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right, or to prevent or redress a wrong Initiated by Complaint Definite Parties Answer is filed Handled by court of general jurisdiction Adversarial Statute of Limitations applies 15-day appeal period right, or a particular fact Initiated by Petition Definite petitioner, no definite adverse party Opposition is filed Heard by court of limited jurisdiction Not adversarial No statute of limitations 30-day appeal period
SPECIAL PROCEEDINGS
SPECIAL PROCEEDING This is a remedy by which a party seeks to establish a status, a right, or a particular fact. (Rule 1, Sec. 3c)
RULE 72 SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES Section 1. Subject matter of special proceedings Section 2. Applicability of rules of civil actions SUBJECT MATTER OF SPECIAL PROCEEDINGS a. Settlement of estate of deceased persons b. Escheat c. Guardianship and custody of children d. Trustees e. Adoption f. Rescission and revocation of adoption g. Hospitalization of insane patient h. Habeas corpus i. Change of name j. Voluntary dissolution of corporations k. Judicial approval of voluntary recognition of minor natural children; l. Constitution of family home m. Declaration of absence and death n. Cancellation of correction of entries in civil registry OTHER SPECIAL PROCEEDINGS a. liquidation proceedings b. intra-corporate controversies c. corporate rehabilitation and a QuickTime TIFF (Uncompressed) decompressor d. recognition are neededenforcement of arbitration and to see this picture. proceedings e. vacation, setting aside, correction or modification of an arbitral award f. any application with a court for arbitration assistance and supervision ACTION To protect or enforce a SPECIAL PROCEEDINGS To establish a status,
JURISDICTION AND VENUE a. Settlement of estate of deceased persons i. RTC Gross value of the estate exceeds P300,000/P400,000 ii. MTC Gross value of the estate does not exceed P300,000/P400,000 If resident place where deceased resided at time of death If non-resident place where deceased had estate Heirs of Sandejas v. Lina, February 5, 2001 (2001) Probate jurisdiction extends to matters incidental and collateral to the exercise of a probate courts recognized powers such as selling, mortgaging or otherwise encumbering realty belonging to the estate. b. Escheat i. Ordinary escheat proceedings: RTC If resident place where deceased last resided If non-resident place where he had estate ii. Reversion of land to State for violation of Constitution / Laws: RTC where land lies in whole or in part iii. Unclaimed deposits (for 10 years): RTC of province where bank is located all banks located in 1 province where court is located may be made parties defendant in 1 action. c. Guardianship and custody of children: Family Court If resident place where minor/incompetent resides If non-resident place where minor/incompetent has property
Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G. Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan
SETTLEMENT OF ESTATE OF DECEASED PERSONS DIFFERENT MODES OF SETTLEMENT OF ESTATE OF DECEASED PERSON: 1. Extrajudicial Settlement of Estate (Rule 74, Sec. 1) 2. Summary Settlement of Estate of Small Value 3. Partition (Rule 69) 4. Probate of Will (Rule 75 to 79) 5. Petition for Letters of Administration in case of Intestacy
g. Hospitalization of insane patient: RTC in place where person alleged to be insane is found h. Habeas corpus i. SC (original, concurrent with RTC) ii. CA (original, concurrent with RTC) iii. RTC (within its respective region) iv. MTC (in absence of RTC judges in province/city) i. Change of name i. Judicial (Rules of Court): RTC in place where petitioner resides ii. Administrative (RA 9048): Civil registar where entry is located or if applicant migrated: civil registar in place where he resides Consul General: if applicant resides abroad j. Voluntary dissolution of corporations: SEC k. Constitution of family home: under the Family Code, it is deemed constituted on a house and lot from the time it is occupied as a family residence l. Declaration of absence and a death: RTC in QuickTime and TIFF (Uncompressed) decompressor place where needed to see this picture. resided before his are absentee disappearance m. Cancellation of correction of entries in civil registry i. Judicial (Rules of Court): RTC in place where the civil registry is located ii. Administrative (RA 1948):
RULE 73 VENUE AND PROCESS Section 1. Where estate of deceased person settled Section 2. Where estate settled upon dissolution of marriage Section 3. Process Section 4. Presumption of death According to Circular No. 21-99 (15 April 1999), the new jurisdictional amounts as adjudged under RA 7691 will be as follows: File in the RTC: Before 14 April 1999
>P200,000 >P100,000
>P400,000 >P300,000
RULE 74 SUMMARY SETTLEMENT OF ESTATES Section 1. Extrajudicial settlement by agreement between heirs Section 2. Summary settlement of estates of small value Section 3. Bond to be filed by distributees Section 4. Liability of distributees and estate Section 5. Period for claim of minor or incapacitated person GENERAL RULE When a person dies, his estate is submitted to a judicial settlement proceeding. EXCEPTION: When estate need not be judicially administered through an administrator or executor: a. Extrajudicial settlement; b. Summary settlement of estate of small value (not exceeding P10,000) EXTRAJUDICIAL SETTLEMENT a. Does not require court intervention; b. Value of estate is immaterial; c. Allowed only in intestate succession; d. Proper only where there are no outstanding debts of the estate at the time of settlement; e. Can be resorted to only at the instance and by agreement of all heirs. (If heirs do not agree, they may resort to an action for partition)
RULE 75 PRODUCTION OF WILL; ALLOWANCE OF WILL NECESSARY Section 1. Allowances necessary; Conclusive as to execution Section 2. Custodian of will to deliver Section 3. Executor to present will and accept or refuse trust Section 4. Custodian and executor subject to fine for neglect
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PROBATE OF WILL It is a juridical act whereby an instrument is adjudged valid and is ordered to be recorded. No will shall pass property unless probated.
