REMREV2 NOTES || BRONDIAL 2014

SPECIAL PROCEEDINGSNOTE: Declaration of absence and death: There is no such thing as declaration of deathit should be absence leading to the declaration of death.

These are the only things, which we will be discussing in Special Proceedings (I will state them in the order of importance, procedurally speaking):

1. Settlement of Estates- states the meat of special proceedings

2. Adoption- although this is already studied in civil law; it is important because of the new rule on adoption, not the laws on adoption (R.A. 3552, the Domestic Adoption Act of 1998 as well as R.A. 8043, the Inter Country Adoption Law of 1995)not that because that is substantive. I am talking of the new rule on adoption which took effect sometime in August 2004. I thats why I think its the second most important thing to discuss here.

3. Rule 103 in relation to Rule 108, Change of Name and Correction of Entry..again, because of the new law. So the possibility of being asked in the BAR is great. (Read also R.A. 9048)

4. Guardianship- practically the same rules of procedure as settlement of estate..only that in settlement of estate, the subject is dead unlike in guardianship, the subject is still alive. Physically alive, but mentally dead or a minor. That is the difference between the two.

5. Habeas Corpus- a peculiar kind of special proceeding

6. Escheat

7. Trust (not the trust you buy in Mercury, but relationtrust relation)

All the rest, we will not discuss anymore. Voluntary Dissolution of Corporations; Declaration of Absence & Death; Hospitalization of Insane Persons(but, I still advise you to read), even the Constitution of the Family Home.

If I were an examiner, I would definitely ask in Special Proceedings, Settlement of Estate and next to Settlement of Estate would be Adoption and next to that would be Habeas Corpus.

Note that even in last years BAR examination there was no question on special proceedings because utmost you get only one question for BAR purposes, one question in Special Proceedings. Very seldom if you find two questions in Special Proceedings. If, perhaps, the examiner is teaching special proceedings, then perhaps he will ask you more questions in the BAR, but ordinarily nonot that Im demeaning its importance.

My other consolation is that you are well-versed in Special Proceedings, that remains to be seen starting this afternoon.

Remember, Special Proceedings is different from all other actions, including Special Civil Actions. If you are asked to define what a Special Proceeding is, A Special Proceeding is an action other than an ordinary action, a special civil action, or a criminal action. That is a correct definition by exclusion. To be more specific, Special Proceedings are actions geared or directed towards the establishment of a right, status, or a particular fact. The ordinary rules apply here and more so because there are specific provisions that distinguishes it from special civil actions where it has a special rule. Here, no. It has its own uniqueness. Every Special Proceeding has its own nuances. For example, because the objective is the establishment of a right, status, or a particular fact, summons, here, is ordinarily not needed. In special proceedings, there is no defendant, so there is no need for summons. Summons, as we have studied is the way by which a court acquires jurisdiction over the person of the defendant (Rule 14). The only exception is, of course, Habeas Corpus Proceedings wherein you name a respondent but the respondent here is different from a defendant because summons is not necessary.

Q: So, how does a court acquire jurisdiction over the case?

A: There is no need for the court to acquire jurisdiction over the person of the defendant because there is no defendant. Therefore, the court should acquire jurisdiction of the case, over the subject matter. How? Because it is an action in rem, ordinarily publication. So that is the uniqueness of Special Proceedings. Publication is the means by which the court acquires jurisdiction over the subject matter. It is ordinarily not initiated by Complaint, but by Petition.

NOTE: Again, unlike other actions, as a general rule, Special Proceedings do not prescribe. There might be limitations of such periods in some instances, but ordinarily, they do not prescribe.

Q: What are the Special Proceedings?

A: Name them according to the Rules starting from Rule 73-90 Settlement of Estate; Rule 91 Escheat; Rules 92-97 General Guardians & Guardianship; Rule 98 Trustees; Rules 99-100 are no longer applied because they are deemed repealed by the new rules on adoption, including Rescission & Custody of Children, these Rules are no longer applied because of the adoption of the Child & Youth Welfare Code.

Definition of Special Proceeding

Under Rule 1, Section 3, a special proceeding is a remedy by which a person seeks to establish a status, right or particular fact. In civpro/crimpro,the right is established. The status or particular fact is the source of such right. In special proceedings, the right is not yet legally established.Why Special?

Because primarily, the rules mandating Special Proceedings are governed not by the ordinary civil action rules, but has its own nuances. For example, because the objective is the establishment of a right, status, or a particular fact, summons, here, is ordinarily not needed. In special proceedings, there is no defendant, so there is no need for summons. Publication, is the means through which the court can acquire jurisdiction over the case. Summons, as we have studied is the way by which a court acquires jurisdiction over the person of the defendant (Rule 14). The only exception is, of course, Habeas Corpus Proceedings wherein you name a respondent but the respondent here is different from a defendant because summons is not necessary.

The law on prescription will not apply. In that, the probate of the will can still be done anytime because what the law only requires for period to apply is on the duty to show/present the will within 10 days from knowledge of death.

Settlement of Estate of Deceased Persons

When you speak of Settlement of Estate, immediately what comes to your mind is that someone died (and thats the beauty in lawmen live forever in lawthey continue in their estateThere are those who want someone dead because of his estate. there are also those who want somebody alive because he has no estatebut actually, even if you are a pauper or a millionaire, you always have an estate. So you live forever through your estate. That estate must be settled).

What is an estate?It is the totality of assets and liabilities of the decedent.

Why is that that the Settlement of Estate is complex?

It is because in this case, the person whose estate is subject to controversy is already NOT around.

