Professional Documents
Culture Documents
SPECIAL
PROCEEDING
involves the
establishment of the
right, status or fact
may involve only one
party
governed by special
rules supplemented
by ordinary rules
heard by courts of
limited jurisdiction
petition or application
is sufficient
Issuance of Letters
Testamentary/Administration
(A special administrator may be appointed)
(Rule 77-80)
Filing of Claims
(Rule 86)
Payment of Claims
Sale/Mortgage/Encumbrance
of Properties of the Estate
RULE 73
VENUE AND PROCESS
Section 1. Where estate of deceased persons
settled.
2 Kinds of Settlement
A. EXTRAJUDICIAL SETTLEMENT
(Rule 74, Section 1)
B. JUDICIAL SETTLEMENT
Testate or Intestate Proceedings instituted
in the country where decedent has his
residence
EXTENT OF JURISDICTION
Probate courts are courts of limited jurisdiction.
It may only determine and rule upon issues
relating to the settlement of the estate consisting
of the following:
1. administration of the estate
2. liquidation of the estate
3. distribution of the estate
court
cannot
EXCEPTION:
1. Provisionally, ownership may be determined
for the purpose of including property in
inventory, without prejudice to its final
determination in a separate action; or
2. When all the parties are heirs and they
submit the issue of ownership to the probate
court provided that the rights of third parties
are not prejudiced (Bernardo vs. CA)
EXCEPTION:
Estoppel by LACHES
NOTE: Jurisdiction under Rule 73 Sec. 1 does
NOT relate to jurisdiction per se but to venue. It
is NOT an element of jurisdiction but of
procedure, hence institution in the court where
the decedent is neither an inhabitant or have his
estate may be waived. (Uriarte vs. CFI)
EXCEPTIONS:
1. To satisfy the contributive share of the
devisees, legates and heirs when the latter
had entered prior possession over the
estate. (Sec. 6 Rule 88)
2. To enforce payment of the expenses of
partition (Sec. 3 Rule 90)
3. To satisfy the court when a person is cited
for examination in probate proceeding
(Sec.13, Rule 142)
RULE 74
SUMMARY SETTLEMENT OF ESTATE
GENERAL RULE: If a person dies, his estate is
submitted to a judicial settlement proceeding.
EXCEPTION: The heirs may resort to:
a. extrajudicial settlement of estate
b. summary settlement of estate
Section1.
Extrajudicial
settlement
agreement between heirs.
REQUISITES: SUBSTANTIVE
1.The decedent left
a.) no will
b.) no debts
by
EXTRAJUDICIAL
SETTLEMENT
No court intervention
value of the estate
immaterial
allowed only in
intestate succession
there must be no
outstanding debts of
the estate at the time
of settlement
resorted at the
instance and by
agreement of all heirs
amount of bond is
equal to the value of
personal property
JUDUCIAL
SETLLEMENT
requires summary
judicial adjudication
gross estate must not
exceed P10T
allowed in both testate
and intestate
available even if there
are debts; it is the
court which will make
provision for its
payment
may be instituted by
any interested party
even a creditor of the
estate without the
consent of all heirs
bond to be determined
by the court
IMPORTANT REQUIREMENTS:
1. Application must contain allegation of gross
value of estate.
2. Date for hearing shall be set by court which
shall:
a. be held not less than one month nor
more than three months from date of last
publication of notice;
b. be published, once a week for three
consecutive weeks in a newspaper of
general circulation.
3. Notice shall be served upon such interested
persons as the court may direct.
Where the estate has been summarily settled,
the unpaid creditor may, within 2 years, file a
motion in the court wherein such summary
settlement was had, for the payment of his
credit. After the lapse of the 2-year period, an
ordinary action may be instituted against the
distributees within the statute of limitations but
not against the bond.
EXCEPTION: If on the date of the expiration of
the two-year period, the creditor or heir is a
minor or incapacitated, or in prison or outside
the Philippines, he may present his claim within
one year after such disability is removed. (Sec. 5
Rule 75)
RULE 75
PRODUCTION OF WILL/ ALLOWANCE OF
WILL NECESSARY
RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
2.
