent, probate court may
determine in a summary settlement who are the parties entitled thereto since in
such a proceedings it is directed to act summarily and without delay.
74.4, 74.5
The 2-year lien upon the real property distributed by extrajudicial or summary settlement
shall be annotated on the title issued to the distributees and, after the lapse of the period,
may be cancelled by the register of deeds without need of a court order.
o Lien cannot be discharged nor the annotation cancelled within the 2-year period
even if the distributes offer to post a bond to answer for the contingent claims for
which the lien is established
The discovery of unpaid debts after the extrajudicial settlement has been effected does not
ipso facto invalidate the partition.
o In such a case, the creditor may ask for administration of enough property of the
estate sufficient to pay the debt, but the heirs can prevent such administration by
paying the obligation
o Or the creditor can file an ordinary action against the distributees for his claim.
Where estate has been summarily settled, unpaid creditor may, within 2-year period, file a
motion in the court wherein such summary settlement was had for the payment of his
credit.
o After the lapse of the period, an ordinary action may be instituted against the
distributees within the statute of limitations, but not against the bond.
An extrajudicial settlement, despite the publication thereof in a newspaper, shall not be
binding on any person who has not participated therein or who had no notice thereof.
Summary settlement is likewise not binding upon heirs or creditors who were not
parties therein or who had no notice thereof.
Said heirs or creditors may vindicate their rights either by proceeding against the estate,
the distributees or against the bond within the 2-year period, or even thereafter but within
the statute of limitations, but, this time, they can no longer proceed against the bond.
The action to annul a deed of extrajudicial settlement on the ground of fraud should be
filed within four years from the discovery of fraud.

 If special proceedings are pending or there is a need to file one, for the determination of
heirship, that issue should be determined in said special proceedings. Where those special
proceedings had been finally terminated and the putative heir had lost his right to be
declared therein as a co-heir, an ordinary civil action can be timely filed for his
declaration as an heir.

RULE 75: PRODUCTION OF WILL. ALLOWANCE OF WILL

NECESSARY
75.1
The probate of a will refers to its due execution and settles only formal or intrinsic validity
of the will.
o Whether the testator being of sound mind freely executed the will in accordance
with the formalities prescribed by law.
o It does not affect or pertain to the intrinsic validity of the provisions thereof which
determination normally comes after allowance of the will.
Such allowance in a final judgment is conclusive on that issue and cannot be assailed in
another proceeding, except on the ground of fraud in the procurement of the decree.
The doctrine of estoppel does not apply in probate proceedings since the presentation and
the probate of a will are required by public policy and they involve public interest.
o In exceptional cases, as where the defect is apparent on its face, the probate court
may determine the intrinsic validity of the will even before its formal validity is
established, as the probate of a will may become a useless ceremony if the will is
intrinsically invalid.
75.2, 75.3, 75.4, 75.5
If the custodian of the will delivers it to the executor named therein, such executor must
in, turn, deliver that will to the court within 20 days therefrom and signify whether he
accepts the trust.
Delivery of the will is made to the clerk of court of the RTC having jurisdiction over the
estate.
Testate proceedings take precedence over intestate proceedings for the same estate. If
during the pendency of intestate proceedings, a will of the decedent is discovered,
proceedings for the probate of the will shall replace the intestate proceedings even if an
administrator had already been appointed therein. Should the will not be allowed to
probate, then the proceedings shall be continued as an intestacy.
o Doubts should be resolved in favour of testacy, especially where the will evinces
the intent of the testator to dispose of his whole estate.
It is not proper for the probate court to make a finding in an intestate proceeding that a
will discovered after the intestate proceeding have been revoked.

o The court should order the filing of a petition for the probate of said will by the
party interested therein.

RULE 76: ALLOWANCE OR DISALLOWANCE OF WILL

76.1

Petition for probate of the will is not subject to bar by the statute of limitations and does
not prescribe, as such petition may be filed at any time and is required by public policy.

76.2

The jurisdictional facts required to be alleged in the petition for probate are:
a. That a person died leaving a will
b. In the case of a resident, that he died in his residence within the territorial jurisdiction
of the court, or in the case of a non-resident, that he left an estate within such
territorial jurisdiction, and
c. That the will has been delivered to the court.

A creditor of the decedent may file a petition for the settlement of the latters estate as a
preparatory step for the filing of the formers claim therein, but an heir who has assigned
or renounced his hereditary rights has no legal interest as would authorize him to initiate
such proceedings.

76.3, 76.4

The probate of a will is a proceeding in rem and the publication provided for by this Rule
is a jurisdictional requirement. The personal service of notice upon the heirs is a matter of
procedural convenience and not a jurisdictional requisite.
o However, where the names of the heirs and their residences are known, notice of
the hearing of the petition in accordance with Sec. 4, Rule 76 must be forwarded
to them and such requirement cannot be satisfied by mere publication.

The requirement of three successive weeks of publication in Sec. 3 does not mean that
three full weeks or 21 days should intervene between the first publication and the date of
hearing. It is sufficient that publication has been made once a week successively three
times, even if less than 21 days intervened between the first publication and the hearing.

Where the testator himself petitions for the probate of his will in his lifetime, no
publication is required and notice is required only for his compulsory heirs. Such notice
should, under these circumstances, be considered a jurisdictional requisite.

76.5, 76.11, 76.12

Sec. 5 provides for the requisite proof where the petition for the probate of the will,
notarial or holographic, is not contested. In the absence of any opposition to such probate,
the evidence for the petitioner may be received ex parte.

o In the case of a holographic will, and there is no contest, only one witness is
required and in his absence, expert evidence may be resorted to. If the testator of
the holographic will himself testifies, he need merely affirm his handwriting and
signature.

In the case of a contested notarial will, it is the duty of the petitioner to produce all the
available attesting witnesses and the notary public, but he is not concluded by the
testimony witnesses, even if adverse, as the court may still admit the will to probate on
the basis of other satisfactory evidence.
o This is an exception to the rule that a party is generally bound by the testimony or
evidence that he presents, because here, unlike ordinary actions, he has no choice
in the evidence as he is duty-bound to account for all attesting witnesses.
o It has been held that the testimony of the notary before whom the will was
acknowledged will prevail over that of the two attesting witnesses who claim
undue execution of the will.

In the case of a holographic will, it is not mandatory that witnesses be first presented
before expert testimony may be resorted to, unlike notarial wills wherein the attesting
witnesses must be presented or accounted for.
o This is so because holographic wills are not required to be witnessed and the
existence of a qualified witness may be beyond the control or knowledge of the
proponent of the will.

76.6

This section provides the requisite quantum of evidence to prove a lost or destroyed
notarial will in the absence of contest, and constitutes an exception to the rule on
secondary evidence in Sec. 5, Rule 130.

The witnesses required here, who need not be attesting witnesses (although testimony of
the latter would be entitled to greater weight) must clearly establish
a. The due execution and formal validity of the will
b. The existence of the will at the time of the death of the testator or its fraudulent or
accidental destruction in the lifetime of the testator and without his knowledge, and
c. The provisions of said will, to be testified to by at least two credible witnesses.