Section 2. Contents of petition CONTENTS OF PETITION FOR PROBATE: a. Jurisdictional facts; b. Names, ages and residences of heirs, legatees, and devisees; c. Probable value and character of property of estate; d. Name of person for whom letters are prayed; and e. If will has not been delivered to the court, the name of the person having custody of it. But no defect in the petition shall render void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed. Section 3. Court to appoint time for proving will Section 4. Heirs, devisees, legatees, and executors to be notified by mail or personally When does court acquire jurisdiction? Upon PUBLICATION for 3 weeks successively of the order setting the case for hearing AND sending of NOTICES (20 days before hearing by mail, 10 days before by personal notice) to all persons interested. Section 5. Proof at hearing EVIDENCE IN SUPPORT OF PROBATE OF UNCONTESTED WILL a. Notarial Wills testimony of at least 1 of the subscribing witnesses; deposition allowed if witnesses outside the province (Sec. 7) b. Holographic Wills testimony of 1 witness who knows the handwriting and signature of the testator. In the absence thereof, testimony of an expert witness.
RULE 76 ALLOWANCE OR DISALLOWANCE OF WILL Section 1. Who may petition for the allowance of will WHO MAY PETITION FOR THE ALLOWANCE OF A WILL: a. Any creditor as preparatory step for filing his claim therein; b. Devisee or legatee c. Person interested in the estate (heirs) d. Executor e. Testator himself during his lifetime.
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JURISDICTIONAL FACTS ALLEGED IN PETITION FOR PROBATE: a. Person died leaving a will; b. In case of a resident, that he resided within the territorial jurisdiction of the court; (in the case
RULE 77 ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER Section 1. Will proved outside Philippines may be allowed here Section 2. Notice of hearing for allowance Section 3. When will allowed, and effect thereof Section 4. Estate, how administered IN RE-PROBATE OF WILL PROVEN ABROAD, PROPONENT MUST PROVE: a. Testator was domiciled in the foreign country; b. Will has been admitted to probate in such country; c. Foreign country was, under the laws of such country, a probate court with jurisdiction; d. Law on foreign probate procedure and proof of compliance therewith; e. Legal requirements in said country for valid execution of will.
RULE 78 LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM ISSUED Section 1. Who are incompetent to serve as executors or administrators THE FOLLOWING ARE DISQUALIFIED FROM SERVING AS EXECUTORS OR ADMINISTRATORS: a. A minor; b. A non-resident (of Phils.) c. A person unfit in the opinion of the court to execute the duties of his trust by reason of: i. drunkenness; ii. improvidence; iii. want of understanding and integrity; iv. conviction of an offense involving moral turpitude.
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Must present will to the court within 20 days after knowledge of death or of such appointment, unless the will has reached the court in any manner Testator may provide that he may serve without a bond (Court may still require but conditioned only in payment of debts) Compensation may be provided for by testator otherwise, compensation under Rule 85, Sec. 7
Must always post bond RULE 79 OPPOSING ISSUANCE OF LETTERS TESTAMENTAY, PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION Governed by Rule 85, Sec. 7 Section 1. Opposition to issuance of letters testamentary; Simultaneous petition for administration Section 2. Contents of petition for letters of administration Section 3. Court to set time for hearing. Notice thereof Section 4. Opposition to petition for administration Section 5. Hearing and order for letters to issue Section 6. When letters of administration granted to any applicant CONTENTS OF PETITION FOR ISSUANCE OF LETTERS OF ADMINISTRATION: a. Jurisdictional facts; b. Names, ages and residences of heirs, and creditors; c. Probable value and character of property of estate; and d. Name of person for whom letters are prayed. NOTE: Essentially the same as contents of petition for probate, except: (1) latter has an additional
Section 4. Letters testamentary issued when will allowed Section 5. Where some coexecutors disqualified others may act Section 6. When and to whom letters of administration granted LETTERS TESTAMENTARY It is the authority issued to an executor named in the will to administer the estate.
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LETTERS OF ADMINISTRATION WITH A WILL ANNEXED It is the authority issued by the court to a competent person to administer the estate if the executor named in the will refused to accept the office.
