SPECIAL PROCEEDINGS

SPECIAL PROCEEDINGS - A remedy by which

a party seeks to establish a status, a right or a
particular fact (Rule 1, Section 3)
JURISDICTION
General Rule : Regional Trial Court
Exception: MTC has jurisdiction in the following
cases:
1. Probate proceedings whether testate or
intestate where the gross value of the estate
does NOT exceed 200,000 or 400,000 in
Metro Manila.
2. DELEGATED JURISDICTION - in Cadastral
and Land Registration Cases covering lots
where there is no controversy or opposition
or contested lots where the value of which
does not exceed P 100T
- appeal is taken to the CA, not to the RTC
since MTC is equal to RTC in this instance
3. SPECIAL JURISDICTION petitions for writ
of Habeas Corpus in case of absence of
RTC judges.
ORDINARY ACTION
to protect or enforce a
right or prevent or
redress a wrong
involves two or more
parties
governed by ordinary
rules supplemented
by special rules
heard by courts of
general jurisdiction
pleadings are required

SPECIAL
PROCEEDING
involves the
establishment of the
right, status or fact
may involve only one
party
governed by special
rules supplemented
by ordinary rules
heard by courts of
limited jurisdiction
petition or application
is sufficient

DIFFERENT MODES OF SETTLEMENT OF

ESTATE OF DECEASED PERSON:
1. Extrajudicial Settlement of Estate (Section 1,
Rule 74)
2. Partition (Rule 69)
3. Summary Settlement of Estate of Small
Value (Section 3, Rule 74)
4. Probate of Will (Rule 75 to 79)
5. Petition for letters of Administration in cases
of Intestacy (Rule 79)

Procedure in Settlement Proceedings:

Probate of the Will if
any (Rule 75 76)

Issuance of Letters
Testamentary/Administration
(A special administrator may be appointed)
(Rule 77-80)

Filing of Claims
(Rule 86)

Payment of Claims
Sale/Mortgage/Encumbrance
of Properties of the Estate

Distribution of Residue, if any.

(But this can be made even before
payment if a bond is filed by the heirs)

RULE 73
VENUE AND PROCESS
Section 1. Where estate of deceased persons
settled.
2 Kinds of Settlement
A. EXTRAJUDICIAL SETTLEMENT
(Rule 74, Section 1)
B. JUDICIAL SETTLEMENT
Testate or Intestate Proceedings instituted
in the country where decedent has his
residence
EXTENT OF JURISDICTION
Probate courts are courts of limited jurisdiction.
It may only determine and rule upon issues
relating to the settlement of the estate consisting
of the following:
1. administration of the estate
2. liquidation of the estate
3. distribution of the estate

GENERAL RULE: Probate

determine issue of ownership.

court

cannot

EXCEPTION:
1. Provisionally, ownership may be determined
for the purpose of including property in
inventory, without prejudice to its final
determination in a separate action; or
2. When all the parties are heirs and they
submit the issue of ownership to the probate
court provided that the rights of third parties
are not prejudiced (Bernardo vs. CA)

QUESTIONS WHICH THE PROBATE COURT

CAN DETERMINE:
1. Who are the heirs of the decedent;
2. The recognition of a natural child
3. The validity of disinheritance effected by the
testator;
4. Status of a woman who claims to be the
lawful wife of the decedent;
5. The validity of a waiver of hereditary rights;
6. The status of each heir;
7. All other matters incidental or collateral to
the settlement and distribution of the estate.
Section 2. Where the estate settled upon
dissolution of marriage.

PRINCIPLE OF EXCLUSIONARY RULE:

The court first taking cognizance of the
settlement of the estate of the decedent, shall
exercise jurisdiction to the exclusion of all other
courts.

EXCEPTION:
Estoppel by LACHES
NOTE: Jurisdiction under Rule 73 Sec. 1 does
NOT relate to jurisdiction per se but to venue. It
is NOT an element of jurisdiction but of
procedure, hence institution in the court where
the decedent is neither an inhabitant or have his
estate may be waived. (Uriarte vs. CFI)

Remedy if the venue is improperly laid: ordinary

appeal NOT certiorari or mandamus unless
want of jurisdiction appears on the record of the
case.

GENERAL RULE: Probate court cannot issue

writs of execution

EXCEPTIONS:
1. To satisfy the contributive share of the
devisees, legates and heirs when the latter
had entered prior possession over the
estate. (Sec. 6 Rule 88)
2. To enforce payment of the expenses of
partition (Sec. 3 Rule 90)
3. To satisfy the court when a person is cited
for examination in probate proceeding
(Sec.13, Rule 142)

Upon the death of either the husband or the

wife, the partnership affairs must be liquidated in
the testate or intestate proceedings of the
deceased husband or wife. If both have died,
liquidation may be made in the testate or
intestate proceedings of either.

RULE 74
SUMMARY SETTLEMENT OF ESTATE
GENERAL RULE: If a person dies, his estate is
submitted to a judicial settlement proceeding.
EXCEPTION: The heirs may resort to:
a. extrajudicial settlement of estate
b. summary settlement of estate
Section1.
Extrajudicial
settlement
agreement between heirs.
REQUISITES: SUBSTANTIVE
1.The decedent left
a.) no will
b.) no debts

by

2.The heirs are all of age or the minors are

represented by their judicial or legal
representatives duly authorized for the
purpose
REQUISITES: PROCEDURAL
1. Division of estate must be in a public
instrument
2. Filed with proper Registry of Deeds
3. Publication of notice of the fact of extrajudicial
settlement once a week for three consecutive
weeks
4. Bond filed equivalent to the value of personal
property

Is a Public Instrument necessary for the

validity of an extrajudicial settlement?
NO. Oral agreement of partition is valid among
the heirs who participated in the extrajudicial
settlement. The requirement under Rule 74 Sec
1 that it must be in public instrument is NOT
constitutive of the validity but merely as an
evidentiary in nature.(Hernandez vs Andal).

EXTRAJUDICIAL
SETTLEMENT
No court intervention
value of the estate
immaterial
allowed only in
intestate succession
there must be no
outstanding debts of
the estate at the time
of settlement
resorted at the
instance and by
agreement of all heirs

amount of bond is
equal to the value of
personal property

JUDUCIAL
SETLLEMENT
requires summary
judicial adjudication
gross estate must not
exceed P10T
allowed in both testate
and intestate
available even if there
are debts; it is the
court which will make
provision for its
payment
may be instituted by
any interested party
even a creditor of the
estate without the
consent of all heirs
bond to be determined
by the court

There is a disputable presumption that the

decedent left no debts if no creditor files a
petition for letters of administration within 2
years after the death of the decedent.

WAYS OF EFFECTING EXTRAJUDICIAL

PARTITION:
1. public instrument many heirs
2. affidavit of adjudication - one heir

Section 2. Summary Settlement of estate of

small value.
The gross value of the estate of the deceased
person DOES NOT EXCEED ten thousand
pesos.

IMPORTANT REQUIREMENTS:
1. Application must contain allegation of gross
value of estate.
2. Date for hearing shall be set by court which
shall:
a. be held not less than one month nor
more than three months from date of last
publication of notice;
b. be published, once a week for three
consecutive weeks in a newspaper of
general circulation.
3. Notice shall be served upon such interested
persons as the court may direct.
Where the estate has been summarily settled,
the unpaid creditor may, within 2 years, file a
motion in the court wherein such summary
settlement was had, for the payment of his
credit. After the lapse of the 2-year period, an
ordinary action may be instituted against the
distributees within the statute of limitations but
not against the bond.
EXCEPTION: If on the date of the expiration of
the two-year period, the creditor or heir is a
minor or incapacitated, or in prison or outside
the Philippines, he may present his claim within
one year after such disability is removed. (Sec. 5
Rule 75)

Section 4. Liability of distributees and estate.