If however, the probate of such lost or destroyed notarial will is contested, then Sec. 11 of
this Rule has to be complied with, that is, all the subscribing witnesses and the notary
public must be accounted for and, if available, their testimony must be secured, and all
the facts stated in Sec. 6 must be established by them or by two credible witnesses.

Where a lost will is shown to have been in the possession of the testator when last seen or
that the testator had ready access to the will and it cannot be found after his death, the
presumption is that he destroyed or cancelled it and not that it was destroyed by other
persons without his knowledge or authority.

This section applies to a lost or destroyed notarial will and not a holographic will. A lost
or destroyed holographic will cannot be proved by the bare testimony of witnesses who
have seen and/or read such will as the probate thereof requires identification of the

handwriting and signature of the testator presupposing the availability of the holographic
will in court.

SPECIAL
PROCEEDINGS

1
0

o The SC however intimated that perhaps it may be proved by photographic,

photostatic or carbon copies or similar means, it was definitely held that the lost
holographic will could be proved by photostatic or Xerox copies thereof.
76.7, 76.8

In the case of a notarial will where none of the attesting witnesses are available, the court
may admit other witnesses and admit proof of the handwriting of the testator and the
attesting witnesses.

76.9, 76.10, 76.13

RULE 77: ALLOWANCE OF WILL PROVED OUTSIDE

OF PHILIPPINES AND ADMINISTRATION OF
ESTATE THEREUNDER
77.1, 77.2, 77.3

A will allowed to probate in a foreign country must be probate again in the Philippines.
The venue for the petition for reprobate is the same as that provided in Rule 73.
o If the decedent had properties in different countries, separate administration
proceedings must be had in said countries, the proceeding in his last domicile
being the principal administration and any other administration proceeding being
termed the ancillary administration.
o These two proceedings are separate and independent of each other, but a
Philippine court may grant ancillary letters to the domiciliary representative, if the
relatives of the decedent mentioned in the order of preference are unsuitable for
the trust. The court may in the exercise of its sound discretion also appoint some
other person.

At the proceedings for reprobate in the Philippines, the proponent must prove
a. That the testator was domiciled in the foreign country
b. That the will has been admitted to probate in such country
c. That the foreign court was under the laws of said foreign a probate court with
jurisdiction over the proceedings
d. The law on probate procedure in said foreign country and proof of compliance
therewith, and
e. The legal requirements in said foreign country for the valid execution of the will.

In the absence of proof of the foreign law, it is presumed that it is same as that in the
Philippines.

77.4

SPECIAL
The local administrator has power only over the property
of the decedent in the
PROCEEDINGS

1
0

Philippines.
o However such property of a foreigner in the Philippines shall be disposed of in
accordance with his national law, especially on the matter of the order of
succession, the amount of successional rights and the intrinsic validity of the
provisions thereof.

SPECIAL
PROCEEDINGS

11

Any surplus of the estate in the hands of the Philippine ancillary administrator shall be
remitted to the domiciliary jurisdiction, but the SC has also noted that it would be
advisable for Philippine courts to retain in custodia legis a sufficient amount to protect
Philippine claimants with contingent claims, such as when there are pending cases for
payment thereof or for the determination of the status or right of one who claims as an
heir to the estate, since said administrator also represents the interests of Philippine
creditors, heirs or legatees.

See Rule 88 Secs 9 & 10.

RULE 78: LETTERS TESTAMENTARY AND OF

ADMINISTRATION, WHEN AND TO
WHOM ISSUED
78.1, 78.3

An executor is the person named in the will to administer the decedents estate and carry
out the provisions thereof.
o An administrator is the person appointed by the court to administer the estate
where the decedent died intestate, or where the will was void and not allowed to
probate, or where no executor was named in the will, or the executor named
therein is incompetent or refuses to serve as such.

A corporation or association authorized to conduct the business of a trust company in the

Philippines may be appointed as an executor or administrator of an estate in the same
manner as an individual.

78.2, 78.4, 78.5

More than one executor may be issued letters testamentary in accordance with the
nomination in the will. Also, while as a rule the court appoints only one administrator for
intestate estates, more than one administrator may also be appointed by the court.

The general practice is that co-executors or co-administrators will exercise joint

supervision over the entire estate, but the court for justifiable reasons may charge a coadministrator with powers over a particular portion of the estate for administration by
him independent of his co- administrator, but he must act in close cooperation with the
latter.

78.6

This is the order of preference in the appointment of an administrator but the same may
be disregarded for valid cause.

SPECIAL

12

o A full-dress hearing to determine the competence

of the person named as
PROCEEDINGS
administrator should be conducted. The directive of the testator in his will is not
conclusive as supervening circumstances may have rendered unfit the person
named to the trust.

In the appointment of the administrator of the estate of a deceased person, the principal
consideration is the interest in the said estate of the one to be appointed as administrator.

o The underlying assumption for this rule is that those who will reap the benefits of
a wise, speedy and economical administration of the estate, or on the other hand
suffer the consequences of waste, improvidence or mismanagement have the
higher interest and most influential motive to administer the estate correctly.
o However, the order of preference does not rule out the appointment of coadministrators and the same may be resorted to by the probate court in the
exercise of sound discretion.
o Thus appointment of co-administrators has been upheld for various reasons
1. To have the benefit of their judgment and, perhaps, at all times to have
different interests represented
2. Where justice and equity demand that opposing parties or factions be
represented in the management of the estate
3. Where the estate is large or, from any cause, an intricate and perplexing one to
settle
4. To have all interested persons satisfied and the representatives to work in
harmony for the best interests of the estate, and
5. When a person entitled to the administration of an estate desires to have
another competent person associated with him in the office.
The term next of kin has been defined as those persons who are entitled under the
statute of distribution to the decedents property.
o Generally, the nearest of kin, whose interest is more preponderant, is preferred in
the choice of administrator. Among members of a class, the strongest ground for
preference is the amount or preponderance of interest. As between next of kin, the
nearest of kin is to be preferred.
A party indebted to the decedents estate cannot compatibly perform the duties of an
administrator and should not be appointed as such. Where such fact of indebtedness was
only subsequently discovered after the administrator had been duly appointed, he should
not be removed, absent any other lawful ground.
An administrator is not supposed to represent the interests of any particular party and his
acts are deemed to be objectively for the protection of the rights of everybody concerned
with the estate of the decedent.
o On the other hand, however, it is evidently implicit in Sec. 6, fixing the priority
among those to whom letters of administration should be granted, that the
criterion in the selection of the administrator is not his impartiality alone, but
more importantly, the extent of his interest in the estate, so much so that the one
assumed to have greater interest is preferred to another who has less.
Clerks of court and other court personnel of the probate courts should not be appointed as
administrators or receivers of estates of deceased persons so as not to compromise their
objectivity and impartiality in the performance of their regular functions.

RULE 79: OPPOSING ISSUANCE OF LETTERS

TESTAMENTARY, PETITION AND CONTEST
FOR LETTERS OF ADMINISTRATION
79.1, 79.2

When a petition for probate of the will has been filed, Sec. 1 authorizes a person
interested in the estate not only to challenge the qualifications of the person nominated
therein as executor but, at the same time and in anticipation of such disqualification, to
file a petition for administration with the will annexed.
o The court will thus have two petitions pending before it nut in the event the
nomination of the executor is approved by the court with the issuance of letters
testamentary to him, the petition for administration with the will annexed must
necessarily be denied.

