REMEDIAL LAW ‘SPECIAL PROCEEDINGS SPECIAL gihOk CE Ree ag ate) nema! Esekakeele) See Toft or prevent oretess | establohment of th ht Special Proceeding is a remedy by which a | Bwrong Stowe a act arly seeks to establish o status, aright or a fee LO uy seetelte eeee ot is govemed by ocinary | We governed by special Peer eee acre eeanen 2 tues supplemented by ” | rue suplemerted by SECTION 1. SUBJECT MATTER oF _ | Scie! rules. (eee SPECIAL PROCEEDINGS Tis ears By cours of Tis hear by cours oF General juiedcton. | ied jrdicton ‘Special Proceedings Enumerated in The cbt arusnentitee Rules OF Court (SEG ErPaneT Vac) ites by pleasing | RSLS 1 Seltement of esate of deceased persons; | and partes respond” | Puan and parton 2. Escheat; ee Ae ‘oppesition. 3. Guardianship and custody of children: Sacre ; 4 Trustees, see 5. Adoption: PraESenTT 8. Restission and revocation of adoption; es ners 7 Hewenon finn persons Ore tomes | fabeas corpus, ae 9. Change of nai; nother forthe Keres by, 10, Voluntary dissolution of corporations: enforcement or | Civil action pny ope 1. Judicial approval of voluntary recognition | protection ot | sutjcsta” | SERS of minor natural children; tight or the ‘specific rules. status, a right or 12. Constitution of family nome; prevention or | a particular fact. 13. Declaration of absence and death; Dectoadauetaata? 14. Cancellation and correction of entries in pee ‘sueee — {he ci registry Govained oy | Orcinaryruies | Goveredby | Other Special Proceedings seaee 2, EDN SORA ang granary Liquidation proceedings a eee : ae z 1 2 Corporate rehabilitation: 3, Recognition and enforcement of arbitration clause or award; 4. Vasalion, setting aside, correction or modification of an arbitral award: 5. Any application with ¢ court for arbitration assistance and supervision ron te SECTION 2. APPLICABILITY OF RULES OF CIVIL ACTIONS In the absence of special provisions, the rules Provided for in ordinary actions shall be, as far a8 practicable, applicable in special proceedings ‘EXECUTIVE COMMITTEE EZEOEL JOSIW)A VLIIRIA overall chalpeeson, MANISTER: ROSES. DRL stpssen for aedemies BIOANIME ROMARE JONRSA haspeison fr hotel opeotins, MAE MICAEIA SIA, AN sleechoae son for sprains: AIRPAR. MAVERICK TOMACDER vc “hap i IACHT 130 LAWS e-hpser foHhanes EAAR Ie TURE setae for ry, US LPI vce truncata YAN MEKCADER suber ck, MARIA DISKET. VEDIO sesstant subject lode, WV FF YRITZ RHACA CAYARAN ip, JANA AA TECSON ond STN THPAZ ci mec KALLA: Ae suc teh tons AIMEE CYAN spc puoevstige OMUURET JOY RARACIDAN cmina procahne CTSA YW HMBARGI AS evens HAMZEL SANTO pil ie -MOERS: he Joy Aol, Gly Grace Ay, Mak eseph Aya, Kise Rakin, zabeth Mae Bongo, Venice Rua, Diana aja a anal Gong, ia Gallego, Nicol Rose Margaret Jamia Frances Dyan Lie Kathe Lm, Lcnsine Manvique, Ronil Mor, Kevin Avec Pangan, Ramla Quinto, Bevety Quintos, Loe Renin Reyes, tyreon Rutr, Faby Save, Cad Taba, Nor Vitonors, Jove gel Davi Kale Orne Lage aye LarosaSan Beda College of Law 2011 CENTRALIZED BAR OPERATIONS SETTLEMENT OF ESTATE OF DECEASED PERSONS RULES 73-90 Procedure in Settlement Proceedings (Judicial) Petition for Probate of wil, Wany (Rule 75-76) Spee Court order fixing the tine and place for probate Publication of hearing for 3 successive ‘weeks. Notice sal also be given to the designaiediknown heirs, legatees and devisees, and the executor if the one petitioning fr allowance of the wil fe not the testator Issuance of Letters Testamentary/Administation (A special administrator may be appointed) dm 77-80% = x - Pblication of Notice for Fling Claims + Filing of Ci (Rule 85) Hd Issuance of Orcer af Payment or Sale of Provertios 4 Payment of Claims SaleinforigaaesEncumbrance of estate properties Distibuton of remainder any] (Buti can Sermade even before | Payment if a bond is filed by the naa Different Modes of Settlement of Estate of a Deceased Person/Presumed Dead 1. Extrajudicial Settlement of Estate (Section 1, Rule 74): Summary Settlement of Estate of Smalt Value (Section 2, Ruio 74), Partition (Rule 69): Probate cf Will (Rule 75 (0 79): Petition for letters oF Administration in cases of intestacy (Ru SECTION 1. WHERE ESTATE OF DECEASED PERSONS SETTLED Venue 1. INHABITANT (Resident) OF THE PHILIPPINES (whether citizen or alien) ~ Court of the provincelcily where he resides at the time of death 2. INHABITANT (Resident) OF FOREIGN COUNTRY ~ Court of any. province wherein he had his estate. Residence means his personal, actual or physical habitation, his actual residence or Place of abode (Fule vs, CA, L-40502, Nov. 29, 1976), ‘The settiement of a decedent's estate is a proceeding in rem. ‘Two Kinds of Settlement 1. Extrajudicial Settlement ~ a proceeding where the decedent had left ao wills and the heirs adjudicate the estate among themseNes without seeking letters of adrninisiration, 2. Judicial Settlement - Testate or intestate preceeding instituted in the country where decedent had his residence or had esiate if nonresiaant By, Liquidals SRstatel pad ts i est courty (eget al Bule: «Probate issue of ownerstip: Was Se ‘Ownership may (be ee \SIQNALLY Gein for be. paioa® ot ipaising probery in-inventory. aihout prajedlce to Fe fra! Orla naan fv sepatae soon, oy ee Oe Winer ‘alt he plartiesijare -heifgloné they submit the issue of ownegehipr to. the probate: cour provided thalatherrights of third parlles’are not préjuaice’d (Gerardo vs C8 TB MBYPOREDB 1963) as7REMEDIAL LAW 3. Question is one of collation or advancement, ‘Other Questions which the Probate Court can Determine 1. Who the heirs of the decedent are; 2. The recognition of a natural child, 3. The validity of disinheritance effected by the testator, 4. Status of a woman who claims to be the awful wife of the decedent; 5. The validity of @ waiver of hereditary Fights; ‘The status of each heir, Whether property in inventory is conjugal or exclusive property of deceased spouse; 2. Matters incidental of collateral to the settlement and distribution of the estate, Exclusionary Rule General Rule: The court first taking cognizance of the settlement cf the estate of the decedent shall exercise jurisdiction to the exclusion of all other ecurts. ‘The probate court acquires juriedietion from the moment the petition for the settiement of estate is filed with said court, it cannot be Givested of such jurisdiction by the subsequent acts of the parties as by entering into extrajudicial partition of the estate (Sandoval- vs, Santiago, L-1723, May 30, 1949); or by filing another petition for settlement in a proper court of concurrent venue (De Boria vs. Tan, 77 Pri 872) Exception: Estoppel by Laches Note: Jurisdiction under Rule 73 Sec. 1 DOES NOT relate to jurisciction per se but to venue. Hence, institution in a court where the decedent is neither an inhabitant nor had his estate may be the subject of walver. (Lifarte vs, CFI, L-21938-39, May 29 1970), Remedy If Venue is Improperly Laid General Rule: ORDINARY APPEAL not certiorari or mandamus, Exception: if want of jurisdiction appears on the record of the case (Rule 73, Section 1). Note: Festate proceedings —_ take PRECEDENCE over intestate proceedings for the same estate Wf during the pondency of intestate proceedings, a will of the decedent is discovered, proceedings for tne probate of the ‘SPECIAL PROCEEDINGS will shall repiace the intestate proceedings even if an administrator had already been appointed therein (Cuenco vs. CA, 1-24742, Oct. 26, 1973). SECTION 2. WHERE THE ESTATE SETTLED UPON DISSOLUTION OF MARRIAGE Upon the death of either the husband or the ‘wife, the partnership affairs must be liquidated in the testate or intestate proceedings of the deceased husband or wife. If both have died, liquidation may be made in the testate or Intestate proceedings of either. SECTION 3. PROCESS ‘The RTC may issue warrants and processes to compel the attendance of witnesses. Writ of Execution General Rule: Probate court cannot issue writs of execution, Ratio: Its orders usually refer to the adjudication of claims against the estete which the executor/administrator may satisfy without the need of executory process. Exceptions: (CEE) 1. To satisfy the contributive share of the devisees, legatees and helrs when the latier had entered prior possession over the estate (Sec. 6, Rule 86), 2. To enforce payment of the expenses of panttion (Sec. 3, Rule 90}; 3. To satsty the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142), " FESUMEINE Dean EF Stidedtions OF LAN rnitg, te Fesubjoal i 1 ALM dobte mut nd 2. Heslgholl recover e ver nave’ ee scat a Heil (at 308 ee swipe found tagether Ay sreperty Cre Lor the “property tsiptine ven fo the TnSan Beda College af Lav 2011 CENTRALIZED BAR OPERATIONS: mee a Cad Genoral Rule: The settlement of the estate of the decedent should be judicially administered through an administrator or executor. Exception: The heirs may resort to: 1. Extrajudicial settlement of estate (Sec. 1): 2. Summary settlement of estates of small value (Sec, 2). Note: in both exceptional circumstances, an administrator or executor need not be appointed under the exceptions. SECTION 1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS Extrajudicial Settlement Procedure in oxtrajudicial” settlement by agreement between/among heirs Division of estate in public instrument or affidavit of adjuceation “The publi ntrumanto fiat of _aquaieasn mate as wi he proper Regi of Doods i Pubieaton af notion ofthe octal exrajieat setiement once s woth fr 3 coneectve weeks na newspaper st Senetlccuaon Fling of bond equivalent to tie valve of personal property Requisites: A. Substantive 1. The dacedent tet - 2. NO wil: b._NO debts. 