If contested
In notarial wills, ALL subscribing
witnesses and notary public must be
presented,
In holographic wills - 3 witnesses who
knows the handwriting of testator. If none is
available, expert testimony may be resorted
to.
RULE 77
ALLOWANCE OF WILL PROVED OUTSIDE
OF PHILIPPINES AND ADMINISTRATION OF
ESTATE THEREUNDER
A will allowed or probated in a foreign country,
must be re-probated in the Philippines. If the
decedent owns properties in different countries,
separate administration proceedings must be
had in said countries.
Two types of estate proceedings:
1. DOMICILLIARY ADMINISTRATION - the
proceeding instituted in last residence of the
decedent
2. ANCILLARY ADMINISTRATION - the
administration proceedings where he left his
estate.
RULE 78
LETTERS TESTAMENTARY AND OF
ADMINISTRATION WHEN AND TO WHOM
ISSUED.
PERSONS WHO CAN ADMINISTER THE
ESTATE:
1. Executor;
2. Administrator, regular or special (Rule 80);
and
3. Administrator with a will annexed (Rule 79,
Section 1)
EXECUTOR - The one appointed by the testator
in his will for the administration of his property
after his death.
ADMINISTRATOR - One appointed by the State
for the administration of the property of the
deceased in case the decedent failed to leave a
will, or if he failed to appoint one even if he left a
will, or executor named is not competent or
refuses the office.
ADMINISTRATOR WITH A WILL ANNEXED one appointed by the court in cases when,
although there is a will, the will does not appoint
any executor, or if appointed, said person is
either incapacitated or unwilling to serve.
RULE 79
OPPOSING ISSUANCE OF LETTERS
TESTAMENTARY PETITION AND CONTENTS
FOR LETTERS OF ADMINISTRATION
Contents of a petition for letters of
administration:
a. jurisdictional facts;
b. name, age, residence of heirs and creditors;
c. probable value and character of the property
d. name of the person for whom letters is prayed
for
What is the main issue in an administration
proceeding?
Who is the person rightfully entitled to
administration.
RULE 80
SPECIAL ADMINISTRATOR
When may a probate court appoint a special
administrator?
a. delay in granting of letters including appeal
in the probate of the will.
b. executor is a claimant of the estate he
represents
ORDER OF APPOINTMENT DISCRETIONARY
The preference accorded by Sec. 6 of Rule 78 of
the Rules of Court to surviving spouse refers to
the appointment of a regular administrator or
administratrix,
not
to
that
of
special
administrator, and that the order appointing the
later lies within the discretion of the probate
court, and is not appealable. (Pijuan vs. De
Gurrea, 124 Phil. 1527).
Powers and duties:
a. possession and charge of the properties
b. commence and maintains suit for the estate
c. sell perishable property
d. pay debt as ordered by the court
When does the power of a special
administrator cease?
After the letters are granted to regular executor
or administrator.
RULE 81
BONDS OF EXECUTOR AND
ADMINISTRATOR
Section 1. - Bond to be given before
issuance of letters. Amounts. Conditions.
Before an executor or administrator enters upon
execution of his trust, he shall give a bond in a
sum fixed by the court conditioned as follows:
1. make an inventory of property which
came to his knowledge and possession
within 3 months
2. administer the estate and from the
proceeds pay all debts and charges
3. render an account within one year
4. perform all orders of the court
ADMINISTRATORS BOND STATUTORY
BOND
Conditions prescribed by statute forms part of
bond agreement.
RULE 82
REVOCATION OF ADMINISTRATION, DEATH,
RESIGNATION AND REMOVAL OF
EXECUTORS AND ADMINISTRATORS
The discovery of a will does NOT ipso facto
nullify the letters of administration already issued
until the will has been proved and allowed
pursuant to Rule 82 Sec. 1. (De Parreno vs.