RULE 80 SPECIAL ADMINISTRATOR Section 1. Appointment of special administrator Section 2. Powers and duties of special administrator Section 3. When powers of special administrator cease; Transfer of effects; Pending suits SPECIAL ADMINISTRATOR He is appointed when there is a delay in granting letters testamentary or of administration by any cause, including an appeal from the allowance or disallowance of the will. ORDER OF APPOINTMENT DISCRETIONARY The preference accorded by Rule 78 refers to the appointment of a regular administrator. Is the Order of Special Administrator appealable? No, such is an interlocutory order. Administrator May be subject of appeal One of the obligations is to pay the debts of the estate Appointed when deceased died intestate or did not appoint an executor in the will or will was disallowed Special Administrator Not subject of appeal Cannot pay debts of the estate Appointed when there is delay in granting letters testamentary or administration
UNDERTAKINGS OF BOND OF EXECUTOR/ADMINISTRATOR: a. Make and return a complete inventory of the property of the estate which has come to his possession or knowledge, or the possession of any person for him, within 3 months; b. To administer the property of the estate according to the Rules (if administrator) or according to the will (if executor); c. To render an account within 1 year and at any other time required by the court; and d. Perform all orders of the court.
RULE 82 REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS AND ADMINISTRATORS Section 1. Administration revoked if will discovered; Proceedings thereupon Section 2. Court may remove or accept resignation of executor or administrator; Proceedings upon death, resignation, or removal Section 3. Acts before revocation, resignation, or removal to be valid Section 4. Powers of new executor or administrator GROUNDS FOR REMOVAL OF EXECUTORS OR ADMINISTRATORS: a. Neglects to render account and settle the estate according to law; b. Failure to perform order or judgment of the court or duty prescribed by the rules; c. Absconds; d. Becomes insane; e. Incapable or unsuitable to discharge trust. Acts before revocation Lawful acts of an administrator or executor before the revocation, resignation or removal are valid unless proven otherwise.
RULE 81 BONDS OF EXECUTORS AND ADMINISTRATORS Section 1. Bond to be given before issuance of letters; Amount; Conditions Section 2. Bond of executor where directed in will. When further bond required
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to:
i. Freely permit the exercise of the rights ii. Exhibit the books, papers, and property d. Court may also punish any partner failing to do so for contempt
RULE 85 ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS Section 1. Executor or administrator chargeable with all estate and income Section 2. Not to profit by increase or lose by decrease in value Section 3. When not accountable for debts due estate Section 4. Accountable for income from realty used by him Section 5. Accountable if he neglects or delays to raise or pay money 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 Section 6. When allowed money paid as costs Section 7. What expenses and fees allowed executor or administrator NOT PROPER EXPENSES OF ADMINISTRATION WHICH ARE NOT CHARGEABLE TO ESTATE: a. Services rendered by administrator which are not beneficial to the estate in favor of an heir; b. Premiums for her/his bond; c. Expenses for repair of property of the estate being used and occupied by him; d. Expenses for keeping ordinary records and receipts involved in his administration; e. Losses incurred in conduct of business with use of funds of the estate.
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RULE 84 GENERAL POWERS AND DUTIES OF EXECUTORS Section 1. Executor or administrator to have access to partnership books and property; How right enforced Section 2. Executor or administrator to keep buildings in repair Section 3. Executor or administrator to retain whole estate to pay debts, and to administer estate not willed GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS: a. Have access to partnership books and property; b. Maintain in tenantable repair the houses and other structures and fences belonging to the estate and deliver the same to the heirs and devisees when directed to do so by the court; QuickTime and a TIFF (Uncompressed) decompressor AND are needed to see this picture. c. Right to the possession and management of the real and personal estate so long as it is necessary for the payment of debt and expenses of administration. HOW RIGHT PARTNERSHIP ENFORCED: TO HAVE ACCESS TO BOOKS AND PROPERTY
RULE 86 CLAIMS AGAINST ESTATE Section 1. Notice to creditors to be issued by court Section 2. Time within which claims shall be filed NOTICE FOR FILING OF CLAIMS: a. Published once a week for 3 successive week in newspaper of general circulation; b. Posted: i. In 4 public places in PROVINCE of last residence of decedent; ii. In 2 public places in MUNICIPALITY of decedents last residence. CLAIMS WHICH MUST BE FILED WITH THE PROBATE COURT: a. All claims for money against decedent arising from contract; b. Claims for funeral expenses and for the last illness; c. Judgment for money.
QuickTime and TIME FOR FILING OF CLAIMS: a TIFF (Uncompressed) decompressor Must be filed withinare needed to seespecified by the court in the time this picture. its notice, which period shall not be less than 6 months nor more than 12 months from the date of the first publication of the notice.
HOWEVER, at any time before an order of distribution is entered, a creditor who failed to file his claim on time may, upon showing good cause, ask the court to allow him to file his claim. The court may
2. Foreclose his mortgage or realize upon his security by action in court making the executor or administrator a party defendant and if there is judgment for DEFICIENCY, he may file a claim (contingent) against the estate within the statute of non-claims; 3. Rely solely on his mortgage and foreclose (judicial or extrajudicial) the same at anytime within the period of the statute of limitations but he cannot be admitted as creditor and shall not receive in the distribution of the other assets of the estate. NOTE: These remedies are alternative, the availment of one bars the availment of other remedies. Section 8. Claim of executor or administrator against an estate One of the instances where a special administrator is appointed. Section 9. How to file a claim. Contents thereof; Notice to executor or administrator HOW TO FILE A CLAIM: 1. deliver the claim with the necessary vouchers to the clerk or court; 2. serve a copy thereof on the executor or administrator; 3. if the claim is due, it must be supported by affidavit stating the amount due and the fact that there has been no offsets; 4. if the claim is not due or contingent, it must be accompanied by affidavit stating the particulars thereof. Section 10. Answer of executor or administrator; Offsets Executor may file answer within 15 days from service of claim. Answer must set forth claims which decedent has against claimant or else it will forever be barred. Section 11. Disposition of admitted claim If executor or administrator admits claim, the heir, legatee or devisee may oppose it. Section 12. Trial of contested claim The court may refer the claim to a commissioner.