Requisites of two-year period lien:
1. persons have taken part or have notice of
extrajudicial partition
2. compliance with the provisions of Sec.1,
Rule 74 (SAMPILO vs. CA)
Basis to Compel Settlement of the Estate:
1. undue deprivation of lawful participation in
the estate
2. existence of debts against the estate or
undue deprivation of lawful participation
payable in money.
Other Remedies:
1. action to annul a deed of extrajudicial
settlement on the ground of fraud within
4 years from the discovery of fraud
2. reconveyance of real property

RULE 75
PRODUCTION OF WILL/ ALLOWANCE OF
WILL NECESSARY

Section 1. Allowance necessary, conclusive

as to execution.
NATURE OF PROBATE PROCEEDINGS
1. In Rem -binding on the whole world.
2. Mandatory
EXCEPTION: It has, however, been held
that while it is true that no will shall pass
either real or personal property unless it is
proved and allowed in the proper court, the
questioned will, however, may be sustained
on the basis of Article 1080 of the Civil
Code. The said article reads as follows:
If the testator should make a partition of his
properties by an act inter vivos, or by will,
such partition shall stand in so far as it does
not prejudice the legitime of the forced heir.
(Mang-Oy vs. CA, 144 SCRA 33).
3. Imprescriptible because of the public policy
to obey the will of the testator.
The doctrine of estoppel does not apply in a
probate proceeding by reason of public policy.
(Fernandez vs. Dimagiba)

RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL

PROBATE OR ALLOWANCE OF WILLS - act

of proving in a court a document purporting to be
the last will and testament of a deceased person
in order that it may be officially recognized,
registered and its provisions carried insofar as
they are in accordance with law.

Section 1. Who may petition for allowance of

will?
1. any creditor
2. devisee or legatee named in the will
3. person interested in the will
4. testator himself during his lifetime
Who may be a party in probate?
Generally, any person having a direct and
material interest in the will or estate.

EFFECT OF THE PROBATE OF A WILL: It is

conclusive as to the execution and the validity of
the will (even against the state). Thus, a criminal
case against the forger may not lie after the will
has been probated.
GENERAL RULE: Probate court can only
determine the intrinsic validity of a will after its
extrinsic validity has been established.
EXCEPTION: Where the entire testamentary
disposition is void.
EXTRINSIC VALIDITY means due execution of
the will.
WHAT IS DUE EXECUTION?
Due execution means that:
1. the testator was of sound and disposing mind
at the time the will was made
2. no duress, fraud or undue influence, etc.
3. strictly complied with the formalities
4. will was genuine and not fraudulent
Section 3. Court appoints time for proving
will. Notice thereof to be published.
When does court acquire jurisdiction over
interested persons and res?
Upon publication for 3 weeks successively of the
order setting the case for hearing and sending
notices to all persons interested.
NOTE: 3 weeks successively is not strictly 21
days.
If petition for probate is on testators own
initiative during his lifetime, no proof of
publication is necessary and notice shall be
made only to the compulsory heirs.
Heirs, devisees, legatees and executors to be
notified:
By mail: 20 days before hearing
Personal notice: 10 days before hearing
Section 5. Proof of hearing. What is sufficient
in absence of contest.
EVIDENCE in support of will:
1. If not contested
Court may grant allowance on the testimony
of one of the subscribing witnesses and in a
holographic will, the testimony of
one
witness who knows the handwriting and
signature of the testator shall testify and in
the absence thereof, by an expert witness.

2.

If contested
In notarial wills, ALL subscribing
witnesses and notary public must be
presented,
In holographic wills - 3 witnesses who
knows the handwriting of testator. If none is
available, expert testimony may be resorted
to.

However, in Codoy vs. Calugay, the SC ruled

that if the holographic will is contested, 3
witnesses who know the handwriting and
signature
of
the
testator
are
now
required/mandatory to prove its authenticity and
for its allowance.
GENERAL RULE: Holographic will if destroyed
CANNOT be probated.
EXCEPTION: If there exists a Photostat or
Xerox copy thereof. (Gan vs. Yap)
Section 6. Proof of lost or destroyed will.
Three facts should be proved in order that a lost
or destroyed will may be allowed:
1. that the will has been duly executed by the
testator;
2. that the will was in existence when testator
died, or if it was not, that it has been
fraudulently or accidentally destroyed in the
lifetime of the testator without his
knowledge; and
3. that the provisions of the will are clearly
established by at least two credible
witnesses.

RULE 77
ALLOWANCE OF WILL PROVED OUTSIDE
OF PHILIPPINES AND ADMINISTRATION OF
ESTATE THEREUNDER
A will allowed or probated in a foreign country,
must be re-probated in the Philippines. If the
decedent owns properties in different countries,
separate administration proceedings must be
had in said countries.
Two types of estate proceedings:
1. DOMICILLIARY ADMINISTRATION - the
proceeding instituted in last residence of the
decedent
2. ANCILLARY ADMINISTRATION - the
administration proceedings where he left his
estate.

Can a will executed and proved in a foreign

country be allowed in the Philippines under
Rule 77?
YES. Provided that the following must be
proved:
1. foreign court must have jurisdiction over the
proceeding;
2. domicile of testator/decedent in the foreign
country and not in the Philippines;
3. that the will has been admitted to probate in
such country;
4. it was made with the formalities prescribed by
the law of the place in which the decedent
resides, or according to the formalities
observed in his country, or in conformity with
the formalities prescribed by our Civil Code.
5. due execution of the will in accordance with
the foreign laws.

RULE 78
LETTERS TESTAMENTARY AND OF
ADMINISTRATION WHEN AND TO WHOM
ISSUED.
PERSONS WHO CAN ADMINISTER THE
ESTATE:
1. Executor;
2. Administrator, regular or special (Rule 80);
and
3. Administrator with a will annexed (Rule 79,
Section 1)
EXECUTOR - The one appointed by the testator
in his will for the administration of his property
after his death.
ADMINISTRATOR - One appointed by the State
for the administration of the property of the
deceased in case the decedent failed to leave a
will, or if he failed to appoint one even if he left a
will, or executor named is not competent or
refuses the office.
ADMINISTRATOR WITH A WILL ANNEXED one appointed by the court in cases when,
although there is a will, the will does not appoint
any executor, or if appointed, said person is
either incapacitated or unwilling to serve.

Any competent person may serve as executor or

administrator - He is incompetent if:
1. a minor
2. a non-resident
3. one who in the opinion of the court is unfit
to exercise the duties of the trust by
reason of
a. drunkenness
b. improvidence
c. want of understanding and integrity
d. conviction for an offense involving
moral turpitude
LETTERS TESTAMENTARY - Authority issued
to an executor named in the will to administer
the estate.
TO WHOM LETTERS OF ADMINISTRATION
GRANTED:
ORDER OF PREFERENCE
1 The surviving husband or wife or the next of
kin, or both in the discretion of the court, or to
such person as such surviving spouse or next
of kin, request to have appointed, if
competent and willing to serve.
2 If the surviving spouse or the next of kin or the
person selected by them be incompetent or
unwilling to serve, or if the surviving spouse
or next of kin neglects for thirty (30) days
after the death of the decedent to apply for
administration, ANY one or more of the
principal creditors, if competent and willing
to serve.
3 If there is no such creditor competent and
willing to serve, it may be granted to such
other person as the court may select.

RULE 79
OPPOSING ISSUANCE OF LETTERS
TESTAMENTARY PETITION AND CONTENTS
FOR LETTERS OF ADMINISTRATION
Contents of a petition for letters of
administration:
a. jurisdictional facts;
b. name, age, residence of heirs and creditors;
c. probable value and character of the property
d. name of the person for whom letters is prayed
for
What is the main issue in an administration
proceeding?
Who is the person rightfully entitled to
administration.

Even where a person who had filed a petition for

the allowance of the will of the deceased person
had no right to do so in view of his lack of
interest in the estate, nevertheless, where the
interested persons did not object to its
application, the defect in the petition would be
deemed cured. The filing of the petition may be
considered as having been ratified by the
interested parties. (Eusebio vs. Valmores 97
PHIL 163)
Grounds for Opposition:
1. in Letters Testamentary incompetence
2. in Letters of Administration
a. incompetence;
b. preferential right of the heir under
Rule 78, Sec.6.
Letters can be granted to any person or any
other applicant even if other competent persons
are present if the latter fail to claim their letters
when notified by the court (Sec. 6 Rule 79).