2 The heirs are all of age or the minors are represented by their judicial or legal representatives duly authorized for the purpose B. Procedurat + Division of estate must be in a PUBLIC INSTRUMENT or by AFFIDAVIT of SELF-ADJUDICATION in the case of a sole heir, Filed with proper Registry of Deeds; Publication of notice of the fact of cextrajucicial settlement once a week for 3 CONSECUTIVE WEEKS; 4. Bond flied equivalent to the value of PERSONAL property, Note: The bond is required only when personally is involved. If is a real estate, It Shall be subject to a lien in favor of creditors, heirs or other persons for the full period of 2 years from such distribution and. such lien ‘cannot be substituted by a bond (Rebong vs. Ibafiez, L-1578, September 30, 1947). ‘The bond is the vaiue of the personal property certified by the parties under oath and CONDITIONED upon payment of just claims fled under Sec. 4, Rule 74. AFFIDAVIT OF SELF ADJUDICATION - it is an affidavit required by Sec 1 of Rule 74 to be ‘executed by the sole heir of @ deceased person in adjudicating to himself the entire estate left by the decedent. Is @ public instrument necessary for the validity of an extrajudicial settlement? NO. Private instrumentidacument or Oral agreement of partion as well as a compromise agreement entered _ without Previous authority of the court is valid among the heirs who participated in the extrajudicial settlement. The requirement under Sec. 1, Rule 74 that it must be in a public instrument is NOT constitutive of the validity but is merely evidentiary in nature (ermandez vs. Andal, (- 273, March 29, 1947}. a ae ts ee ua esti Yahis ake Sete ae uel: immateyial {isi TOT pate | Allowed A TANSWEE bolfyestate Succession Pemectae Oe Tare inigibe nln nese thulibe rigs ouisancg denis he teste at th ume ob Seca, [Silty apoorette Sy J 159REMEDIAL LAW SPECIAL PROCEEDINGS ery Sea PARTY even bya . Order of hearing published, ONCE A WEEK FOR 3 CONSECUTIVE WEEKS in a newspaper of general circulation, Notice shail be served upon such interested persons as the courl may direct: 260 4. Bond in an amount fixed by the court (not value of personal property) conditioned upon payment of just claims under Sec. 4. Procedure in Summary Sottloment of Estates of Small Value Applicaton for summary eetiament ‘with an allegation thatthe gross value of the estate does not exceed P40, 000.00 Publication of notioe ofthe fact of summary settlement ance a week for 2 cansecutve weeks in a newspaper of general ereulation {the court may alsa order notice to be given to other persons as such court may direct Hearing to be held not less than 1 month ror more than 3 months from the date of ° the last publication of notice SSeS eeSee eee Court to procaed summary, without appointing ‘on executor/administrator, and fo make orders ‘ae may be necassary, such 2, oC jasessnssnansanl SOIAGISIASESINGISL [[Siaiowace afte a Ta Persons entiied to estate Pay debts of estate which are cue Filing of bond fixed by the court ee. Parthion of the estate Secu Bob 10 Be HebsbY DISTRIBUIEES 7 Se eee Sto ot court, une an, oxtrajiidicial: st where the organ is. personalSan Meda College of Law 2011 CENTRALIZED BAR OPERATIONS SECTION 4. LIABILITY OF DISTRIBUTEES AND ESTATE, When settlement of estates in the courts may be compelled: 1. If there is an undue deprivation of fawful participation in the estate: 2. The existence of debts against the estate; 3. if there is an undue deprivation of lawful participation payable in money. Note: The bar against distributes from objecting to an extrajudicial partition atter the expiration of two years is applicable only’ 2. To persons who have participated or taken: part or had notice of the extrajudicial partition, and b. When all the persons or heirs of the decedent nave taken part in the extrajudicial settlement (Sampilo vs. CA, £10474, February 28, 1958) Remedies of the Aggrieved Parties After Settiement of tho Estate Within two (2) yrs. - claim against the bond or the real estate or both (Rule 74, Sec. 4} 2 Rescission in case of pretertion of compulsory heir in partition tainted with bad faith (Article 1104, NCC): Reconveyance of real property; Action to annul 3 deed of extrajudicial settlement on the ground of fraud which should be filed within 4 years from the discovery of trauss Potition for Relief on the ground of FAME ~ fraud, accident, mistake, excusable negligence ~ 60 days after the petitioner learns of the juégment, final order ot other proceeding to be set aside, and not more than 6 months after such judgment or final order was entered (Rule 38); Reopening by Intervention within anytime before rendition of judgment, as long as it is within the reglementary' period of 2 year New ‘action to annul settlement within regiomentary periad of 2 years An heir deprived of his share may file an action for reconveyance based on an im oF constructive trust which prescribes 10 years from the date of registration or date of issuance of certificate of title or from actual discovery of fraud ifthe registration was made in bad faith (Marquez vs, CA, GR No. 128715. December 29, 1998) Where the estate has been summarily settled, the unpaid creditor may, within 2 years, fle 2 motion in court wherein such summary settlement was had, for the payment of his credit, After the lapse of 2 years, an ordinary action may be insttuted against the distributees within the statute of limitations BUT NOT acainst the bond, ‘The 2-year fen upon the real property distributed by extrajudicial or summary settlement shall be annotated on the title issued to the distributes and after 2 years will be cancelled by the register of deeds without need of court order (LC CIRCULAR 143). Such lien cannot “be discharged nor the annotation be cancelled within the 2 year period even if the distributees offer to post a bond to answer for contingent claims from which lien is established (Rebong vs. Jbanez, 11578, September 30, 1947) SECTION 5. PERIOD FOR CLAIM OF MINOR OR INCAPACITATED PERSON If on the date of the expiration of the two-year period, the creditor or heir is 4. Amminor: or 2. incapacitated; or 3, in prison; or 4. Outside the Philippines He may present his claim within ONE YEAR atter such disability is removed (Sec. 5 Rule 75), ica oun its ua ee sald ESSARY, SECTION Acca EONCLUSWE AS'TO EXEC Nati of Probas Ingen bin of personal pune os ae However.’a-wil may Bélsystainag én the basis ‘of AMtible: 4080. Of the Tay) Code which states. that “ifsthé testajor should make # partitign’of his propertieg by an act inter vivés, oF BY-wvill, Such partition shall stand In.80'far 23 does 6aREMEDIAL LAW ‘SPECIAL PROCEEDINGS legitimé of the forced heir" (Mang-Oy vs. CA, L-27421, September 12, 1986), 3. ‘Imprescriptible ~ because of the public policy to obey the will of the testator. 4, The doctrine of estoppel does not apply. ‘The presentation and probate of the wil is required by public policy. It involves public interest (Femandez vs, Dimagiba, L- 23698, October 12, 1967). SECTION 2, CUSTODIAN OF WILL TO DELIVER : The custodian must deliver the wil to the court or to the executor within 20 days after he leams of the death of the testator. SECTION 3. EXECUTOR TO PRESENT WILL AND ACCEPT OR REFUSE TRUST The executor of the will shall, within 20 days after he knows of the testator's death or after he knows that he is named an executor if he knows it atter the testator's death shall 1. Present the will to the court (unless it has Teached the court in any other manner). and 2. Signity in writing his acceptance or refusal of the trust. SECTION 4. CUSTODIAN AND EXECUTOR ‘SUBJECT TO FINE FOR NEGLECT Afine not exceeding ° 2,000. SECTION 5. PERSON RETAINING WILL MAY BE COMMITTED. tes oy ier trace penetra Probate is the act of proving in 2 court a document purporting 10 be the last will ane testament of a deceased person in order that It may be officially recognized, registered and Provisions carried out insofar as they are in Accordance with the law (siso refermad fo as allowance of the wil, SECTION 4. WHO MAY PETITION FOR THE ALLOWANCE OF WiLL, Executor, 2. Devisee ar legatee named in the wil 3. Person inieresied in the estate; (ov heirs) 162 An INTERESTED PARTY is ons who would be benefited by the estate, such 2¢ aan heir, or one who has a claim against the estate, such as a creditor (Sumilarig vs Ramagosa, 1-23135, December 26, 1967) 4. Testator himself during his lifetime; 5. Any creditor - as preparatory step for fling of his claim therein (Regalado, p.30), Who may be a party in probate? Jn general, any person having a direct and ‘material interest in the will or estate. SECTION 2. CONTENTS OF PETITION 1. The jurisdictional facts ~ death of the testator and his residence at the time of Geath or the province where estate was left by the decedent who is a non-resident; 2, The names, ages, and residences of the heirs, legates, ‘and devisees of the testator or decedent; 3. The probable value and character of the property of the estate: 4. The name of the person for whom letters are prayed; and 5, The name of the person having custody of the wil if it has not been delivered to the court But no defect in the petition shall render void the allowance of the will, or the issuance of letiers testamentary or of administration with the will annexed, Effect of the Probate of a Will tis conclusive as to the EXECUTION and the VALIDITY of the wil (even against the State) Thus, a criminal case against the forger may not le after the wil has been probated, Issue In the, i) extige vaisiy Hat MMe nHttfble. vata valdieoyteslammbntary aopottion dV = SSan Beda College of Lav 2011 CENTRALIZED BAR OPERATIONS Is apparent on its face (Acain vs. IAC GR No. 72706, October 27, 1987; Nepumuceno-vs. CA, L-62952, October 9, 1985). Extrinsic Validity means due execution of the wil. Moaning of Due Execution That the will was executed sticily in accordance with the formalities required by faw; 2. That the testator was of sound and disposing mind when he executed the 3, That there was no vitiation of consent through duress, fear or threats! 