Testate proceedings take precedence over intestate proceedings. Hence if intestate

proceedings had been filed and a will is discovered, probate proceedings may be
instituted in a separate proceeding or by appropriate motion in the same court. Should the
probate be denied, the proceeding shall continue as an intestacy.

In order to be a party, a person must have material and direct and not one that is only
indirect or contingent interest. Hence, where the right of a claimant is dependent on the
disallowance of the second will and the incapability to inherit of the legatees instituted by
the testator in the first will, such contingent interest does not make the claimant an
interested party.

Where an heir has validly assigned all his rights to the estate before the institution of
settlement proceedings thereover, he no longer has the requisite interest to participate
therein.
o Where the assignment is made during the pendency of the settlement proceedings, it
requires the approval of the court for its validity.
o However, it has been held that in this situation, even if that assignment has been
approved by the court, such approval is not deemed final until the proceeding over
the estate is closed, as such approval can still be vacated, hence the assignor
remains as an interested party in the proceeding.
79.3, 79.4, 79.5, 79.6
Sec. 6 (b), Rule 78, provides that the preference given to the surviving spouse or next of
kin may be disregarded by the court where said persons neglect to apply for letters of
administration for 30 days after decedents death. Sec. 6 of this Rule reiterates such
provision.

RULE 80: SPECIAL

ADMINISTRATOR
80.1
This section authorizes the appointment of a special administrator. The other instance
when special administrator may be appointed is when the regular administrator or
executor has a claim against the estate, in which case a special administrator shall be
appointed by the court with respect to such claim.

 Clerks of court and court employees should not be appointed special administrators as
their objectivity and impartiality may be compromised by extraneous considerations.
The order of preference in the appointment of regular administrators does not apply to the
appointment of a special administrator, but such order of preference may be followed by
the judge in the exercise of sound discretion.
The grounds for the removal of the regular administrator do not apply strictly to the
special administrator as he may be removed by the court on other grounds in its
discretion.
The order appointing a special administrator is an interlocutory order and is not
appealable.
80.2, 80.3

The special administrator also has the duty to submit an inventory and to render and
accounting of his administration as required by the terms of his bond.

While a special administrator may commence and maintain suits under Sec. 2 he cannot
be sued by a creditor for the payment of a debt of the deceased. Such suit must await the
appointment of a regular administrator.
o However, it was subsequently held that a special administrator may be made a
defendant in a suit against the estate where the creditor would suffer the adverse
effects of the running of the statute of limitations against them if the appointment
is delayed.
o A mortgagee may bring an action for the foreclosure of a mortgage of a property of
the estate against a special administrator, otherwise the very purpose for which the
mortgage was constituted will be defeated.

RULE 81: BONDS OF EXECUTORS AND ADMINISTRATORS

81.1, 81.2
The bond posted by administrators and executors is intended as an indemnity to the
creditors, the heirs and the estate. The court shall fix the amount thereof and hold it
accountable for breach of duty on the part of the administrator or executor. The
enforcement of such liability may be sought by motion in the administration proceedings
or in a separate civil action.

 Under Sec. 2 even if the testator has directed in his will that his executor serve without
bond, the court may still require him to file a bond conditioned only to pay the debts of
the testator; and thereafter, based on the circumstances, the court may require further
bond from said executor to answer for breaches in his administration.
81.3, 81.4

RULE 82: REVOCATION OF ADMINISTRATION,

DEATH, RESIGNATION AND REMOVAL OF
EXECUTORS OR ADMINISTRATORS
82.1
It is only when the newly-discovered will has been admitted to probate that the letters of
administration may be revoked by the probate court.
82.2, 82.3, 82.4
The mere fact that it was subsequently discovered that the duly appointed administrator
was indebted to the decedent is not a ground for his removal, absent any other
circumstance indicative of bad faith or lack of integrity on his part.
The fact that the administratix was later held to be without the right to intervene in the
settlement of the estate as an heir is not a ground for her removal as such adminsitratix
since even a stranger can be appointed as such.

RULE 83: INVENTORY AND APPRAISAL PROVISION FOR SUPPORT OF

FAMILY
83.1

The 3 month period provided herein is not mandatory and the court retains jurisdiction
even if the inventory is filed after said period, but such delay, if not satisfactorily
explained, may be a ground for the removal of the administrator under Sec. 2, Rule 82.

83.2, 83.3

Property claimed by third persons may be included in the inventory as part of the assets
of the estate and the probate court may order such inclusion, but such order of the probate
court is only a prima facie determination and does not preclude the claimants from
maintaining an ordinary civil action for the determination of title.

Sec. 3 allows support to be given to the surviving spouse and the minor or incapacitated
children of the decedent during the settlement of the estate.
o The allowances for support are subject to collation and deductible from the share
in the inheritance of said heirs insofar as they exceed the fruits or rents pertaining
to them.

RULE 84: GENERAL POWERS AND DUTIES OF EXECUTORS

AND ADMINISTRATORS 84.1, 84.2, 84.3

An administrator or executor has all the powers necessary for the administration of the
estate and which powers he can exercise without leave of court. The constitution of a
lease over property of the estate is an act of administration and leave of court is not
required.

o Any interested party who desires to impugn the same must do so in an ordinary
civil action as the probate court has no jurisdiction over the lessee.

If the lease contract exceeds one year, the same is no longer considered a mere act of
administration, and leave of court should ordinarily be required.
o A view is held, however, that the aforesaid provisions on agency should not apply
to leases entered into by an executor or administrator, under the theory that they
represent not only the estate but also the parties interested therein, that they are
required to file a bond and that their acts are subject to specific provisions of law
and orders of the probate court, which circumstances are not true with respect to
agents.

Regarding sale, mortgage or other encumbrance on property of the estate, the same are
regulated by Rule 89.

RULE 85: ACCOUNTABILITY AND COMPENSATION OF EXECUTORS

AND ADMINISTRATORS 85.1, 85.2, 85.3, 85.4, 85.5, 85.6

These sections provide for the accountability of administrators or executors with respect
to their omissions or for acts performed by them in the administration of the estate.

85.7

The administrator or executor is entitled to charge in his accounts all expenses of

administration incurred by him.

Not proper expenses of administration, therefore not chargeable against the estate:
a. Services rendered by administrator in favor of an heir which services were not
beneficial to the estate
b. Premiums for his bond
c. Expenses for the repair of property of the estate being occupied and used by him
d. Expenses for the keeping of ordinary records and receipts involved in his
administration work.
e. Losses incurred in the conduct of business with the use of the funds of the estate.

Where an attorney renders services to the administrator or executor personally to aid in

the execution of his trust, the administrator or executor is liable for the fees, but he can
move for reimbursement and charge such fees as expenses of administration where the
same is reasonable and proved beneficial to the estate.
Where however attorneys services were rendered in a litigation involving such
administrator or executor in his capacity as trustee of the estate and for the protection of
the interest of such estate, the attorneys fee is chargeable to the estate.