NOTE: The mode of appeal is record on appeal and must be filed within 30 DAYS from notice of judgment. Section 14. Costs
RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS Section 1. Actions which may and which may not be brought against executor or administrator ACTIONS WHICH MAY BE COMMENCED DIRECTLY AGAINST THE EXECUTOR OR ADMINISTRATOR: 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. Romualdez v. Tiglao, 105 SCRA 762 (1981) An action for revival of money judgment may be filed against the administrator to pre-empt prescription of judgment. Section 2. Executor or administrator may bring or defend actions which survive Section 3. Heir may not sue until have share QuickTime and a assigned TIFF (Uncompressed) decompressor
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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 4. Executor compound with debtor or administrator may
3. 4.
5. 6. 7.
NOTE: However, the last three requisites are unnecessary where the grantee is the executor or administrator himself, in which event the action should be in the name of all creditors.
If the court is satisfied that contingent claim duly filed is valid, it may order the executor or administrator to retain in his hands sufficient estate to pay a portion equal to the dividend of the creditors. REQUISITES: 1. Contingent claim is duly filed; 2. Court is satisfied that the claim is valid; and 3. The claim has become absolute. Section 5. How contingent claim becoming absolute in two years allowed and paid; Action against distributes later If such contingent claim becomes absolute and is presented to the court or to the executor or administrator, within two years from the time limited for other creditors to present their claims, it may be allowed by the court. Jaucian v. Querol, supra 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. De Bautista v. De Guzman, 125 SCRA 682 (1983) It has been ruled that the only instance wherein a creditor can file an action against a distributee of the debtors assets is under Section 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. Section 6. Court to fix contributive shares where devisees, legatees, or heirs have been in possession Section 7. Order of payment if estate is insolvent If estate is insolvent, as in liabilities are more than assets, Sec. 7 in relation to Arts. 1059 and 2239 to
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RULE 88 PAYMENT OF THE DEBTS OF THE ESTATE Section 1. Debts paid in full if estate sufficient Writ of execution is satisfy debts. Court MORTAGE of the proceeds of which expenses. not the proper procedure to must ORDER THE SALE OR properties of decedent, the will satisfy the debts and
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 2. Part of estate from which debt paid when provision made by will If the testator makes a provision in his will or designates the estate to be appropriated for the payment of his debts that will be followed. But if it is no sufficient, such part of the a estate as is not QuickTime and TIFF (Uncompressed) decompressor disposed of by will, if any,see this picture. appropriated for are needed to shall be that purpose. Section 3. Personalty first chargeable for debts, then realty 2 INSTANCES WHEN REALTY IS LIABLE FOR DEBTS AND EXPENSES:
Successor of deceased executor or administrator may be given an extension not to exceed 6 months.
RULE 89 SALES, MORTGAGES, ANG OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT 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 expenses of administration; 2. to pay legacies; or 3. to cover expenses or for the preservation of the estate. Section 2. When court may authorize sale, mortgage, or other encumbrance of realty to pay debts and legacies through personalty not exhausted 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 interest 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. If the deceased during his lifetime held real property in trust for another person (Section 9). REQUISITES: 1. application of executor or administrator; 2. written notice to person interested; and 3. hearing. NOTE: Assets in the hands of executor or administrator will not be reduced to prevent a creditor from receiving his full debt or diminish his dividends. Without notice and hearing the sale, mortgage or encumbrance is void. Notice is mandatory. Noncompliance therewith under the sale is null and void. Maneclang v. Baun, 208 SCRA 179 (1992) 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
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Extension must not exceed six months for single extension. Whole period allowed to the original executor or administrator shall not exceed 2 years. Section 16. Successor of dead executor or administrator may have time extended on notice within certain period
RULE 90 DISTRIBUTION AND PARTITION OF THE ESTATE Section 1. When order for distribution of residue QuickTime and a made TIFF (Uncompressed) decompressor
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LIQUIDATION This means the determination of all assets of the estate and payment of all debts and expenses. GENERAL RULE: ORDER OF DISTRIBUTION shall be made AFTER PAYMENTS of all debts, funeral expenses, expenses of administration, allowance of widow and inheritance tax is effected.
Timbol v. Cano, 1 SCRA 1271 (1961) 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 form 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 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.