4. That it was not procured by undue or improper pressure or influence on the part of the beneficiary, or some other person for his benefit; 5, That the signature of the testator is genuine. ie., it was not procured through fraud and that the testator intended that what he executed was his last will and testament, SECTION 3. COURT TO APPOINT TIME FOR PROVING WILL. NOTICE THEREOF TO BE PUBLISHED Jurisdictional Requirements PUBLICATION for 3 WEEKS successively of the order setting the case for hearing AND sending NOTICES to all persons interested are JURISDICTIONAL REQUIREMENTS. If the petition for probate is on the testator’s ‘own initiative during his lifetime (Ante Mortem) 1. No publication is necessary (Sec. 3); and 2. Notice shall be made only to the compulsory heirs (Sec. 4). Note: Three (3) weeks successively is not strictly 21 days, It is sufficient that publication has been made once a week successively three times, even if less than twenty- one days intervened between the first and last publication SECTION 4. HEIRS, DEVISEES, LEGATEES, AND EXECUTORS TO BE NOTIFIED BY SAIL OR PERSONALLY Persons to be Given Notice: 1. Designated or known heirs, legatees and devisees, and 2 Execuior and co-executor if not the petitioner, ‘Modes of Notification 1, IF by mall: 20 days before hearing 2. IF through personal service: 10 days before hearing SECTION 5. PROOF AT HEARING. WHAT SUFFICIENT IN ABSENCE OF CONTEST Atthe hearing, compliance of publication and ‘notice must first be shown before introduction of testimony in suppor of the will Evidence Required in Support of a Will 1. Uncontested will (Sec.5) a. Notarial Wills - Testimony of at least ‘one of the subscribing witnesses may be allowed, if such witness testifies that the will was executed as is required by law. i If all subscribing witnesses reside outside the province — deposition is allowed (See.7) i, If the subscribing witnesses aro dead, insane, or none of them resides in the Philippines ~ The court may admit testimony of other witnesses to prove the sanity of the testator, and the ‘due execution of the wil, and as evidence of the execution of the will, may admit proof of the handwriting of the testator and fof the subscribing witnesses or of any of them (Sec. 8). b. Holographic Wills - the testimony of fone witness who knows the handwriting and signature of the testator. In the absence thereof and if the court deem it necessary, expert testimony may he resorted to. 2. Gontested Wil (Sec.11) 2 Notarial Wi nce subscribing oe 5 y-aealthe wines ee eee il Tle eS! Sond cre, he a AY Bo alowed ‘the Yeourt’'¢,. selisied from) the Tesimeny of ater upigesse! gh rom il the evideris eented tgethe wl alee an” atte: ‘in the ec by oman igh ny eae on SE spiepet ¢ > 163REMEDIAL LAW ‘SPECIAL PROCEEDINGS b. Holographic Wills - 3 witnesses who know the handwriting of testator. In the absence thereof and if the court doom it necessary, testimony of an expert witness may be resorted to HOWEVER, in Codoy vs. Calugay, GR no. 123486, Aug. 12, 1999, SC ruled that if the holographic willis. contested, 3 witnesses who know the handwriting and signature of the testator are now required/mandatory to prove its authenticity and for ts allowance. General Rule: A holographic will if destroyed CANNOT be probated, Exception: if there exists a Photostatic or Xerox copy thereof (Gan vs. Yap, L-12190, August 30, 1956). SECTION 6. PROOF OF LOST OR DESTROYED = WILL. CERTIFICATE THEREUPON This section applies 10 a lost or destroyed notarial will and not to a holographic wil FACTS which should be PROVED in order that @ lost or destroyed will may be allowed! 1. That the will has been duly executed by the testator; 2. That the will was in existence when the testator died, of If it was net, that it has been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge: ana 3. The provisions of the will are cleanly established by at least two credible witnesses, SECTION 7. PROOF WHEN WITNESSES DO NOT RESIDE IN PROVINCE SECTION 8. PROOF WHEN WITNESSES DEAD OR INSANE OR DO NOT RESIDE IN THE PHILIPPINES SECTION 8. GROUNDS FOR DISALLOWING WiLL Grounds provided for are exclusive: (rious) 1. Hot executed and attested as required by law: (formalities) If the testator was insane, of otherwise ‘mentally incapable to make a wil, at the time of ts execution, 164 3. If it was executed under duress, or the Influence of fear, or throats; 4, If it was procured by undue and improper Pressure and influence, on the part of the beneficiary, or of some other person for his benefit, 5. if the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the fime of fixing his signature thereto. Substantial Compliance Rule If the will has been executed in substantial compliance with the formalities of the law, and the possibitiy of bad faith and fraud is obviated, said will should be admitted to probate (Art. 809, NCC). Separate wills which contain essentially the same provisions and pertain to properties ‘which in all probability are conjugal in nature, practical considerations dictate their joint probate (Va, De Perez vs. Tolete, GR. No. 76714, Juno 2, 1994) SECTION 10. CONTESTANT TO FILE GROUNDS OF CONTEST Contestant must: 1. Stale in writing his grounds for opposing the allowance of the will and 2. Serve a copy thereof to petitioner and other interested partias. SECTION 11. SUBSCRIBING WITNESSES PRODUCED OR ACCOUNTED FOR WHERE WILL CONTESTED. SECTION 12. PROOF WHERE TESTATOR PETITIONS — FOR ALLOWANCE OF HOLOGRAPHIC WILL ig ro is ndiantest testator, fi" that” the: holographic awrifanc., (he Sofatire are in ie code hare SuTesger euidenee ot tne Genuine nes nd Sve etseuteh hoger ages Ge Incas corte ay A prot on the contestant Pe SECTION: | 13; ALLOWANCE ATTACHEL WILL. 7Q.BE RECORDED IN OF REGISTER OF: poneSan Meda College of Zaww 2011 CENTRALIZED BAR OPERATIONS een aat Me a) Cada an oy Ul ADMINISTRATION OF ESTATE Manet ‘SECTION 4: WILL PROVED OUTSIDE THE PHILIPPINES MAY BE PROVED HERE. \tis a requirement that a wil that was probated Ina foreign country be re-probated in the Philippines. if the decedent owns properties in different countries, separate proceedings must bbe had to cover the same. SECTION 2: NOTICE OF HEARING FOR ALLOWANCE. What should be filed: Patition for allowance accompanied with: 1. Authenticated copy of the will 2. Authenticated decree of the allowance thereof. ‘The court will then fix a time and place for hearing and cause notice thereof to be given, Matters to be proven during a re-probate proceeding: 1. That the testator was domiciled in a forelgn county. 2, That the will igs been admitted to probate in such country: 3. That the foreign court was, under the laws of ‘said forelgn country, a probate court with jurisdiction over the proceedings; 4, The lew on probate procedure in sald foreign country proof of compliance therewith; end 5. The legal requirements in sald foreign country for the valid execution of the will Effects of the allowance of a will under Fale 7: ‘The’ will shall be treated as if originally proved and allowed in Philippine courts; 2. Letters testamentary or administration with will annexed shall extend to all estates in the Philippines, 3. After payment of just debts and expenses Cf administration, the residue of the estate shall be disposed of 3s provided by law in cases of estates in the Phitppimes belonging to persons who are inhabitants cf another state or country Notes: in the absence of proof of the forsh law, it is presumed that itis the same as that in the Philippines. testator ane appay The venue for the petition for re-probate is the same as that provided for in Rule 73. Rimage erat) eNO MELE Go Creme) Who can administer the estate? 1. Executor - the one named by the testator in his will for the administration of his property after his death, 2. Administrator, regular or special (Rule 60) ~ the one ‘appointed by the Court in accordance with the Rules or governing statutes to administer and settle the intestate estate, 3. Administrator with a will annexed (Rule 79, Section 1) - the one appointed by the court in cases when, slthough there is a will, the will does not appoint any executor, or if appointed, said person is either incapacitated or unwilling to seve as such, Who may serve as an executor or administrator? ‘Any COMPETENT person may serve as executor or administrator, SECTION 1. WHO ARE INCOMPETENT To SERVE AS EXECUTORS = OR ADMINISTRATORS: 4. A minor 2. Anonresident; 3. One who in the opinion of the court is unfit to exercise the duties of the trust by reason of: a. ies a Bidteorty: Connor ee aR oneal Itng 4 She executor: oF C ; adiister the estate ofp tekeator, Appeirtedby fr Hi gpae He stat ot Nominstediby the: eihcecrogua st annexéc) orf the will vas disalloyed ce it a Porsopidid nct make 2 eatapestle Sugbebsion by court 165,REMEDIAL LAW ‘SPECIAL PROCEEDINGS itor ‘Must present wil to the ‘court within 20 days after he knows ofthe ‘death of teatator or ater he knew that he was ‘appointed as executor (ithe obiained such knowledge after death oftestator), uniess the will hes reached the ‘court in any manner No such duty TTestator may provide that he may serve without a bond (BUT | Required untess court may direct him to | exempted by law sive a bond conditioned ‘only to pay debts) ‘Compensation may be provided for by the Compensation is testator inthe wil, ‘govemed by See. 7, otherwise Sec. 7, Rute | Rule 8S 85 il be followed. SECTION 2. EXECUTOR OF EXECUTOR NOT TO ADMINISTER ESTATE SECTION 3. MARRIED WOMEN MAY SERVE SECTION 4. LETTERS "TESTAMENTARY ISSUED WHEN WILL ALLOWED. Letters Testamentary is an authority issued to an executor named in the will fo administer the estate. Letters of Administration is 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 is an authority issued by the court to @ COMPETENT person to administer the estate of the deceased Ifthe executor named in the will refused to accept the office SECTION WHERE SOME co. EXECUTORS DISQUALIFIED, OTHERS MAY ACT SECTION 6. WHEN ARD TO WHOM LETTERS OF ADMINISTRATION GRANTED Order of Preference in Granting Letters of Administration 1. The surviving husband of wite oF the next of kin, oF both jn the discretion of the court, fof to such person as such surviving Spouse oF next of kin, requests to have 166 appointed, if competent and willing to serve (SURVIVING SPOUSE OR NEXT OF KIN OR THEIR NOMINEE); Next of Kin has been defined as those persons who are entitled by law to receive the decedent's property (Regalado, Remedial Law Compendium, (2008), p. 46). 