2 Modes of Settlement of Estate

1. Judicial

a. Summary Settlement of Estate of small value

b. Judicial partition (Rule 69)c. Escheat (Rule 91)d. Administrative/Conventional Settlement of Estate (Rule 73-90)2. Extrajudicial

a. Extrajudicial partition

b. Affidavit of Self-Adjudication

A. Extrajudicial Partition

Situation: When X, the decedent left A, B, C, and D as heirs. The four of them enter into extrajudicial partition of the estate left by X. They had it published, and proceeded to the Register of Deeds, and finally, the distribution of the estate in accordance with the partition entered into. This pertains to an estate composing real properties. However, if the estate composes personal properties, the four of the heirs can right away distribute among themselves the personal properties left by X.

B. Affidavit of Self-Adjudication

The requirements include the following:

1. The decedent dies without a will.

2. There is only one heir left by the decedent.

3. Whether or not there is a debt left by the decedent so long as if there is debt, the estate can make good of it.How do you undergo with the Affidavit of Self-Adjudication?The word suggests already that it is an affidavit, which in there, you have to state that your father or your mother died; and that he/she left the following properties; and that you are the only heir of your parent (evidenced by the marriage contract of your parents and your birth certificate); and that the estate are such and such (describe with particularity if the property happens to be a real property), valued accordingly; and that they are found there (location of property). After complying with the same, you simply submit that to the Register of Deeds and the Register of Deeds will act on it only after you comply with the requirement of publication and if there are personal properties belonging to the estate, you have to put up a bond according to the value or upon the discretion of the register of Deeds. This is extrajudicial; hence, the court has no participation whatsoever. You simply submit to the Register of Deeds, the Register of Deeds acts on it and if there is already publication, once a week for 3 consecutive weeks in a newspaper of general circulation, the Register of Deeds will simply transfer the title in favor of the affiant.

Q: Suppose Mr. X, who died, was known to everyone to have one child but later on, it was found out that he had other illegitimate children. What will happen to the affidavit of self adjudication? Is there any finality?

A: NO. Even if the properties have already been distributed, they aer still subject to claims.

Q: How do you go about in making an Affidavit of Self Adjudication?

A: The word suggests already that it is an affidavitso, how do you formulate an affidavit? You simply state in your affidavit that your father or your mother died; and that he/she left the following properties; and that you are the only heir of your parent; and that the estate are such and such, valued accordingly; and that they are found there (location of property)..you simply submit that to the Register of Deeds and the Register of Deeds will act on it only after you comply with the requirement of publication and if there are personal properties belonging to the estate, put up a bond according to the value or upon the discretion of the register of Deeds. (extrajudicial hathe court has no participation whatsoever here) You simply submit to the Register of Deeds, the Register of Deeds acts on it and if there is already publication, once a week for 3 consecutive weeks in a newspaper of general circulation, the Register of Deeds will simply transfer the title in favor of the affiant.

The other mode of extrajudicial settlement is extrajudicial partition...that is not under Rule 69 because under Rule 69 is judicial partitionhere, the parties agreed, but take note that there is also no will and there are also no debts and even if there are debts, there is sufficient money to answer for those debts which are reservedthe money is reserved to answer for debtsso you can partition among and between yourselves these properties, provided all of you are of age. If one is a minor, he is duly representedordinarily, you ask the court for the appointment of a guardian ad litem. This form of extrajudicial settlement is similar to Partitionthere is really no distinguishing feature between extrajudicial partition and extrajudicial settlement. Jurisprudence tells us that any act between and among persons that would lead to the division of property is a form of partition or settlementany act that would terminate indivision would be division.

In affidavit of self adjudication, of course you have to support your allegations with documentary evidence (like for example, that you are the only heir, this can be proven through your birth certificate and also the marriage contract and the properties you wish to adjudicate unto yourself should be established by Titles or muniments of titles).

Judicial Settlement refers to Conventional: Rules 73-90. Summary Settlement of Estate is very impractical because up to now the value of the estate is still P10T (P10,000) but you will note that there is still a requirement for publication (so if you have it published once a week for 3 consecutive weeks, ubos na yung ten thousand mo).

Requirements of both Extrajudicial Settlement of Estate

1. The necessary filing of public instrument or by stipulation in pending action for partition or the sole heir in the latters affidavit of self-adjudication.

2. Bond with the said Register of Deeds in an amount equivalent to the value of the personal property involved as certified to under oath by the parties.

3. Conditioned upon payment of any just claim charged with a liability to creditors, heirs, or other persons for the full period of 2 years after such distribution, notwithstanding any transfers of real estate that may have been made.

4. This shall be published in a newspaper of general circulation once a week for 3 consecutive weeks.

Rules regarding Extrajudicial Settlement of Estates

1. It shall be presumed that the decedent left no debts if NO creditor files a petition for letters administration within 2 years after the death of the decedent.

2. No extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.Rule 73 Venue and Process.

Q: Is settlement of estate limited to the estate of Filipino Citizen?

A: No.

Q: If an American was in the Philippines because he was a member of the Armed Forces, who joined the Balikatan Forces in Mindanao and he died here, where should the settlement of estate be done? Is it the place of ones death which is determinative of the venue? Suppose one had 5 residences because he had 5 wives?

A: This is a very confusing provision because the title is Venue & Process but the word venue is never mentioned. On the other hand, the word jurisdiction is mentioned three (3) times.

Q: So, is the last residence of the decedent a matter of jurisdiction or a matter of venue?

A: It is a matter of venue so you cannot question it.

Q: Suppose Mr. X, a Filipino citizen residing in Cebu City died at St. Lukes Hospital, Quezon City, where should his estate be settled?