RULE 91 ESCHEATS
the
3 INSTANCES OF ESCHEATS 1. When a person dies intestate leaving no heir but leaving property in the Philippines (Section QuickTime and a TIFF (Uncompressed) decompressor 1); are needed to see this picture. 2. Reversion Proceedings Sale in violation of the Constitutional provision; and 3. Unclaimed Balances Act (dormant accounts for 10 years shall be escheated). What is the basis of the states right to receive property in escheat? Order of succession under
GUARDIANSHIP Guardianship of minors is now governed by the Rule on Guardianship of Minors (A.M. No. 03-0205-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)
RULE 93 APPOINTMENT OF GUARDIANS Section 1. Who may petition for appointment of guardian for resident MINOR (a) any relative; or (b) other person on behalf of a minor; or (c) the minor himself if 14 years of age or over; or INCOMPETENT (a) any relative; or (b) friend; or (c) other person on behalf of the resident incompetent who has no parents or lawful guardian; or (d) the Director of Health in favor of an insane person who should be hospitalized or in favor of an isolated leper (Sec. 1); or
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RULE 92 VENUE Section 1. Where to institute proceedings INCOMPETENTS RTC of his residence or where his property is located in case of non-residents (Sec. 1) MINORS Family Court of his residence or where his property is located in case of non-resident (Sec. 3, A.M. No. 03-02-05-SC) Residence means domicile.
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(d) the Secretary of Social Welfare and Development AND by the Secretary of Health in case of an insane minor who
(c) the ground rendering the appointment necessary or convenient; (d) the death of the parents of the minor or the termination, deprivation or suspension of their parental authority; (e) the remarriage of the minors surviving parent;
(f) the names, ages, and residences of relative within the 4th civil degree of minor, and of persons having him QuickTime and a TIFF in their care and (Uncompressed) decompressor are needed to see this picture. custody; (g) the probable value, character and location of the property of the minor; and (h) the name, age and residence of the person from whom
Section 7. Parents as Guardians Section 8. Service of Judgment Civil registrar of the place where the minor or incompetent resides or where the property is situated shall be served with a copy of the judgment. RULE 95 SELLING AND ENCUMBERING PROPERTY OF WARD Section 1. Petition of guardian for leave to sell or encumber estate RULE 94 BONDS OF GUARDIAN Section 1. Bond to be given before issuance of letters; Amounts; Conditions Before an appointed guardian enters upon the execution of his trust, he shall give a BOND. CONDITIONS: 1. To make and return to the court, within three (3) months, a true and complete INVENTORY of all the estate, real and personal, of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for him; 2. To faithfully EXECUTE THE DUTIES of his trust, to manage and dispose of the estate according to these rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward; 3. To render a true and just ACCOUNT of all the estate of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by these rules and such other times as the court directs; and at the expiration of his trust to settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his QuickTime and a TIFF (Uncompressed) decompressor hands, or due from tohim on such settlement, to are needed see this picture. the person lawfully entitled thereto; 4. To PERFORM all orders of the court by him to be performed. Section 2. When new bond may be required and old sureties discharged Section 3. Bonds to be filed; Actions thereon GROUNDS: 1. when income of estate is insufficient to maintain the ward and his family; or 2. when income of estate is insufficient to maintain and educate ward when a minor; or 3. when it appears that it is for the benefit of the ward. REQUIREMENTS: 1. petition must be verified; 2. notice must be give to the next of kin; and 3. hearing so that they may show cause why petition should not be granted. Section 2. Order to show cause thereupon NEXT OF KIN This pertains to those relatives who are entitled to share in the estate of the ward under the Law on Intestate Succession including those who inherit per stirpes or by right of representation. Notice to next of kin and interested persons is JURISDICTIONAL. Lindain v. CA, GR No. 95305 (1992) 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, or alienate, the property of said minor without judicial approval. Section 3. Hearing on return of order; Costs Section 4. Contents of order for sale encumbrance, and how long effective The Order of Sale must specify the grounds.
or
RULE 97 TERMINATION OF GUARDIANSHIP Section 1. Petition that competency of ward be adjudged and proceedings thereupon Petition shall be verified by oath and shall state that such person is then competent. GROUNDS FOR TERMINATION MINOR INCOMPETENT (a) The ward has come of (a) Competency of the age; or ward has been judicially determined; or (b) The ward has died; or (b) Guardianship is no longer necessary; or (c) Death of guardian (c) Death of guardian; or (Sec. 25, A.M. No. 0302-05-SC) (d) Death of ward. Section 2. When guardian removed or allowed to resign 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; and 4. failure to render an account or make a return within 30 days after it was due. The abovementioned grounds are EXCLUSIVE . Section 3. Other termination of guardianship Section 4. Record to be kept by Justice of the Peace or Municipal Judge Section 5. Service of Judgment SALIENT FEATURES AND SPECIAL RULES FOUND IN THE RULE ON GUARDIANSHIP OF MINORS (A.M. No. 03-02-05-SC, effective May 1, 2003) A. Grounds for Petition (Sec. 4) 1. continued absence, or incapacity or death of his parents; 2. suspension, termination or deprivation of parental authority; 3. remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority;
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RULE 96 GENERAL POWERS AND DUTIES OF GUARDIANS Section 1. To what guardianship shall extend Section 2. Guardian to pay debts of ward Section 3. Guardian to settle accounts, collect debts and appear in actions for ward Section 4. Estate to be managed frugally and proceeds applied to maintenance of ward Section 5. Guardian may be authorized to join in partition proceedings after hearing Section 6. Proceeding when persons suspected of embezzling or concealing property of ward Section 7. Inventories and accounts of guardians, and appraisement of estate Section 8. When guardians accounts presented for settlement, expenses and compensation allowed GENERAL POWERS AND DUTIES OF GUARDIANS: 1. have the care and custody of the person of the ward, and the management of the estate only, as the case may be (Sec. 1); 2. pay the debts of the ward (Sec. 2); 3. settle accounts, collect debts and appear in actions for ward (Sec. 3); 4. manage the estate of the ward frugally, and apply the proceeds to maintenance of the ward (Sec. 4); 5. render verified inventory within 3 months after his appointment and annually thereafter upon application of interested persons (Sec. 7); and QuickTime and a TIFF (Uncompressed) decompressor 6. render to courtneeded to see approval an accounting are for its this picture. of the property for 1 year from his appointment and every year thereafter (Sec. 8). Every guardian, other than the wards parents, shall be allowed the amount of his reasonable expenses, and compensation which shall not exceed 15% of the NET income of the estate.