RULE 80
SPECIAL ADMINISTRATOR
When may a probate court appoint a special
administrator?
a. delay in granting of letters including appeal
in the probate of the will.
b. executor is a claimant of the estate he
represents
ORDER OF APPOINTMENT DISCRETIONARY
The preference accorded by Sec. 6 of Rule 78 of
the Rules of Court to surviving spouse refers to
the appointment of a regular administrator or
administratrix,
not
to
that
of
special
administrator, and that the order appointing the
later lies within the discretion of the probate
court, and is not appealable. (Pijuan vs. De
Gurrea, 124 Phil. 1527).
Powers and duties:
a. possession and charge of the properties
b. commence and maintains suit for the estate
c. sell perishable property
d. pay debt as ordered by the court
When does the power of a special
administrator cease?
After the letters are granted to regular executor
or administrator.

Is appointment of special administrator

appealable?
NO, the same is interlocutory. However,
appointment of a REGULAR ADMINISTRATOR
is appealable because it is a final order.

RULE 81
BONDS OF EXECUTOR AND
ADMINISTRATOR
Section 1. - Bond to be given before
issuance of letters. Amounts. Conditions.
Before an executor or administrator enters upon
execution of his trust, he shall give a bond in a
sum fixed by the court conditioned as follows:
1. make an inventory of property which
came to his knowledge and possession
within 3 months
2. administer the estate and from the
proceeds pay all debts and charges
3. render an account within one year
4. perform all orders of the court
ADMINISTRATORS BOND STATUTORY
BOND
Conditions prescribed by statute forms part of
bond agreement.

RULE 82
REVOCATION OF ADMINISTRATION, DEATH,
RESIGNATION AND REMOVAL OF
EXECUTORS AND ADMINISTRATORS
The discovery of a will does NOT ipso facto
nullify the letters of administration already issued
until the will has been proved and allowed
pursuant to Rule 82 Sec. 1. (De Parreno vs.
Aranzanso)

Section 2. Court may remove or accept

resignation of executor or administrator.
Proceedings upon death, resignation or
removal.
Grounds for removal or for compelling
resignation are:
1. neglect to render accounts; (w/in one year or
when the court directs)
2. neglect to settle estate according to these
rules;
3. neglect to perform an order or judgment of
the court or a duty expressly provided by
these rules;
4. absconding;
5. insanity or incapability or unsuitability to
discharge the trust.
These grounds are EXCLUSIVE.

Terms and effectivity of bond does not depend

on payment of premium and does not expire
until the administration is closed. As long as the
probate court retains jurisdiction of the estate,
the bond contemplates a continuing liability.
(Luzon Surety vs. Quebrar, 127 SCRA 295).

ALLOWANCE - monetary advances subject to

collation and deductible from their share in the
estate of the decedent.

Section 4. Bond of special administrator.

Acts of an administrator or executor before the

revocation
of
letters
administration
or
testamentary are valid unless proven otherwise.

Must give a bond conditioned that:

a. he will make inventory.
b. he will truly account for such.
c. he will deliver the same to person appointed
executor or administrator.
The bond is effective as long as the court has
jurisdiction over the proceedings.

Section
3.
Acts
before
revocation,
resignation, or removal to be valid.

RULE 83
INVENTORY AND APPRAISAL PROVISION
FOR SUPPORT OF FAMILY
Section 1. - Inventory and appraisal to be
made within three months from the grant of
letters testamentary or of administration
Approval of an inventory is not a conclusive
determination of what assets constituted the
decedents estate and of the valuation thereof.
Such determination is only provisional and a
prima facie finding of the issue of ownership.

Section 3. Allowance to widow and family.

Who are entitled to allowance during
proceedings?
1. legitimate surviving spouse (Nepomuceno
vs CA)
2. children of the decedent
NOTE: According to the Civil Code, Art. 188,
the children need not be minors or
incapacitated to be entitled to allowance
(Santero vs CFI of Cavite).
Grandchildren are NOT entitled to allowance
under Rule 83 (Heirs of Ruiz vs CA).
When liabilities exceed the asset of the estate,
his widow and children are not entitled to
support pending the liquidation of the intestate
estate, on the ground that such support, having
the character of an advance payment to be
deducted from the respective share of each heir
during distribution.

RULE 84
GENERAL POWERS OF EXECUTORS AND
ADMINISTRATORS
POWERS OF EXECUTOR / ADMINISTRATOR
OF THE ESTATE.
1. To have access to, and examine and take
copies of books and papers relating to the
partnership in case of a deceased partner;
2. To examine and make invoices of the
property belonging to the partnership in case
of a deceased partner;
3. To make improvements on the properties
under administration with the necessary
court approval except for necessary repairs;

4. To possess and manage the estate when

necessary:
a. for the payment of debts; and
b. for payment of expenses of
administration
SOME RESTRICTIONS ON POWER OF
ADMINISTRATOR/EXECUTOR:
1. cannot acquire by purchase, even at public or
judicial auction, either in person or mediation
of another, the property under administration
2. cannot borrow money without authority of the
court
3. cannot speculate with funds under
administration
4. cannot lease the property for more than one
year
5. cannot continue the business of the
deceased unless authorized by the court
6. cannot profit by the increase or decrease in
the value of the property under administration

RULE 85
ACCOUNTABILITY AND COMPENSATION OF
EXECUTORS AND ADMINISTRATORS
GENERAL RULE: The executor or administrator
is accountable for the whole estate of the
deceased.
EXCEPTION: He is not accountable for
properties which never came to his possession.
EXCEPTION TO THE EXCEPTION: When
through untruthfulness to the trust or his own
fault or for lack of necessary action, the executor
or administrator failed to recover part of the
estate which came to his knowledge.
Administrator or executor shall not profit by the
increase of the estate nor be liable for any
decrease which the estate, without his fault,
might have sustained.
Section 8. When executor or administrator to
render account.
RULE: Within one year from the time of
receiving letters testamentary or letters of
administration.
EXCEPTION: An extension of time is allowed for
presenting claims against or paying the debts of
the estate for disposing of the estate but even in
such cases, the administration should be
terminated in not more than two-years and a
half.

EXPENSES OF ADMINISTRATION: those

necessary for the management of the property,
for protecting it against destruction or
deterioration, and possibly for the production of
fruits.

claim within the time previously limited, at ANY

TIME BEFORE an order of distribution is
entered, the court MAY, for cause shown and on
such terms as are equitable, allow such claim to
be filed within a time NOT EXCEEDING 1
MONTH from the order allowing belated claims.

RULE 86
CLAIMS AGAINST ESTATE

Section 5. Claims which are not filed within

the Statute of Non-Claims are barred forever.
Claims referred to under this section refer to
claims for the recovery of money and which are
not secured by a lien against the property of the
estate.(Olave vs. Carlos)

CLAIM - any debt or pecuniary demand against

the decedents estate
When may a court issue notices to
creditors?
Notices to creditors are immediately issued after
granting
letters
testamentary
or
of
administration.
PURPOSE: for the speedy settlement of the
affairs of the deceased person and early delivery
of the property of the estate into the hands of the
persons entitled to receive it.
Claims arising after his death cannot be
presented except for funeral expenses and
expenses of the last sickness of the decedent.
Claims for taxes due and assessed after the
death of the decedent need not be presented in
the form of a claim. The court in the exercise of
its administrative control over the executor or
administrator may direct the latter to pay such
taxes. And the heirs, even after distribution are
liable for such taxes.
Sec. 2. Statute of Non-Claims
When should the claims be filed?
GENERAL RULE: Not more than 12 months nor
less than 6 months AFTER the date of the
FIRST PUBLICATION of the notice, at the
discretion of the court. Otherwise, they are
BARRED FOREVER.
EXCEPTION: Belated Claims.
Statute of Non-Claims supersedes the Statute of
Limitations insofar as the debts of deceased
persons are concerned. However, BOTH statute
of Non-Claims and Statute of Limitations MUST
CONCUR in order for a creditor to collect.
BELATED CLAIMS are claims not filed within
the original period fixed by the court. On
application of a creditor who has failed to file his