A: In Cebu because it is the place of the final residence of the decedent.

Q: Suppose the heirs filed a petition for settlement of the estate in Quezon City, is the venue properly laid?

A: No.

Q: So, what happens to the case?

A: The settlement must continue because venue is not jurisdictional.

Let me emphasize to you that in civil cases, including special proceedings, venue is not jurisdictional, unlike in criminal cases, venue is jurisdictional and from what we have learned under Rule 4 of the Rules of Court, venue may be waived.

So, if there is no opposition, there is no question as to the petition filed by anybody for the settlement of the estate of Mr. X who is a resident of Cebu, the petition is filed in Quezon City, the issue is not jurisdiction but only of venue. But considering that there was no opposition, then the petition for settlement must continue.

Sec. 1 there does not speak of jurisdiction. Jurisdiction here is conferred by law and RA 7691 confers that depending on the value of the gross estate, which can either be the MTC or the RTC.

Q: What is Residence?

(You must have come across the leading case, Cuenco, et. al vs. Cuenco, cited in your book (it has to cited in your book) because that is a very leading case, also the case of Fule, et al. vs. CA, these are the cases about venue and jurisdictionemphasizes these cases cited in all books. Eusebio vs. Eusebio, that is also cited in your book These are questions about the conflicting rules on venue and jurisdiction.)

A: It is now settled (because of there cases) that residence is only a matter of venue. It is not a matter of jurisdiction.

In this Rule, the word VENUE never appeared. But the word jurisdiction appears three times.

What court has jurisdiction over settlement of estate cases?

The jurisdiction is determined based on the GROSS VALUE of the property subject to settlement. It is in RTC, if the gross value exceeds 300,000 outside Metro Manila or if it exceeds 400,000 within Metro Manila. However, it is in MTC if the otherwise appears.

What will be the relevance of VENUE in this Rule?

This is provided for in the long line of cases starting from Cuenco vs. Cuenco, Fule vs. CA and latest is San Luis vs. San Luis. It is now settled (because of these cases) that residence is only a matter of venue. It is not a matter of jurisdiction.

Cuenco vs. Cuenco

This case of Cuenco is about Senator Cuenco. That Cuenco Street in Quezon City, parallelled to Espaa or Quezon Blvd. He was a resident of Cebu but also had a house in Quezon City because he was a member the Senate. When he died in Quezon City, his residence was in Cebu. When he died, he was already a widower at the time, so he had two families: the first family with his first wife and the second family with his second wife. His second wife, staying with him in Quezon City, filed a petition for the settlement of his estate in the RTC (Then CFI) of Q.C. After the 9- day novena for his demise, the heirs of Senator Cuenco in Cebu City, filed a petition for settlement of his estate in Cebu. This reached the SC. The issue was in fact wrong: Which court has jurisdiction? It is not a matter of jurisdiction but only of venue. But the greater error here is not the error of the petitioners but the error of the Court. Why? Because the Q.C. Court on its own initiative (motu propio) said we are going to give way to the court in Cebu to settle the estate. That cannot be done because under the Rule, the court which first takes cognizance of a petition for settlement of estate, takes it to the exclusion of all other courts. (Exclusionary Rule in Special Proceedings) And so, which court has jurisdiction? Both courts have jurisdiction actually, but because of the Rule, since it was first filed with the Q.C. Court, it was already taken cognizance of by said court in Q.C. to the exclusion of all other courts, including the Cebu Court. That is why if ever the court cedes its authority in favor of the Cebu Court, that is wrong. It should have been correct if anybody interested in the petition files a motion to dismiss on the ground of improper venue but there was none in Quezon City court NOT in Cebu court.

In one of the Bar Exams using Cuenco vs. Cuenco, way back in 1992, this was treated by the examiner saying that a motion to dismiss was filed with the Cebu Court and the Cebu Court granted it. Wrong. Why? Because the Cebu court did not acquire jurisdiction because the petition was first filed in Q. C. and there can be no dual jurisdiction here because the Rule says: the court acquires jurisdiction to the exclusion of all other courts.

This case was followed by the case of Eusebio vs. Eusebio and finally settled in the case of Fule vs. CA, a 1975 case. Take note of that doctrine because that is very basic in Settlement of Estate under Sec. 1 of the Rule, there does not speak of jurisdiction but only of venue. In Fule it has been settled that the residence is the actual place of habitation.

So that if a person has two residences, the Fule case settled that residence is the place of actual habitation or it may not be the place of actual habitation, provided there is animus manendi (intent to remain) and animus revertendi (intent to return).

RULE 74: SUMMARY ESTATERequirements under the Rule:

1. The gross value of the estate of a deceased person, (testate or intestate) DOES NOT EXCEED P10,000.

2. A petition alleging the 1st requirement must be filed by an interested person.3. This can only be done upon hearing which shall be held not less than 1 month nor more than 3 months from the date of the last publication of a notice.4. The notice must be published once a week for 3 consecutive weeks in a newspaper of general circulation.5. Notice to other interested persons as the court may direct.6. This can be proceeded to by the court summarily and even without the appointment of executor or administrator, and without delay to grant, if proper, allowance of will. The purpose will be.a. To determine who are persons legally entitled to participate in the estate.b. To apportion and divide among the heirs after payment of such debts of the estate as the court shall then find to be due, to persons in their own right, if they are of lawful age and legal capacity or by their guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively.c. To also make such other orders as may be just respecting the costs of the proceedings and all other orders and judgments made or rendered in the course thereof shall be recorded in the office of the clerk, and the order of partition or award, if it involves real estate, shall be recorded in the proper registers office.7. Distributees shall be required to file a bond in an amount to be fixed by the court for personal property, conditioned for the payment of any just claim.