Aranzanso)
Section
3.
Acts
before
revocation,
resignation, or removal to be valid.
RULE 83
INVENTORY AND APPRAISAL PROVISION
FOR SUPPORT OF FAMILY
Section 1. - Inventory and appraisal to be
made within three months from the grant of
letters testamentary or of administration
Approval of an inventory is not a conclusive
determination of what assets constituted the
decedents estate and of the valuation thereof.
Such determination is only provisional and a
prima facie finding of the issue of ownership.
RULE 84
GENERAL POWERS OF EXECUTORS AND
ADMINISTRATORS
POWERS OF EXECUTOR / ADMINISTRATOR
OF THE ESTATE.
1. To have access to, and examine and take
copies of books and papers relating to the
partnership in case of a deceased partner;
2. To examine and make invoices of the
property belonging to the partnership in case
of a deceased partner;
3. To make improvements on the properties
under administration with the necessary
court approval except for necessary repairs;
RULE 85
ACCOUNTABILITY AND COMPENSATION OF
EXECUTORS AND ADMINISTRATORS
GENERAL RULE: The executor or administrator
is accountable for the whole estate of the
deceased.
EXCEPTION: He is not accountable for
properties which never came to his possession.
EXCEPTION TO THE EXCEPTION: When
through untruthfulness to the trust or his own
fault or for lack of necessary action, the executor
or administrator failed to recover part of the
estate which came to his knowledge.
Administrator or executor shall not profit by the
increase of the estate nor be liable for any
decrease which the estate, without his fault,
might have sustained.
Section 8. When executor or administrator to
render account.
RULE: Within one year from the time of
receiving letters testamentary or letters of
administration.
EXCEPTION: An extension of time is allowed for
presenting claims against or paying the debts of
the estate for disposing of the estate but even in
such cases, the administration should be
terminated in not more than two-years and a
half.
RULE 86
CLAIMS AGAINST ESTATE
RULE 87
ACTIONS BY AND AGAINST EXECUTORS
AND ADMINISTRATORS
Section 1. Actions which may or may not be
brought against executor and administrator
Actions which may be brought against executor
and administrators independent and separate of
the probate proceeding:
1. recovery of real or personal property or any
interest therein from the estate
2. enforcement of a lien thereon
3. action to recover damages for any injury to
person or property, real or personal
(tortuous acts)
These are actions that survive the death of the
decedent.
RULE 88
PAYMENT OF THE DEBTS OF THE ESTATE
Section 1. Debts paid in full if estate
sufficient.
If insolvent, as in liabilities are more than the
assets, Sec.7 in relation to Art. 1059 and 2239
to 2251 of the Civil Code must apply. Use rule
on preference of creditors If it is sufficient to
satisfy claims of a class.
RULE 89
SALES, MORTGAGE AND OTHER
ENCUMBRANCES OF THE PROPERTY OF
THE DECEASED
REQUISITES:
1. contingent claim is duly filed
RULE 90
DISTRIBUTION AND PARTITION OF THE
ESTATE
RULE 91
ESCHEATS
Section 1. When and by whom petition filed.
3 INSTANCES of ESCHEATS:
1. When a person dies intestate leaving no heir
but leaving property in the Philippines
(Section 1)
2. REVERSION PROCEEDINGS Sale in
violation of the Constitutional provision
3. Unclaimed Balance Act
What is the basis of the states right to
receive property in escheat?
Order of succession under the Civil Code, the
STATE is the last heir of the decedent.
Section 4. When and by whom claim to
estate escheated filed.
Period: within 5 years from the date of
judgment; (under ART. 1014 of the Civil Code,
the 5-year period is reckoned from the date the
property was delivered to the State and further
provides that if the property had been sold, the
municipality or city shall be accountable only for
such part of the proceeds as may not have been
lawfully spent.)
By whom: person of interest
TO WHOM WILL THE PROPERTY
ESCHEATED BE ASSIGNED:
1. if personal property, in the municipality or
city where he last resided.
