RULE 89, 1997

RULES OF COURT
SALES, MORTGAGE, AND OTHER
ENCUMBRANCES OF PROPERTY OF
DECENDENT

RULE 89
When may the court order the sale of personal
properties of the decedent ?

Upon the application of the executor

or administrator, and on written
notice to the heirs and other persons
interested, the court may order the
whole or a part of the personal estate
to be sold, if it appears necessary for
the purpose of paying debts, expenses
of administration, or legacies, or for
the preservation of the property.

RULE 89
When may real properties of the estate of a decedent be
ordered sold, mortgaged, or encumbered?

Real properties of the estate of a decedent be ordered sold,

mortgaged, or encumbered in the following instances:
1.

When the personal estate of the deceased is not sufficient to

pay the debts, expenses and legacies;

2.

When the sale of such personal estate may injure the business
or interests of those interested in the estate;

3.

When a testator has not made sufficient provision for the

payment of his debts, expenses and legacies;

4.

When it appears that the sale of the whole or part of the real
estate will be beneficial to the heirs, devisees, legatees or
other interested persons;

5.

When the deceased was in his lifetime under contract, binding

in law, to deed real property, or an interest therein;

6.

When the deceased in his lifetime held real property in trust for
another person.

RULE 89
May an interested person prevent the sale of real
properties of the decedent and how?

An interested party may prevent such

sale or encumbrance by giving a bond,
in a sum to be fixed by the court,
conditioned to pay the debts,
expenses of administration, and
legacies within such time as the court
directs; and such bond shall be for the
security of creditors, as well as of the
executor or administrator, and may be
prosecuted for the benefit of either.

RULE 89
State the regulations for granting authority to sell, mortgage
or otherwise encumbrance of properties of the decedent.

They are the following :

a.

The executor or administrator shall file a written petition

setting forth the debts due from the deceased, the expenses
of administration, the legacies, the value of the personal
estate, the situation of the estate to be sold, mortgaged, or
otherwise encumbered, and such other facts as will show
that the sale, mortgage, or other encumbrance is necessary
or beneficial;

b.

The court shall thereupon fix a time and place for hearing
such petition, and cause notice stating the nature of the
petition, the reasons for the same, and the time and place
of hearing, to be given personally or by mail to the persons
interested, and may cause such further notice to be given,
by publication or otherwise, as it shall deem proper;

RULE 89
State the regulations for granting authority to sell, mortgage or
otherwise encumbrance of properties of the decedent. ( cont. )

They are the following :

c.

If the court requires it, the executor or administrator shall

give an additional bond, in such sum as the court directs,
conditioned that such executor or administrator will account
for the proceeds of the sale, mortgage, or other
encumbrances;

d. If the requirements in the preceding subdivisions of this

section have been complied with, the court, by order stating
such compliance, may authorize the executor or
administrator to sell, mortgage, or otherwise encumber, in
proper cases, such part of the estate as is deemed
necessary, and in case of sale the court may authorize it to
be public or private, as would be most beneficial to all
parties concerned. The executor or administrator shall be
furnished with a certified copy of such order;

RULE 89
State the regulations for granting authority to sell, mortgage or
otherwise encumbrance of properties of the decedent. ( cont. )

They are the following :

e. If the estate is to be sold at auction, the mode of giving

notice of the time and place of the sale shall be governed
by the provisions concerning notice of execution sale;
f.

There shall be recorded in the registry of deeds of the

province in which the real estate thus sold, mortgaged, or
otherwise encumbered is situated, a certified copy of the
order of the court, together with the deed of the executor
or administrator for such real estate, which shall be as valid
as if the deed had been executed by the deceased in his
lifetim.

RULE 89
What is the nature of the regulations in the sale, mortgage
or encumbrance of the properties of the decedent ?

They are mandatory and failure to

comply has the effect of rendering
the order authorizing the sale,
mortgage or encumbrance, void.
(Gabriel vs. Encarnacion, 94 Phil
917)

RULE 89
May the probate court authorize the conveyance of properties which
the decedent contracted to sell or convey during his lifetime? How
and when?

Yes. Where the deceased was, his lifetime, under a

valid contract to convey real property, the court
having jurisdiction may authorize the executor or
administrator to execute the deed in accordance with
the terms of the contract or with such modifications
as may have been agreed upon by the parties and
approved by the court, provided an application with
due notice to all persons interested, is filed with the
court; and if the contract is to convey real property
to the executor or administrator, the clerk of court
shall execute the deed. However, this conveyance
shall not be allowed if the assets of the estate will be
reduced such that the creditor will not receive his
full debt or dividend.

RULE 89
Is it possible for the probate court to authorize the conveyance
of real property held in trust by the deceased during his lifetime?

Yes. Upon application and with due

notice to all persons interested, the
court having jurisdiction may
authorize the executor or
administrator to deed real property
held in trust by the deceased in his
lifetime in favor of the beneficiary
thereof, or the latters executor or
administrator.