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CHAPTER V
LETTERS TESTAMENTARY AND OF ADMINITRATION, EXECUTORS
AND ADMINISTRATORS
RULE 78
LETTERS TESTAMENTARY AND OF ADMINISTRATION,
WHEN AND TO WHOM ISSUED
SECTION 1. Who are incompetent to serve as executors or
administrators. — No person in competent to serve as executor or
administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the duties of the
trust by reason of drunkenness, improvidence, or want of
understanding or integrity, or by reason of conviction of an
offense involving moral turpitude.
NOTE: There is no statutory requirement that only residents may be
appointed as executors or administrators of an estate. However,
notwithstanding that there is no statutory requirement, the courts should not
consent to the appointment of persons as administrators and guardians who
are not personally subject to the jurisdiction of the courts here.
Guerrero v. Teran
What reasons cause the court to consider a person unfit?
1. Drunkenness (to a degree that impairs a person’s sound judgment and
reason that would necessarily affect the person’s credibility and
integrity);
2. Improvidence (ill-advised spending resulting in lack of good judgment
and foresight);
3. Want of understanding (inability to know the nature and functions as
executor or administrator) or integrity (lack of credibility which affects
one’s honesty in the management of estate); OR
4. Conviction of an offense involving moral turpitude p. 88-89.

NOTE: The fitness or unsuitability of a person’s appointment as executor or

Who is an executor? A person nominated by the testator in his will to carry
out his direction and request thereof, and to dispose of the property
according to his testamentary provisions after his death.
Who is an administrator? A person appointed by the court of probate to
administer and settle intestate estates and such testate estates where:
1. No executor is named; Or
2. The executor named:
a. Is incompetent
b. Refuses the appointment
c. Fails to give a bond.
administrator is within the court’s sound judgment and will not be interfered
with.
SECTION 2. Executor of executor not to administer estate. — The
executor of an executor shall not, as such, administer the estate of the
first testator.
NOTE: If the executor dies, the court may appoint an administrator de
bonisnon as the new administrator of an executor who was not able to settle
the estate of the first decedent during his lifetime.

What are the notable differences between an executor and an SECTION 3. Married women may serve. — A married woman may serve
administrator? BOOK, pages 84-86. as executrix or administratrix, and the marriage of a single woman shall
not affect her authority so to serve under a previous appointment.
NOTES: The executor/administrator is regarded as a trustee of the estate.
The appointment of an administrator is to protect the interest of the estate,
HDL, and creditors.
SECTION 4. Letters testamentary issued when will allowed. — When a
What are the requisites of a competent executor or administrator? will has been proved and allowed, the court shall issue letters
1. At least 18 years old; testamentary thereon to the person named as executor therein, if he is
2. A resident of the Philippines; and competent, accepts the trust, and gives bond as required by these rules.
3. Deemed fit by the court
What authorities may the court issue if it admits a will to probate?
1. Letters testamentary;
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2. Letters if administration with the will annexed; OR
3. Letters of administration
What factors determine the authority the court will issue?
1. Whether the testator names an executor in the will; AND
2. Executor’s competence, willingness to accept the trust, and
compliance with the bond required by the rules.
p. 90 table
Must the court still issue letters testamentary to the person named as
executor in the event of an appeal to the order admitting the will to
probate? YES.
Ozaeta v. Pecson
SECTION 5. Where some coexecutors disqualified others may act. —
When all of the executors named in a will can not act because of
incompetency, refusal to accept the trust, or failure to give bond, on the
part of one or more of them, letters testamentary may issue to such of
them as are competent, accept and give bond, and they may perform the
duties and discharge the trust required by the will.
NOTE: The testator is not prohibited from nominating more than one person
as executor.
How must co-executors go about the administration of the estate? They
must exercise joint administration. They cannot designate only one of them
to administer the estate (this is contrary to the testator’s wishes).
SECTION 6. When and to whom letters of administration granted. — If no
executor is named in the will, or the executor or executors are
incompetent, refuse the trust, or fail to give bond, or a person dies
intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next
of kin, or both, in the discretion of the court, or to such person as
such surviving husband or wife, or next of kin, requests to have
appointed, if competent and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next
of kin, or the person selected by them, be incompetent or
unwilling, or if the husband or widow, or next of kin, neglects for
thirty (30) days after the death of the person to apply for
administration or to request that administration be granted to
some other person, it may be granted to one or more of the
principal creditors, if may be granted to one or more of the
principal creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it
may be granted to such other person as the court may select.
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What is the order of preference in appointment as administrator?
1. Surviving spouse;
2. Next of kin;
3. Persons requested by the surviving spouse or next of kin;
4. Principal creditors;
5. Other persons selected by court.
Is above order absolute? NO.
What then is the principal consideration of the court in determining who
should be appointed as administrator? The interest of the one appointed
in the estate.
Suntay v. Cojuangco v. Suntay
De Guzman v. Limcolioc
Does the order of preference rule out the appointment of co-
administrators? NO, especially in cases where justice and equity demand
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the opposing parties or factions to be represented in the management of the When may the court appoint any of the decedent’s principal creditors?
estate. After all, the underlying assumption behind the order of preference is Only when the surviving spouse or next of kin:
that that one who reaps the benefit of the wise, speedy, and economical 1. Is incompetent or unwilling to be appointed; OR
administration of the estate is the one with the highest interest and most 2. Neglects for at least 30 days after the decedent’s death to apply for
influential motive to administer the estate correctly. administration or to request that administration be granted to some
other person.
Under what circumstances has the SC sanctioned the appointment of
more than one administrator? Does the order of preference apply to the appointment of special
1. For the benefit of the estate and those to have the benefits of their administrators? NO, as the appointment of a special administrator lies
judgment and representation of interests; entirely in the court’s discretion, hence not appealable. Thus, the order of
2. Where justice and equity demand that opposing parties or factions preference only applies to regular administration.
be represented in the management of the deceased’s 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 representative to
work in harmony for the best interest of the estate;
5. When a person entitled to the administration of an estate desires to
have another competent person associated with him in office.

Who is a surviving spouse? The partner in the conjugal relationship and

the decedent’s heir

Gabriel v. CA

May the surviving spouse’s entitled preference be rejected by the

court? YES, if circumstances warrant the rejection. In this case, the court
then appoints someone else.

NOTE: The preference for the surviving spouse assumes a prior valid
marriage with the decedent. Thus, a voidable marriage still vests that
preference to the spouse. A void marriage does not.

What does the phrase “next of kin” mean? It refers to those whose are
entitled, under the relationship of distribution, to the decedent’s property; one
whose relationship is such that he is entitled to share in the estate as
distributed, i.e. an heir (Angeles v. Maglaya).

Quiazon v. Belen

NOTE: To prevent multiplicity of suits, the probate court may pass upon the
issue of filiation, especially when the application for letters of administration
claims to the decedent’s heir.
Ventura v. Ventura