A verified petition for approval of the bond shall be filed in the Family Court of the place where the child resides or, if the child resides in a foreign country, in the Family Court of the place where the property or any part thereof is situated. The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations of a general guardian shall be heard and resolved. F. Removal or Resignation of Guardian (Sec. 24) No motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has approved the same. G. Grounds for termination of Guardianship (Sec. 25) The court motu proprio or upon verified motion of any person allowed to file a petition for guardianship may terminate the guardianship on the ground that the ward has COME OF AGE or has DIED. The guardian shall notify the court of such fact within 10 days of its occurrence.
RULE 98 TRUSTEES EXECUTOR/ ADMINISTRATOR Accounts are not under oath and except for initial and final submission of accounts, they shall be filed only at such times as may be required by the court. Court that has jurisdiction may be MTC or RTC. GUARDIAN Accounts must be under oath and filed annually. TRUSTEE Accounts must be under oath and filed annually.
Court which has jurisdiction is MTC or RTC if appointed to carry into effect provisions of a will; if trustee dies,
May sell, encumber or mortgage property if it is necessary for the purpose of paying debts, expenses of administration or legacies, or for the preservation or property or if sale will be beneficial to the heirs, legatees or devisees. Order of sale has no time limit
May sell or encumber property of ward if income of estate is insufficient to maintain ward and his family and educate the minor; the sale or encumbrance is for the benefit of ward upon order of the court. Order of sale is valid for only 1 year after grant of the same. Appointed as guardian.
Section 1. When trustee appointed VENUE FOR PETITIONS FOR APPOINTMENT OF TRUSTEES: a. If trustee is necessary to carry into effect the provisions of a will, then in the RTC in which the will was allowed (assuming allowed in the Philippines); b. Otherwise, then in the RTC of any province in which some property affected by the trust is situated A TRUSTEE IS NECESSARY TO CARRY INTO EFFECT: 1. A will where the testator omitted to appoint a trustee in the Philippines (Testamentary Trust); and 2. Other written instruments where the trustee therein declines, resigns, dies, or is removed before accomplishment of trust (Contractual Trust). Section 2. Appointment and powers of trustee under will, executor or former trustee need not administer trust No persons succeeding to a trust as executor or administrator of a former trustee shall be required to accept such trust. Section 3. Appointment and powers of new trustee under written instrument Section 4. Proceedings where trustee appointed abroad When land in the Philippines is held in trust for a resident by a trustee who derives his authority from abroad, such trustee must petition the RTC where the land is situated, otherwise, the trust will be vacant and a new trustee will be appointed.
Order of sale has no time limit Appointed to carry into effect the provisions of a will or written instrument (contractual trust). May be exempted from filing bond if provided in the will or if beneficiaries requested exemption. Trusteeship is terminated upon turning over the property to beneficiary after expiration of
Not exempted Must always from filing bond file a bond. even if such exemption is provided in the will (bond is only conditioned upon QuickTime and a payment of debts. F (Uncompressed) decompressor TIF
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Services of executor or administrator are terminated upon payment of debts and the estate and distribution of property to heirs.
Guardianship is terminated upon attainment of age of majority of the minor or upon gaining competency in
Trial custody is in the Philippines for 6 months (but court may reduce period or exempt parties from trial custody). Petition for adoption may include prayer for change of name, rectification of simulated birth or declaration that child is a foundling, abandoned, dependent or neglected child. Legitimate or illegitimate child of a spouse or even a person who is of legal age may be adopted. Income tax returns, police clearance, character reference, family picture, birth certificate of adopter are not required to be annexed in the petition. Petition must be published for 3 successive weeks in a newspaper of general circulation in the province or city where court is situated. Application is through a petition with the FC.
Only a child legally available for domestic adoption may be the subject of inter-country adoption. Income tax returns, police clearance, character reference, family picture, birth certificate of adopter are required to be annexed in the petition. No publication requirement.
Application may be through agency in foreign country and then QuickTime and a submit to TIFF (Uncompressed) decompressor ICAB. Decree of adoption are needed to see this picture. of adoption Decree issued by FC which has issued by a foreign jurisdiction over the case. court.
