SUMMARY SETTLEMENT OF ESTATES When Extrajudicial Settlement is Proper

RULE 74 Recourse to an administration proceeding, even if the

SEC. 1 – Extrajudicial settlement by agreement between estate has no debts, is sanctioned only if the heirs have
heirs good reasons for not resorting to an action for partition
GR: Estate of the decedent should be judicially and the claims of the heirs may be properly ventilated and
administered through an administrator or executor. settled therein.
Exception:
1. Extrajudicial settlement (Sec. 1)
2. Summary settlement of estate of small value
(Sec. 2)

Extrajudicial Settlement Summary Settlement

Does not require court
intervention
Value of the estate is
immaterial
Proper only when there is
no outstanding debts of the
estate at the time of
settlement
Only in intestate succession
Only at the instance and by
agreement of all the heirs
Involves judicial
adjudication although in a
summary proceeding
Gross estate does not
exceed P10,000
Available even if there are
debts, as the court will
make provisions for the
payment thereof
Allowed in both testate and
intestate estates
May be instituted by any
interested party and even
by a creditor of the estate,
without the consent of all
the heirs

Requisites of Valid Extrajudicial Settlement

1. Decedent died intestate
2. There are no outstanding debts of the estate at
the time of the settlement
3. The heirs all of age, or the minors are
represented by their judicial guardians or legal
representatives
4. The settlement is made in a public instrument,
stipulation or affidavit duly filed with the register
of deeds
5. The fact of such extrajudicial settlement must be
published in a newspaper of general circulation
in the province once a week for 3 consecutive
weeks.

Heirs Cannot Agree (Dissent)