2. Ifthe surviving spouse or the next of kin or the person selected by them be incompetent or unwilling to serve, of if the surviving spouse or next of kin neglects for 30 days after the death of the decedent to apply for administration by them or their nominee, ANY one or more of the PRINCIPAL CREDITORS, if competent and willing to serve; 3. If there is no such creditor competent and willing to serve, it may be granted to such ‘other person as the court may select (STRANGER), Note: As 2 general rule, the court cannot set aside the order of preference under Sec. 6 Rute 76. Exception: In case the persons who have the preferential right to be appointed under the RULE are not competent or are unwiling to serve, administration or they neglect to apply for letters of administration for 30 days afer the decedent's death, the letters may be granted to such other person as the court may apport. The Order of Appointment of Regular Administrator ie final and eppealeble. Basis for the Preferenti Right ‘The underiyingugssUBBUSAEEtpiatsoce who ib coap ee nde ceaipical Bt svatign of ne etc en Pe ane tae BE UE coer waste" iinprovidehoe of inisanagerhénth tne higher interest ang paeetnuertial mete co ee vs. aati weet Note: a forthe, benef interestec 2675. Seope or mI The general Fug only to the asséts ofSan Beda College of Lan 2011 CENTRALIZED BAR OPERATIONS the state or country where it was granted, so that an administrator appointed in one state or country has no power over the property in another state or country (Leon —_v. Manufacturers Life Insurance Co. 90 Phil. 459, 463), RSA Do OR GA enor CN aca ie etd EOUISuanueh SECTION 1. OPPOSITION TO ISSUANCE OF LETTERS _TESTAMENTARY. SIMULTANEOUS PETITION FOR ADMINISTRATION The main issue is the determination of the Person who is rightfully entitled to. administration Persons to oppose the issuance of letter Any person interested in the wil, In order to be a patty, @ person must have material and direct, and not one that is only indirect or contingent, interest. The opposition may be accompanied by a Patition for the issuance of Letters of Administration with the will annexed. SECTION 2, CONTENTS OF A PETITION FOR LETTERS OF ADMINISTRATION 4. The jurisdictional facts: ‘The names, ages. residences of heirs and the names and ages of the creditors; 3. The probable value and character of the estate; and 4. The name of the person for whom letters are prayed for, No defect dr the peiltion strait render void the Issuance of the letters of administration. SECTION 3. COURT TO SET TIME FOR HEARING, NOTICE THEREOF Publication for 3 weeks and notice to heirs, creditors and other persons believed to hav: an interest in the estate is required before hearing, Note: Sec 3 of this Rule is JURISDICTIONAL, ‘Where no notice as required by this section has been given to persons believed to have an interest in the estate of the deceased person, the proceeding for the settlement of the estate is void and should be annutied (Eusebio vs. Valmores G.R. No. L-7019, May 31, 1958). SECTION 4. OPPOSITION TO PETITION FOR ADMINISTRATION Grounds for Opposition: 1. Incompetence; 2. Preferential right of the heir under Sec. 6, Rule 78. SECTION 5. HEARING AND ORDER FOR LETTERS TO ISSUE Letters of Administration shall issue if it is proven that 1. Notice as required in Sec. 3 was given; and 2. The decedent left no will or there is no competent and wiling executor. SECTION 6. WHEN LETTERS OF ADMINISTRATION GRANTED TO ANY APPLICANT Letters can be granted to any person or any other applicant even if other competent persons are present if the latter fail to claim their letters when notified by the court ieee ica SECTION 14. APPOINTMENT OF SPECIAL ADMINISTRATOR When may a probate court appoint a special administrator? 1. Delay in granting of tetters by any cause Including appeal In the probate of the will, 2, Executor is a claimant of the estate he represents (Seotion 8 Rule 86) ‘Ba jocelP tan nave tne ar boa aennne thagia general arn ori ppc a i The Bete decerded ED 78 of the Rules oF Court! toa su Souse mars "He EaBonerane St seieoubr Sammistaiol, NOT. 10. that of spect ea recs, igetee fae Moccioear me ee Br cnpleiin the laters lid probate. cou ts. Do Guirea: GR No” iguembor 29, 1966)ape. gt oe 167REMEDIAL LAW ea ert ‘Order of Appointment Order of Appointment | is NTERLOCUTORY is FINAL and is pny APPEALABLE ApEn AB ‘One of the obligations isto pay the debts of || Cannot pay debts of Senee the estate ‘Appoinied when ‘Appointed when there ‘decedent died le delay in granting intestate or did nat | letters testamentary or ‘appoint an executor in| administration or when {he wil ocwilwas | the executors @ disallowed, leimant of the estate, SECTION 2. POWERS AND DUTIES OF SPECIAL ADMINISTRATOR 4. Possession and charge of the goods, chattels, rights, oredits, and estate of the deceased; 2. Preserve the same; 3, Commence and maintain suit for the estate: 4, Sell ONLY: 2. Perishable property; and b. Other property ordered sold by the court, 5. Pay debls ONLY as may be ordered by the court ‘The special administrator has also the duty to submit an inventory and to render an accounting of his administration as required by the terms of his bond (See 4, Rule 81). SECTION 3. WHEN POWERS OF SPECIAL ADMINISTRATOR CEASE. TRANSFER OF EFFECTS. PENDING SUITS When does the power of a special administrator cease? After the questions causing the delay are resolved and letlers are granted to regular executor or administrator. [san appointment of a special administrator appealable? NO, as expressly provided for in See. 4, Rule 109, HOWEVER, appointment of @ REGULAR ADMINISTRATOR is appealabie because itis a final order Note: it is possible for the executor or administiator whose appointment is 68 SPECIAL PROCEEDINGS challenged by appeal to be appointed also as the special administrator pending such appeal. ‘There is no harm in appointing the same person as special administrator because there is a vast difference between the powers and duties of the two positions. While 2 special administrator may commence ‘and maintain suits under Sec. 2, he cannot be sued by a creditor for the payment of the debts of the deceased (De Gala vs. Gonzales, et al, 53 Phil 704). Such suit must await the appointment of regular administrator. terra ass Cees SECTION 4. BOND TO BE GIVEN BEFORE ISSUANCE OF LETTERS. AMOUNT. CONDITIONS. When filed: Before an executor or administrator enters upon the execution of his trust Amount: To be fixed by the court Conditions of the Bond: i. Make within 3 MONTHS a true and complete INVENTORY of the property of the deceased which came to his knowledge and possession; 2. ADMINISTER the estate’ and pay and discharge all debts, legacies and charges, Including dividends declared by the court from the proceeds 3, Render a true and just ACCOUNT within ONE YEAR and when required by the court 4. PERFORM all orders of the court Amini pone Gareitons % a the. plebate eal Tetans. asi the bah arpa Feb, aso Sirciy ¥8 Yanuay 3 1984). SECTION, BOND. OF EXECUTOR: DIRECTED IN WILL WHENSURTHER;BOND REQUIRED, EE ee Even it the tela hae dregt Siri win tat his executor Serve tno sa"BUd, the courtSan Beda College of Lav 2011 CENTRALIZED BAR OPERATIONS may stil require him to file a bond conditioned. conly to pay the debts of the testator. SECTION 3. BONDS OF JOINT EXECUTORS AND ADMINISTRATORS SECTION 4. BOND OF SPECIAL ADMINISTRATOR Conditions of the Bonds: 1. Make and return a true inventory; 2. Render accounting when required by court; and 3. Deliver the estate to the person appointed executor or administrator or other authorized persons. The bond is effective as long as the court has Jurisdiction over the proceedings, Riera ave hd CUA Ue ALTA eo AND REMOVAL OF EXECUTORS AND. COURSES SECTION 1, ADMINISTRATION REVOKED IF WILL DISCOVERED. PROCEEDINGS THEREUPON When letters revoked and powers cease When the decedent's will is allowed and proved by the court after the issuance of letters of administration Duty of Administrator upon revecation of the letters, 4. Sumrender the letters to the court; and 2, Render his account within such time as the court may direct. Whether the intestate proceeding already commenced should be discontinued and a ew proceeding under a separate number and tile should be constituted is entirely a matter of form and lies within the sound discretion of the court (Reynosa vs. Santiago, L-3039, December 29, 1949), Note: The discovery of a will does NOT ipso facto nullify the letters of administration ready issued untit the will hac beers proved and allowed pursuant to Rule 82. Sec. 1 (Oe Paneno vs. Arunzanso, GR No. L-27657. Aug. 36. 198: SECTION 2. COURT MAY REMOVE OR ACCEPT RESIGNATION OF EXECUTOR OR ADMINISTRATOR. PROCEEDINGS UPON DEATH, RESIGNATION OR REMOVAL Grounds for Removal of Executor or Administrator 1, Neglect to render accounts (within 1 year and when required by the cour), 2. Neglect to settie estate according to these rules; 3. Neglect to perform an order or judgment of the court or a duty expressly provided by these rules; 4, Absconding; or 5. Insanity or incapability or unsuitability 10 discharge the trust Other Valid Grounds For Removal Of An Administrator: 1. Adverse interest of an administrator to that of the state (Garcia v. Vasquez, 32 SCRA 490). 2. Physical’ inability ana consequent unsuitability to manage the estate (De Borja v. Tan, 93 Phil 167). False representation by an administrator in securing his appointment (Cabarrublas v. Dizon, 76 Phi 209), The Order of Removal is APPEALABLE (Borromee v, Borromeo, 97 Phit, 548). Note: Grouncs are NOT exclusive. The position of the administrator is one of jence and when the court finds that the administrator's not entitled to. such confidence, It is justified in withdrawing the appointment and giving ne valid efficacy thereto (Cobarubias vs. Dizon, 1-226, February 26, 1946) ‘Dogroe of is eee ee a fens@pable diligence anise in entralgaee famigie rotormance ofa ust ee section a acis eee iON, Lawful dete: of an administrator or: @kdoutor before the levscation; resignation, or refnoval are valid 169_ REMEDIAL LAW SPECIAL PROCEEDINGS ‘SECTION 4. POWERS OF NEW EXECUTOR OR ADMINISTRATOR. RENEWAL OF LICENSE TO SELL REAL ESTATE Power of the New Administrator 1, Collect and seitle the estate not administered; 2. Prosecute or defend actions commenced by or against the former executor or ‘administrator; and Have execution on judgments recovered in the name of former executor or ‘administrator. Executor or Authority to sell previously given to the former executor or administrator may be renewed without notice or hearing, eere nner anee acct aaa ed SECTION 1. INVENTORY AND APPRAISAL TO BE RETURNED WITHIN THREE MONTHS Inventory and appraisal must be made within 3 MONTHS from the grant of letters testamentary or of administration, The three-month period is not mandatory. The fact that an inventory was fed after the three-month period would not deprive the Probate court of jurisdiction to approve it. However, an administrator's unexplained dolay in fling the inventory may be a ground for his removal (Sebial vs. Sebial, L-23419, June 27. 1975) Approval of en inventory is not a conclusive determination of what assets constituted the decedent's estate and of the valuation thereof ‘Such determination is only provisional and a rina Facie finding of the issue of ownership, Property claimes by third parsons may be included in the inventory as part of the assets Of the estate and the probate court may order such inclusion, but such order of the probate court is only a prima facie determination and does not preclude the claimants from ‘maintaining an ordinary civil action for the determination of tile (Vala, De Paz v. Vda, Do Madtrigat, 100 Pht 1085}. 