Rules regarding Summary Settlement of Estate of Small Value

1. If within 2 years after settlement and distribution of an estate, an heir or other person has been unduly deprived of his lawful participation in the estate- such heir or such other person may compel the settlement of the estate in the courts for the purpose of satisfying such lawful participation.

2. If within 2 years, it shall appear that there are debts outstanding against the estate which have not been paid or that an heir or other person has been unduly deprived of his lawful participation payable in money- the court may by order for that purpose, after hearing settle the amount of such debts or lawful participation and order how much and in what manner each distribute shall contribute in the payment thereof and may issue execution, if circumstances require, against the bond or against the real estate belonging to the deceased or both.

3. When can minor or incapacitated person file a claim against estate in this Rule? If on the date of the expiration of the period of 2 years, the person authorized to file a claim is a minor, mentally incapacitated, or is in prison or outside of the Philippines, he may present his claim within one (1) year after such disability is REMOVED.

Judicial Partition

This is provided for under Rule 69 on Partition.

Escheat

In another form of Judicial Settlement, Escheat tells us that if a person dies without a will, without an heir, and no debts, then the Office of the Solicitor General or his representative (such as the provincial or city prosecutor) may file a petition, under the directive of the President of the Philippines, an Escheat Proceeding.

Requirements before filing:a. Person dies intestate1. Is there a possibility to still file an escheat proceeding despite the presence of a will? Yes. Even if the decedent died testate but his will was NOT PROBATED, it is as if he has no known heirs and there are no persons entitled to his property.

b. Seized of real or personal properties in the Philippinesc. Left no heir or person by law entitled to the same Where to file?

a. If resident, RTC where the deceased last resided or in which he had estate.b. If non-resident, RTC of the place where his estate is located. But if it happens that during the pendency of the proceeding, a will pops up, and then the proceeding is discontinued.

If an heir, devisee, legatee, widow, widower or other person entitled to such estate (PERSON WITH INTEREST) pops up and files a claim thereto with the court within 5 years from the date of such judgment, then the proceeding may be suspended and such appearing person with interest shall establish his right otherwise, after the hearing, the property will go to the government. This escheat proceeding is founded on the theory that all lands belong to the State known as the Regalian Doctrine that you studied under LTD (Land Titles & Deeds and he who claims otherwise has the burden of proof so after the escheat proceedings, the property belonging to the estate will go to the city or municipality where it is found) and so as the Order of Succession in Civil Code.

The period of filing claims is WITHIN 5 YEARS FROM DATE OF JUDGMENT, and such 5 years shall be reckoned from the DATE THE PROPERTY WAS DELIVERED TO THE STATE. However, if the property has been sold, the municipality or city shall be accountable only for such part of the proceeds as may NOT HAVE BEEN LAWFULLY SPENT.

The court, at the instance of an interested party, or on its own motion, may ORDER THE ESTABLISHMENT OF A PERMANENT TRUST, so only the income from the property shall be used. So if the proceeding is in Manila, but the property escheated is in Calamba, the property escheated located in Calamba will go to the City of Calamba and not to the City of Manila. The same thing with personal property, where it may be found and the Rule is very specific that the property will be spent for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities.

What are the orders of the court after a petition is sufficient in form and substance?

1. Make an order of hearing and such shall NOT be more than 6 months after entry of order.

2. Direct the publication of a copy of the order at least once a week for 6 consecutive weeks.

What will be the remedy of the Respondent?

When the petition does not state facts which entitle the petitioner to the remedy prayed for, the respondent may file a MOTION TO DISMISS the petition.

To whom will the property escheated be assigned?

1. If personal property- to the Municipality or city where he last resided.

2. If real property- to the Municipality or city where the property is situated.

3. If the deceased never resided in the Philippines- to the Municipality of city where the property may be found.

Under Rule 91, Sec.5 is another form of escheat because that was given in the BAR 5 years ago. This speaks of reversion. In other words, the property was acquired by an individual in violation of the Constitution. Under the Constitution, any person, even foreigners who were former Filipinos, can now acquire property in the Philippines and that was given more strength because of the Dual Citizenship Law. Actions for REVERSION are proper in illegal sales of land to disqualified aliens. This will in no way apply to properties taken from enemy nationals after WORLD WAR II and which were reacquired by the Republic because such reacquisition was in pursuant to the Philippine Property Act of 1946 and not by virtue of an ESCHEAT PROCEEDING. The action must be instituted in the province where the land lies in whole or in part.

Even if title thereto was not transferred to the Government, can it be escheated to local government? No.

The thirds instance of escheat is that of unclaimed dormant accounts for 10 years under the Unclaimed Balance Act which shall be filed at the RTC of the place where the dormant deposits are found.

The right to escheat may be waived expressly or impliedly. The proceedings in Escheat CANNOT BE CONVERTED INTO SETTLEMENT OF ESTATE. For the distribution of the estate of the decedent to be instituted, the proper petitions must be presented and the proceedings should comply with the requirements of the Rule. This is so because, an escheat proceeding does not have the power to order or proceed with the distribution of the estate of a decedent in escheat proceedings and adjudicate the properties to the oppositor. (Municipality of Magalloon, Negros Occidental vs. Ignatius Henry, Oct. 26, 1960)

D. Administrative/Conventional Settlement of Estate

This is provided for under Rule 73-90 of the Rules of Court.