 To recover attorneys fees, the attorney may either bring an independent action personally
against the executor or administrator, or file a petition in the administration proceedings
for the

probate court to allow the same and to direct the payment of his fee as an expense of
administration.
The compensation of the executor shall primarily be that fixed in the will and if there is no
such provision or he renounces the same, then it will be as provided in Sec. 7.
85.8, 85.9, 85.10, 85.11
Even if the final accounts of the executrix had already been approved but said executrix
subsequently received funds of the estate, she must account for the same; and this duty
cannot be waived by the act of the heirs in receiving dividends from said funds without
requiring said accounting.

RULE 86: CLAIMS AGAINST ESTATE

86.1, 86.2
The period fixed by Sec. 2 for filing of claims is sometimes referred to as the statute of
non- claims and supersedes the ordinary statute of limitations.
o The period for filing of such claim starts to run from the date of the first
publication of notice referred to in Sec.1 and runs even against the State.
Sec.2 means that the filing of claims contemplated therein should be during a period of
6 months starting from the 6th month after the date of the first publication of the notice
own to the 12th month. Within the range of said period, the probate court is permitted to
set the period for filing of claims and the period once fixed by the court is mandatory.
The court for good cause shown may grant a 1 month period for a creditor to file a claim
which he failed to file during the original period granted for filing of claims. Such
motion for leave to file a claim beyond original period may be file at any time during the
administration proceedings provided no order of distribution has yet been entered.
o Sec.2 should not be interpreted to mean that 1 month period commences to run
from the expiration of the original period for filing claims.
o What it means is that said claims must be filed within a time not exceeding 1
month from the order of the court allowing the filing of such particular claim.
86.3, 86.4
A notice to creditors to file their claims is not proper if only a special administrator has
been appointed, he is generally not empowered to pay debts of the deceased and his bond
unlike that of a regular administrator is not conditioned upon the payment of such debts.

 The publication of the notice to the creditors is constructive notice to all, hence a creditor
cannot be permitted to file his claim beyond the period fixed in said notice on the bare
ground that he had no knowledge of the administration proceedings, since the proceeding
for filing claims is in rem.

 As the period for the filing of claims starts to run from the first publication of the notice to
creditors, unless such publication is effected by the administrator or the executor, the
result would be to correspondingly extend the time for the presentation of claims.
Where a claimant with a claim under a judgment for money against the deceased files a
petition for the issuance of letters of administration over the estate of the decedent within
the 10 year period from the finality of its judgment, and after said 10 year period filed a
claim against the estate of the deceased under administration, said claim retroacts to the
date of the filing of the petition for letters of administration and therefore has not
prescribed.
86.5, 86.6
The claims referred to in Sec. 5 must be for money which are not secured by a lien against
property of the estate.
o If the claim is for recovery of real or personal property from the estate or the
enforcement of any lien thereon, an action should be instituted for that purpose
against the executor or administrator.
o These claims must have arisen from liabilities contracted by the decedent before his
death and money claims arising after his death cannot be presented, except funeral
expenses and expenses of his last illness.
First type of money claims required to be filed under this section is one arising from
contract, express or implied, which was entered into by the decedent in his lifetime.
Consequently, a money claim against the estate arising from a crime or a quasi-delict
committed by the decedent is not included in the concept of claims which have to be filed
under this Rule, but should be the subject of an action against the executor or
administrator or against the heirs.
o Also claims by the Government for unpaid taxes, filed within the period of
limitations prescribed in the NIRC are not covered by the statute of non-claims as
these are monetary obligations created by law.
o Claims for taxes due and assessed after the death of the decedent need not even be
presented in the form of a claim; the probate court may just direct the executor or
administrator to pay the same.
o In fact, even after the distribution of the estate, claims for taxes may be enforced
against the distributees in proportion to their shares in the inheritance.
o However, a claim based upon a quasi-contract shall be deemed included in the
concept of claims under Sec. 5 which speaks of implied contracts.
A contingent claim is one which depends for its demandability upon the happening of a
future uncertain event (includes claims subject of suspensive condition).
o Claims which are not yet due, or are contingent, may be approved at their present
value but as no payment thereof can yet be authorized by the court until their

demandability arises, a portion of the estate may be reserved for payment of the
claims.
Claims not filed within the period for filing claims are barred, but if the claimant is sued
by the administrator or executor either within the period or thereafter, such claim may be
availed of by

the defendant as a counterclaim and if he proves the same, he may recover thereon
against the estate.
A money claim upon a liability contracted by the deceased must be duly filed even if the
deceased in his will acknowledged and ordered payment of such debt.
Where the defendant dies before final judgment in the FCI and the action is for recovery
of money, debt or interest thereon the case shall not be dismissed but shall continue until
entry of judgment.
If at the time of death of a decedent, an action is pending against him but for the primary
purpose of recovery of money, debt or interest, his heirs or other legal representatives will
merely be substituted for the decedent in said action without the appointment of an
executor or administrator (3.16).
If final judgment had already been rendered against the decedent prior to his death, but
without levy on execution having been effected against his property such judgment for a
sum of money must also be filed as a claim against the estate in the manner provided by
this Rule.
o If levy had already been made before his death, execution shall proceed (39.7c).
o However if the final judgment rendered against the decedent in his lifetime is for
the recovery of personal property other than money or the enforcement of a lien
thereon then the claimant has merely to obtain a writ of execution for enforcement
against the executor, administrator or successor-in-interest of the deceased (39.7b)
Where the defendant dies while the action for a sum of money against him is pending in
the CA he shall be substituted therein by his legal representative but the final judgment
of the appellate court cannot be enforced by a writ of execution but should be filed in the
probate court as a money claim in accordance with 86.5.
An action or a sum of money based on culpa contractual for the death of a passenger
cannot be maintained against the heirs of the bus operator who had died thereafter.
Plaintiff heirs should have filed their claims against, and in the settlement of, the estate of
the deceased operator since such claims were based on a contract of carriage. Even if the
action was filed after the settlement of the estate of the deceased operator, neither can the
suit be maintained against his heirs as the distributees of his estate, since that may be
done only if a contingent claim had been filed in the estate settlement in accordance with
88.5.
86.7

 The first option granted to the mortgage creditor is to abandon his security and prosecute
his claim.
o By filing his claim against the estate as a money claim, he is deemed to have
abandoned the mortgage and he can not thereafter file a foreclosure suit in the
event he fails to recover his money claim against the estate.
The second alternative is for the mortgage creditor to institute a foreclosure suit and
recover upon the security.