What claims should be filed under the

Statute of Non-claims?
1. Money claims, debts incurred by deceased
during his lifetime arising from contract
a. express or implied
b. due or not due
c. absolute or contingent
2. Claims for funeral expenses and for the last
illness of the decedent.
3. Judgment for money against decedent.
CONTINGENT CLAIM conditional claim or
claim that can be enforced upon the happening
of a future uncertain event.
Creditor who is barred by the Statute of Nonclaims may file a claim as a counterclaim in any
suit that the executor or administrator may bring
against such creditor.
Section 6. Solidary obligation of decedent.
If obligation of the decedent is solidary, how
is the claim settled?
Claim should be filed against decedent as if he
were the only debtor without prejudice on the
part of the estate to recover contribution from
the other debtor( Jaucian vs Querol).
If obligation is joint, the claim must be confined
to the portion belonging to the decedent.
Section 7. Mortgage debt due from estate.
ALTERNATIVE
REMEDIES
OF
THE
CREDITOR:
1. Abandon security and prosecute his claim
against the estate and share in the same
general distribution of the assets of the
estate;

2. Foreclose by action in court making executor

or administrator a party defendant and if
there is judgment for deficiency, he may file a
claim against the estate.
Agency coupled with an interest
The power to foreclose a mortgage is not an
ordinary
agency
that
contemplates
exclusively the representation of the principal
by the agent but is primarily an authority
conferred upon the mortgagee for latters own
protection. That power survives the death of
the mortgagor. (Bicol Savings and Loan
Association vs. CA).
3. Rely solely on his mortgage and foreclose
the name at anytime within the period of the
statute of limitation but he cannot be admitted
as creditor and shall not receive in the
distribution of the other assets of the estate;
These remedies are alternative, the availment of
one bars the availment of other remedies.
Section 13. Judgment allowing claim, effect
of.
Judgment against executor and administrator
shall not create any lien upon the property of the
estate or does not constitute a specific lien
which may be registered on such property.
Judgment of a probate court approving or
disapproving a claim is appealable.
NOTE: the mode of appeal is record on appeal
and must be filed within 30 days from notice of
judgment.

RULE 87
ACTIONS BY AND AGAINST EXECUTORS
AND ADMINISTRATORS
Section 1. Actions which may or may not be
brought against executor and administrator
Actions which may be brought against executor
and administrators independent and separate of
the probate proceeding:
1. recovery of real or personal property or any
interest therein from the estate
2. enforcement of a lien thereon
3. action to recover damages for any injury to
person or property, real or personal
(tortuous acts)
These are actions that survive the death of the
decedent.

An action for revival of money judgment may be

filed against the administrator to preempt
prescription of judgment. (Romualdez vs. Tiglao,
105 SCRA 762).
Section 3. Heir may not sue until share
assigned.
Before distribution is made or before any residue
is known, the heirs and devisees have no cause
of action against the executor or administrator
for recovery of the property left by the decedent.
Section 6.
concealed,
conveyed.

Proceedings when property

embezzled
or
fraudulently

PURPOSE: To elicit information or to secure

evidence from those persons suspected as
having possessed or having knowledge of
properties belonging to deceased, or of having
concealed, embezzled or conveyed away any
properties of the deceased.
GENERAL RULE: The probate court has no
authority to decide whether or not the properties
belong to the estate or to the person being
examined since probate courts are courts of
limited jurisdiction.
EXCEPTIONS:
1. Provisional determination of ownership for
inclusion in the inventory; or
2. Submission to the courts jurisdiction
(Bernardo vs. CA)
Section 8. Embezzlement before letters
issued.
The responsible person shall be liable to an
action in favor of the executor or administrator of
the estate for double the value of the property
sold, embezzled, or alienated, to be recovered
for the benefit of the estate.
Section 9. Property fraudulently conveyed by
the deceased may be recovered. When
executed or administered must bring action.
This provision applies when there is a deficiency
of assets in the hands of the executor or
administrator for the payment of the debts and
expenses for administration for it is under this
circumstance that there may be conveyances
made by the deceased with intent to defraud the
creditor.

Requisites before action may be filed:

1. deficiency in assets
2. the conveyance made is void (when there are
badges of fraud)
3. subject of conveyance is liable for attachment
in lifetime of decedent.
Section 10. When creditor may bring action.
Lien for costs.
When a grantee in a fraudulent conveyance is
other than the executor or administrator, a
creditor may commence and prosecute the
action if the following requisites are present:
1. That the executor or administrator has shown
to have no desire to file the action or failed to
institute the same within the reasonable time.
2. Leave is granted by court to creditor to file
the action.
3. Bond is filed by creditor as prescribed in this
provision and;
4. Action by creditor is in the name of the
executor or administrator.
NOTE: These requisites need not be complied
with if the grantee of the fraudulent conveyance
is the executor or administrator himself, in which
event the action should be in the name of all
creditors.

RULE 88
PAYMENT OF THE DEBTS OF THE ESTATE
Section 1. Debts paid in full if estate
sufficient.
If insolvent, as in liabilities are more than the
assets, Sec.7 in relation to Art. 1059 and 2239
to 2251 of the Civil Code must apply. Use rule
on preference of creditors If it is sufficient to
satisfy claims of a class.

2. court is satisfied that the claim is valid

3. The claim has become absolute
Is execution a proper remedy to satisfy an
approved claim?
NO, because:
1. Payment approving a claim does not create
a lien upon a property of the estate.
2. Special procedure is for the court to order
the sale to satisfy the claim.
Section 5. How contingent claim becoming
absolute in two years allowed and paid.
The residual funds within the estate, although
already in the possession of the universal heirs,
are funds of the estate. The Court has
jurisdiction over them and it could compel the
heirs to deliver to the administrator of the estate
the necessary portion of such funds for the
payment of any claims against the estate. (In re
Testate Estate of Margarita David, Sison vs.
Teodoro).
If the contingent claim matures after the
expiration of the two years, the creditors may
sue the distributees, who are liable in proportion
to the shares in the estate respectively received
by them (Jaucian vs. Querol, 38 Phil. 707).
It has been ruled that the only instance wherein
a creditor can file an action against a distributee
of the debtors assets is under Sec. 5, Rule 88 of
the Rules of Court. The contingent claims must
first have been established and allowed in the
probate court before the creditors can file an
action directly against the distributees. (De
Bautista vs. De Guzman, 125 SCRA 682).

RULE 89
SALES, MORTGAGE AND OTHER
ENCUMBRANCES OF THE PROPERTY OF
THE DECEASED

Section 2. When the will provides for

payment of debts, Section 2 must be
followed.
Although testator acknowledged a specific debt
on his will, the creditor must still file his claim in
the testate or intestate proceedings, otherwise
his claim will be barred.

Section 1. Order of sale of personalty

The court may order the whole or part of the
personal estate to be sold if necessary:
1. to pay debts and expense of administration
2. to pay legacies
3. to cover expenses for the preservation of the
estate

Section 4. Estate to be retained to meet

contingent claims.

Section 2. When court may authorize sale,

mortgage or other encumbrances of realty to
pay debts and legacies though personality
not exhausted.

REQUISITES:
1. contingent claim is duly filed

IMPT: without notice, the sale, mortgage or

encumbrance is void. Notice is mandatory.
Noncompliance therewith under the sale is null
and void.
REASON: The reason behind this requirement
is that the heirs are the presumptive owner.
Since they succeed to all the rights and
obligation of the deceased from the moment of
the latters death, they are the person directly
affected by the sale or mortgage and therefore
cannot be deprived of the property, except in the
manner provided by law. (Maneclang vs. Baun,
208 SCRA 179)
When may the court order the sale or
conveyance of real estate?
1. If personal estate is NOT sufficient to pay
debts, expenses of administration and
legacies.
2. If sale of personal estate may injure the
business or interests of those interested in
the estate
3. If testator has NOT made sufficient provision
for payment of such debts, expenses and
legacies
4. If deceased was in his lifetime under contract,
binding in law to deed real property to
beneficiary. (Section 8)
5. Where the deceased in his lifetime held real
property in trust for another person (Section
9).

LIQUIDATION means the determination of all

assets of the estate and payment of all debts
and expenses.
Section 1. When order for distribution of
residue made.
RULE: ORDER OF DISTRIBUTION shall be
made AFTER payments of all debts, funeral
expenses,
expenses
for
administration,
allowance of widow and inheritance tax is
effected.
In these proceedings, the court shall:
1. collate
2. determine heirs
3. determine the share of each heir.
A separate action for the declaration of heirs is
not proper.
When is title vested? From finality of order of
distribution.
Only after partition is approved and not before,
the court may order the delivery to the heirs of
their respective shares except when the heir file
a bond conditioned to pay the debts.
An order which determines the distributive
shares of heirs is appealable. If not appealed, it
becomes final.