RULE 75: PRODUCTION OF WILL; ALLOWANCE OF WILL NECESSARYUnder the Rule, it says that, No will shall pass either real or personal property unless proved and allowed in the property court. And that subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.

Are you bound to file a petition?

No. The obligation there is only to deliver the will. But if you do file a petition, because you are the custodian of the will, you must have an interest in the estate. You may either be the named administrator, a devisee, a legatee, or a creditor, and with more reason, if you are an heir, you have an interest. If you are in the custody of the will, and you filed a petition for settlement of estate, you have to attach the will in your petition. But if you are not in custody of the will and you are interested in the settlement of the estate, you simply file a petition without the will annexed.

This can also be evidenced by the provision under Rule 76 Section 3 that, upon presentation of the will to the court having jurisdiction, the court will now set the date for hearing thereof with the exception when the testator on its own initiative probated his will during his lifetime, in which case, no publication is required and notice will only be required to be made to compulsory heirs. Hence, SURRENDER here is tantamount to a petition.

Situation: H is a resident of Caloocan and he executed a will. He gave it to his kumpadre as a custodian who lived in Baguio. H died in Caloocan. The kumpadre surrendered to RTC of Baguio City which is the court of proper jurisdiction, the will executed by H.

May the heir still file a petition? No, because of the EXCLUSIONARY RULE under Rule 73 in that mere surrender of the will commences the settlement of the estate.

What court has jurisdiction? Again, it depends on the gross value of the estate involved.

What if all the heirs resided in Caloocan City, and they filed petition for probate in RTC of Caloocan, given that the surrender of the will was done in RTC of Baguio where the custodian resided, can the heir move to dismiss the case in Baguio? Yes, because RTC of Caloocan has no jurisdiction since the commencement of the settlement was already done in RTC of Baguio which is understood to be to the exclusion of other courts.

What if the petition now was filed in RTC Baguio City, and you move for its dismissal in yet another RTC branch, how will you rule on the same? The same thing, you cannot do so because once a branch of RTC takes cognizance of the case, it is still understood that it is to the exclusion of the other branches of such RTC, if any.

If you are a custodian of a will of the decedent, what is your obligation?

To deliver to the court the will within 20 days after the death. (Sec. 2, Rule 75)

Rules under this Rule:

1. There is a corresponding sanctions to custodian and executor and also to persons retaining the will when not heeding to the mandate/order of the court, which are:

a. A person who neglects any of the duties of a custodian without excuse satisfactory- fined not exceeding 2,000.b. A person having custody of a will who neglects without reasonable cause to deliver the same when ordered to do so- committed to prison and there kept until delivery.RULE 76- ALLOWANCE OR DISALLOWANCE OF WILLWhat is Probate?

It is the act of proving in a court a document purporting to be the last will and testament of a deceased in order that it may be officially recognized, registered and its provisions carried out insofar as they are in accordance with the law or also known as allowance of the will.

What will be the contents of the Petition?

The following must be shown on the petition as far as known to the petitioner:

1. The Jurisdictional Facts:

a. Death of the testator

b. His residence at the time of death or the province where estate was left by the decedent who is non-resident

2. Names, ages and residences of the heirs, legatees and devisees of the testator or decedent

3. Probate value and character of the property of the estate

4. Name of the person for whom letters are prayed for

5. Name of the person having custody of the will if it has not been delivered to the court

*No defect in the petition shall render VOID the allowance of the will or the issuance of letters testamentary or of administration with the will annexed.

What is the effect of the probate of the will?

It is conclusive as to the execution and validity of the will (even against the State). Thus, a criminal case against the forger may not lie after the will has been probated because the probate of the will is conclusive as to its execution and validity.

What is the issue in probate of the will?

It is with respect only to the determination of the extrinsic validity (due execution), not the intrinsic validity of testamentary dispositions.

Exceptions:

1. On Principle of Practical Consideration

a. The waste of time, effort, expense, plus added anxiety are the practical considerations that induce us to a belief that we might as well meet head on the issues of the validity of the provisions of the will in question.b. Where the entire or all testamentary dispositions are VOID and where the defect is apparent on its face.Let us go now regarding these two: It can be testate or intestate. You know testate, in other words, there is a will. Intestate, there is no will. The distinction, regarding these two will give you also the distinction between an executor and an administrator.

Q: What is the distinction between an executor and an administrator?

A: The executor is the one appointed by the decedent as embodied in the will. The administrator is the one appointed by the court if there in no will, or if there is a will but does not designate an executor, or even if there is an executor, the executor refuses to accept the trust or fails to put up a bond These are the requirements: He is either not qualified; he fails to accept the trust; or he fails to put up a bond so an administrator may be appointed.

Q: An administrator is of two kinds, what are they?

A: Rule 80

1. Special Administrator ( also of two kinds): With the will or Without a will annexed;

2. Regular Administrator

Q: In what instances may the court appoint a special administrator?

1. Delay in granting of Letters of Administration;

2. Sec. 8, Rule 86: The executor is a claimant of the estate he represents.

Q: So, when you go to testate, why is it here that they are of two kinds: with the will or without a will annexed? How would you explain that? Kailan nangyayari ito? If you are a custodian of a will of the decedent, what is your obligation?

A: To deliver to the court the will within 20 days after the death. (Sec. 2, Rule 75)

Q: Are you bound to file a petition?

A: No. The obligation there is only to deliver the will. But if you do file a petition, because you are the custodian of the will, you must have an interest in the estate. You may either be the named administrator, a devisee, a legatee, or a creditor, and with more reason, if you are an heir, you have an interest. If you are in the custody of the will, and you filed a petition for settlement of estate, you have to attach the will in your petition.. But if you are not in custody of the will and you are interested in the settlement of the estate, you simply file a petition without the will annexed.