170 SECTION 2. CERTAIN ARTICLES NOT TO BE INVENTORIED 1. Wearing apparel of the surviving spouse and minor children; 2. Marriage bed and bedding: 3. Provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased. ‘SECTION 3. ALLOWANCE TO WIDOW AND FAMILY Allowance fefers to the monetary advances Which are subject to collation and are likewise deductible from their share in the estate of the decedent. Persons entitled to allowance during proceedings 1. Legitimate surviving spouse (Nepomuceno vs. CA, L-62952, October 9, 1985); and 2. Children of the decedent. Note: According to Art. 188 of the Civil Code, the chiliren need not be minors or incapactated to be entitled to allowance (Santero vs. CFI of Cavite, GR No. 61700-03, ‘Sept. 24, 1987). Grandchildren are NOT entitled to allowance under Rule 83 (Rulz vs. CA, G.R. No. 118671, January 29, 7986). When liabilities exceed the assets of the estate. his widow and children are not entitled to support pending the liquidation of the intestate estate, on the ground that such support, having the character of an advance payment, to be deducted from the respective share of each heir during distribution (Wagner vs. Moor, L-25842, March 18, 1927) ies SEE a ities taco SUT Feiienes SECTION | 1. {| EXEGE ADMINISTRATOR" 70) PARTNERSHIP BOOKS "At HOW RIGHT ENFORCED secrion’, ie PEON ck ADMINISTRATOR, 70. KEEP! / BUIEDINGS IN REPAIR OURS Bar Gee oatsSan Beda College ot Law 2011 CENTRALIZED BAR OPERATIONS SECTION 3. EXECUTOR or ADMINISTRATOR TO RETAIN WHOLE ESTATE TO PAY DEBTS AND TO ADMINISTER ESTATE NOT WILLED. Powers of the Executor or Administrator of the Estate (BERIP) 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 maintain in tenantable repairs, houses and other structures and fences and to eliver the same in such repair to the heirs of devisees when directed so to do by the court, 4, To make jmprovemenié on the properties under administration with the necessary court approval except for necessary repairs; 5, “To possess and manage the estate when necessary 2. For the payment of debts: and For payment of expenses of ‘administration, Some Restrictions on the Power of an Administrator or Executor 4. Cannot acquire by purchase, even’ at public or judicial auction, either in person or mediation of another, the property under administration: 2. Cannot borrow money without authority of the cour; 3 Cannot " speculate with fund under administration: 4. Cannot lease the property for mare than fone year, Cannot continue the business of the deceased unless authorized by the court, 6 Cannot profit by the increase or decrease im the ‘velue of the property under adrministration, Note: The right of an executor or administrator to the possession and managenient of the real ‘and personal properties of the deceased is NOT absolute and can only be exercised so jong as iis necessary for the payinenl of the debis and expenses of the administration (Estate of Hilavio Ruiz v. CA. GR No. 1586711. 252 SCRA 541), Rear ne COMPENSATION OF EXECUTO BONS SECTION 4. EXECUTOR «OR ADMINISTRATOR CHARGEAELE WITH ALL ESTATE AND INCOME 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 falled to recover part of the estate which came to his knowledge, SECTION 2 NOT TO PROFIT BY INCREASE OR LOSE BY DECREASE IN VALUE ‘Administrator or executor shall not profit by the ingrease of the estate nor be liable for any decrease which the estate, without his fauit, ‘might have sustained, SECTION 3. WHEN NOT ACCOUNTABLE FOR DEBTS DUE ESTATE The executor or administrator is not accountable if debt remains uncollected vwetnout his fault SECTION 4. ACCOUNTABLE FOR INCOME FROM REALTY USED BY HIM cetues; oF The persons jpfefestedsuiter loss amREMEDIAL LAW ‘SPECIAL PROCEEDINGS SECTION 6. WHEN ALLOWED MONEY PAID AS COSTS SECTION 7. WHAT EXPENSES AND FEES ALLOWED. EXECUTOR OR ADMINISTRATOR. NOT TO CHARGE FOR SERVICES. AS ATTORNEY. COMPENSATION PROVIDED BY WILL CONTROLS UNLESS RENOUNCED Expenses of Administration refers to those necessary for the management of the property, for protecting It against destruction or deterioration, and possibly for the production of fut, Compensation if there Is No Provision in the Will 1. P4.00 a day for the time actually and necessarily employed; OR 2, COMMISSION. 3. A GREATER SUM may be allowed if a. the estate is large: b. the settlement has been attended with great difficulty: ©. the settlement has required a high degree of capacity of the executor or administrator. An administrator may not recover atlomey's fees from the estate; his compensation is fixed by the rule but such compensation is in the nature of executor’s or administrator's, commissions, and never as attomey's fees Procedure for Collection of Attomey's Fees 1 Request the administrator 0 make: payment and file an action against him in his personel capacity and not as administrator should he fail to pay; or 2. Petition in the testate or intestate proceeding asking the court, after notice to all persons interested, 10 allow his claim and direct the administrator to pay it ae an ‘expense of adrminietration, SECTION 6. WHEN EXECUTOR OR ADMINISTRATOR TO RENDER ACCOUNT General Rule: Within one year from the time. of receiving letlers testamentary or lelters of administration Exception: An oxtension of lime is allowed by the court for presenting claims against, or paying the debis of the estate, or for disposing Of the estate; and he shall render such further accounts as'the court may requie until the estate is wholly settled, 172 The fact that the final accounts had been approved does not divest the court of jurisdiction to require supplemental accounting for, aside from the initial accounting, the Rules provide that “he shall render such further accounts as the court may require until the estate is wholly settied.” SECTION 9. EXAMINATIONS ON OATH WITH RESPECT TO ACCOUNT Examination may be dispensed with when: 1. No objection is made to the allowance of the account; and 2, Its correctness is satisfactorily established by competent proof. The heirs, levatees, distributes and creditors have the same prisilege of being examined SECTION 10, ACCOUNT TO BE SETTLED ON NOTICE SECTION 11. SURETY ON BOND MAY BE PARTY TO ACCOUNTING. Ried SECTION 4. NOTICE TO CREDITORS TO BE ISSUED BY COURT Im refers to any debt or pecuniary demand against the decedent's estate. When may the court. issue notices to creditors to file their claims? Immediately after granting letters testamentary oF of administration, Purpose: For the speedy setlement of the aifare of the deceased. person and eaty delvery of theaocg iio te Pegg of te HSA Fee cath eh BE Gein casa be presei FE GE Law hes i Flleral expenses; angSun Beda College of Lao 2011 CENTRALIZED BAR OPERATIONS The heirs, even alter distribution, are lable for Innertance and estate taxes. (Government of the Philippine istands vs. Pamintuan, L-33139, October 11, 1936). SECTION 2. TIME WITHIN WHICH CLAIMS. SHALL BE FILED. Statute of Non-Claims is the period fixed by the rule for the fling of the claims against the estate, REASON for the Rute For the speedy settlement of the affairs of the deceased and the early delivery of the property to the distributes, legates or hairs. When to File Claims General Rule: Within the time fixed in the hotice which shall not be more than 12 MONTHS nor less than 6 MONTHS after the date of the FIRST PUBLICATION. Otherwise, they are BARRED FOREVER, + | Even ifthe testator acknowledged the debt in his will and instructed the executor to Pay the debt, the statute of non-clams ‘must stil be complied with; otherwise the claim may also be barred Exception: BELATED CLAIMS Belated Claims are claims not filed within the original period fixed by the cour. On application of a creditor who has failed to file his claim within the time previously limited, at ANY TIME BEFORE an order of distribution is entered, the court may, for cause shown and fon such terms as are equitable, allow such claim to be filed within a’ time NOT EXCEEDING 1 MONTH from the order allowing belated claims, Take Note: The Statute of Non-Claims SUPERSEDES the Statute of Limitations insofar as the debts of deceased persons are concemed because if 2 creditor fails to file his claim within fhe time fixed by the court in the otice, then the claim is barred forever. However, BOTH statute of Non-Claims and Statute of Limitations MUST CONCUR in order for a creditor to collect HOWEVER, a creditor barred by the Statue of Nomclaims’ may file a claim as a COUNTERCLAIM in any suit that the executor or administrator may bring against such creditor (Sec 5). SECTION 3. PUBLICATION OF NOTICE TO CREDITORS. Publish the notice for 3 successive weeks in a newspaper of general circulation in. the province and post the same in 4 public places in the province and in 2 public places in the ‘municipality where the decedent last resided. SECTION 4. FILING COPY OF PRINTED NOTICE. Ten {10} days after publication and posting. Note: A notice to creditors to file their claims is not proper if only @ special administrator has been appointed as a special administrator is generally not empowered to pay the debts of the deceased (Sec. 2, Rule 60) and his bond, Unlike that of a regular administrator, is not ‘conditioned upon the payment of such debts (Regalado, Vol. 2, 19” ed, p. 74). SECTION 5. CLAIMS WHICH MUST BE FILED UNDER NOTICE. IF NOT FILED, BARRED; EXCEPTIONS. Clzims referred to under this section refer to claims for the recovery of money and which are not secured by a lien against the property of the estate (Olave vs. Canlas, 1-12709, February 28, 1962) Claims which should be filed under the Statute of Non-claims 1. Money claims, debts incurred by deceased during his lifetime arising trom contract: 2, Express or Implied, b, Que or not due; ._ Absolute or contingent. 