2. if real property, where the property is situated
GUARDIANSHIP
NOTE: Guardianship of minors is now governed
by the Rule on Guardianship of Minors (A.M. No.
03-02-05-SC) which took effect on May 1, 2003.
While guardianship of incompetents is still
governed by the provisions of the Rules of Court
on Guardianship (Rule 92 to Rule 97).
KINDS OF GUARDIANS
A. According to scope:
1. over the person of the ward
2. over the property
3. both
B. According to constitution:
1. general guardian
2. legal guardian
3. guardian ad litem
INCOMPETENT includes:
1. those suffering from penalty of civil
interdiction
2. hospitalized lepers
3. prodigals
4. deaf and dumb who are unable to read and
write
5. those of unsound mind though they have
lucid intervals
6. persons not of unsound mind but by reason
of age, disease, weak mind and other similar
causes cannot take care of themselves or
manage their property.
14 years of age or
over; or
4. the Secretary of
Social Welfare and
Development AND
by the Secretary of
Health in case of
an insane minor
who needs to be
hospitalized.
has no parents or
lawful guardian; or
4. the Director of
Health in favor of
an insane person
who should be
hospitalized or in
favor of an isolated
leper.
INCOMPETENT
RESIDENT - Family
Court of the province
or city where the minor
actually resides
RESIDENT - RTC of
the province or city
where
the
minor
actually resides
NON-RESIDENT
NON-RESIDENT
requirement
for
A. Grounds:
1. when income of estate is insufficient to
maintain ward and family or to maintain
and educate ward when a minor; or
2. when it appears that it is for the benefit
of the ward.
B. Requirements:
1. petition must be verified
2. notice must be given to the next of kin
3. hearing
Important: There is
publication, only notice.
TERMINATION OF GUARDIANSHIP:
A. Grounds for termination
MINOR
INCOMPETENT
1. The ward has
1. competency of
come of age; or
the ward has
2. has died
been judicially
determined
2. guardianship is
no longer
necessary
RULE 98
TRUSTEES
Section 1. Where trustee appointed.
A trustee may be necessary to carry into effect:
1. a will wherein judicial approval is needed
2. any other instrument
When a trust is created abroad for property in
the Philippines, judicial approval is still needed
though trustor is alive.
Section 8. Removal or resignation of the
trustee.
Who may petition?
Parties beneficially interested.
Grounds:
1. essential in the interest of petitioners
2. insanity
3. incapability of discharging trustee
4. unsuitability
ADOPTION AND CUSTODY OF MINORS
NOTE! : The provisions of the Rules of Court on
Adoption have been amended by the Domestic
Adoption Act of 1998 and the Intercountry
Adoption Act of 1995.
NOTE: Effective August 22, 2002, there is a new
Rule on Adoption.
NATURE AND CONCEPT OF ADOPTION
Adoption is a juridical act, a proceeding in rem,
which creates between two persons a
relationship similar to that which results from
legitimate paternity and filiation.
Only an adoption made through the court, or in
pursuance with the procedure laid down under
Rule on Adoption is valid in this jurisdiction.
PURPOSE OF ADOPTION
The promotion of the welfare of the child and the
enhancement of his opportunities for a useful
and happy life, and every intendment is
sustained to promote that objective.
WHAT DOES THE COURT DETERMINE IN
ADOPTION CASES?
1. capacity of the adopters
2. whether the adoption would be the best
interest of the child
Adoption is strictly personal between the adopter
and the adopted. (Teofico vs. Del Val)
RULES ON ADOPTION (Secs. 1-25)
DOMESTIC ADOPTION
WHO MAY ADOPT:
1, Any Filipino Citizen
a. of legal age;
b. in possession of full civil capacity and
legal rights;
c. of good moral character;
d. has not been convicted of any crime
involving moral turpitude;
e. emotionally and psychologically capable
of caring for children
3.
4.
5.
6.
7.
RULE 102
HABEAS CORPUS
Section 1. To what habeas corpus extends.