Section 5. When court may authorize sale,

mortgage or other encumbrance of estate to
pay debts and legacies in other countries.
When it appears from records and proceedings
of a probate court of another country that the
estate of the deceased in foreign country is not
sufficient to pay debts and expenses.

When does the probate court lose

jurisdiction
over
the
settlement
proceedings?
Probate court loses jurisdiction only upon
payment of all debts and expenses of the obligor
and delivery of the entire estate to all the heirs.
(Timbol vs. Cano)

Application for authority to sell, mortgage or

encumber property of the estate may be denied
by the court if:
1. the disposition is not for any of the reasons
specified by the rules or if,
2. under Section 3 Rule 89, any person
interested in the estate gives a bond
conditioned to pay the debts, expenses of
administration and legacies.

In order that an order of distribution may be

issued, the following are the conditions
precedent:
1. showing that the executor, administrator or
person interested in the estate applied for
such; and
2. the requirements as to notice and hearing
upon such application have been fulfilled.

RULE 90
DISTRIBUTION AND PARTITION OF THE
ESTATE

PROHIBITION AGAINST INTERFERENCE BY

OTHER COURTS
As long as the order of distribution of the estate
has not been complied with, the probate
proceedings cannot be deemed closed and
terminated, because a judicial partition is not

final and conclusive and does not prevent the

heirs from bringing an action to obtain his share,
provided the prescriptive period therefore has
not elapsed. The better practice, however, for
the heir who has not received his share, is to
demand his share through proper motion in the
same probate or administrative proceedings, or
for the reopening of the probate or
administrative proceedings if it had already been
closed, and not through an independent action,
which would be tried by another court or judge
which may thus reverse a decision or order of
the probate or intestate court already final and
executed and re-shuffle properties long ago
distributed and disposed of. (Timbol vs. Cano, 1
SCRA 1271).

RULE 91
ESCHEATS
Section 1. When and by whom petition filed.
3 INSTANCES of ESCHEATS:
1. When a person dies intestate leaving no heir
but leaving property in the Philippines
(Section 1)
2. REVERSION PROCEEDINGS Sale in
violation of the Constitutional provision
3. Unclaimed Balance Act
What is the basis of the states right to
receive property in escheat?
Order of succession under the Civil Code, the
STATE is the last heir of the decedent.
Section 4. When and by whom claim to
estate escheated filed.
Period: within 5 years from the date of
judgment; (under ART. 1014 of the Civil Code,
the 5-year period is reckoned from the date the
property was delivered to the State and further
provides 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.)
By whom: person of interest
TO WHOM WILL THE PROPERTY
ESCHEATED BE ASSIGNED:
1. if personal property, in the municipality or
city where he last resided.
2. if real property, where the property is situated

3. if deceased never resided in the Philippines,

where the property may be found.
Can court convert escheat proceedings into
ordinary special proceedings or vice-versa?
NO. This is not allowed for the two actions have
different requirements in acquiring jurisdiction. In
special proceedings, publication is once a week
for 3 weeks while in escheat, once a week for 6
weeks.

GUARDIANSHIP
NOTE: Guardianship of minors is now governed
by the Rule on Guardianship of Minors (A.M. No.
03-02-05-SC) which took effect on May 1, 2003.
While guardianship of incompetents is still
governed by the provisions of the Rules of Court
on Guardianship (Rule 92 to Rule 97).
KINDS OF GUARDIANS
A. According to scope:
1. over the person of the ward
2. over the property
3. both
B. According to constitution:
1. general guardian
2. legal guardian
3. guardian ad litem
INCOMPETENT includes:
1. those suffering from penalty of civil
interdiction
2. hospitalized lepers
3. prodigals
4. deaf and dumb who are unable to read and
write
5. those of unsound mind though they have
lucid intervals
6. persons not of unsound mind but by reason
of age, disease, weak mind and other similar
causes cannot take care of themselves or
manage their property.

Who may petition for appointment of

guardian:
MINOR
INCOMPETENT
1. any relative; or
1. any relative;
2. other person on 2. friend; or
behalf of a minor; 3. other person on
or
behalf
of
the
3. the minor himself if
incompetent who

14 years of age or
over; or
4. the Secretary of
Social Welfare and
Development AND
by the Secretary of
Health in case of
an insane minor
who needs to be
hospitalized.

has no parents or
lawful guardian; or
4. the Director of
Health in favor of
an insane person
who should be
hospitalized or in
favor of an isolated
leper.

INCOMPETENT

RESIDENT - Family
Court of the province
or city where the minor
actually resides

RESIDENT - RTC of
the province or city
where
the
minor
actually resides

NON-RESIDENT

Family Court of the

province or city where
his property or any
part thereof is situated.

NON-RESIDENT

RTC of the province or

city where his property
or any part thereof is
situated.

TIME AND NOTICE OF HEARING:

NO

requirement

for

NOTE: Service of notice upon minor if 14 years

of age or over, or upon incompetent is
mandatory and jurisdictional.
If the person is insane, service of notice upon
the Director of Hospital where hospitalized is
sufficient.
Grounds for opposition of the petition:
1. majority of alleged minor
2. competency of alleged incompetent
3. unsuitability of the persons for whom
letters are prayed
PROCEDURE:
a. filing of petition
b. court shall set the case for hearing
c. cause notices to be served to the persons
mentioned in the petition, including minor,
if 14 years and above
d. court shall receive evidence
e. declaration of the propriety of the petition
f. issue letters of guardianship

A. Grounds:
1. when income of estate is insufficient to
maintain ward and family or to maintain
and educate ward when a minor; or
2. when it appears that it is for the benefit
of the ward.
B. Requirements:
1. petition must be verified
2. notice must be given to the next of kin
3. hearing

Where to file petition:

MINOR

Important: There is
publication, only notice.

SELLING AND ENCUMBERING PROPERTY

OF WARD:

Important: Notice to next of kin and

interested persons is JURISDICTIONAL.
Next of kin pertains to those relatives who
are entitled to share in the estate as
distributees per stirpes or by right of
representation.
Sale of the wards realty by the guardian
without authority from the court is VOID.
Under the law, a parent acting merely as
legal administrator of the property of his/her
children, does NOT have the power to
dispose of, or alienate, the property of said
minor without judicial approval (Lindain vs.
CA).
C. Duration of the order for sale and
encumbrance of property - Within 1 year
from the granting of the order. It is presumed
that if the property was not sold within 1
year, the ward has sufficient income.

GENERAL POWERS AND DUTIES OF

GUARDIANS:
1. have the care and custody of the person of
the ward, and the management of his estate,
or the management of the estate only, as
the case may be
2. pay the debts of the ward
3. settle accounts, collect debts and appear in
actions for ward
4. manage the estate of the ward frugally, and
apply the proceeds to maintenance of the
ward
5. render inventory and account

TERMINATION OF GUARDIANSHIP:
A. Grounds for termination
MINOR
INCOMPETENT
1. The ward has
1. competency of
come of age; or
the ward has
2. has died
been judicially
determined
2. guardianship is
no longer
necessary

B. Grounds for removal of a guardian:

1. insanity
2. incapability or unsuitability to discharge
functions
3. wastage or mismanagement of the
property of the ward
4. failure to render an account or make a
return within 30 days after it was due
SPECIAL RULES FOUND IN THE RULE ON
GUARDIANSHIP OF MINORS (A.M. No. 03-0205-SC, effective May 1, 2003):
A. Grounds for Petition (Section 4)
1. Death,
continued
absence,
or
incapacity of his parents;
2. Suspension, deprivation or termination
of parental authority;
3. remarriage of his surviving parent, if the
latter is found unsuitable to exercise
parental authority;
4. when the best interest of the minor so
requires.
B. Qualifications of Guardians (Section 5)
1. Moral character
2. Physical, mental and psychological
condition
3. Financial status
4. Relationship of trust with the minor
5. Availability to exercise the powers and
duties of a guardian for the full period of
guardianship
6. lack of conflict of interest with the minor
7. ability to manage the property of the
minor.
C. Who may be appointed guardian of the
person or property, or both, of a minor
(Section 6)

In default of parents or a court appointed

guardian, the court may the following
observing as far as, practicable, the order of
preference:
1. the surviving grandparent and in case
several grandparents survive, the court
shall select any of them taking into
account all relevant considerations;
2. the oldest brother or sister of the minor
over twenty-one years of age, unless
unfit or disqualified;
3. the actual custodian of the minor over
twenty-one years of age, unless unfit or
disqualified; and
4. any other person, who in the sound
discretion of the court would serve the
best interests of the minor.