SPECIAL
PROCEEDINGS

2
0

o The foreclosure suit should be against the executor or administrator as party

defendant.
o If the creditor fails to obtain full recovery, he may obtain a deficiency judgment
and file it as a claim against the estate, provided he does so within the period for
filing claims against the estate, otherwise it will be barred.
o The safer recourse is for the mortgage creditor to file a claim, for any probable
deficiency within the period for filing claims. It has been held that a deficiency
judgment is a contingent claim.
The third recourse of the mortgage creditor is to rely solely upon his mortgage and
foreclose the same at any time within the statute of limitations.
o If at the time he files the foreclosure suit the administration proceedings are still
pending, the executor or administrator shall be made the party defendant.
o However, if at the time of the foreclosure suit there has been an order of
distribution, then the party defendants should be the heirs to whom the mortgaged
property has been awarded.
o This includes extrajudicial foreclosure and with the same consequences as a judicial
foreclosure, the mortgage creditor waives any further deficiency claim.
Where the mortgagor died during the pendency of a judicial foreclosure suit against him,
the decision therein shall be enforced by the trial court by writ of execution in the
foreclosure proceeding.
o Such enforcement cannot be delegated to the probate court handling the settlement
of the estate of the decedent, since the probate court as a court of limited
jurisdiction has no authority to enforce a mortgage lien.
It has been held that the mortgagee can also resort to preliminary attachment of sufficient
property of the mortgagor where the mortgaged property is insufficient to satisfy the
mortgage account and the properties of the mortgagor are being disposed of in fraud of
creditors.
86.8
Pertains to the second instance wherein a special administrator may be appointed by the
court. The special administrator shall have authority to act only with respect to the claim
of the regular administrator or the executor.
86.9, 86.10, 86.11, 86.12, 86.13
A judgment of the probate court approving or disapproving a claim shall be appealable as
in ordinary cases with a record on appeal and with a 30-day reglementary period.
86.14

SPECIAL

If there is no instrument evidencing the debt of the decedent

and no writing is offered0
as
PROCEEDINGS
proof thereof, the claim cannot be proved. This appears to be sustained by the Dead Man
Statute (disqualifies parties surviving parties under the circumstances from testifying to
any matter of fact occurring before the death of the decedent).

SPECIAL
PROCEEDINGS

21

o It is assumed however that said provision does not apply to money claims for
funeral expenses or for the last sickness of the deceased as these are claims arising
after death.
A probate court has no jurisdiction to entertain a claim in favour of the estate against a
third person as the same should be the subject of an ordinary action generally to be
prosecuted by the executor or administrator under 87.2.
o Exception is 86.10 which authorized executor or administrator to interpose any
counterclaim in offset of a claim against the estate. Such counterclaim regardless
of its basis is treated like a compulsory counterclaim since its failure to file it shall
bar the claim forever.

RULE 87: ACTIONS BY AND AGAINST EXECUTORS AND

ADMINISTRATORS
87.1
An administrator or executor may be sued in either his personal or representative
capacity.
o Actions authorized under this rule are brought against him in his representative
capacity.
o The general rule is that if the action would result in a direct charge upon the estate
the executor or administrator is to be sued in representative capacity.
o For violation of or noncompliance with duties of the trust such executor or
administrator shall be sued in his personal capacity.
Does not bar a suit against the administratrix for the revival of a judgment for a sum of
money adjudged in that judgment but merely to keep alive said judgment so that the sums
awarded in the action for revival may be presented as claims against the estate.
A legatee may bring an action against the executor against the executor or administrator to
compel the payment of the legacy. But qualified by 88.15 wherein probate court may
allow him sufficient period of time within which to pay such legacy.
87.2
While the heirs have no standing in court to sue for the recovery of property of the estate
represented by an executor or administrator it has been held that the heirs may maintain
such action if the executor or adminsintrator is unwilling to bring suit, when he is alleged
to have participated in the act complained of.
o 3.10 he would be in a position of an unwilling coplaintiff.

SPECIAL
PROCEEDINGS

22

Even if administration has been commenced heirs may still bring suit in behalf of the
estate if administrator hasnt been appointed (rights to succession transmitted upon
death).
In an action by the administrator to recover properties of the estate the judgment of the
court ordering the possessors to surrender the property and to account for the fruits
thereof, is a final and appealable judgment.

87.3, 87.4, 87.5,

The prohibition in sec 3 applies only to heirs and devisees and not to be a done inter vivos
who may sue the administrator for the delivery of the property donated or a reserve who
can sue to recover the property which the deceased was bound to reserve.
Where in his lifetime a final judgment had been rendered in favour of the deceased said
judgment shall be enforced by execution on motion of the executor or administrator.
87.6, 87.7, 87.8
These proceedings are merely in the nature of fact-finding inquiries. If in the proceedings
authorized under this section the persons alleged to have converted the property of the
estate assert title thereto, the probate court cannot determine the issue of title. The
executor or administrator must file an ordinary action in court for the recovery of the
properties or damages thereto.
87.9, 87.10
These sections contemplate fraudulent transfers or fictitious contracts of the decedent in
fraud of creditors. The executor or administrator may, on his own initiative or on motion
of the creditors and as directed by the court institute an action for the recovery of said
property, but since said action is for the benefit of the creditors the court may direct the
creditors to defray part of the costs and expenses of the suit.
o If the executor or administrator still fails to bring such action, any of the creditors
may bring suit in his own name, with leave of court, upon the filing of an
indemnity bond for such costs and expenses as may arise from suit.
o Where, the action is against the executor or administrator himself, the suit shall be
in the names of all the creditors and leave of court and the indemnity bond shall
not be required.

RULE 88: PAYMENT OF THE DEBTS OF

THE ESTATE 88.1, 88.11, 88.12, 88.13, 88.14, 88.15
Provisions of section 15 for the payment of debts and legacies is directory and extensions
of the period may be granted by the court taking into account the circumstances attending
the distribution of the estate.
88.2, 88.3, 88.6

 The payment of the debts of the estate as a general rule, must be taken (a) from the portion
or property designated in the will (b) from the personal property and (c) from the real
property in that order. The court on petition of the interested parties may modify such
order of disposition.

 A legacy is not a debt of the estate, hence the probate court cannot issue a writ of
execution for the payment or satisfaction thereof.
On the other hand section 6 authorizes execution against the contributive shares of the
devisees, legatees and heirs in possession of the decedents assets to satisfy the debts of
the estate.
88.4, 88.5
These two sections provide for the payment of contingent claims. If the contingent claim
becomes absolute and is presented to the courts as an absolute claim within two years
from the time allowed for the presentation of claims, it will be paid in the same manner as
the other absolute claims. After said period, the creditor may proceed against the
distributees, provided said contingent claims had been seasonably filed in and allowed by
the probate court. The property reserved for the payment of such contingent claims may
therefore be retained by the administrator or executor only within said two-year period a
thereafter the same shall be included among assets for distribution to the heirs.
88.7, 88.8

Under these provisions, the preference of credits has been specifically incorporated in
the rule, to be followed in the payment of debts where the estate is not sufficient therefor.

88.9, 88.10, 88.16

RULE 89: SALES, MORTGAGES, AND OTHER

ENCUMBRANCES OF PROPERTY
OF DECEDENT
89.1, 89.2, 89.4, 89.5, 89.6
The court may allow only the sale of personal property for the purposes in section 1 and
not encumbrance thereof.
With respect to real property the court may permit the same to be sold, mortgaged or
otherwise encumbered under sections 2, 4, 5, 6.
o Under both sections 4 and 6, if it will not be for the convenience of or beneficial to
the heirs and not for payment of debts, administration expenses and legacies, real
property can only be allowed to be sold and not encumbered.