If they cannot agree on the manner of partition, they may
institute an action for partition unless the same is
prohibited by an agreement, by the donor or testator, or
by law (Art. 494, Civil Code).
- Despite the institution, they may still enter into
an agreement. (Sec. 2, Rule 69)
- 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.
RULE 75
PRODUCTION OF WILL
ALLOWANCE OF WILL NECESSARY
SEC. 1 – Allowance Necessary
Subject of the Probate: refers only to its due execution and
settles only the formal or extrinsic validity of the will.
1. Testator is of sound mind
2. Freely executed the will in accordance with the
formalities prescribed
Note: Such allowance is conclusive and cannot be assailed
in another proceeding, except on the ground of fraud in
the procurement of the decree.
Intrinsic validity – determination comes after the
allowance of the will.
Except: 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 (Balanay Case)
Ex.
a. Completely preterited the heirs of the testator
(Acain v. IAC)
b. Testator admits in his will the existence of his
mistress
Note: Where, however, there is necessity to resolve the
issue as to whether, under the terms of the will, an heir
has been preterited or disinherited and in the latter case,
whether the disinheritance was valid, the procedure
followed in the Balanay case cannot be allowed.
Doctrine of Estoppel
It 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.
SEC. 2-5 – Person in Custody of the Will
Deliver must be made:
1. Custodian – within 20 days after he knows of the
death of the testator.
2. Executor – 20 days after he knows of the death
of the testator/within 20 days after he knows
that he is named executor if he obtained such
knowledge after the death of the testator
o Unless the will has reached the court in
any other manner, and shall within
such period, signify to the court in
writing his acceptance of the trust or
his refusal to accept it.
Where to Deliver:
Delivery of the will is made to the Clerk of Court of the RTC
having jurisdiction over the estate.
Testate over Intestate
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 newly-discovered will not be allowed
in probate, then the proceedings shall be
continued as intestacy.
It is not proper for the probate court to make a finding in
an intestacy proceeding that a will, discovered after the
institution of said proceeding, had been revoked. 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
SEC. 1 – Who may petition for the allowance of will
1. Any executor, devisee or legatee named in a will;
or
2. Any other person interested in the estate
Note: Whether the will is in his possession or not, or is lost
or destroyed.
Statute of Limitations
The 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 file AT ANY TIME and is required by public
policy.
Creditor
He my file a petition for the settlement of the latter’s
estate as a preparatory step for the filing of the former’s
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.
SEC. 2 – Contents of Petition
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs,
legatees, and devisees of the testator or
decedent;
(c) The probable value and character of the
property of the estate;
(d) The name of the person for whom letters are
prayed;
(e) If the will has not been delivered to the court,
the name of the person having custody of it.
Jurisdictional Facts:
1. That a person died leaving a will
2. 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
3. That the will has been delivered to the court
SEC. 3-4 – Proving of the Will
The probate of a will is a proceeding in rem and the
publication provided for by this Rule is a jurisdictional
requirement.
 - Personal service of notice upon the heirs is a
matter of procedural convenience and not a
jurisdictional requisite.
Heirs (and their residence) 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.
Requirement of 3 Consecutive Weeks
It does not mean that 3 full weeks or 21 days should
intervene between the first publication and the date of
hearing. It is sufficient that the publication has been made
once a week successively three times, even if less than 21
days intervened between the first publication and the
hearing.
Testator himself petitions
No publication is required and notice is required only for
his compulsory heirs. Such notice should, under these
circumstances, be considered a jurisdictional requisite.
SEC. 5/11-12 – Proof at Hearing
In the absence of any opposition to such probate, the
evidence for the petitioner may be received ex parte.
Holographic will
1. There is no contest – one witness is required,
and in his absence, expert evidence may be
resorted to.
2. Tetstator himself – he need merely affirm his
handwriting and signature
It is not mandatory that witnesses be first presented
before expert testimony may be resorted to because HW
are not required to be witnessed and existence of a
qualified witness may be beyond the control or knowledge
of the proponent of the will.
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 of said witnesses, even if
adverse, as the court may still admit the will to probate on
the basis of other satisfactory evidence.
- 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 the attesting witnesses.
- Testimony of notary public prevails over 2
attesting witnesses.
SEC. 6 – Proof of lost or destroyed will
Uncontested will
The witnesses required here, who need not be attesting
witnesses (although the latter is entitled to greater weight)
must clearly establish:
a. The due execution and formal validity of the will
b. Existence of the will at the time of 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.
Contested will
All the subscribing witnesses and the notary public must
be accounted for and available, their testimony must be
