Professional Documents
Culture Documents
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
1. Special proceedings:
a. Settlement of estate of deceased persons
b. Escheat
c. Guardianship and custody of children
d. Trustees
e. Adoption
f. Rescission and revocation of adoption
g. Hospitalization of insane patient
h. Habeas corpus
i. Change of name
j. Voluntary dissolution of corporations
k. Judicial approval of voluntary recognition of minor natural children;
l. Constitution of family home
m. Declaration of absence and death
n. Cancellation of correction of entries in civil registry
ii. MTC – Gross value of the estate does not exceed P200,000/P400,000
b. Escheat
ii. Reversion of land to State for violation of Constitution / Laws: RTC where
land lies in whole or in part
iii. Unclaimed deposits (for 10 years): RTC of province where bank is located
1
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
d. Trustees
h. Habeas corpus
i. SC
ii. CA
iii. RTC (within its respective region)
iv. MTC (in absence of RTC judges in province/city)
Change of name
i. Judicial (Rules of Court): RTC in place where the civil registry is located
2
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
a. Interested parties who are all heirs consents and 3rd parties not prejudiced;
a. Extrajudicial settlement;
2. Extrajudicial settlement
d. Proper only where there are no outstanding debts of the estate at the time of
settlement;
c. Heirs are all of age or the minors are represented by their judicial guardians or
legal representatives;
d. Settlement is made in a public instrument duly filed with the register of deeds;
3
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
d. Available even if there are debts as the court will make provisions for the
payment thereof.
3. Custodian is a person chosen in advance and entrusted with the custody of the will.
It does not refer to a mere possessor of the will.
4. The act penalized in §4 (where the custodian and executor is subjected to a fine for
neglect) is a special statutory offense and is properly prosecuted upon complaint or
information as other criminal offenses created by law (US vs. Guimco)
b. In case of a resident, that he resided within the territorial jurisdiction of the court;
(in the case of non-resident, that he left an estate within such territorial
jurisdiction).
d. Procured by undue and improper influence and pressure on the part of the
beneficiary or of some other person for his/her benefit;
e. Signature of testator was procured by fraud/trick and she/he did not intend
instrument to be will.
3. Differences between petition for probate filed by third persons, and by testator
himself.
4
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
a. Jurisdictional facts;
e. If will has not been delivered to the court, the name of the person having custody
of it.
c. Foreign country was, under the laws of such country, a probate court with
jurisdiction;
a. A minor;
c. A person unfit in the opinion of the court to execute the duties of his trust
2. Requisites for a person to be appointed executor or administrator:
5
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
b. Gives a BOND
c. Competent
a. Jurisdictional facts;
NOTE: Essentially the same as contents of petition for probate, except: (1) latter has
an additional requirement (the last; see Rule 76); and (2) in the latter, no need to name
creditors in the petition.
a. Make and return a complete inventory of the property of the estate which has
come to his possession or knowledge, or the possession of any person for him,
within 3 months;
b. To administer the property of the estate according to the Rules (if administrator)
or according to the will (if executor);
c. To render an account within 1 year and at any other time required by the court;
and
6
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
b. Failure to perform order or judgment of the court or duty prescribed by the rules;
c. Absconds;
d. Becomes insane;
b. Maintain in tenantable repair the houses and other structures and fences
belonging to the estate and deliver the same to the heirs and devisees when
directed to do so by the court; AND
c. Right to the possession and management of the real and personal estate so long
as it is necessary for the payment of debt and expenses of administration.
a. Services rendered by administrator which are not beneficial to the estate in favor
of an heir;
7
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
c. Expenses for repair of property of the estate being used and occupied by him;
b. File a petition in the testate/intestate proceedings asking the court, after notice to
all interested persons, to allow his claim and to direct the executor/administrator
to pay it as an expense of administration.
b. Posted:
i. In 4 public places in PROVINCE of last residence of decedent;
Must be filed within the time specified by the court in its notice, which period
shall not be less than 6 months nor more than 12 months from the date of the first
publication of the notice. HOWEVER, at any time before an order of distribution is
entered, a creditor who failed to file his claim on time may, upon showing good
cause, ask the court to allow him to file his claim. The court may then allow him to
file such claim within a time which shall not exceed 1 month.