D. Case Study Report (Section 9)

The court shall order a social worker to
conduct a case study of the minor and all
prospective guardians and submit report
and recommendation to the court for its
guidance before the scheduled hearing.
E. Bond of parents as guardians of property
of minor (Section 16)
If the market value of the property on the
annual income of the child exceeds
P50,000, the parent concerned shall furnish
a bond in such amount as the court may
determine, but in no case less than 10% of
the value of such property or income, to
guarantee
the
performance
of
the
obligations prescribed for general guardians.

RULE 98
TRUSTEES
Section 1. Where trustee appointed.
A trustee may be necessary to carry into effect:
1. a will wherein judicial approval is needed
2. any other instrument
When a trust is created abroad for property in
the Philippines, judicial approval is still needed
though trustor is alive.
Section 8. Removal or resignation of the
trustee.
Who may petition?
Parties beneficially interested.

Grounds:
1. essential in the interest of petitioners
2. insanity
3. incapability of discharging trustee
4. unsuitability
ADOPTION AND CUSTODY OF MINORS
NOTE! : The provisions of the Rules of Court on
Adoption have been amended by the Domestic
Adoption Act of 1998 and the Intercountry
Adoption Act of 1995.
NOTE: Effective August 22, 2002, there is a new
Rule on Adoption.
NATURE AND CONCEPT OF ADOPTION
Adoption is a juridical act, a proceeding in rem,
which creates between two persons a
relationship similar to that which results from
legitimate paternity and filiation.
Only an adoption made through the court, or in
pursuance with the procedure laid down under
Rule on Adoption is valid in this jurisdiction.
PURPOSE OF ADOPTION
The promotion of the welfare of the child and the
enhancement of his opportunities for a useful
and happy life, and every intendment is
sustained to promote that objective.
WHAT DOES THE COURT DETERMINE IN
ADOPTION CASES?
1. capacity of the adopters
2. whether the adoption would be the best
interest of the child
Adoption is strictly personal between the adopter
and the adopted. (Teofico vs. Del Val)
RULES ON ADOPTION (Secs. 1-25)

f. in a position to support and care for

his/her children in keeping with the means
of the family
g. at least sixteen (16) years older than the
adoptee.
2. Any alien possessing the same qualifications
as above; provided:
a. That his/her country has diplomatic
relations with the PHILIPPINES;
b. That he/she has been living in the
Philippines for at least three (3)
continuous years prior to the filing of the
application for adoption;
c. Maintains residence until the adoption
decree is entered;
d. Certified to have legal capacity to adopt,
by his/her country
e. That his/her government allows the
adoptee to enter his/her country as his/her
adopted son/daughter.
3. The guardian with respect to the ward after
the termination of the guardianship and
clearance of his financial accountabilities.
The requirement of sixteen (16) years difference
between the adopter and the adoptee is NOT
applicable if the adopter is:
1. the biological parent of the adoptee
2. the spouse of the adoptees parent
The requirement on residency and certification
of aliens qualification to adopt may be waived
for the following:
1. The adoptee is a former Filipino citizen who
th
seeks to adopt a relative within the 4
degree of consanguinity or affinity.
2. One who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse.
3. One who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
th
relative
within
the
4
degree
of
consanguinity or affinity of the Filipino
spouse.

DOMESTIC ADOPTION
WHO MAY ADOPT:
1, Any Filipino Citizen
a. of legal age;
b. in possession of full civil capacity and
legal rights;
c. of good moral character;
d. has not been convicted of any crime
involving moral turpitude;
e. emotionally and psychologically capable
of caring for children

The guardian may also adopt with respect to the

ward after the termination of the guardianship
and
clearance
of
his/her
financial
accountabilities.
WHO MAY BE ADOPTED?
1. Any person below eighteen (18) years of
age who has been judicially declared
available for adoption.
2. The legitimate child of one spouse by the
other spouse.

3.
4.

5.
6.
7.

An illegitimate child by a qualified adopter to

raise the status to that of legitimacy.
A person of legal age regardless of civil
status, if, prior to the adoption, said person
has been consistently considered and
treated by the adopters as their own child
since minority;
A child whose adoption has been previously
rescinded;
A child whose biological or adoptive parents
have died;
A child not otherwise disqualified by law or
these rules.

GENERAL RULE: Husband and wife shall

jointly adopt
EXCEPTIONS:
1. If one spouse seeks to adopt the legitimate
son/daughter of the other.
2. If one spouse seeks to adopt his/her own
illegitimate son/daughter
3. If the spouses are legally separated from
each other
Petition shall be verified and specifically state at
the heading of the initiatory pleading whether the
petition contains an application for a change of
name, rectification of simulated birth, voluntary
or involuntary commitment of children, or
declaration of child as abandoned, dependent or
neglected.
A certification of non-forum shopping shall be
included pursuant to Section 5, Rule 7 of the
1997 Rules of Civil Procedure.
PROCEDURE:
A. No petition for adoption shall be set for
hearing unless a licensed social worker has
made a CASE STUDY of the adoptee,
adopter and the biological parents.
B. No petition for adoption shall be finally
granted until the adopters has been given by
the court a supervised trial custody period
for at least six (6) months.
C. After the publication of the order of hearing,
and no opposition has been interposed to
the petition, a decree of adoption shall be
entered stating the name by which the child
is to be known.
D. An amended birth certificate shall be issued.
The original birth certificate shall be
stamped cancelled and shall be sealed in
the Civil Registry records.

NOTE: The new birth certificate to be issued to

the adoptee shall not bear any notation that it is
an amended issue.
EFFECTS
1. adopter will exercise parental authority
2. all legal ties between biological parents and
the adoptee shall be severed, except when
biological parent is spouse of adopter
3. adoptee shall be considered legitimate child
of adopter for all intents and purposes
4. adopters shall have reciprocal rights of
succession without distinction from
legitimate filiation
INTER COUNTRY ADOPTION (Secs. 26-32)
Where to file Petition: A verified petition to
adopt a Filipino child may be filed by a foreign
national or Filipino citizen permanently residing
abroad with the Family Court having jurisdiction
over the place where the child resides or may be
found.
It may be filed directly with the Inter-Country
Adoption Board.

WHO MAY ADOPT

1. any alien or Filipino citizen permanently
residing abroad who is at least twenty-seven
(27) years of age
2. other requirements same as with RA 8552
WHO MAY BE ADOPTED
Only a legally free child may be the subject of
inter-country adoption.
NOTE: A child under the Inter-Country Adoption
Act is defined as any person below fifteen (15)
years of age.
RESCISSION AND REVOCATION OF
ADOPTION
Under the Domestic Adoption Act of 1998, the
ADOPTER CAN NO LONGER REVOKE the
adoption, he can merely disinherit the adoptee in
accordance with the provisions of the Civil Code.
In revocation, it relates only as to the date of the
judgment. Hence in revocation, vested rights
prior to rescission should be respected.