2. Claims for funeral expenses: 3. For the last iiness of the decedent 4 eo tb vated under tie Ful subjecet anaton aga eee oF ‘administrator (Sec. 1, RuleB7) of against the halts (Bevamata vs, Rol £ 24096: Nov. +8 1967.) ee Be oe Unpaid taxes are. slotute of none claus. a5 these’ Bre eon igations created (VereRet al, ys Fetfandes, ef hb 31S teh 30, 173REMEDIAL LAW SPECIAL PROCEEDINGS Absolute Claim is such a claim as, if contested between living persons, would’ be Proper subject of immediate legal action and Would supply a basis of a judgment for a cum certain. Contingent Claim is a conditional claim or claim that Is subject to the happening of a future uncertain event. Claims not yet due or contingent may be approved at their present value A deficiency judgment Is a contingent claim and therefore, must be filed with the probate court where the settlement of the deceased is, pending, within the period fixed for the filing of Claims (First National City Bank of New York v. Cheng Tan, 4 SCRA 501), rrr) pe Claim is not ‘extinguished by death | Personal toither of | but shall be | the parties and Is prosecuted as @ ‘extinguished by death | money claim against the estate of the deceased nl Exanple contsctva money ceim | Examples: legal ‘Separation, annuiment of marriage, eciaration of nulity of mariage Where the defendant dies while the action for @ sum of money is pending against him in the Court of Appeals, he shall be substitutes therein by his legal representative but the final judgment of the appellate court shail not be enforceable by a writ of execution but should be fled in the probate court as a money claim in accordance with Sec. 5 of Rule 86 (Paredes, et al. v, Moya, 1-38057, Dec. 26, 1973) If final judgment had already been rendered against the decedent prior ta his death, but without levy on execution having been effected against his property, such judgment must alse be filed as a claim against the estate in the manner provided for by this Rule. if levy has already “been made before his death, ‘execution shall procesd, (See. 7fe). Rule SECTION 6. SOLIOARY OBLIGATION OF DECEDENT Claim should be fied against decedent as if he were the only debtor without preutice on the 174 part of the estate to recover contribution trom the other debtor. Joint obligation of decedent ‘The claim must be confined to the portion belonging to the decedent. SECTION 7. MORTGAGE DEBT DUE FROM ESTATE Creditor Holding a Claim Secured by a ‘Mortgage or Other Collateral Security Alternative Romodics: (AFR) Abandon or waive the security and prosecute his claim against the estate and Share in the general distribution of the assets cf the estate; 2. Foreciose his mortgage or realize upon his ‘security by action In court making the executor or administaior a party defendant and if there is judgment for DEFICIENCY, he may file a claim (contingent) against the estate within the statute of non-ciaims; 3. Rely solely on his mortgage and foreciose Gudicial “or extrajudicial) the same at anytime within the period of the statute of limitations but he cannot be admitted 2s 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 @. CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST AN ESTATE This is one of the instances where a special aérinnicbe ie gpenics Te pee meg act only ci reney Pe POP) ee Aw Tee How ea 2 A wp How to file a clain W "Deliver the Galt win. me. negeBoay vovehers te tnaicieicet cout. 2. Serve. copy. thereot.bf Ine exscilr or sximinisraton 2 5. Ihe clans den must be sippeted by Sridavt Sting 1h8-ompunt-dee and the fact thot there Has been 16 ctselsSan Beda College of Zaw 2011 CENTRALIZED BAR OPERATIONS 4, if the claim is not due or contingent, it must be accompanied by affidavit stating the particulars thereot, 5. Executor must fie his answer fo the claim within 18 days after service of a copy of the claim SECTION 10. ANSWER OF EXECUTOR OR ADMINISTRATOR. OFFSETS Executor shail fle answer within 15 days from service of claim. The executor or administrator may interpose any counterciaim in offset of 3 claim against the estate. Said counterclaim is regarded as a compulsory counterciaim as the fallure to fle the same shall bar the claim forever. SECTION 11. DISPOSITION OF ADMITTED CLAIM The heir, tegatee or devise may oppose the ciaim admitted by the executor or administrator. SECTION 12. TRIAL OF CONTESTED CLAIM refer the claim The cour may wo a commissioner SECTION 13. JUDGMENT APPEALABLE Judgment against the and aciministrator shall not create any Hen upon the Property of the estaie or does not constitute @ specific in which may be reaistered on such Property. Judgment of a probate court approving or disapproving a claim is appealable, Note: The mode of appeal is record on appeal and must be filed within 30 DAYS ‘rom notice of judgment SECTION 14. cosTS eto caro pier SECTION 1, ACTIONS WHICH MAY AND WHICH MAY NOT BE BROUGHT AGAINST EXECUTOR AND ADMINISTRATOR ‘Actions which may be commenced directly it the executor of administrator: 4. Recovery of real or personal property or any interest therein from the estate; 2. Enforcement of a lion thereon, 3. Acton to recover damages for any injury fo person or property, real or personal (ortuous acts). These are actions that SURVIVE the death of the decedent ‘An action for revival of money judgment may be filed against the administrator to preempt Prescription of judgment (Romualdez vs. Tigiao, 1-51151, July 24, 1981). Rule 87, S00. 7 | Retions that may be commenced directly gainsl the executor ‘and administrator | Aalions that may be commenced against the estate of the deceased Toney las, Gable incurred by the deceased during bis Iietime arising frr contract Claims for funeral expenses oF for the Action to recover last lnass of the damages arising fram | cecedent tort. sluagment for money sins! decedent Recovery of real personal property (or any interest therein} from the estate; Enforcement of a ben thereon: TON 2 acto) sechon HGR Soy 5 Fesiduelis kriown} the heits no catige meng he or abe She recht le Flo legal property of dency of 75REMEDIAL LAW SPECIAL PROCEEDINGS Exception W the executor or administrator is unwilling fr refuses to bring sult; and 2 When the administrator is alleged to have participated in the act complained of and he is made a party defendant. SECTION 4. EXECUTOR OR ADMINISTRATOR MAY COMPOUND WITH DEBTOR SECTION 5. MORTGAGE DUE ESTATE MAY BE FORECLOSED Note: There is no need of a special authority from the court for the administrator or executor to bring an action for foreciosure on behalt of the estate (Calmbas vs. Paguio, 1-22197, December 2, 1924), SECTION 6, PROCEEDINGS WHEN PROPERTY CONCEALED, EMBEZZLED, OR FRAUDULENTLY CONVEYED Purpose: To elicit information or to secure evidence from those persons suspected of having possession or knowledge of property or witl of the deceased, or of having concealed, embezzled or conveyed away any properties of the deceased, SECTION 7. PERSON ENTRUSTED WITH ESTATE COMPELLED TO RENDER ACCOUNT SECTION 8, EMBEZZLEMENT BEFORE LETTERS ISSUED The responsible person shall be liable to an action in favor of the executor or administrator of the estate for double the value of the property sold, embezzied, or alienated, to be recovered for tha benefit of the estate, SECTION 9. PROPERTY FRAUDULENTLY CONVEYED BY DECEASED MAY BE RECOVERED. WHEN EXECUTOR OR. ADMINISTRATOR MUST BRING ACTION This provision applies when there is a deficiency of assets in the hands of the executor of administrator for the payment of the cebts and expenses for administration The executor or administrator may, an his awn iniative or on option of the creditors and as sirected by the court instilule an action for the recovery of seit property, but the court may direct the creditors to deftay part of the costs and expenses of the sul since said action is for thelt own benefit (Regrlad, p. 93). 176 SECTION 10. WHEN CREDITOR MAY BRING ACTION. LIEN FOR COSTS Requisites Before Action may be filed by Creditors: (D-FAN LaB2N) 1. There is a deficiency of assets in the hands of an executor or administrator for the payment of debis and expenses of administration; 2. The deceased in his lifetime had made or attempted to make a fraudulent conveyance of his property or had so conveyed such property that by law the conveyance would be void as against his creditors; 3. The subject of the attempted conveyance would be liable to attachment in his lfeuime; 4, The executor or administrator has shown fo desire to fle action or failed to institute the same within 2 reasonable time; 5 Leave is granted by the court to the Creditor fo file the action; A bond is filed by the creditor, ‘The action by the creditor is in the name of the executor or administrator. Note: The lest 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 the creditors. ie aud gu ee boeus SECTION 1. DEBTS PAID IN FULL IF ESTATE SUFFICIENT A wit of execution is not the proper procedure to satisfy debts. The court must ORDER THE degedent, raza fen upon a'propery of 2 ao prgeedure is for the Sut sao fateh the gh preter the wil,San Beda College of Law 2011 CENTRALIZED BAR OPERATIONS. 2. From the personal property, and 3. From the real property. Exception: The court, on petition of interested Parties, may modify such order of disposition. 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 fits not sufficient, such part of the estate as 's not disposed of by wil, if any, shall be appropriated for that purpose. SECTION 3. PERSONALTY _ FIRST CHARGEABLE FOR DEBTS, THEN REALTY ‘Two (2) Instances When Realty is Liable for Debts and Expenses 1. When the personal estate of the decedent is not sufficient for that purpose: 2, Where the sale of such personally would be to the detriment of the participants of the estate, SECTION 4. ESTATE TO BE RETAINED TO MEET CONTINGENT CLAIMS Hf the court is satisfied that the contingent claim duly filed is valid, it may order the executor or administrator fo retain in his hands a sufficient part of the estate to pay a portion equal to the dividend of the creditors. Requisites: 4. Contingent claim is duly filed: 2. Court is satisfied that the claim is valid and 3. The claim nas become absolute, SECTION 5. HOW CONTINGENT CLAIM BECOMING ABSOLUTE IN TWO YEARS ALLOWED AND PAID. 1. If such contingent claim becomes absotute and is presented to th cur as an absolute claim within two years from the time allowed for the presentation of claims, it will be paid in the same manner as the other absolute claims 2. If the contingent claim matures after tite expiration of the two years, the creditors, may sue the distributes, who are fable in proportion to the shares in the estate respectively received by them (Jaucian vs Quero}, L-11307, Octover 5, 1918) It has been ruled thet the only instance wherein a creditor can fle an action against @ distributee of the debtor's assets is under Sec. 5, Rule 88 of the Rules of Cour. The contingent clsims must. first have been established and allowed in the probate court before the creditors can file an action