secured and all the facts stated in Sec. 6 must be
established by them or by two credible witness.
Presumption of Destruction or Cancellation
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.
Holographic Will
Lost holographic will cannot be proved by bare testimony.
It was definitely held that it may be proved by photostatic
or Xerox copies thereof.
SEC. 7-8 – Unavailability of Witnesses
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.
SEC. 9 – Grounds of Disallowance
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of
fear, or threats;
(d) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some
other person for his benefit;
(e) If the signature of the testator was procured by fraud
or trick, and he did not intend that the instrument
should be his will at the time of fixing
RULE 77
ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES
SEC. 1-3
A will allowed to probate in a foreign country must be re-
probated in the Philippines. At the proceedings for re-
probate in the Philippine, the proponent must prove:
1. That the testator was domiciled in the foreign
country
2. That the will has been admitted to probate in
such country
3. That the foreign court was, under the laws of
said foreign country, a probate court with
jurisdiction over the proceedings
4. The law on probate procedure in said foreign
country and proof of compliance therewith; and
5. 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 the same as that in the PHL.
Note:
If the decedent had properties in different had properties
in different countries, separate administration proceedings
must be had in said countries.
a. Proceeding in his last domicile – principal
administration
b. Other administration – ancillary administration
The two proceedings are separate and independent, 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.
SEC. 4 – Estate
Local administrator has power only over the property of
the decedent in the Philippines.
- It 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 (Art. 16, Civil Code)
Surplus
It shall be remitted to the domiciliary jurisdiction, but the
SC advised to retain sufficient amount in custodial egis to
protect Philippine claimants with contingent claims.
RULE 78
LETTERS TESTAMENTARY AND OF ADMINISTRATION
SEC. 1/3 – Who are incompetent as executors/admin
Executor – person named in the will to administer the
decedent’s estate and carry out the provisions thereof.
Administrator – person:
a. appointed by the court to administer the estate
where the decedent died intestate
b. where the will was void and not allowed to
probate,
c. where no executor was named in the will,
d. the executor named therein is incompetent or
refuses to serve as such
Corporation or Association authorized to conduct business
of a TRUST company in the PHL may be appointed as an
executor or administrator of an estate in the same manner
as an individual. (Art. 1060, Civil Code)
SEC. 2/4/5 – Several Admin/Executors
Executors
- More than 1 executor may be issued letters
testamentary in accordance with the nomination
in the will.
Administrators
- More than 1 may 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 reason may charge a co-administrator
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.
SEC. 6 –When and to whom letters of admin granted
(a) To the surviving husband or wife, as the case may be,
or next of kin, or both, in the discretion of the court, or
to such person as such surviving husband or wife, or
next of kin, requests to have appointed, if competent
and willing to serve;
(b) If such surviving husband or wife, as the case may be,
or next of kin, or the person selected by them, be
incompetent or unwilling, or if the husband or widow,
or next of kin, neglects for thirty (30) days after the
death of the person to apply for administration or to
request that administration be granted to some other
person, it may be granted to one or more of the
principal creditors, if competent and willing to serve;
a. (c) If there is no such creditor competent and willing to
serve, it may be granted to such other person as the
court may select.
The order of preference in the appointment of an
administrator may be disregarded for valid cause. The
principal consideration is the interest of the estate.
- A full-dress hearing to determine the
competence of the person named as
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.
Appointment of Co-Administrators
The order of preference does not rule out the
appointment of co-administrators in the exercise of the
probate court’s sound discretion.
Thus, the appointment of co-administrators has been upheld for
various reasons, viz.:
(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
Next of Kin – those persons who are entitled under the
statute of distribution to the decedent’s property.
Generally, the nearest of kin, whose interest is more
preponderant, is preferred in the choice of administrator.
Party Indebted
They cannot compatibly perform the duties of an
administrator and should not be appointed.
Exception:
Such indebtedness was only subsequently discovered after
his appointment, absent any other lawful ground.
Clerks of Court and other Court Personnel
They 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 TETAMENTARY
SEC. 1-2 – Opposition to issuance
A person interested in the estate is authorized 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.
Interested Person – a person must have material and
direct, and not one that is only indirect or contingent,
interest.
Assignment of Rights by an Heir
a. Before the institution – heir has no longer the
requisite interest to participate therein.
b. During pendency – requires the approval of the
court for its validity.
o 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.
SEC. 4-6
Preference Disregarded