Habeas corpus extends to:
1. cases of illegal confinement or detention by
which a person is deprived of his liberty
2. cases by which the rightful custody of the
person is withheld from the person entitled
thereto
NOTE: The restraint must be actual, effective
and material. The person need not actually be
confined as long as freedom of action is limited.
(Moncupa vs. Enrile)
WRIT OF HABEAS CORPUS - a command
directed to the person detaining another,
requiring him to produce the body of the person
detained at a designated time and place, and to
RULE 103
CHANGE OF NAME
Section 1. Venue.
RTC of the province in which he resides.
Section 2. Contents of Petition.
Petition shall be signed and verified by person
desiring his name changed or some other
person in his behalf.
Requirement of verification is formal, NOT
jurisdictional requisite. It is not a ground for
dismissing petition.
RULE 107
ABSENTEES
ABSENTEE
0-2 years
2 years to 7 years
Beyond 7 years
(absence of 4 years
under extraordinary
circumstance)
CONSEQUENCE
--------Petition for declaration
of absence may be
filed
Considered dead for
all intents and
purposes except for
purposes of
succession
For purposes of
marriage: 4 years
continuous absence
shall be sufficient for
present spouse to
remarry, 2 years only
under extraordinary
circumstance
RULE 108
CANCELLATION OR CORRECTION OF
ENTRIES IN THE CIVIL REGISTRY
Republic Act No. 9048 which was passed by
Congress on February 8, 2001 substantially
amended Article 412 of the New Civil Code, to
wit:
SECTION 1. Authority to Correct Clerical or
Typographical Error and Change of First Name
or Nickname.No entry in a civil register shall
be changed or corrected without a judicial order,
except for clerical or typographical errors and
change of first name or nickname which can be
corrected or changed by the concerned city or
municipal civil registrar or consul general in
accordance with the provisions of this Act and its
implementing rules and regulations.
The above law speaks clearly. Clerical or
typographical errors in entries of the civil register
are now to be corrected and changed without
need of a judicial order and by the city or
municipal civil registrar or consul general. The
obvious effect is to remove from the ambit of
Rule 108 the correction or changing of such
errors in entries of the civil register. Hence, what
is left for the scope of operation of Rule 108 are
substantial changes and corrections in entries of
the civil register (Lee vs. CA, G.R. No. 118387,
October 11, 2001).
Requisites of Adversarial proceedings:
1. Proper petition is filed where the Civil
Registrar and all parties interested are
impleaded.
2. The order of the hearing must be published
once a week for three consecutive weeks.
3. Notice thereof must be given to the Civil
Registrar and all parties affected thereby.
4. The civil registrar and any person having or
claiming any interest under the entry whose
cancellation or correction is sought may,
within 15 days from notice of the petition or
from the last date of publication of such
notice, file his opposition thereto.
5. Full blown trial.
NOTE: Proceedings for the correction of entries
should not be considered as establishing ones
status in a manner conclusively beyond dispute.
The status corrected would not have a superior
quality for evidentiary purposes. There is no
increase or diminution of substantive right.
(Chiao Ben Lim vs. Zosa.)
PETITIONS FOR
CHANGE OF NAME
RULE 109
APPEALS IN SPECIAL PROCEEDINGS
Section 1. Orders or judgments from which
appeals may be taken.
An interested person may appeal in special
proceedings from such order or judgment
rendered which:
1. Allows or disallows a will;
2. Determines who are the lawful heirs of a
deceased person, or the distributive share of
the estate to which such person is entitled;
1.
SPECIAL PROCEEDING
VENUE
JURISDICTION
2.
Escheat
RTC
RTC
RTC
3.
Appointment of Guardians
4.
Appointment of Trustees
5.
Adoption
Family Court
6.
Rescission of Adoption
Family Court
7.
Habeas Corpus
8.
Change of Name
RTC
9.
Appointment of
Representative of
Absentee/Declaration of
Absence
RTC
10. Cancellation/Correction of
Entries in the Civil Registries
RTC
RTC