In many instances, I was telling you that settlement of estate is the best example of multiple appeals, diba? Because in the settlement of estate there are several stages.

Q: If it is a testate proceeding, what is the first stage?

A: Probate of a will.

Under this lesson on a probate of a will, there is this general proposition that the probate court (the court probating a will) either the MTC or the RTC, is a court of limited jurisdiction.

Q: What does it mean when the Rule says that a probate court is a court of limited jurisdiction?

A: A probate court can only rule on the due execution of the will and not as to its intrinsic validity.

This is what you have to understand. Even lawyers do not realize this. Sabi nila probate court yan so you cannot question, you cannot raise the issue of ownership. The probate court ceases to be a probate court upon allowance or disallowance of a will but it remains to be a court no longer of limited jurisdiction. That is why I was emphasizing on the petition as settlement of estate and not as a petition for the probate of a will. Why? Once a will has been probated, thats the end of it? No. It is only the first stage in the testate proceedings. So when the Rule says that the probate court is a court of limited jurisdiction, only as far as the probate of a will is concerned. Pagkatapos nun, the court is no longer of limited jurisdiction because it has to goappointment of the administrator or executor, approval of the accounting, approval of the inventory, then payment of debts..papaano limited pa yun? No longer.

So as a probate court, the court is limited to the issue of authenticity and due execution, but you do not transfer courts after the will has been probated, after the will has been allowed or disallowed which is a final resolution which is a final order or resolution of the court which is appealable. But the appeal here is by record on appeal because it is multiple appeal. The court now is no longer of limited jurisdiction because it is no longer a probate court.

Q: Ano ba ang end of settlement of estate?

A: Distribution under Rule 90. The first stage of settlement of estate, if it is a testate proceeding is the probate of the will. That is where the court has limited jurisdiction.

Q: Why is this so? Why does this issue pop up here?

A: This is because during probate of the will, in the very petition, the jurisdictional requirement is that you have to state what constitutes the estate and the value of the estate. Jurisdictional facts.

Q: If an oppositor enters the picture, the oppositor says mali yan because what constitutes the estate are these properties, but what is stated in the petition do not belong to the estate, now, can the court decide the ownership of those properties?

A: No. That is where the limited jurisdiction comes into the picture. It cannot because the court has only the duty of discussing whether the will has been duly executed so this is only as to the extrinsic validity of a will. The intrinsic will come much, much later, the disposition of the will.

The issue of ownership is outside the jurisdiction of the probate court. But if the probate court cannot continue without deciding the issue of ownership, the issue of ownership being incidental (intimately related to the issue of probate) to the probate of the will, must be decided, but the decision here is not final. It is only provisional and it can be contested in other proceedings and the rule on res judicata will not apply.

In the case of Balaraw which was assigned to you, that was also the issue involved.

In the beginning, there is no defendant. The equivalent of a defendant in a probate proceeding is the oppositor. The oppositor is not only opposing the probate of the will, but also settlement of the estate, for one reason or another.

The objective of the settlement of the estate is the distribution of the estate among the heirs or those entitled thereto, although not heirs (those persons named in the will).

Once the court allows or disallows a will, as the case may be, the nature of the court as a probate court ceases. Therefore, the issue of limited jurisdiction no longer applies. Limited jurisdiction applies only to the authenticity and due execution of the will.

Q: Once the will is allowed, What does it mean?

A: Rule 76: Allowance of the Will

If Mr. A is accused of a crime of falsification of documents by forging the signature allegedly of a testator and during the pendency of the criminal action, the will allegedly forged by Mr. A was probated and allowed, the criminal case should be dismissed because the probate of the court is final and if not appealed becomes conclusive. Wala na yung forgery because the probate of a will only avows the fact that the signature there is authentic; that there was due execution of the will. The case against A for falsification should be dismissed. Suppose he has been convicted, he shall be released. Supposing he is not released, your remedy is to file a petition for habeas corpus because the basis .for restraining his liberty no longer exists. (So kita nyo ang correlations.)

We are talking here of allowance of the will within the Philippines.

Q: Suppose a will was executed and allowed (probated) outside the Philippines, what happens?

A: Go to the next Rule, Rule 77: Allowance of Will proved Outside of the Philippines and Administration of Estate thereunder.

Q: An American citizen residing in California died in California, his will was probated in the county state of San Bernardino. That will has been allowed in the U.S. Should that will be also allowed in the Philippines?

A: No.

Q: What should anyone interested in the allowance of the will in the Philippines do because the deceased had property in the Philippines?

A: It should be re-probated here and the venue is in the proper court of any province where the decedent had property.

This rule shall be read in conjunction with Sec. 48, Rule 39: Foreign Judgment.

Q: What are you supposed to establish or prove in the re-probate of a will?

A:

The due execution of the will in accordance with the foreign law;

That the testator had his domicile in the foreign country and not in the Philippines;

That the will has been admitted to probate in such country;

The fat that the foreign tribunal is a probate court;

That the laws of a foreign country on procedure and allowance of wills.

The fact of death (jurisdictional fact) of the testator in a place within the territorial jurisdiction of the court.

These are mandatory requirements. These must all be established in the Philippine courts. That is how to re-probate a will which has already been allowed. Thereafter, the court should appoint an administrator. The foreign allowance of a will leads to the appointment of a domiciliary administrator. Once it is probated in the Philippines, the court appoints an ancillary administrator.