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 decedent’s death.
RULE 80
SPECIAL ADMINISTRATOR
SEC. 1 – Appointment of Special Administrator
When there is a delay in granting letters testamentary or
of administration by any cause, the court may appoint a
special administrator.
- The other instance is when the regular
administrator or executor has a claim against the
estate, in which case a SA shall be appointed by
the court with respect to such claim.
- The order appointing an SA is an interlocutory
order and is not appealable.
The order of preference in appointment of regular
administrators does not apply to the appointment of a
special administrator.
Grounds for Removal
Grounds for removal of regular administrator do not apply
strictly to the SA as he may be removed by the court on
other grounds in its discretion.
SEC. 2-3 – Powers and Duties of SA
Special Administrator shall:
1. Take possession and charge of the goods,
chattels, rights, credits, and estates of the
deceased
o May sell only such perishable and
other property as the court orders sold
2. Preserve the same for the executor or
administrator afterwards appointed
3. For that purpose may commence suits as
administrator
4. Duty to submit an inventory and to render an
accounting of his administration as required by
the terms of his bond (Sec. 4, Rule 81).
5. May commence and maintain suits
o But 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.
Exception:
a. Where the creditor would suffer
the adverse effects of the running
of the statute of limitations
against them if the appointment
is delayed
b. A mortgagee ay bring an action
for the foreclosure of a mortgage
 of a property of the estate against
a special administrator.
RULE 81
BONDS OF EXECUTORS AND ADMNISTRATORS
SEC. 1-2 – Bond to be given
Before an executor or administrator enters upon the execution of
his trust, and letters testamentary or of administration issue, he
shall give a bond, in such sum as the court directs, conditioned as
follows:
(a) To make and return to the court, within three (3)
months, a true and complete inventory of all goods,
chattels, rights, credits, and estate of the deceased
which shall come to his possession or knowledge or to
the possession of any other person for him;
(b) To administer according to these rules, and, if an
executor according to the will of the testator, all
goods, chattels, rights, credits, and estate which shall
at any time come to his possession or to the
possession of any other person for him, and from the
proceeds to pay and discharge all debts, legacies, and
charges on the same, or such dividends thereon as
shall be decreed by the court;
(c) To render a true and just account of his administration
to the court within one (1) year and at any other time
when required by the court;
(d) To perform all orders of the court by him to be
performed.
The bond posted by administrators and executors is
intended as an indemnity to the creditors, the heirs and
the estate.
Enforcement
The enforcement of such liability may be sought by motion
in the administration proceedings or in a separate civil
action.
Testator’s direction that executor serve w/o bond
The court may still require him to file a bond conditioned
only to pay the debts of the testator and to answer for
breaches in his administrations.
SEC. 3 – Bond of Joint Executors or Administrators
The court may take a separate bond from each, or a joint
bond from all.
SEC. 4 – Bond of Special Administrator
Bond is conditioned that he will make and return a true
inventory of the goods, chattels, rights, credits and estate
of the deceased which come to his possession or
knowledge.
RULE 82
REVOCATION OF ADMINISTRATION, DEATH,
RESIGNATION, AND REMOVAL OF EXECUTORS AND
ADMINISTRATORS
SEC. 1 – If will discovered
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.
SEC. 2 – Other causes
1. Neglect to render his account and settle the
estate according to law, or to perform order or
judgment of the court, or a duty expressly
provided by these rules
2. Absconds
3. Insane or otherwise incapable or unsuitable to
discharge the trust
4. Death
5. Resignation
6. Removal by the court
The remaining executor or administrator may administer
the trust alone, unless the court grants letters to someone
to act with him. If there be none remaining, it may be
granted to any suitable person.
SEC. 3. – Acts before removal
The lawful acts shall have the validity as if there had been
no such revocation, resignation or removal.
SEC. 4 – Powers of New Executor/Admin
He shall have the same powers. An authority granted by
the court to the former executor or administrator for the
sale or mortgage of real estate may be renewed in favor of
such person without further notice or hearing.
Discovery of Indebtedness
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.
No Right to Intervene
The fact that the administratrix 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
administratrix, since even a stranger can be appointed as
such.
RULE 83
INVENTORY AND APPRAISAL
SEC. 1 – Inventory and appraisal
The 3-month period provided herein is not mandatory and
the court retain 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.
SEC. 2-3 – Certain articles not to be involved
Property claimed by 3P
It may be included in the inventory as part of the assets of
the assets of the estate and the probate court my 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.
Support
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. It is ruled that
allowances should include even the children of legal age as
the right and duty to support, especially the right to
education, subsist even beyond the age of majority.
- Allowance 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
ADMINTRATORS
SEC. 1-3 –
An administrator or executor has all the powers necessary