 As a rule, unless the testator had made provisions to the contrary in his will, the personal
property of the estate must first be sold for the payment of debts, expenses of
administration or legacies. If the same is still insufficient, the real property may be
proceeded against. Nevertheless, personalty may always be sold at any time if it is
necessary for the preservation of its value.

 The sale or encumbrance of real property may be allowed by the court if the petition
therefore avers: (a) that the personal estate is not sufficient to pay the debts, expenses of
administration and legacies or that the sale of such personalty may injure the business or
the interests of persons interested in the estate; (b) that the testator has not otherwise
made sufficient provisions for the payment of such debts, expenses of administration and
legacies; and (3) that such sale or encumbrance would be beneficial to the parties
interested in the estate.
o The averment as to the value of the personal estate is a requisite in the petition for
sale of real property, without such averment court has no jurisdiction to authorize
sale of realty. Sale of such is null and void.
Personal property may be sold, or the real property may be sold, mortgaged or otherwise
encumbered for the following reasons
o Payment of debts, expenses of administration and legacies in the Philippines;
o When such sale would be beneficial to the persons interested in the estate
o Payment of debts, expenses of administration and legacies involved in the
settlement of the estate of a decedent in a foreign country.
If the administrator or executor sells property of estate without the requisite authority of
the court, such sale is null and void. The same rule would apply to encumbrances of real
property without authority of the court.
Also such application for authority to sell or encumber property of the estate must be
with notice to the heirs, devisees and legatees. Otherwise, the sale is void. Such notice is
presumed to have been given absent proof to the contrary and order of the court granting
such authority cannot be assailed in a collateral proceeding.
Prohibitions
o Executors and administrators cannot purchase the property of the estate under
administration.
o Also justices, judges, prosecuting attorneys, clerks of court and other officers and
employees connected with the administration of justice cannot purchase the
property and rights in litigation or levied upon an execution before the court
within whose jurisdiction or territory they exercise their respective functions.
o Same prohibition applies to lawyers with respect to the property and rights which
may be the object of any litigation in which they may take part by virtue of their
profession. Any sale covered by this prohibition will be null and void.
89.3
If the opposition to the sale is based on the fact that the oppositor claims title to the
property sought to be sold, the court can hold in abeyance the authority to sell such
property until the issue of title has been settled in an ordinary civil action, as the probate

court generally has no power to adjudicate the question of ownership in the

administration proceedings.

89.7
After the sale or encumbrance of the property is effected in accordance with this section,
the document of sale must be submitted for the approval of the court. The court may also
require the administrator or executor to deposit the proceeds of the sale in a banking
institution.
89.8, 89.9
The authority granted to the probate court by section 8 presupposes that there is no
controversy as to the contract contemplated therein and that the assets of the estate will
not be reduced to the extent of depriving the creditor of full payment of his claim or his
just dividend. If such objections obtain, the remedy of the person seeking the execution of
the contract is an ordinary and separate action to compel the same.
Under section 9 the court can authorize such conveyance only if there is no controversy
and even if creditors may be affected since unlike the situation in section 8, the
properties contemplated do not form part of the estate of the deceased who merely held
the same in trust.

Notice of such application must be given to all interested parties, otherwise both the
order of the court and the conveyance made pursuant thereto are completely void.

RULE 90: DISTRIBUTION AND PARTITION OF THE ESTATE

90.1
Partial distribution of the decedents estate pending the final termination of the estate or
intestate proceeding should as much as possible be discouraged by the courts and except
in extreme cases such form of advances of inheritance should not be countenanced.
Before the court can issue an order of distribution, the debts, funeral charges, expenses of
administration, allowance to the widow and inheritance tax must first have been paid.
While it speaks only of allowance to the widow, it should also include the allowance to
the children of the deceased as the payment of such allowances during the pendency of
the administration proceedings. Legacies must have been paid (88.15), an advance or
partial distribution may be allowed provided the forgoing obligations are secured by a
bond.

 Under this section the probate court is specifically granted jurisdiction to determine who
are the lawful heirs of the deceased as well as their shares. Hence there is no further need
to institute an independent civil action to pass upon the status of a person who claims to
be an heir.
o The order of distribution must also be at the same time a declaration of heirs
since a separate action for the declaration of heirs is not proper.
o If the proceedings have been closed the same may be reopened to pass upon the
status of one claiming to be an heir.

 The heirs may also by agreement submit a project of partition to serve as a basis of the
order of distribution. The heirs who do not agree may submit a counter project of
partition.
In approving a project for partition it is not necessary for the court to state the specific
property adjudicated to an heir but may award the same to the heirs in pro indiviso
shares.
If they cannot agree on their respective specific participations they can thereafter resort to
an action for partition.
The judicial decree of distribution vests title in the distributees and any objection thereto
should be duly raised in a seasonable appeal, otherwise it will have binding effect like
any other judgment in rem.
After the institution of the testate or intestate proceedings, the assignment pendent lite by
one heir of his hereditary share requires the approval of the probate court.
The sale by a widow of land belonging to the conjugal partnership is valid with respect to
her one-half share therein even if the sale was made before partition, except where there
are numerous assets of the partnership as in that case the particular and corporeal share of
the widow cannot be determined until after the liquidation and partition thereof.
90.2, 90.3, 90.4
The probate court loses jurisdiction of an estate under administration only after payment
of all debts and the delivery of the remaining estate to the heirs.
o The finality of the approval of the project of partition does not terminate the
probate proceeding.
As long as the order of distribution has not been complied with, the probate proceedings
cannot be deemed terminated because a judicial partition is not final and conclusive and
does not prevent the heir from bringing an action to obtain his share within the
prescriptive period.
The better practice for the heir who has not received his share is to demand the same
through a proper motion in the same probate or administration proceedings or for
reopening of said proceedings if already closed but still within the reglementary period
for appeal and not through an independent action.

 Where the order closing the intestate proceeding was already final and executory the same
cannot be reopened on a motion therefor filed after the lapse of the reglementary period.

RULE 91: ESCHEATS

91.1
Petitions for escheats may only be filed in the name of the republic of the Philippines by
the solicitor general or his representative such as the provincial or city prosecutor.

 Even if the decedent died testate but his will was not allowed to probate, it is as if he died
intestate and if he has not known heirs and there are no persons entitled to his property,
the same can still be escheated.
91.2, 91.3, 91.4
Art. 1014 provides that the 5-year period is to reckoned from the date the property was
delivered to the state and further directs that if the property had been sold the
municipality or city shall be accountable only for such part of the proceeds as may not
have been lawfully spent.
91.5
Actions for reversion are proper in illegal sales of land to disqualified aliens. Unlike
petition for escheat the action for reversion shall be filed in the province where the land
lies in whole or in part.
The 1987 constitution requires that the Congress shall provide efficacious procedures and
adequate remedies for the reversion to the State of all lands of the public domain and real
rights connected therewith which were acquired in violation of the Constitution or the
public land laws, or through corrupt practices.