CONTENTS OF THE PETITION (Sec. 7) 1. If the adopter is a Filipino citizen, the petition shall allege the following: (a) The jurisdictional facts; (b) That the petitioner is of legal age, in possession of full civil capacity and legal rights; is of good moral character; has not been convicted of any crime involving moral turpitude; is emotionally and psychologically capable of caring for children; is at least 16 years older than the adoptee, unless the adopter is the biological parent of the adoptee or is the spouse of the adoptees parent; and is in a position to support and care for his children in keeping with the means of the family and has undergone pre-adoption services as required by Sec. 4 of RA No. 8552. 2. If the adopter is an alien, the petition shall allege the following: (a) The jurisdictional facts; (b) Sub-paragraph 1(b) above; (c) That his country has diplomatic relations with the Republic of the Philippines; (d) That he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country and his government allows the adoptee to enter his country as his adopted child and reside there permanently as an adopted child; and (e) That he has been living in the Philippines for at least 3 continuous years prior to the filing of the petition and he maintains such residence until the adoption decree is entered. QuickTime and a
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The requirement of certification of the aliens qualification to adopt in his country and his residency may be waived if the alien: (1) is a former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity; or (2) seeks to adopt the legitimate child of his Filipino spouse; or
4. Adopters shall have reciprocal tights of succession without distinction from legitimate filiation. All hearings and records are confidential. (Sec. 18)
INTER-COUNTRY ADOPTION Where to file Petition (Sec. 28) 1. 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. 2. 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
EXCEPTION: Same as Exemptions from requirements of residency and certification E. DECREE OF ADOPTION If issued, this will take effect as of the date of filing of the original petition. In case of change of name, the decree shall be submitted to the Civil Registrar where the court issuing the same is situated. 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 QuickTime and a TIFF (Uncompressed) decompressor it is and amended issue s picture. are needed to see thi EFFECTS OF ADOPTION 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;
RESCISSION relates only as to the date of judgment. Hence, vested rights prior to rescission should be respected. Who files? (Sec. 19) 1. ADOPTEE (a) Over 18 years of age or (b) If minor with assistance of DSWD 2. GUARDIAN or COUNSEL, if over 18 but incapacitated. Lahom v. Sibulo, G.R. No. 143989 (2003) The new law withdrew the right of an adopter to rescind the adoption decree and gave to the adopted child the sole right to sever the legal ties created by adoption. GROUNDS (Sec. 19) 1. Repeated physical violation and verbal maltreatment by the adopter despite having undergone counseling; 2. Attempt on the life of the adoptee; 3. Sexual assault or violence; or 4. Abandonment or failure to comply with parental obligations VENUE (Sec. 20) FAMILY COURT of the city or province where the adoptee resides. PERIOD WITHIN WHICH TO FILE VERIFIED PETITION (Sec. 21) Within 5 YEARS from reaching age of majority or after recovery from incompetency. Adverse party shall file his ANSWER within 15 days from receipt of order of court requiring him to answer. (Sec. 22) EFFECTS OF JUDGMENT OF RESCISSION 1. Parental authority of biological parent or legal custody of DSWD will be resorted; 2. Reciprocal rights of adoptee and adopter will be extinguished; 3. Vested rights acquired prior to judicial rescission shall be respected; 4. Successional rights shall revert to its status prior to adoption, as of the date of judgment of judicial rescission; 5. Adoptee shall use the name stated in his original birth or founding certificate; 6. Civil registrar will reinstate his original birth or founding certificate. Unlike in revocation of guardianship, revocation of adoption is a separate proceeding from the adoption.
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RESCISSION OF ADOPTION Under the Domestic Adoption of 1998, the ADOPTER CAN NO LONGER RESCIND the adoption, he can he adoptee in accordance with the provisions of the Civil Code.
Direct attack. Failure of respondent to file comment will not be punished by contempt and will not even be declared in default. Court and prevailing party are named as respondents.
Reaches the body but not the record; inquiry on the legality of the detention. Collateral attack. Failure to file return constitutes contempt (indirect).
Respondent detainer.
is
the
WRIT OF HABEAS CORPUS The writ of habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, submit to, and receive whatever the court or judge awarding the writ shall consider in that behalf. Section 1. To what habeas corpus extends THE WRIT OF HABEAS CORPUS MAY BE OBTAINED IN TWO INSTANCES: 1. cases of illegal confinement or detention by which a person is deprived of his liberty; and 2. cases by which the rightful custody of the person is withheld from the person entitled thereto. Actual physical restraint is not required; any restraint which will prejudice freedom of action is sufficient. WHEN THE WRIT MAY BE AVAILED OF AS A CONSEQUENCE OF A JUDICIAL PROCEEDING: 1. There has been a deprivation of a constitutional right resulting in restraint of person; 2. The court had no jurisdiction to impose the sentence; 3. An excessive penalty has been imposed, the sentence being void as to the excess; 4. Where the law is amended, as when the penalty is lowered. NATURE Alimpoos v. CA, 106 SCRA 159 (1981) Petition for habeas corpus is LIKE A PROCEEDING IN REM because it is an inquisition by the government, at the suggestion and instance of an individual, most probably, but still in the name and capacity of the sovereign. It is also instituted for the
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RULE 102 HABEAS CORPUS CERTIORARI, PROHIBITION AND MANDAMUS Special civil action under Rule 65. HABEAS CORPUS
Special proceeding.