for the administration of the estate and which powers he
can exercised without leave of court. (Ex. Lease over
property)
- An 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 it exceeds 1 year, no longer considered act of
administration, leave of court required.
Note:
Sale and mortgage are regulated by Rule 89.
RULE 86
ACCOUNTABILITY AND COMPENSATION OF EXECUTORS
AND ADMINISTRATORS
SEC. 1-7 – Accountability of administrators
1. Every executor or administrator is chargeable in
his account with the whole of the estate of the
deceased
2. No executor or administrator shall profit by the
increase, or suffer loss by the decrease or
destruction, without his fault, of any part of the
estate
3. No executor or administrator shall be
accountable for debts due the deceased which
remain uncollected without his fault
4. If the executor or administrator uses or occupies
any part of the real estate himself, he shall
account for it
5. Neglects and unreasonable delays to raise
money, by collecting debts or selling real or
personal estate of the deceased, or neglects to
pay over the money he has in his hands, the
same shall be deemed waste and the damage
sustained may be charged and allowed against
him in his account, and he shall be liable on his
bond
6. The amount paid by an executor or
administrator for costs awarded against him
shall be allowed in his administration account
SEC. 7 – Expenses and fees allowed executor or
administrator
The administrator or executor is entitled to charge in his
accounts all expenses of administration incurred by him.
Not proper to be expenses of administration (not
chargeable against the estate):
(a) The services rendered by an administrator in favor of an heir
which services were not beneficial to the estate (Sison vs.
Teodoro, 100 Phil. 1055);
(b) Premiums for his bond (Sison us. Teodoro, supra);
(c) Expenses for the repair of property of the estate being
occupied and used by him (De Borja us. De Borja, 101 Phil.
911);
(d) Expenses for the keeping of ordinary records and receipts
involved in his administration work (De Borja vs. De Borja,
supra); and
(e) Losses incurred in the conduct of business with the use of
the funds
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.
SEC. 8-11
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
SEC. 1-2 – Notice and Time to claim
Statute on Non-claims
The period fixed by Sec. 2 for the filing of claims is
sometimes referred to as the statute of non-claims and
supersedes the ordinary statute of limitations.
- Time of Filing: it shall not be more than 12 nor
less than 6 months after the date of the first
publication of the notice.
- Period starts to run from the date of the first
publication of the notice referred in Sec. 1 and
runs even against the State.
Extension
The court, for good cause shown, may grant a one-month
period for a creditor to file a claim which he failed to file
during the original period granted for the filing of claims.
- Allowed provided no order of distribution has
yet been entered.
- The one month period does not necessarily
commence from the expiration of the original
period. What it means is that said claims must be
filed within a time not exceeding one month
from the order of the court allowing the filing of
such particular claim.
SEC. 3-4 Publication of Notice/Filing of Printed Notice
Special Administrator; Filing of Claims
A notice to creditors to file their claims is not proper if only
a special administrator has been appointed. (generally, not
empowered to pay the debts of the deceased)
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 ten-year period from the finality of its
judgment, and after said ten-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.
SEC. 5-6 – Claims which must be filed under
notice/Solidary Obligation of Decedent
Claims of Money
The claims referred to in Sec. 5 must be for money which is
not secured by a lien against property of the estate.
Otherwise, an action should be instituted for that purpose
against the executor or administrator.
- These claims must have arisen from liability
contracted before decedent’s death and money
claims arising after his death cannot be
presented, except funeral expenses and
expenses of his last illness.
Types of Money Claim
1. Arising from contract, express or implied,
entered into in his lifetime – required to be filed
under this section (ex. Contract of carriage)
2. Arising from a crime or quasi-delict – not
included in the concept of claims which have to
be filed but should be the subject of an action
against the executor or administrator or against
the heirs.
o Unpaid taxes – not covered by the
statute of non-claims as these are
monetary obligations created by law.
Implied Contracts – include liabilities both ex lege and ex
quasi contractu, hence the obligation to return money
gained at gambling is ex lege and is an implied contract.
This is deemed included in the concept of claims under
Sec. 5 which speaks of “implied” contracts.
Contingent claim – one which depends for its
demandability upon the happening of a future uncertain
event. 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 the payment of such claims as provided in
Sees. 4 and 5, Rule 88.
Administrator or Executor Sues
If the claimant is sued by the administrator or executor,
either within the period for filing claims 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.
Waiver
Under certain circumstances, such filing may be waived by
the act or conduct of the estate’s representative, as where
after the death of the decedent in a civil case he was
substituted by the administrator who proceeded to trial
and even appealed from the decision therein, in which
case the estate is deemed to have notice of such claim.
- The fact that plaintiffs claim should have been
