RULE 78: Letters Testamentary and of

Administration, When and To Whom

Issued

A. Qualification
Rule 78
SECTION 1. Who are incompetent to serve as executors
or administrators.- No person is 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.
RULE 78
SEC. 2. Executor of executor not to administer estate.
The executor of an executor shall not, as such,
administer the estate of the first testator.

Annotation (Regalado)
Who may administer the estate?
- Executor and administrator.
Who may serve as administrator/executor?
- Any competent person. (See disqualifications
in Sec. 1 of Rule 78.)
Executor- is the person named in the will to
administer the decedents estate and carry out
the provisions thereof.
Administrator- is the person appointed by
the court to administer the estate where :
o the decedent died intestate, or
o where the will was void and not
allowed to probate, or
o where no executor is named in the
will, or
o the executor named therein is
incompetent or refuses to serve as
such.
o [Additional disqualification in Sec. 2,
Executor of an executor cannot
administer the properties of the first
decedent.]
A corporation or association authorized to
conduct the business of a trust company in the
Philippines may be appointed as an executor
or administrator of an estate in the same
manner as an individual (Art. 1060, NCC)

Executor Administrator
Nominated by the testator
and appointed by the
court.
Appointed by the court in
case the testator did not
appoint an executor or if
the executor refused
appointment
(Administrator with a will
annexed) or if the will was
disallowed or if the
person did not make a
will.
Testator may provide that
he may serve without a
bond (but the court may
direct him to file a bond
conditioned only to pay
debts.).
Bond is required unless
exempted by law
Compensation may be
provided for by the
testator in the will,
otherwise, Sec. 7, Rule 85
will apply.
Compensation is governed
by Sec. 7, Rule 85.


CASES:
MALOLES II V. PHILLIPS
2000
REFRESHER: Ante-mortem probate granted. Shortly
thereafter, decedent died. A nephew appeared,
contesting the validity of the will and seeking issuance
of letters of administration to him.
HELD: Since the testator instituted or named an
executor in his will, it is incumbent upon the Court to
respect the desires of the testator. Only if the appointed
executor is incompetent, refuses the trust, or fails to
give bond may the court appoint other persons to
administer the estate. To be an interested person
qualified to question the issuance of letters
testamentary, he must have a material and direct
interest. His interest, in this case, is hinged on the will
being declared invalid for he can only inherit as the
nearest collateral relative if the will is set aside and
intestacy ensues.

REPUBLIC V. MARCOS
2009
REFRESHER: BIR and Republic is assailing the Orders
of the RTC naming as executors Imelda and BongBong
Marcos on several grounds, among which is that they
are not qualified because they had been convicted of
crimes involving moral turpitude.

HELD: After the admission of a will to probate, the
courts will not name a better executor for the testator
nor disqualify, by a judicial veto, the widow or friend or
other person selected in the will, except upon strict
proof of the statutory grounds of incompetency.
Petitioners allegation that respondents lack integrity is
not substantiated by evidence. Petitioners allegation
that respondents were convicted of crimes involving
moral turpitude and therefore lack integrity
conveniently does not include that respondents were
acquitted by appellate courts.


B. Procedure
SEC. 2. Executor of executor not to administer estate.
The executor of an executor shall not, as such,
administer the estate of the first testator.
SEC. 4. Letters testamentary issued when will allowed.
When a will has been proved and allowed, the court
shall issue letters testamentary thereon to the person
named as executor therein, if he is competent, accepts
the trust, and gives bond as required by these rules
SEC. 5. Where some coexecutors disqualified others may
act.When all of the executors named in a will cannot
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.

Annotation (Regalado)
More than 1 executor may be issued letters
testamentary in accordance with the
nomination in the will. Also, while as a rule the
court appoints only one administrator for
intestate estates, more than 1 administrator
may also be appointed by the court. In fact,
Sec. 6 provides that letters of administration
may be issued to both the surviving spouse
and the next of kin, while Sec. 3 Rule 81 and
Sec. 2, Rule 82 speaks of joint executors or
administrators.
The general practice is that co-executors or co-
administrators will exercise joint supervision
over the entire estate, but the court, for
justifiable reasons may charge a 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
(Matute v CA).