Q: Who may petition for the allowance of the will or who may oppose thereto?

A: Anybody who has an interest in the estate or in the disposition of the estate of the decedent

Q: What are the qualifications for one to be appointed as administrator of the estate?

A: Any competent person may serve as executor or administrator. He is incompetent if:

1. a minor

2. a non-resident

3. one who in the opinion of the court is unfit to exercise the duties of the trust by reason of :

a. drunkenness

b. improvidence

c. want of understanding and integrity

d. conviction for an offense involving moral turpitude.

Q: If a man cannot sleep without drinking at least 3 beers before he goes to sleep, can he be appointed as administrator?

A: Yes. He is not a drunkard.

Q: Suppose in the very will, the testator named an executor of his estate, may the court appoint another one other than the one named in the will?

A: Yes, when such person:

1. refuses to accept the trust ( ang gusto nya kasi is he would accept the trust if it is candy flavored);

2. fails to give a bond; and

3. is incompetent.

Q: In the course of the administratorship, when one has already be appointed, can he be removed? On what grounds?

A: Yes. Rule 82: Revocation of Administration, Death, Resignation and Removal of Executor or Administrator.

Sec. 2. Grounds:

1. neglect to render accounts within 1 year or when the court directs;

2. neglect to settle the estate according to the Rules;

3. neglect to perform an order or judgment of the court or a duty expressly provided by these rule;

4. absconding; or

5. insanity or incapability or unsuitability to discharge the trust.

Q: If a special administrator is appointed because the regular administrator has a claim against the estate, what happens to the regular administrator?

A: The regular administrator is not removed by the appointment of the special administrator because the regular administrator has a claim under Sec. 8 of Rule 86. The special administrator only has a specific function which is only to work on the claim of the regular administrator.

The executor of an executor cannot be appointed as executor of the principal testator.

Example: Richard is the testator. He appointed Piolo as his executor. Later on Piolo died. In the will of Piolo, he appointed Sam as his executor. Sam cannot be the executor of the estate of Richard.

Reason: An executor takes charge of the estate. If you are an executor and you died and you have an own estate and the executor of your own estate will now execute the estate of your testator that appointed you, there will be conflict of interest (Magkakaroon ng sama sama yung estate. Magkaka halo halo). To avoid possible corruption in the administration of ones estate.

Q: What are the duties of a special administrator?

A: Sec. 2, Rule 80:

1. possession and charge of the properties;

2. preserve the properties;

3. commence and maintain a suit for the estate;

4. sell only:

a. perishable property; and

b. those ordered by the court

5. pay debts only as may be ordered by the court.

Q: Can he encumber the property of the estate through lease?

A: It depends. If the lease is not for more than one (1) year, he can because it would fall under acts of administration. Beyond that, it is already an act of disposition

Q: If the court appoints Mr. X as special administrator, is the order final and appealable?

A: No. It is only interlocutory and unappealable because if you appeal the appointment of a special administrator, there will be no end to the settlement of the estate.

The special administrator is likewise required to put up a bond.

Q: Suppose the testator in naming an executor of his estate specifically states there that he should serve as administrator without a bond. Can the court nonetheless require a bond?

A: Yes. The court has a very wide discretion.

Once a regular administrator is appointed, the continuation of the duties and functions of a special administrator will now reside in the special administrator. But always remember that if it is an act of disposition or conveyance, which cannot be done by an appointed executor or administrator without permission of the court. You always file a motion for leave of court to sell a specific property and this is part of your accounting one year after.

Accounting is one of the principal duties of an administrator. His first duty is to prepare an inventory within three (3) months from appointment and within one (1) year, prepare an accounting of his administratorship and the bond that he put up is precisely to answer for the misadministration.

Who may file for the allowance of will?

Any party who has direct and material interest in the will or estate consisting of:

D- Devisee

E- Executor

L- Legatee

T- Testator

A- Any other person interested in the estate

Why may be disqualified?

Here, you have to consider the last person allowed filing, Any other person INTERESTED IN THE ESTATE which means any person who would be benefited by the estate such as an HEIR or one who has a claim against the estate, such as CREDITOR. Hence, those not having such qualification may be disqualified to file for the allowance of the will.

Situation: If A executed the will and in his will, he named B as devisee, C as legatee and spurious son D, so as W as sister. Who among the persons stated in the will may file a petition?

All except W because the latter cannot file because under the Rule on Succession, a sister is not one in which will be inherited by the decedent unless the spurious son is not included in the facts.

What are these concepts referring to?

1. No witness rule

a. This is only applicable in case there is a lost or destroyed holographic will or the testator probated his own holographic will. General rule: A holographic will if destroyed CANNOT be probated. Except: If there exists a photostatic or Xerox copy thereof.2. One witness rule

a. In probating holographic will or notarial will and there is no contest thereof.3. Two witness rule

a. In case of a loss or destruction of notarial will, for the purpose of establishing the execution and validity thereof, NO NOTARIAL WILL SHALL BE PROVED in circumstances mentioned, when the will is proved to have been in existence at the time of death of the testator or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, UNLESS its provisions are clearly and distinctly proved by at least 2 credible witnesses. If proved, the provisions thereof must be distinctly stated and certified by the Judge under the seal of the court and the certificate must be filed and recorded.4. Three witness rule

a. Required if someone else filed the probate of the will. If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know the handwriting of the testator and signature. Otherwise, an expert witness is required.5. Four witness rule

a. In case of notarial will to be probated, whether contested or not, referring to the number of subscribing witnesses. It is required that all the subscribing witnesses and the notary in case wills executed under Civil Code. What are the grounds for Disallowing Wills?