GROUNDS FOR REVOCATION BY ADOPTEE:

1. repeated physical or verbal violence;
2. attempt against his life or sexual abuse;
3. abandonment
Unlike in revocation of guardianship, revocation
of adoption is a separate proceeding from the
adoption.
The adoptee, if incapacitated, must file the
petition for rescission or revocation of adoption
within 5 years after he reaches the age of
majority, or if he was incompetent at the time of
adoption, with 5 years after recovery from such
incompetency.
PROCEDURE:
1. Filing of verified petition.
2. Answer within 15 days from receipt of notice
of order to answer and a copy of the petition.
3. Judgment.
NOTE: Sections 6 and 7 of Rule 99 of the Rules
of Court referring to Custody of Minors are still
valid provisions.
Rule 99, Section 6. Proceedings as to child
whose parents are separated.
The question as to the care and custody and
control of a child or children of their marriage is
brought before a Regional Trial Court by Petition
or as an incident to any other proceedings.
When parents considered unfit to take
charge of the child:
1. by reason of moral depravity
2. habitual drunkenness
3. incapacity
4. poverty

Order of Preference in case the parents are

unfit:
1. Parental/Maternal grandparents
2. Childs oldest brother or sister
3. Some reputable or discreet person
4. Any suitable asylum, childrens home or
benevolent society.
No child under seven (7) years of age shall be
separated from its mother, unless the court fins
there are compelling reasons therefor.
Rule 99, Section 7. Custody of Vagrant or
Abused Child

Jurisdiction and Venue:

Family Courts of the territory where the
petitioner resides.
Grounds:
1. Parents of the minor are dead;
2. Parents have abandoned the child by
reason of long absence or legal or physical
impossibility;
3. Parents cannot support the child;
4. Parents treat the child with excessive
harshness;
5. Parents give the child corrupting orders,
counsels or examples;
6. Parents cause or allow the child to engage
in begging;
7. Parents cause or allow child to commit
offenses against the law.
Procedure:
a. Filing of Petition by a reputable resident of
the province
b. Show Cause Order directed to parents or
in case the parents are dead or cannot be
found, requiring the fiscal of the province to
show cause, why the child should not be
taken from its parents, if living
c. Hearing and Order
d. Service of Judgment upon the Civil
Registrar of the city or municipality where
the court issuing the same is situated.

RULE 102
HABEAS CORPUS
Section 1. To what habeas corpus extends.
Habeas corpus extends to:
1. cases of illegal confinement or detention by
which a person is deprived of his liberty
2. cases by which the rightful custody of the
person is withheld from the person entitled
thereto
NOTE: The restraint must be actual, effective
and material. The person need not actually be
confined as long as freedom of action is limited.
(Moncupa vs. Enrile)
WRIT OF HABEAS CORPUS - a command
directed to the person detaining another,
requiring him to produce the body of the person
detained at a designated time and place, and to

produce and to show cause and to explain the

reason for detention.
PURPOSE
The essential object and purpose of the writ of
habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if
such restraint is illegal. (Moncupa vs. Enrile)
And any further rights of the parties are left
untouched by decision on the writ, whose
principal purpose is to set the individual at
liberty. (Villavicencio vs. Lukban)
The privilege of writ is so sacred that, according
to our CONSTITUTION, it shall not be
suspended except in cases of invasion or
rebellion when public security requires it (Art. III
Sec. 15).
In cases of illegal confinement or detention
The GENERAL RULE in a number of cases is
that the release, whether permanent or
temporary, of a detained person renders the
petition for habeas corpus moot and academic,
UNLESS there are restraints attached to his
release which precludes freedom of action, in
which case the court can still inquire into the
nature of his involuntary restraint. (Villavicencio
vs. Lukban)
Whether the State can reserve the power to
re-arrest a person for an offense after a court
of competent jurisdiction has absolved him
of the offense.
We hold that such a reservation is repugnant to
the government of laws and not of men principle.
Under this principle, the moment a person is
acquitted on a criminal charge he can no longer
be detained or re-arrested for the same offense.
(Moncupa vs. Enrile)
GROUNDS FOR RELIEF:
1. deprivation of any fundamental or
constitutional right
2. lack of jurisdiction of the court to impose the
sentence
3. excessive penalty
Requisites for the issuance of the Writ in
cases by which the rightful custody of the
person of a minor is withheld from the
person entitled thereto:
1. that the petitioner has the right to the
custody over the minor

2. that the rightful custody of the minor is being

withheld from the petitioner by the
respondent
3. that it is to the best interest of the minor
concerned to be in the custody of the
petitioner and not that of respondent.
(Sombong vs. CA, January 31, 1996)
IMPT: Habeas Corpus can never be a substitute
for appeal.
Whether the petition for the writ of habeas
corpus may be properly filed together with
the petition for certiorari and mandamus.
The Court ruled that the writs of habeas corpus
and certiorari may be ancilliary to each other
where necessary to give effect to the
supervisory powers of the higher courts. A writ
of habeas corpus reaches the body and the
jurisdictional matters, but not the record. A writ
of certiorari reaches the record but not the body.
Hence, a writ of habeas corpus may be used
with the writ of certiorari for the purpose of
review. However, habeas corpus does not lie
where the petitioner has the remedy of appeal or
certiorari because it will not be permitted to
perform the functions of a writ of error or appeal
for the purpose of reviewing mere errors or
irregularities in the proceedings of a court having
jurisdiction over the person and the subject
matter. (Galvez, et al. vs. CA, et al., 237 SCRA
685).
NOTE: the person on bail is not entitled to
habeas corpus because his detention is legal
and technical.
Does voluntary restraint constitute habeas
corpus?
As a general rule, NO EXCEPT when a person
restrained is a minor and the petitioner is the
father or mother or guardian or a person having
custody of the minor.
NOTE: Voluntariness is viewed from the point of
view of the person entitled to custody.
Supervening Events May Bar Release
Even if the arrest of a person is illegal,
supervening events may bar release of
discharge from custody. What is to be inquired
into is the legality of detention as of, at the
earliest, the filing of the application for the writ of
habeas corpus. (Velasco vs. CA, July 7,1995).

Preliminary Citation - issued by the court to

show cause whether or not the writ should be
issued
Section 2. Who may grant the petition.
1. SC or any member thereon
2. CA or any member thereof
3. RTC or any judge thereof
4. MTC - in the absence of RTC judges
Procedure for grant of writ
1. verified petition signed by the party for
whose relief it is intended; some other
person in his behalf
2. allowance of writ
3. command officer to produce
4. service of writ by sheriff or other officer
5. return
6. hearing on return
Section 6. To whom writ directed and what to
require.
Directed to officer and commands him to:
1. have the body of person before the court
2. show cause of the imprisonment or restraint.

Section 15. When prisoner discharged if no

appeal.
If one is unlawfully imprisoned, court shall order
his discharge but such discharge shall not be
effective until a copy of the order has been
served on the office or person detaining the
prisoner. If person detaining him does not
appeal, the prisoner shall be released.
Section 18. When prisoner may be removed
from one custody to another.
1. by legal process
2. prisoner is delivered to an inferior officer to
carry to jail
3. by order of proper court or judge be
removed from one place to another within
the Phil. for trial.
4. In case of fire, epidemic, insurrection or
other necessity or public calamity.
When does court acquire jurisdiction over
person of respondent?
The writ itself plays the role as summon in
ordinary actions; court acquires jurisdiction over
the person of the respondent BY MERE
SERVICE OF WRIT.

Section 8. How writ is executed and returned.

Officer shall:
1. Convey the person so imprisoned before the
judge, unless from sickness or infirmity, such
person cannot, without danger be brought
before the court.
2. Make the return of the writ together with the
day and the cause of caption or restraint.
Section 9. Defect of form.
NO writ can be disobeyed for defect in form IF it
sufficiently states:
1. person in whose custody or under whose
restraint the party imprisoned or restraint is
held, and
2. court or judge before whom he is to be
brought.
Section 13. When the return evidence, and
when only a plea.
If a prisoner is in custody under a warrant of
commitment in pursuance of law or under a
judicial order, the return shall be considered
PRIMA FACIE EVIDENCE OF THE CAUSE OF
RESTRAINT, however it shall only be plea of
the facts set forth if restraint is by private
authority.

APPEAL IN HABEAS CORPUS CASES

The appeal in habeas corpus cases may be
taken in the name of the person detained or of
the officer or person detaining him.
An appeal in habeas corpus cases shall be
perfected by filing with the clerk of court or the
judge, within 48 hours from notice of judgment, a
notice of appeal.

RULE 103
CHANGE OF NAME
Section 1. Venue.
RTC of the province in which he resides.
Section 2. Contents of Petition.
Petition shall be signed and verified by person
desiring his name changed or some other
person in his behalf.
Requirement of verification is formal, NOT
jurisdictional requisite. It is not a ground for
dismissing petition.