Habeas Corpus can never be a substitute for appeal. Galvez, et.al. v. CA, et.al., 237 SCRA 685 (1994) 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 ancillary 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. The person on bail is not entitled to habeas corpus because his detention is legal and technical. Section 2. Who may grant the writ The RTC, CA and SC have concurrent jurisdiction to issue writs of habeas corpus. The MTC can issue the writ in case there is no available RTC judge. Hierarchy of courts is not observed. Sandiganbayan may issue writs of habeas corpus only if it is in aid of its appellate jurisdiction. COLLEGIATE COURT Enforceable throughout the Philippines. Returnable to any court. RTC Enforceable only within their respective judicial region. Returnable only to itself
JURISDICITON IN CASES OF HABEAS CORPUS WITH RESPECT TO CUSTODY OF MINORS Although the Family Court where the petitioner resides or where the minor may be found has exclusive and original jurisdiction to hear petitions for habeas corpus with respect to custody of minors, the Supreme Court and the Court of Appeals can take cognizance of such petition in order that it can be enforceable within the Philippines. However, the return can be heard in the FC/RTC (if there is no FC in the judicial region) and there is no need to file a
WHEN PETITION FOR HABEAS CORPUS NOT PROPER: 1. for asserting or vindicating denial of right to bail; 2. for correcting errors in appreciation of facts/appreciation of law.
RULE 103 CHANGE OF NAME Section 1. Venue RTC of the province where the petitioner has been residing for 3 years prior to the filing of the petition. Section 2. Contents of petition THE PETITION SHALL SET FORTH: 1. That petitioner is a bona fide resident of the province for at least 3 years prior to the date of the filing of the petition 2. Cause for which the change of name is sought 3. Name asked for (2) 4. All names and aliases of petitioner (Republic v. Zosa)
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RULE 104 VOLUNTARY DISSOLUTION OF CORPORATIONS Section 1. Where, by whom and on what showing application made Section 2. Order thereupon for filing objections Section 3. Hearing, dissolution, and disposition of assets; Receiver Section 4. What shall constitute record NOTE: Repealed by Sections 118 and 119 of the Corporation Code
Judicial (RTC)
RULE 105 JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL CHILDREN Section 1. Venue Section 2. Contents of petition Section 3. Order for hearing Section 4. Opposition Section 5. Judgment Section 6. Service of judgment upon civil registrar RECOGNITION OF NATURAL CHILDREN (Art. 278, NCC) Only evidence accepted a. Record of birth b. Will c. Statement before court of record d. Any authentic writing
Section 3. Order for hearing Section 4. Hearing Section 5. Judgment Section 6. Service of judgment NOTICE OF HEARING Notice of hearing published once a week for 3 consecutive weeks. DATE OF HEARING Cannot be held within 30 days before an election, or within 4 months after last publication.
Last publication Hearing Election
4 months
30 days
Hearing cannot be scheduled within these periods TITLE OF PETITION Must include name, aliases, and name asked for. Example: In Re: Petition for Change of Name of X, alias Y, to Z. X, Petitioner.
are needed to see this picture. PUBLICATION Must reproduce title of the petition (see above), and contain correct information as to: a. Name or names of petitioner; b. Cause for the change of name; c. Name asked for. QuickTime and a TIFF (Uncompressed) decompressor
RULE 106 CONSTITUTION OF FAMILY HOME Section 1. Who may constitute Section 2. Contents of petition Section 3. Notice and publication Section 4. Objection and date of hearing Section 5. Order Section 6. Registration of order NOTE: Amended by Articles 152 and 153 of the Family Code.
Failure to comply with above requirements renders proceedings null and void
RULE 107
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RULE 108 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY Section 1. Who may file petition Any person interested in any act, event, order or decree concerning the civil status of persons. RTC of the province where the corresponding civil registrar is located. QuickTime and a
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REQUISITES OF ADVERSARIAL PROCEEDINGS: 1. Proper petition is filed where the Civil Registrar and all parties interested are impleaded; 2. The order of 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;
Petition to be filed in the RTC where the petitioner resides. Solicitor General must be notified by service of a copy of the petition.
Petition is filed by person desiring to change his name. Order of the hearing shall be published once a week for three consecutive weeks
First name or last name (there must be valid around with respect to the letter) may be changed Service of judgment shall be upon the civil register concerned
RA 9048 AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A QuickTime and a JUDICIAL ORDER (Uncompressed) decompressor TIFF
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SCOPE: a. Clerical / typographical errors b. Change of first name / nickname CLERICAL OR TYPOGRAPHICAL ERROR It is a mistake committed in the performance of clerical work in writing, copying, transcripting or
APPEAL IN SPECIAL PROCEEDINGS 30 days Record on appeal and docket fees May extend on territorious grounds
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 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 offset to a claim against it; 4. Settles the account of a 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 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 QuickTime and a 6. Is the final order or judgment rendered in the TIFF (Uncompressed) decompressor are needed to see this picture. case, and affects the substantial rights of the person appealing, UNLESS it be an order granting for 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;
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