Bar Reviewer:
Letters Testamentary- an authority issued to an
executor named in the will to administer the estate.
Letters of Administration- an authority issued by
the court to a competent person to administer the
estate of the deceased who died intestate.
Letters of Administration with a Will Annexed- an
authority issued by the court to a competent
person to administer the estate of the deceased if
the executor named in the will refused to accept
the office or if the person named is incompetent.


C. Order of Preference
SEC. 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 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.

Bar Reviewer:
Order of preference:
1. Surviving spouse or next of kin (or both) or their
nominee
2. Principal creditors
3. Stranger

GR: Court cant set aside the order of preference in Sec
6, Rule 78.
E: If persons who are preferred are not competent OR
are unwilling to serve OR neglect to apply for letters of
administration for 30 days after the decedents death.

ORDER OF APPOINTMENT OF REGULAR
ADMINISTRATION: FINAL AND APPEALABLE

Annotation (Regalado)
This is the order of preference in the
appointment of an administrator BUT, the
same may be disregarded for valid cause
(Capistrano v. Nadurata)
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
therein (Baluyot v. Pano).
In the appointment of an administrator, the
principal consideration is the interest in the
said estate of the one to be appointed as
administrator. The underlying assumption is
that those who will reap the benefits of a wise,
speedy and economical administration of the
estate or, on the other hand, suffer the
consequences of waste, improvidence, or
mismanagement, have the higher interest and
most influential motive to administer the
estate correctly.
The order of preference does not rule out the
appointment of co-administrators and the
such may be resorted to by the court in its
discretion. Reasons which have been upheld as
valid for the appointment of co-administrators
include: (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 interest 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
(Gabriel v. CA).
Next of Kin- defined as those persons who
are entitled under the statute of distribution to
the decedents property.
o GR is that nearest of kin: more
preferred in choice of administrator.
A debtor of the estate cannot compatibly
perform the duties of an administrator and
should not be appointed as such.
An administrator is not supposed to represent
the interests of any particular party and his
acts are deemed to be objectively for the
protection of the rights of everybody
concerned with the estate. Implicit in Sec. 6 is
that among those who are petitioning for
letters of administration, preference should be
given to those who have the greater interest in
the estate.
Clerks of court and other court personnel
should not be appointed as administrators or
receivers so as not to compromise their
objectivity and impartiality in the
performance of their duties.


CASES:
IN RE ESTATE OF CRISTINA AGUINALDO-SUNTAY
2010)
REFRESHER: Two grandchildren were fighting over
administration of the estate of Cristina, Emilio III, the
illegitimate grandson and also the adopted son of the
decedent and the legitimate granddaughter (Isabel-
whos an ingrate since she practically disowned her
grandparents. Lol.). Isabel is arguing her being a
legitimate granddaughter of Cristina should give her
preference while Emilio III is saying hes the
choice/nominee of the grandfather (surviving spouse)
to administer the estate of his deceased wife.
HELD: Section 6, Rule 78 of the Rules of Court lists the
order of preference in the appointment of an
administrator of an estate. The order of preference is
not absolute for it depends on the attendant facts and
circumstances of each case. Jurisprudence has long held
that the selection of an administrator lies in the sound
discretion of the trial court. In the main, the attendant
facts and circumstances of this case necessitate, at the
least, a joint administration by both respondent and
Emilio III of their grandmothers, Cristinas, estate.

RULE 79: Opposing Issuance of Letters
Testamentary; Petition and Contest for
Letter of Administration

A. Content of Petition
SEC. 2. Contents of petition for letters of
administration.A petition for letters of administration
must be filed by an interested person and must show, so
far as known to the petitioner.
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, and the
names and residences of the creditors, of the decedent;
(c) The probable value and character of the property of
the estate;
(d) The name of the person for whom letters of
administration are prayed.
But no defect in the petition shall render void the
issuance of letters of administration.