b. Foreclose mortgage judicially; and recover deficiency thru claim in probate court;
c. Rely solely on mortgage or security and foreclose the same within statute of
limitations, without the right to recover the deficiency
8
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
b. The deceased in his lifetime had made (or attempted) a fraudulent conveyance of
his property with intent to defraud his creditors, or to avoid any right, debt or duty,
or had made any such conveyance which would be void as against his creditors;
f. A bond is filed by the creditor to indemnify the exec/admin against all costs and
expenses incurred by reason of the action; and
9
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
c. Testator did not make sufficient provisions for payment of debts, expenses of
administration and legacies
1. Remedy of heir who has not received his share of the estate:
move for reopening of the proceedings before the order declaring the same closed
has become final and executory (after 30 days);
b. If not excluded, but only has not yet received his distributive share under the
project of partition:
remedy is not to move for reopening (since proceedings are only deemed closed
upon actual distribution), but to file a motion for execution within the reglementary
period (5 years).
RULE 91 ESCHEATS
Date of hearing shall be not more than 6 months from entry of order fixing date of
hearing.
10
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
RULE 92 VENUE
2. Contents of petition:
b. Minority or incompetency
3. Notice of date and place of hearing to be given to all persons named in the petition
residing in the province, and to the minor himself if over 14 (NOTE: not “14 or over”)
a. Make and return a complete inventory of the property of the estate which has
come to his possession or knowledge, or the possession of any person for him,
within 3 months;
2. Bond may be proceeded against in the same or separate proceeding for the use and
benefit of the ward, or of any other person legally interested in the estate.
11
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
a. When income of ward’s estate is insufficient to maintain ward and his family (if
incompetent), or to maintain and educate the ward (if minor);
Guardian shall then file a verified petition setting forth such facts and praying for
the authority to make such sale or encumbrance
2. Order granting the authority to sell shall last for only 1 year.
1. Every guardian, other than the ward’s parents, shall be allowed the amount of his
reasonable expenses, and compensation which shall not exceed 15% of the NET
income of the estate.
a. Insanity;
c. Waste/mismanagement of estate;
d. Failure to make an account or inventory within 30 days after it has become due
(inventory: due within 3 months from appointment and annually thereafter;
account: due annually)
RULE 98 TRUSTEES
a. If trustee is necessary to carry into effect the provisions of a will, then in the RTC
in which the will was allowed (assuming allowed in the Philippines);
b. Otherwise, then in the RTC of any province in which some property affected by
the trust is situated
12
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
a. Filipino citizen
i. At least 18
ii. Capacity
(1) Full civil capacity and legal rights
(2) Good moral character
(3) No conviction of crime involving moral turpitude
(4) Emotionally and psychologically capable of caring
(5) Able to support in keeping with means of the family
Exceptions:
(1) If the adopter is the biological parent of the adoptee
(2) If the adopter is the spouse of the adoptee’s parent
(3) If the adopter is the sibling of the adoptee (Article IV, §7 of the IRR)
b. Alien
iii.3-year continuous residence – before filing and maintains residence until the
decree is entered
c. Guardian
Exceptions:
*
As modified by R.A. no. 8552 or the Domestic Adoption Act
13
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
3. Contents of petition:
a. Jurisdictional facts;
d. Name, age and residence of the adoptee and his relatives or of the persons who
have him under their care;
c. Illegitimate son/daughter
Even if beyond 18
d. Illegitimate children of adopter, 10 years or over, if living with adopter and the
latter’s spouse, if any.
a. Case study
i. Adoptee
ii. Biological Parents
iii. Adopter
Duty of the social worker to confirm identity and register the child
14
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
enumerates the people who may undertake the case studies, is NOT
exclusive. (A.M. no. 00-8-03-SC, effective September1, 2000)
i. 6-months bonding
c. Decree of adoption
After publication
No opposition
Evidence considered
e. Confidentiality
Records confidential
Adoptee only.