litigated in the probate court does not affect the
validity of the decision since the court therein
had jurisdiction over the subject matter and the
parties.
Action pending upon death of Decedent
The case shall not be dismissed but shall continue until
entry of judgment.
a. Pending but not for the primary purpose of
recovery of money, debt or interest – heirs or
other legal representatives will merely be
substituted for the decedent without
appointment of an executor or administrator
b. Final judgment already rendered but without
levy on execution – judgment for a sum of
money must also be filed as a claim against the
estate in the manner provided by this Rue
SEC. 7 – Mortgage debt due from Estate
Three Alternative Remedies Available to a mortgage
creditor upon the death of the mortgagor:
1. Abandon his security and prosecute his claim –
by filing his claim against the estate as a money
clam, he is deemed to have abandoned the
mortgage and he cannot thereafter file a
foreclosure suit in the event he fails to recover
his money claim against the estate.
2. Institute a foreclosure suit and recover upon the
security.
o It should be against the executor or
administrator as party defendant. If he
 fails to recover fully, he may obtain a
deficiency judgment and file it as a
claim against the estate in the manner
provided by this Rule, provided it is
within the period for filing of claims
against the estate.
o Safer recourse, to file a claim for any
PROBABLE deficiency (considered as
contingent claim)
3. Rely solely upon his mortgage and foreclose the
same at anytime within the statute of
limitations.
o Before distribution – party-defendant
is administrator or executor
o After order distribution – party-
defendants are the heirs.
The mortgage creditor can avail only one of the 3 remedies
and if he fails to recover under that remedy, he cannot
avail of any of the other remedies.
Mortgagor died during pendency of judicial foreclosure
The decision therein shall be enforced by the trial court by
writ of execution in the foreclosure proceeding.
- Such enforcement cannot be delegated to
probate court since probate court has limited
jurisdiction and no authority to enforce lien.
Preliminary Attachment
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.
SEC. 8 – Claims of Executor and Administrator against
estate
This section provides for 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.
SEC. 9-14 – Procedure
Absence of Instrument
In the absence thereof, the claim cannot be proved. This
appears to be sustained by Sec. 23, Rule 130 (Dead man
Statute), which disqualifies surviving parties under the
circumstance provided therein from testifying to any
matter of fact occurring before the death of the decedent.
Claim of Estate Against 3P
Probate court has no jurisdiction to entertain a claim in
favor 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 the
provisions of Sec. 2, Rule 87.
Exception:
Counterclaim (Sec. 10 of this Rule), regardless of its basis,
is treated like a compulsory counterclaim since the failure
to file it shall bar the claim forever.
RULE 87
ACTIONS BY AND AGAINST EXECUTORS AND
ADINISTRATORS
SEC. 1 – Actions which may and may not be brought
against executor or administrator
GR: the executor or administrator is to be sued in his
representative capacity if the action would result in the
direct charge upon the estate.
Except:
1. Recover real or personal property, or any
interest therein;
2. Enforcement of a lien thereon; and
3. Actions to recover damages for an injury to
person or property, real or personal, may be
commenced against him.
For violations of or non-compliance with the duties of his
trust, such executor or administrator shall be sued in his
personal capacity.
Revival of Judgment
This section does not bar a suit against the administratrix
for the revival of a judgment for a sum of money angst the
decedent whose estate she represents, as its object is not
to make the estate pay said sums of money adjudged in
that judgment but merely to keep alive said judgment.
SEC. 2 – Executor or administrator may bring or defend
actions which survive
Action against Executor
The heirs may maintain such action if the executor or
administrator is unwilling or refuses to bring suit, or when
he himself is alleged to have participated in the act
complained and the executor or administrator may be
made a party defendant.
- Executor or administrator would be in the
position of an unwilling co-plaintiff.
Appeal Allowed
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, even before
the accounting ordered therein has been complied with.
SEC. 3-5 –
Prohibition under SEC. 3
It only applies to heirs and devisees and not to a donee
inter vivos who may sue the administrator for the delivery
of the property donated or a reserve who can use to
recover the property which the deceased was bound to
reserve.
SEC. 6-8 – Concealed, Embezzled, or fraudulently
conveyed
The proceedings are merely in the nature of fact finding
inquiries. If in the proceedings authorized under this
section the persons alleged to have converted property of
the estate assert title thereto, the probate court cannot
determine the issue.
Remedy: The executor or administrator must file an
ordinary action for the recovery of the properties or
damages thereto.

SEC. 9-10 – Fraudulent Transfers

The executor or administrator may, on his own initiative or
on motion of the creditors and is directed by the court to
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.

Failure to Bring 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 the suit.
- if the actions is against the executor or
administrator himself, the suit shall be in the
names of the creditors and leave of court and
the indemnity bond shall not be required.