directly against the distributes (De Bauilista vs. De Guzman, L-26298, November 25, 1983). SECTION 6. COURT TO FIX CONTRIBUTIVE SHARES WHERE DEVISEES, LEGATEES, OR HEIRS HAVE BEEN IN POSSESSION SECTION 7. ORDER OF PAYMENT IF ESTATE INSOLVENT estate Is insolvent, as in liabilities are more than the assets, Sec.7 in roletion to Art, 1059 and 2239 f0' 2251 of the Civil Code (Concurrence and Preference of Credits) must epply. SECTION 8. DIVIDENDS TO BE PAID IN PROPORTION TO CLAIMS. SECTION 9, ESTATE OF INSOLVENT NONRESIDENT, HOW DISPOSED OF Im case administration is token in the Philippines of the estate of @ person wha was at the time of his death an inhabitant of another country, and who died INSOLVENT. his estate in the Philppmes shall be so disposed of that his cresitors in and ouside: the Philippines may receive an equal share, in proportion to their respactive credits, SECTION 10. WHEN AND HOW CLAIM ee ad ae cet Egtare P of avai n the Of Un INSOLVENT RESIGENT and te wil be distributed equally among: those efeitos Principle of Reciprocity 7 The benefits of Sections’9 ain 10:earinot be extended fe Ye treeiors in another county i the propertlyof stich ‘ceceasedspeison there found Is “nBtwequally apportioned to the Greditors residingifthe Philippines 7REMEDIAL LAW SECTION 11. ORDER FOR PAYMENT OF DEBTS SECTION 12, ORDERS RELATING TO PAYMENT OF DEBTS WHERE APPEAL 1S TAKEN. SECTION 13. WHEN SUBSEQUENT DISTRIBUTION OF ASSETS ORDERED Conditions: 4. Whole of the debts are not paid; 2. Whole assets are not distributed, OR other assets afterwards come to the hands of the executor or administrator. SECTION 14, CREDITORS TO BE PAID IN ACCORDANGE WITH TERMS OF ORDER SECTION 15. TIME FOR PAYING DEBTS AND LEGACIES FIXED, OR EXTENDED AFTER NOTICE, WITHIN WHAT PERIODS. Shall not exceed 4 year in the frst instance. But court may extend period on application of executor or administrator and after hearing {and notice on the following conditions: 1. The extension must not exceed six months for single extension. 2. The whole perica allowed to the original executor or administrator shall not exceed 2 years. Note: The provision is directory and extensions of the period may be granted by ‘the court taking into account the circumstances attending the distribution of the estate (Regalado, Vol. 2, 11" ed, p. 96). SECTION 16. SUCCESSOR OF OEAD EXECUTOR OR ADMINISTRATOR MAY HAVE TIME EXTENDED ON NOTICE WITHIN A CERTAIN PERIOD Successor of deceased executor or administrator may be given an extension not to exceed 6 months, SECTION 4 PERSONALTY ORDER OF SALE OF The court may order the whole of part of the PERSONAL estate to be sold if necessary 1. To pay debts and expenses of administration: SPECIAL PROCEEDINGS 2. To pay legacies; or 3. To cover expenses for the preservation of the estate, SECTION 2. WHEN COURT MAY AUTHORIZE SALE, MORTGAGE, OR OTHER ENCUMBRANCE OF REALTY TO PAY DEBTS AND LEGACIES THOUGH PERSONALTY NOT EXHAUSTED, 1. If personal estate is NOT sufficient to pay debts, expenses of administration and legacies; or 2. If the sale of personal estate may injure the business or other interests of those Interested in the estate; and 3. If the testator has NOT made sumcient provision for payment of such debts, ‘expenses and legacies; 4. If the 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 teal property in trust for another person (Section 9); Requisites: 1, Application of Executor/Administrator 2. Written notice to heirs, devisees and fegatees; and 3. Hearing. Note: Assets in the hands of executor/administrator will not be reduced to prevent a creditor from receiving his full debt (or diminish his dividends, Notice’ is mandatory. Without notice and hearing, the sele, mortuage or encumbrance is void. : The iasoa etd. Bs tiabaje ell are he presume owners Siné8! they sucBésd 16. allthe rights Spic obfigalion oF the deceased from thé Wicnigitbor thellets coat, ahey ae thereat affected by the,sele or morgage é - hese cannotbe depfives 61 the: property! exlepr in the manner provided by lawe(Mencqlaniy vs Bown, 1-27876, Apni 22, 7992).."" S SECTION2. PERSONS INTERESTED MAY PREVENT ‘SUCH SALE, ETC., BYSGIVING BOND ; ¥ io £ IF the oapositdate the salig"based on the fact that the” dppositor Stlewshaper of general cicxation “Jedgmany grantingidenying the-change of | ~osttiieg gerne dion une Dipte! en agy sass seater 209REMEDIAL LAW SECTION 1. VENUE ‘The RTC of the province where the petitioner has been residing for 3 years prior to the filing of the petition. * Achange of name is a proceeding IN REM and as such, strict compliance with alt jurisdictional requirements, particularly on publication, is essential in order to vest the ‘count with jurisdiction (Herrera, p. 511) SECTION 2. CONTENTS OF PETITION 4, That petitioner is a bona fide resident of the province where petition is filed for at least three years prior to the date of fling; Cause for change of name; Name asked for, Ail names by which petitioner is known (Secan Kok vs. Republic, -27621, August 30, 1973). + The petition shall be signed and verified by the person desiring his name changed or some other person in his behatt ‘+ Requirement of verification Is 2 formal, and NOT a jurisdictional requisite. It is not ‘a ground for dismissing petition Jurisdictional Requirements 4. The verified petition should be published for three successive weeks in some Rewspaper of general circulation in the province; 2. Both the title or caption of the petition and its body shel recite a. Nameinames or aliases of the applicant: b. Cause for which the change of name is sought: ©. New name asked for. (Secan Kok vs. Republic, supra.) Ratio: A change of name Is a matter of public. Interest (Secan Kok vs. Republic, supra). SECTION 3. ORDER FOR HEARING Hearing shall not be within 30 days prior to an ‘election nor within 4 MONTHS affer the LAST PUBLICATION of notice of hearing, Effect of Discrepancy in the Petition and Published Order ‘The defect in the petition and the order, as to the spelling of the name of the petitioner. is substantial, because it dia not correctly identity the party' to sad proceedings {Tan vs Republic, L-16384, Apt! 26, 1962) 210 SPECIAL PROCEEDINGS Grounds for Change of Name (R-CHEN) 1, Name is sidiculous, tainted with dishonor or extremely dificult to write or pronounce, 2. Consequence of a change of status; ©.9. legitimated child; 3. Habitual and continuous use and has been known since childhood by a Fitipino name, unaware of her alien parentage: 4. A:sincere desire to adopt a Filipino name to grase signs of former alienage, all in good faith and without _prejudicing anybody, oF 5. Necessity to avoid confusion; Title of Petition Must Contain the Following: 4. Official name (birth certificate) ~ be very particular with the spelling because it may avoid or annul the proceedings; it is jurisdictional; 2. All sliases; and 3. Name asked for. Note: All the names or aliases must appear in the tile or caption of the petition, because the reader usually merely glances at the ttle of ‘the petition and may only proceed to read the ‘entire petition if the title is of interest to him (Secan Kok vs, Republic, supra). | The notinclusion of all the names of aliases of the applicant in the caption of the order or in the title of the petition defeats the very purpose of the required publication (Republic vs. Zosa, L-48702, Sept, 12, 1988), SECTION 4. HEARING SECTION 5. JUDGMENT SECTION 6. SERVICE OF JUDGMENT oof ds sgn Rule 103 oa Cece ee eee :} register eroogisnh=, Ee iene | Sos ge 2 | nogresider eee Che cia includes Bigege IE | yooateelyeabtfr and name. change, ottgbname oF Sic | nikeSan Beda College of Lato 2011 CENTRALIZED BAR OPERATIONS SUeerren rer Ceca gaat) ones Note: Dissolution of corporations should now be filéd wit the Securities and Exchange Commission and is covered by Tile XIV, Sections 117 to 122 of the Corporation Code of the Philippines. AM. No. 00-11-03-SC, promulgated on November 21, 2000, designated some RTC branches NATIONWIDE also known as Corporate courts) to try and decide SEC cases enumerated under Sec. 5 of P.D. 902-A RUS ene acca Mem a nore ett Tey Rea) Note: The matter of the filiations of ilegitimate Chiiren and the proof thereof is governed by Articles 172 and 173, in relation to Article 175, of the Family Code. Art. 172. The Sliation of legitimate children is established by any of the following 1 The record of birth appearing in the civil register or a final judgment; of 2. An admission of legitimate filation in @ public document or a private handwritten instrument and signed by the parent concemed, In the absence of the foregoing evidence, the legitimate fiiation shal be proved by: 1. The open and continuous possession of the status of a legitimate child; or 2. Any other means allowed by the Rules of Court and special laws. (2659, 266a, 2670) In effect, Judicial approval of voluntary recognition is required only when fiiation is proved by’ 4. Open and continuous possession of status of a legitimate child; or 2 Any cther means allowed by the Rules of Court and other special laws. (Gona-Javier v. CA, 239 SCRA 503) Art. 173. The action to clsim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs chall have 2 period of five years within which to institute the action, Art. 175. Wiesitimate chiigren may establish their illegitimate filation in the same way and. ‘on the same evidence as legitimate children. ‘The action must be brought within the ‘same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought: dung the lifetime of the alleged parent PU Un Ska HOME Note: The rule has already been repealed by the Family Code, which took effect on August 3, 1988, Note: There is no need to constitute the family home judicially or extrajudicilly. if the family actually resides in the premises, it is, therefore, a family home as contemplated by lew. Includes persons suffering the penalty of ‘Gul interdiction or who are hospitalized lepers, prodigais, deaf and ‘Sumb who are unable to read and write, those Who sre of unsound ‘mind, and persons who ‘are unable to take care of themselves and ‘manage their property by reason of age, disease, weak mind and ftter similar causes. ‘One who disappears from hie domisle and his whareabauts being ‘unknown and without hhaving lef an agent to administer his property Or the power of agent has expired, der of heady Beis i esi ss reg orld ak fest etre afer its publcetd mae newssSaper of Sereral a roulatewosh ty court te ti