Guardianship
RULE 92:
VENUE
92.1
There are three kinds of guardians under the law.
o The legal guardian is such by provision of law, without need of appointment, as in
the case of the parents over the persons of their minor children or father or in his
absence the mother with respect to property of minor children not exceeding P
50,000.00 in value.
o The guardian ad litem who may be any competent person appointed by the court for
purposes of a particular action or proceeding involving the minor.
o The judicial guardian who is a competent person appointed by the court over the
person and/or property of the ward to represent the latter in all his civil acts and
transactions, and is one contemplated in the aforementioned rules.
Judicial guardianship may be with respect only to the person of the ward, or his property
or of both. Where the ward has no property, guardianship may be only with respect to his

person; in case of a non-resident ward, guardianship may be with respect only to his
property.
While there is no prohibition against appointment of different judicial guardians, one for
person and one for property, the practice is to appoint judicial guardians for both unless
otherwise called for by the circumstances.

 Under BP 129 inferior courts no longer have concurrent jurisdiction to appoint guardians
over persons or properties of incompetents.
o However, where the minor or incompetent is a party to an action in a n inferior
court, he may be assisted by or may sue or be sued therein through his legal
guardian or the inferior court may appoint a guardian for him.
Where in a guardianship case an issue arises as to who has a better right or title to the
properties in the course of the proceedings, the controversy should be threshed out in a
separate ordinary action as the dispute is beyond the jurisdiction of the guardianship
court.
o However, where the right or title of the ward to the property is clear and
indisputable, the guardianship court may issue an order directing its delivery or
return.
92.2, 92.3

RULE 93: APPOINTMENT OF

GUARDIANS
93.1, 93.2, 93.6
The courts should not appoint as a guardian any person who is not personally subject to
their jurisdiction, such as nonresidents of the Philippines.
In case of a minor, the petition may be filed by the DSWD and in case of an insane minor
who needs to be hospitalized, by the Secretary of Health.
Notice of the petition for the appointment of a general guardian must now be given to all
relatives of the ward, instead of only to the next of kin required in the old rules. The
giving of notice to relatives is a jurisdictional requirement.
93.3
Service of notice upon a minor who is more than 14 years if age or an incompetent is
jurisdictional.
93.4, 93.5
In the appointment of a guardian the courts should take into consideration the competency,
character and financial condition of the prospective guardian. No person should be

appointed guardian if his interests conflict with those of the ward or if he is a nonresident of the Philippines.
The court has no jurisdiction to appoint a guardian over the person of a non-resident
minor but there can be guardianship over the property of such non-resident minor.
The appointment of a guardian is good until set aside and despite an appeal therefrom, the
guardian can do whatever is necessary under the direction of the court, for the protection
of the ward or his property.

93.7
Amended by FC Art. 225.
93.8

RULE 94: BOND OF GUARDIANS

94.1, 94.2, 94.3

RULE 95: SELLING AND ENCUMBERING

PROPERTY OF WARD 95.1, 95.2, 95.3, 95.4, 95.5
For the sale or encumbrance of property of the ward, a verified petition therefor is
required, but no such verification is required for that purpose with respect to the estate of
a decedent and a mere motion therein will suffice.
The notice to next of kin required by section 2 is jurisdictional. The next of kin referred
does not mean next of kindred but relatives whose relationships are such as to entitle
them to shares in the estate as distributees.
An order empowering the guardian to sell property of his ward shall not be effective for
more than one year after it has been granted. In the case of mortgages and other
encumbrances, the one-year period does not apply.
A guardian may lease property of the ward, but if the lease is to be recorded there must be
proper authority by the court.
o It is believed that the same is required if the term of the lease is more than one
year as such is an act of dominion.
Appeal, not certiorari or mandamus is the proper remedy against an order of the court a
quo authorizing the sale of wards property.

RULE 96: GENERAL POWERS AND DUTIES

OF GUARDIANS 96.1, 96.2, 96.3, 96.4, 96.5, 96.6, 96.7

 The executor or administrator must render within one year and at any other time when
required by the court. In case of a guardian he has to render an inventory and account
annually.

A guardian just like a trustee is prohibited from making a donation of the properties
entrusted to him (Art. 736).

SPECIAL
PROCEEDINGS

3
0

Since only the estate of the ward should be included in the inventory in the case of a
married woman under guardianship by reason of insanity her half of the property in a
subsisting conjugal partnership should not be included in the inventory since the
determination thereof requires the prior liquidation of the conjugal partnership.
96.8

RULE 97: TERMINATION OF

GUARDIANSHIP
97.1, 97.2
The court which appointed the guardian is also the court competent to decide the petition
for restoration to capacity which is merely a continuation of the original guardianship
proceeding.

The petition for the removal of the guardian must be filed in the same guardianship
proceeding. It must be based only on the grounds in section2 which must be satisfactorily
proved.

The notice to the guardian and the ward required in section 1 is only procedural, not
jurisdictional, the lack of which only affects the validity of the proceeding only when
prejudice is caused thereby.
97.3
Marriage or voluntary emancipation terminates guardianship only over the person but not
the property of the ward.
97.4, 97.5
AM 03-02-05-SC

SPECIAL
PROCEEDINGS

31

RULE 98: TRUSTEES

98.1
This rule applies only to express trusts as these are understood in 1443-1446 of civil code,
does not apply to implied trusts which arise by operation of law.

Express trusts necessarily involve three parties the trustor, the trustee, and the
beneficiary also known as cestui que trust.

A petition for the appointment of a trustee may also be filed in the administration
proceedings over a testate estate where the appointment of such trustee is necessary to
carry into effect the provisions of a will, as where testator has provided therein that
certain portions of his property be placed in trust.

Section 1 determines the venue of the petition for the appointment of a trustee.
98.2, 98.3, 98.4, 98.5, 98.6, 98.7, 98.8, 98.9
An executor will not be exempted from posting a bond even if such exemption is provided
in the will, but a trustee appointed in the will may be exempted from such bond when so
directed in the will.
Accounts of trustees must be under oath and shall be filed
annually.
o The latter requirement also applies to guardians although the same need not be
under oath.
o While those of administrators or executors are not required to be under oath and
except for the initial and final submission of their accounts, they shall be filed
only at such times as may be required by the court.
o It is the duty of a trustee to deliver the trust property to the cestui qui trust free from
liens and encumbrances.

RULE 99: ADOPTION AND CUSTODY OF MINORS

In case of separation of parents, parental authority shall be exercised by the parent
designated by the court. The court shall take into account all relevant considerations
especially the choice of the child over 7 years of age unless the parent chose is unfit.

SPECIAL

32

No child under 7 shall be separated from the motherPROCEEDINGS

unless the court finds compelling
reasons to order otherwise.
A.M. No. 02-06-02-SC

RULE 100: RESCISSION AND REVOCATION OF

ADOPTION

RULE 101: PROCEEDINGS FOR HOSPITALIZATION OF

INSANE PERSONS
101.1
The petition may be filed by the person in custody or having charge of insane person.
o If he refuses to do so and where it is required for the welfare of the insane person or
of the public, the petition shall be field by the Director of Health or the present
authorized officer.
101.2, 101.3, 101.4, 101.5
Where insane person was judicially committed to the hospital or asylum, the Director of
Health cannot order his release without the approval of the CFI which ordered the
confinement.
o Also said court cannot order his release without recommendation of the
Director of Health.
An imbecile or insane person who has committed a felony can also be directly ordered
committed by the trial court and he cannot be released without the permission of said
court (Art. 12, RPC).