2. Grounds:
b. Attempt on life
c. Sexual assault/violence
15
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
a. Disinheritance
4. Effects of rescission:
Secretary of Health
2. Where petition is filed:
RTC of the province where the person alleged to be insane may be found.
in all cases where in the opinion of the Secretary of Health, such confinement is:
b. for the welfare of a person who in the Secretary’s judgment is insane, and such
person or the one having charge of him is opposed to his being taken to a hospital or
other placed for the insane.
1. The writ of habeas corpus is a writ directed to the person detaining another,
commanding him to produce the body of the prisoner at a designated time and place,
with the day and cause of his caption and detention, to do, submit to, and receive
whatever the court or judge awarding the writ shall consider in that behalf.
c. An excessive penalty has been imposed, the sentence being void as to the
excess.
2. Contents of petition:
16
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
b. If he does, the authority and cause upon which he is held, together with a copy of
the writ, order, execution or other process;
c. If party is in his custody and is not produced, the gravity of his sickness or
infirmity by reason of which he cannot be produced; and
d. If he previously had custody, and has transferred the same to another, then state
to whom, at what time, for what cause, and by what authority such transfer was
made.
4. If it appears that that the prisoner is under custody under a warrant of commitment in
pursuance of law, the return shall be prima facie evidence of the cause of the
restraint. Otherwise, the return shall be only considered as a plea of the facts set
forth, and the party claiming custody must prove the same. Therefore, in the former
case, failure to file a reply to the Return warrants the dismissal of the petition. This is
because unless the allegations are controverted, they are deemed to be true and
admitted, the return being prima facie evidence of the cause of the restraint.
5. PRELIMINARY CITATION – where a person detained under governmental authority and the
illegality of his detention is not patent from the petition for the writ, the court may
issue a citation to the government officer having the person in her/his custody to
show cause why the writ should not issue.
PEREMPTORY WRIT – issued when the cause of detention appears to patently illegal and
the non-compliance therewith is punishable
1. Venue –
2. Contents of petition
17
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
a. That petitioner is a bona fide resident of the province for at least 3 years prior to
the date of the filing of the petition
4. Date of hearing:
cannot be held within 30 days before an election, or within 4 months after last
publication
4 months 30 days
Last publication Hearing Election
5. Title of Petition: Must include name, aliases, and name asked for. Example: “In
Re: Petition for Change of Name of X, alias Y, to Z. X, Petitioner.
6. Publication: must reproduce title of the petition (see above), and contain correct
information as to:
Failure to comply with above requirements renders proceedings null and void
a. Record of birth
b. Will
18
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
a. Jurisdictional facts;
b. Names, ages, and residences of heirs instituted in the will (a copy of which must
be presented) and of the intestate heirs;
c. Names and residences of creditors and other persons with adverse interests over
the properties of the absentee;
2. Notice of hearing:
published once a week for 3 consecutive weeks, and personal notice sent to
all known heirs, legatees, devisees, creditors and other interested persons at least
10 days before the hearing.
2. Parties to proceedings:
b. All persons who have or claim any interest which would be affected thereby
EXTRA: RA 9048 AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL
GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME
OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER
1. Scope:
19
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
any person having direct and personal interest in the correction or change
a. With the local civil registry office of the city or municipality where the record being
sought to be corrected or changed is kept
b. if petitioner has already migrated to another place in the country and it would not
be practical for such party to appear before the local civil registrar keeping the
documents to be corrected or changed: With the local civil registry of the place
where the interested party is presently residing or domiciled
b. New first name or nickname has been habitually and continuously used by the
petitioner and he has been publicly known by that first name or nickname in the
community
a. in the form of an affidavit, subscribed and sworn to before any authorized person
d. state:
e. supported by:
i. a certified true machine copy of the certificate or of the page of the registry
book containing the entry or entries sought to be corrected or changed
ii. at least 2 public or private documents showing the correct entry or entries
upon which the correction or change shall be based
20
R E M E D I A L L AW ( S P E C I A L P R O C E E D I N G S )
MEMORY AI D
A T E N E O C E N T R A L B A R O P E R AT I O N S 2 0 0 2
a. Allowance/disallowance of wills;
f. Final order or judgment rendered in case and affects substantial rights of person
appealing UNLESS it be an order granting or denying a motion for new trial or
motion for reconsideration.
21