B. Interested Party
SECTION 1. Opposition to issuance of letters
testamentary. Simultaneous petition for
administration.Any person interested in a will may
state in writing the grounds why letters testamentary
should not issue to the persons named therein as
executors, or any of them, and the court, after hearing
upon notice, shall pass upon the sufficiency of such
grounds. A petition may, at the same time, be filed for
letters of administration with the will annexed.
SEC. 2. Contents of petition for letters of
administration.A petition for letters of administration
must be filed by an interested person and must show, so
far as known to the petitioner.
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, and the
names and residences of the creditors, of the decedent;
(c) The probable value and character of the property of
the estate;
(d) The name of the person for whom letters of
administration are prayed.
But no defect in the petition shall render void the
issuance of letters of administration.

Bar Reviewer:
Issue: who is rightfully entitled to administration

Persons who may oppose issuance of letters: any
interested person (interested in the will)

To be a party, one must have material and direct
interest. The opposition must be accompanied by a
Petition for the Issuance of Letters of Administration
with the will annexed.

Requirement of publication and notice in Sec. 3 is
jurisdictional.
- Where no notice as required herein has been
given to persons believed to have an interest
in the estate of the decedent, the proceedings
for the settlement is VOID and should be
annulled. (Eusebio v. Valmores)

Annotation (Regalado)
When a petition for probate has been filed,
Sec. 1 allows an interested person to not only
challenge the qualifications of the person
nominated therein as executor but, at the
same time and in anticipation of such
disqualification, to file a petition for
administration with the will annexed.
o Effect: If nomination is approved,
interested persons petition for
issuance of letters testamentary to
him would be denied.
Testate proceedings take precedence over
intestate proceedings. If intestate proceedings
had been filed and a will is found, probate
proceedings may be filed in a separate
proceeding or by appropriate motion in the
same court. If probate is denied, intestate
proceedings may continue.
To be a party, one must have a material and
direct interest, not one that is indirect or
contingent. Hence, where the right of the
claimant is dependent on the disallowance of
the 2
nd
will and the incapability to inherit of
the legatees instituted in the first will, such
contingent interest does not make the
claimant an interested party (Trillana v.
Crisostomo).
Where an heir has validly assigned all his
rights to the estate before the institution of
settlement, he no longer has the requisite
interest to participate therein (Duran v.
Duran). Where the assignment is made during
the pendency of the proceedings, it requires
the approval of the court for its validity.
However, it has been held that in this
situation, even if the assignment has been
approved by the court, such approval is not
deemed final until the proceeding over the
estate is closed, as such approval can still be
vacated, hence the assignor remains as an
interested party in the proceeding.


CASES:
TRILLANA V. CRISOSTOMO
1951
REFRESHER: 2 wills, the October will and the August
will. October will was probated. Appellants appealed
alleging they are in interested parties and therefore
may appeal in the present case, because in the event the
will of October 19 is disallowed and in its place that of
August 16 is allowed, and the legacies in the latter are
declared invalid or the legatees incapable to inherit, the
legacies will go to appellants.

HELD: In civil actions and special proceedings, unless
otherwise provided by law, the interest in order that a
person may be a party on appeal must be material and
direct, so that he will be materially and directly
benefited or injured by the court's order, decree or
judgment: and not indirect or contingent.
The interest claimed by the appellants is purely
contingent or dependent upon several uncertain and
future events to:
o The disallowance of the will of
October 19, 1948
o The allowance of the will of August
16, 1948, and
o invalidation of certain legacies left in
said will of August 16, 1948.