RULE 102: HABEAS CORPUS

102.1

The writ of habeas corpus is a writ directed to the person detaining another and
commanding him to produce the body of the prisoner at a certain time and place, with
the day and the cause of his caption and detention, to do, submit to, and receive
whatsoever the court or judge awarding the writ shall consider in that behalf.

Habeas corpus under this rule is the remedy in cases of illegal confinement or detention
or where the rightful custody of a person is withheld from one entitled to such custody.
o Actual and effective, and not merely nominal or moral restraint is required.
o However, actual physical restrain is not always required; any restraint
which will prejudice freedom of action is sufficient.
Writ may also be availed of where as a consequence of a judicial proceeding

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

of a person
o The court had no jurisdiction to impose the sentence or
o An excessive penalty has been imposed, such sentence being void as to the
excess.

 It is necessary that the judgment of the court which resulted in illegal deprivation of
liberty is no longer appealable, in which case the writ is in the nature of a collateral attack
against a final but void judgment.
o If it is still appealable, remedy of the person detained is to duly appeal
therefrom as habeas corpus is not a substitute for appeal.
Generally writ shall not issue if restrain is voluntary, but it will
o To enable parents to recover custody of minor daughter although she is in custody
of a third person on her own volition
o Or to enable to regain custody of a minor younger sister living voluntarily in
adulterous relations with another.
o However, where daughter is of legal age, living with a married man who
is not restraining her of her liberty, the writ is not available.
102.2, 102.3

Writ is enforceable throughout the judicial region, may now be filed in RTC in the
region where it is sought to be enforced.

Petition is required to be verified but the defect in form will not be fatal.

It is the duty of a court to issue the writ if there is evidence that a person is unjustly
restrained of liberty within its jurisdiction even if there is no application therefor.

102.4, 102.5, 102.6

Preliminary citation - Where the person is detained under governmental authority and
illegality of his detention is not patent from the petition for the writ, court may issue a
citation to the government officer having custody to show cause why the writ of habeas
corpus should not issue.

Peremptory writ issued when the cause of detention appears to be patently illegal and
the non-compliance therewith is punishable.
102.7, 102.8, 102.9, 102.10, 102.11, 102.12, 102.13
If detention is by reason of public authority, the return is considered prima facie evidence
of the validity of the restraint and the petitioner has burden of proof to show that restraint
is illegal.

 If detention is by reason of private authority, return is considered only a plea of facts

asserted therein and the person responsible for the detention has the burden of proof to
establish that the detention is legal and justified.
102.14
Where prisoner has been detained and held without bail although the offense is bailable
he may in a habeas corpus proceeding be allowed to post bail.

 If the offense is not bailable, he cannot obtain his provisional liberty on bail by habeas
corpus.
102.15, 102.16, 102.17, 102.18, 102.19
Habeas corpus is not the proper mode to question conditions of confinement.
Writ of Amparo addressed other fundamental human rights in the constitution not
covered by habeas corpus (Spanish for protection)
Writ of Habeas Data can be invoked by persons to find out the information collated about
him, particularly by law enforcement agencies, and to compel them to disclose the use
and purpose of such information.
o Reliefs may seek the updating, rectification, suppression or destruction of the
database or information and in case of threats a plea for an order enjoining the act
complained of.

RULE 103: CHANGE OF NAME

103.1

Procedure in rule 103 and 108 are separate and distinct, if both reliefs are sought,
requirements for both must be complied with.

An alien can petition for a change of name, but he must be domiciled in the Philippines.

The name that can be change is the one that appears in the civil register, not one in
baptismal certificate or that by which person is known in community.

First name in civil registry is Baby petition for change is proper remedy.

103.2

Petition must be filed by the person desiring to change name, as proper party in the
petition, even if it may be signed and verified by some other person.

Petition for correction of name in birth certificate is actually a petition for change of
name and covered by this Rule and not Rule 108.

Married womans status is not affected by a decree of legal separation as the vinculum is
not severed, hence she must continue to use her married name. Change of name cannot
be justified by legal separation.

A change of name should not be permitted if it would give a false impression of family
relationship to another, but not if the proposed change of name would not cause
prejudice to the family whose surname it is.

103.3

A petition for change of name is a proceeding in rem and the publication of the order is a
jurisdictional requisite.
o To be valid and to confer jurisdiction upon the court, such publication must give
the correct information, and a defect in such publication is fatal.

All aliases of the applicant must be set forth in the title of the petition, otherwise though
the petition has been duly published, such defect would be fatal even if said other aliases
are contained in the body.

103.4, 103.5, 103.6

A change of name granted by the court affects only the petitioner.

o A separate petition for change of name must be filed for his wife and children.
o Inceptively, a joint petition for all the qualified member of said family as copetitioners would have been permissible and should have been the appropriate
remedy.

Art 364-380 of Civil Code regulate the use of surnames.

o No person can change his name or surname without judicial authority.

A decree of adoption grants the adoptee right to use that adopters surname but not to
change the formers first name which relief must be sought in a discrete petition under
103.

RULE 104: VOLUNTARY DISSOLUTION OF

CORPORATIONS
RULE 105: JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF
MINOR NATURAL CHILDREN RULE 106:
CONSTITUTION OF FAMILY HOME

Applicable only to such proceedings which took place prior to the effectivity of the
Family Code on August 3, 1988.
o The family home is deemed constituted on a house and lot from the time it is
occupied as a family residence. No judicial or extrajudicial constitution is
required (FC).

RULE 107: ABSENTEES

RULE 108: CANCELLATION OR CORRECTION OF ENTRIES IN THE

CIVIL REGISTRY

The proceedings under 108 may in effect be either summary or adversary in nature.
o If the correction sought to be made in the civil register is clerical, the procedure to
be adopted is summary.

If the rectification affects the civil status, citizenship or nationality of a

party, it is deemed substantial and the procedure to be adopted is adversarial.

RA 9048 authorizes the City or Municipal Registrar or the Consul General to correct a
clerical or typographical error in an entry and/or change of first name or nickname in the
civil register without need of a judicial order.

A persons first name cannot be changed on the ground of sex reassignment. All entries in
the birth certificate of the petitioner were correct since sex of a person is determined at
birth.
o However an intersexual, may have name changed on basis of the sex he/she
wishes to adopt.
Change of Name

Venue is the residence of

the petitioner
Solicitor general must be notified
by service of a copy of the
petition

Corrections or
Cancellation of
Venue is the place where civil
registry is located
Civil registrar concerned is
made a party to the proceeding
as a respondent

RULE 109: APPEALS IN SPECIAL PROCEEDINGS

Under ordinary civil actions, some orders in 109.1 may be interlocutory; the nature of
special proceedings declares them as appealable orders, exceptions to 41.2.

Reglementary period of 30 days is provided for the perfection of appeals in special

proceedings.