It shall set forth:

1. that petitioner is a bonafide resident of the
province where petition is filed for at least
three years prior to the date of filing;
2. all names by which petitioner is known;
3. cause for change of name;
4. name asked for.
Jurisdictional Requirements
1. the verified petition should be published for
three successive weeks in some newspaper
of general circulation in the province;
2. that both the title and caption of the petition
and its body shall recite:
a. name /names or aliases of the applicant;
b. cause for which the change of name is
sought;
c. new name asked for. (Secan Kok vs.
Republic).
All the names or aliases must appear in the title
or caption of the petition, because the reader
usually merely glances at the title of the petition
and may only proceed to read the entire petition
if the title is of interest to him. (Secan Kok vs.
Republic).
Effects of Discrepancy in the Petition and
Published Order
The defect in the petition and the order, as to the
spelling of the name of the petitioner, is
substantial, because it did not correctly identify
the party to said proceedings.
Grounds for change of name:
1. name is ridiculous, tainted with dishonor and
extremely difficult to write or pronounce;
2. consequence of a change of status; e.g.
legitimated child;
3. necessity to avoid confusion;
4. having continuously used and been known
since childhood by a Filipino name, unaware
of her alien parentage;
5. a sincere desire to adopt a Filipino name to
erase signs of former alienage, all in good
faith and without prejudicing anybody.
Contents of Petition:
TITLE:
1. Official name (birth certificate) be very
particular with the spelling because it may
avoid or annul the proceedings; it is
jurisdictional.
2. all aliases;
3. name asked for.

A decree of adoption grants the adoptee the

right to use the adopters surname but not to
change the formers first name which relief must
be sought in a discrete petition under Rule 103.
(Republic vs. Hernandez).

RULE 107
ABSENTEES
ABSENTEE
0-2 years
2 years to 7 years

Beyond 7 years
(absence of 4 years
under extraordinary
circumstance)

CONSEQUENCE
--------Petition for declaration
of absence may be
filed
Considered dead for
all intents and
purposes except for
purposes of
succession
For purposes of
marriage: 4 years
continuous absence
shall be sufficient for
present spouse to
remarry, 2 years only
under extraordinary
circumstance

PURPOSE OF PETITION- to appoint an

administrator over the properties of the
absentee. Hence, if absentee left no properties,
such petition is unnecessary.
GROUNDS FOR TERMINATION OF THE
ADMINISTRATION
1. absentee personally appears through an
agent
2. absentee death is proven and heirs appear
3. third person appears showing that he
acquired title over the property of the
absentee
No independent action for Declaration of
Presumption of Death
Exception:
the need for declaration of
presumptive death for purposes of marriage
(Article 41 of the Family Code).

RULE 108
CANCELLATION OR CORRECTION OF
ENTRIES IN THE CIVIL REGISTRY
Republic Act No. 9048 which was passed by
Congress on February 8, 2001 substantially
amended Article 412 of the New Civil Code, to
wit:
SECTION 1. Authority to Correct Clerical or
Typographical Error and Change of First Name
or Nickname.No entry in a civil register shall
be changed or corrected without a judicial order,
except for clerical or typographical errors and
change of first name or nickname which can be
corrected or changed by the concerned city or
municipal civil registrar or consul general in
accordance with the provisions of this Act and its
implementing rules and regulations.
The above law speaks clearly. Clerical or
typographical errors in entries of the civil register
are now to be corrected and changed without
need of a judicial order and by the city or
municipal civil registrar or consul general. The
obvious effect is to remove from the ambit of
Rule 108 the correction or changing of such
errors in entries of the civil register. Hence, what
is left for the scope of operation of Rule 108 are
substantial changes and corrections in entries of
the civil register (Lee vs. CA, G.R. No. 118387,
October 11, 2001).
Requisites of Adversarial proceedings:
1. Proper petition is filed where the Civil
Registrar and all parties interested are
impleaded.
2. The order of the hearing must be published
once a week for three consecutive weeks.
3. Notice thereof must be given to the Civil
Registrar and all parties affected thereby.
4. The civil registrar and any person having or
claiming any interest under the entry whose
cancellation or correction is sought may,
within 15 days from notice of the petition or
from the last date of publication of such
notice, file his opposition thereto.
5. Full blown trial.
NOTE: Proceedings for the correction of entries
should not be considered as establishing ones
status in a manner conclusively beyond dispute.
The status corrected would not have a superior
quality for evidentiary purposes. There is no
increase or diminution of substantive right.
(Chiao Ben Lim vs. Zosa.)

PETITIONS FOR
CHANGE OF NAME

PETITIONS FOR THE

CORRECTION,
CANCELLATION OF
ENTRIES
Petition to be filed in
Verified petition filed in
the RTC where the
the RTC where the
petitioner resides
corresponding Civil
registry is located
Solicitor General must
Civil registrar
be notified by service
concerned is made a
of a copy of the
party to the proceeding
petition.
as a respondent. The
Solicitor General must
also be notified by
service of a copy of
the petition.
Petition is filed by
Petition is filed by any
person desiring to
person interested in
change his name
any ACT, EVENT,
ORDER or DECREE
Order for hearing shall
Order shall also be
be published once a
published once for
week for three
three consecutive
consecutive weeks
weeks and court shall
cause reasonable
notice to persons
named in petition
Service of judgment shall be upon the civil
register concerned
Petition for change of name (Rule 103) and
petition for cancellation or correction of entries
are DISTINCT PROCEEDINGS.
Hence, a party cannot change name and correct
an entry in a single petition without satisfying the
jurisdictional requirements. (Rep. v. Balmore)

RULE 109
APPEALS IN SPECIAL PROCEEDINGS
Section 1. Orders or judgments from which
appeals may be taken.
An interested person may appeal in special
proceedings from such order or judgment
rendered which:
1. Allows or disallows a will;
2. Determines who are the lawful heirs of a
deceased person, or the distributive share of
the estate to which such person is entitled;

3. Allows or disallows, in whole or in part, any

claim against the estate of a deceased
person, or any claim presented on behalf of
the estate in offset to a claim against it;
4. Settles the account of an executor,
administrator, trustee or guardian;
5. Constitutes, in the proceedings relating to
the settlement of the estate of a deceased
person, or the administration of a trustee or
guardian, a final determination in the lower
court of the rights of the party appealing,
except that no appeal shall be allowed from
the appointment of a special administrator;
and
6. Is the final order or judgment rendered in the
case, and affects the subtantial rights of the
person appealing, unless it be an order
granting or denying a motion for a new trial
or for reconsideration.
ORDERS THAT ARE NOT APPEALABLE:
1. Order directing administrator to take action
to recover amount due to the estate;
2. Order made in administration proceedings
relating to inclusion or exclusion of items of
property in the inventory of executor or
administrator;
3. Order appointing special administrator;
4. Order granting or denying a motion for new
trial or for reconsideration.

VENUE AND JURISDICTION OF SPECIAL PROCEEDINGS

1.

SPECIAL PROCEEDING

VENUE

JURISDICTION

Settlement of the Estate

Resident of the Decedent or if the

decedent is a non-resident, place
where he had an estate

MTC if the gross value of the estate

does not exceed P200,000, or P400,000
in Metro Manila
RTC if the gross value of the estate
exceeds the above amounts

2.

Escheat

a. Person dies intestate leaving

no heir Resident of the
decedent or if non-resident, in the
place where he had an estate.

RTC

b. Reversion Where the land

lies in whole or in part

RTC

c. Unclaimed Balance Where

the dormant deposits are located

RTC

3.

Appointment of Guardians

4.

Appointment of Trustees

5.

Adoption

Where the adopter resides

Family Court

6.

Rescission of Adoption

Where the adoptee resides

Family Court

7.

Habeas Corpus

Where the detainee is detained (if

the petition is filed with the RTC)

SC, CA, RTC, MTC in the province or

city in case there is no RTC judge

8.

Change of Name

Where petitioner resides

RTC

9.

Appointment of
Representative of
Absentee/Declaration of
Absence

Where the absentee resided

before his disappearance

RTC

10. Cancellation/Correction of
Entries in the Civil Registries

Where the minor or incompetent

resides

Where the will was allowed or

where the property or portion
thereof affected by the trust is
situated

Where the corresponding Civil

Registry is located

Family Court (in case of Minors)

RTC (Regular courtsin cases other
than minors)

RTC

RTC