DURAN V. DURAN
1967
REFRESHER: One of the heirs (son) executed deed of
assignment of his share (in favor of the decedents
surviving spouse) in the estate for 2500 pesos before
estate proceedings began. A year later, the assignee
heir filed for intestate proceedings. Surviving spouse
opposed, saying hes not an interested person in the
estate.
HELD: Hes not an interested person.
[Compare here the effects of the waiver/compromise,
WON done during or before estate proceedings are
commenced. Santos case vis-a-vis the Duran case]
The situation in the Santos case involves an assignment
between co-heirs pendente lite, during the course of
settlement proceedings, properly and validly
commenced. At the time of said assignment, therefore,
the settlement court had already acquired jurisdiction
over the properties of estate. As a result, any
assignment regarding the same had to be approved by
said court. And since the approval the court is not
deemed final until the estate is closed the assigning heir
remains an interested person in proceedings even after
said approval, which can be vacated is given.
In the present case, however, the assignment took place
when no settlement proceedings was pending. The
properties subject matter of the assignment were not
under the jurisdiction of a settlement court. Allowing
that the assignment must be deemed a partition as
between the assignor and assignee, the same does not
need court approval to be effective as between the
parties. An extrajudicial partition is valid as between the
participants even if the requisites of Sec. 1, Rule 74 for
extrajudicial partition are not followed, since said
requisites are for purposes of binding creditors and
non-participating heirs only. Should it be contended
that said partition was attended with fraud, lesion or
inadequacy of price, the remedy is to rescind or to annul
the same in an action for that purpose. And in the
meanwhile, assigning heir cannot initiate a settlement
proceedings, for until the deed of assignment is
annulled or rescinded, it is deemed valid and effective
against him, so that he is left without that "interest" in
the estate required to petite for settlement proceedings.

IN RE INTESTATE ESTATE OF IRENE SANTOS
1962
See facts and ratio from the discussion in Duran v.
Duran above.


TAYAG V. TAYAG-GALLOR
2008
REFRESHER: When husband died, illegitimate child
appeared and asked to be declared administrator of the
estate, alleging hes an illegitimate child. Surviving
spouse opposed, arguing that there being no such
allegation that respondent was acknowledged and
recognized by the decedent as his illegitimate child, the
action becomes one to compel recognition which cannot
be brought after the death of the putative father.

HELD: Allegation that one is an illegitimate child of the
decedent suffices as cause of action even without
further stating that s/he has been so recognized or
acknowledged (i.e. makes her/him an interested party).
The respondents (illegitimate sons)
successional rights may be established not just by a
judicial action to compel recognition but also by proof
that she had been voluntarily acknowledged and
recognized as an illegitimate child.



C. Procedure
SEC. 3. Court to set time for hearing. Notice thereof.
When a petition for letters of administration is filed in
the court having jurisdiction, such court shall fix a time
and place for hearing the petition, and shall cause notice
thereof to be given to the known heirs and creditors of
the decedent, and to any other persons believed to have
an interest in the estate, in the Manner provided in
sections 3 and 4 of Rule 76.
SEC. 4. Opposition to petition for administration.
Any Interested person may, by filing a written
opposition, contest the petition on the ground of the
incompetency of the person for whose letters are
prayed therein, or on the ground of the contestants
own right to the administration, and may pray that
letter issue to himself, or to any competent person or
persons named In the opposition.
SEC. 5. Hearing and order for letters to issue.At the
hearing of the petition, it must first be shown that
notice has been given as hereinabove required, and
thereafter the court shall hear the proofs of the parties
in support of their respective allegations, and if satisfied
that the decedent left no will, or that there is no
competent and willing executor, it shall order the
issuance of letters of administration to the party best
entitled thereto.
SEC. 6. When letters of administration granted to any
applicant.Letters of administration may be granted to
any qualified applicant, though it appears that there are
other competent persons having better right to the
administration, if such persons fail to appear when
notified and claim the issuance of letters to themselves.

Bar Reviewer:
Grounds for opposition to petition for administration:
1. incompetence
2. preferential right of heir under Sec. 6, Rule 78

Letters of Administration shall issue if it is proven:
1. notice as required in Sec. 3 has been given;
2. The decedent left no will; or there is no competent
and willing executor.

When letters may be granted to anyone: Letters can be
granted to any person or other applicant even if other
competent persons are present if the latter fail to claim
their letters when notified by the court.

Annotations (Regalado):
Sec. 6 (b), Rule 78, provides that the
preference given to the surviving spouse or
next of kin may be disregarded by the court
where said persons neglect to apply for letters
of administration for 30 days after the
decedents death. This rule is echoed in Sec 6
of this rule.