gat zaREMEDIAL LAW SPECIAL PROCEEDINGS Procedures in the Rule on Absentees Peition for Appointment of Representative ‘Application for Declaration of absence ‘nd appointment of Trustee or ‘Administrator n of Adminitration/ Trusteeship Appointment of Representative: + When a person disappears, whereabouts ‘are unknown, leaves no agent or upon expiration of power of agent, during the first two (2) years. Declaration of Absonce and Appointment of Administrator: + When “a person disappears and_ stil without any news since the receipt of the last news about him, after two (2) years if without administrator or after five (5) years ‘f with administrator + Petition may be instituted by (a) the Spouse present; (b) the heirs instituted in a wil; (6) relatives who would succeed by aw of intestacy: (6) those who have over the property:cf the absentee some right Subordinated to the condition of his death SECTION 4 REPRESENTATIVE APPOINTMENT OF SECTION 2, DECLARATION OF ABSENCE; WHO MAY PETITION Who May File A Petition for Appointment of Administrator or Trustee: 1. The spouse present; 2. The heirs instituted in @ wil, whe may Present an authentic copy of the same: 3. The relatives who would succeed by the lew of intestacy, 4. Those who have over the property of the absentee some right subordinated to the condition of his death, Purpose of Petition: To appoint an administrator over the properties of the absentee, Hence, if absentee fet no. Properties, such petition is unnecessary SECTION 3. CONTENTS OF PETITION 1. The jurisdictional facts 2 The names, ages, and residences of the heirs instituted in the wil, copy of which 212 shall be presented, and of the relatives who would succeed by the law of intestacy; 3. The names and residences of creditors and others who may have any adverse interest over the property of the absentee; 4. The probable value, location and character of the property belonging to the absentee, Patton far Appointment of Representative (unless the C2 years | absentee left an agent to administer his property) DyeasT years Peiition for dectaration of (Syearsto7 | absence and appointment of. years incase the | administrator or trustee may be ‘absentee lett an | fled agen) Considered cad for all intents ‘and purpeses except for urpases of succession (it ‘isappeared unser Beyond 7 years | syeraorainary circumstances, (Gosence of | ited dead st SEBS eres, | purposes, even succession); Riasrsnary | Eo perpoacs cr Mortage’ years continuous absence shall be suticiant for present spouse to remany, 2 years only under ‘extraordinary circumstance SECTION 4. TIME OF HEARING; NOTICE AND PUBLICATION THEREOF Copies of the notice of the time and place fixed for the hearing shall be served upon the known heirs, legatses, devisees, creditors and other interested persons, at least ten (10) days eae ; mo. ee i cottefuive weeks! Brin Ao desigiiod fox the hearloa, ip: crafts mat wher 8 aljsentge re seen | ' SECTION's. !OPROSITION | Se. oeeege Oppositer mut 1. Stale wedi 2 Seed other: tenes % Fees, 2 restediparties on of Welore the oo ORDER SECTION 6, PROOR)AT: MEARINSan Beda College of Law 2011 CENTRALIZED BAR OPERATIONS SECTION 7. WHO MAY BE APPOINTED Appointment of Representative/Trustee: 1. Spouse present (preferred); or 2. Any competent person. SECTION 3. ADMINISTRATION TERMINATION OF Grounds for Administration Absentee appears personally or through an agent; 2. Absentee’s death is proven and heirs appear, 3, Third person appears showing that he acquired tite over the property of the absentee. Termination of the General rule: No independent action for Declaration of Presumption of Death. Exception: The need fer deciaration of Presumptive death for purposes of remarriage (Aticle 41 of the Farnity Coce). Note: The Family Code provides thet for the purpose of contracting a second marriage, the present spouse must file a summary Proceeding for the declaration of the Presumptive death of the absentee, without Drejudice to the latter's reappearance. RULE 108: CANCELLATION OR CORRECTION OF ENTRIES IN THE CIViL feceuats Procedure for Cancellation or Correction of Entrios under Rule 108 Pilon for Cancellation or ‘Correction of any entry refating to an ‘acl, event order or decree {onceening the civil status ¥ ‘Court order fixing the dete and place fer Hearing t Publication ofthe court order atleast once a week for 3 successive weeks in a newspaper ‘of general circulation, with reasonable notice siver to persons named in the petition Fling of opposition by the civil registrar and ny person having/ciaiming interast under the enity whose cancellatonicoraction is ought, ‘within 15 days from notica of tha pation or fiom the last date of publication ofthe notice Hearing on the Petillon “Judgment granting/aenying the pation, Copy ‘ofthe judgment shal be served upon the owl | registrar, who shall annotate,the same SECTION 4. WHO MAY FILE PETITION Any person interested in any act, event, order or, sce sean ae of RILEY he BrBvince wn coffffpoMaing.civikrégitirais estes Proseeitings ot summary oF ade 4. es lanes ; dyersati the i a S nally pay or gry oer substaftial 213REMEDIAL LAW SPECIAL PROCEEDINGS Requisites of Adversarial Proceedings 1, Proper petition is filed where the Civil Registrar and all parties interested are impleaged; 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 oF 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 noticg, file his opposition thereto; 5. Full blown tral + Proceedings for the correction of entries should not be considered as establishing one’s status in 3 manner conclusively beyond dispute. The status corrected would not havé_a Superior quality for evidentiary purposes. There is no increase fF diminution of substantive right (Chiao Ben Lim vs. Zosa, L- 49252, December 29, 1986) SECTION 2. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION (BMD LAVLAA- NEC Jvc) Births, ‘Marriages; Deaths; Legal separations; Judgments of annulments of marriage; Judgments declaring marriages void from the beginning: 7. Legitimations, 8. Adoptions, 9. Acknowledgments of natural children; 40. Naturalization; 11. Election, loss or recovery of citizenshig; 12. Givi interdiction; 13. Judicia! determination of fliation: 14. Voluntary emancipation of a minor, 15. Change of name + Even substantial errors Jn a civil registry May be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceedings (Republic vs, Valencia, (-22181, March 5 1986) Adversarial Proceeding means one thal has opposing parties; contested ax distinguished from an ex parto application, one of which the party seeking relief fas given legal warning to the other party, and afforded the latler an 2a ‘opportunity to contest it (Republic v. Valencia, ‘No. L-32161, Mar. 5, 1986). Rule 108, when all the procedural requirements thereunder are followed, is the ‘appropriate adversary proceeding to effect ‘substantial correction and changes in entries of the civil register (Lee v. CA, G.R. No. L- 198387, Oct. 11, 2001). SECTION 3. PARTIES 1. Civil registrar: 2. All persons who have or claim any interest which would be affected thereby, ‘SECTION 4. NOTICE AND PUBLICATION Order of hearing shall be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province and all persons named in the petition shall be notified. SECTION 5, OPPOSITION ‘The following are entited to oppose the petition: 1. The Clull Registrar; and 2. Any person having or claiming any interest Under the entry whose cancellation or correction is sought. Within 15 days from notice of the petition or from date of last publication, SECTION 6. EXPEDITING PROCEEDINGS ‘The court may also grant preliminary injunetion ‘or the preservation of the rights of the parties pending such proceedings. SECTION 7. ORDER. ‘thé Civil Regisiter stall BEGWEAEE py of ahd annatst, hg gare on Petitions for the Coen es oe Pettign fo be Hed a. be RTE hore he fg? potivon@nresidas. peteSan Beda College of Zao 2017 CENTRALIZED BAR OPERATIONS Ce er Toney ea ers coer (Rule 103) ees (eer Solicitor General must ‘also be notified by service ofa copy of the petition Pelion is fied by any ‘person interested in any ACT, EVENT, ORDER ‘or DECREE concerning the cil status of persons, ‘Order shalt also be published once a week for three consecutive ‘weeks and court shal ‘cause reasonable notice to persons named in pation, ‘Oniy typographical terrors may be changes. Petition is fled by person desiring to change his name, (Order for hearing shall bbe published once a week for three consecutive weeks, | Firstname of Taat name (there must be may be changed, Service of judgment shall be upon the civ register concerned. Republic Act No. 9048 which was passed by Congress on February 8, 2001 substantially amended Article 412 of tne New Civil Code, te wit: No entry in @ civil register shall be changed of corrected without 3 judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concemed city of municipal civil registrar or consul general in accordance with the provisions Of this Act and its implementing rules and Fegulations, Clerical or typographical error refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name or misspelled place of birth or the like which is visible to the eyes or obvious to the understanding. and can be corrected or changed only by reference to other existing record or records: Proviiod, however. That no correction must involve the change of nationality, age, status or sex of the peiltioner (Sec. 2(3) RA 9046) Note: The law is clear. 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 Clerical or typographical 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, GR No. 118387, October 11, 2007), Patition for change of name (Rule 103) and petition for cancellation or correction of entries (Rule 108) are DISTINCT PROCEEDINGS. Hence, a party cannot change name and correct an entry in a single petition without satisfying the jurisdictional requirements, Grounds: 1. The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; 2. The new first name or nickname has been habitually-and continuously used by the petitioner and he has been publicly known by the first name or nickname in the community; oF 3. The change wil avoid contusion. Who may file; Any person of legal age, having direct and personal interest in the correction of a clerical or typographical error in ‘an entry and/or change of first name or nickname in the civil register Person with direct and personal interest:

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