F- If the will is not executed and attested as required by law; formalities thereof

I- If the testator was insane or otherwise mentally incapable to make a will, at the time of its execution

D- If it was executed under duress, or the influence of fear or threats

U- 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

S- 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 time of fixing his signature thereto

RULE 77- ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDERWhat is the rationale for the re-probate?

This is because the Philippine courts do not recognize foreign judgment, and such that probate of the will abroad is one kind of a foreign judgment.

How will this be enforced in our jurisdiction?

In relation to Rule 39, Section 48, the effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order will be;

1. Conclusive upon the title to the thing- in case of a judgment or final order upon specific thing;

2. Presumptive evidence of a right as between the parties and their successors in interest by subsequent title- in case of judgment against a person.

In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud or clear mistake of law or fact.

What if the probated will abroad is not established as a fact of such probate, what laws will apply?

The doctrine on processual presumption will be applicable, in a sense that foreign law is considered as the same as that of the domestic law

Which court has jurisdiction for re-probate of will?

It is in the RTC because the subject matter, that is, probate of will (considered as foreign judgment), is incapable of pecuniary estimation.

Where is the venue?

It is in the place of final, and actual abode of the decedent. In the absence of residence, the place where any of the property is located to the exclusion of other venues. EXCLUSIONARY RULE STILL APPLIES HERE.

Who may file?

Any person interested in the estate.

In the petition for re-probate, what should be alleged?

1. That the testator was domiciled in a foreign country.

2. That the will has been admitted to probate in such country.

3. That the foreign court was, under the laws of said foreign country, a probate court with jurisdiction over the proceedings.4. The law on probate procedure in said foreign country proof of compliance therewith.5. The legal requirements in said foreign country for the valid execution of the will.There should be appointment of ancillary administrator (The administrator appointed to take charge of the properties in the Philippines, domestic) and domiciliary administrator (The administrator domiciled in foreign country)

Effects of the allowance of a will under this Rule:

1. The will shall be treated as if originally proved and allowed in Philippine courts.

2. Letters testamentary or administration with a will annexed shall extend to all estates in the Philippines.

3. After payment of just debts and expenses of administration, the residue of the estate shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country.

RULE 78- LETTERS TESTAMENTARY AND LETTERS OF ADMINISTRATION, WHEN AND TO WHOM ISSUEDWhat is Letter Testamentary and Letter of Administration?

Letter Testamentary- It is a process in which there is an appointment of an executor.

Letter of Administration- It is a process in which there is no appointment of an executor

Can a letter of administration be issued even if a will provides for executor?

Yes. Section 4 hereto provides that a letter of administration may be issued even if there exist a will designating an executor, if the latter is incompetent, refuses to accept the trust and fails to give a bond.

When letters of administration be granted?

1. If no executor is named in the will,

2. or the executor/s are incompetent, refuse to accept the trust or fails to give a bond,

3. or a person dies intestate.

To whom letters of administration granted?

There is preference of persons allowed by Rules, as follows:

1. To the surviving spouse, or next of kin, or both, in the discretion of the court, or their nominee, if competent and willing to serve.

2. In default of the foregoing, to one or more of the principal creditors, if competent and willing to serve.

3. In default of the preceding, to such other person as the court may select.

Who are incompetent to serve as executor or administrator?

They could be either of the following:

1. A minor (Obviously, a minor is incapacitated to manage the trust)2. A non-resident of the Philippines (The reason for disqualifying such is because it would be impossible for such person not residing therein to administer the estate of the deceased or be around to satisfy for the duties of an executor or administrator)3. A person in the opinion of the court is unfit to execute the duties of the trust by reason of:

a. Drunkenness (Such extent as would affect the capacity of a person by reason thereto, in managing the trust with respect to such estate)b. Improvidencec. Want of Understanding or Integrityd. By reason of conviction of an offense involving moral turpitude (Remember that this ground pertains only to an OFFENSE, not a CRIME unlike in Adoption, in this case, it will pertain to some offenses relating to immorality, say, urinating in public)The executor of an executor shall not administer the estate of the first testator (This disqualification is in order to prevent possible conflict of interest or commingling of estates of the two testators. An illustration will be in that, if A is the first testator, who appointed B as his executor in the formers will, B died with an estate appointing C as his executor. In this case, C cannot be allowed to administer the estate of A because he is now managing the estate of B as the testator)

Upon, issuance of those letters (Letters testamentary and Letters of administration), what will courts do?

Under Rule 86 (Claims Against Estate), immediately after granting letters, the court shall issue a notice requiring all persons having money claims against the decedent to file them in the office of the clerk of court of said court. And it will now be the duty of every executor or administrator, after the notice to creditors is issued, to cause the same to be published in 3 WEEKS SUCCESSIVELY in a newspaper of general circulation in the province and to be posted for the same period in 4 public places in the province and 2 public places in the municipality where the decedent last resided.

Can Letters testamentary be objected to?

Yes, it may be objected and whatever resolution or resolution with that respect is FINAL AND APPEALABLE. Hence, this made true the existence of MULTIPLE APPEALS in Special Proceedings. In that case, a RECORD ON APPEAL is required to be filed since each part is complete in itself, say the Settlement, Probate or Appointment of Administrator. But with respect to SPECIAL ADMINISTRATOR, it would be a different remedy, because the appointment of the same is held INTERLOCUTORY, hence, UNAPPEALABLE and the remedy therefrom is PETITION FOR CERTIORARI alleging grave abuse of discretion.RULE 79- OPPOSING ISSUANCE OF LETTERS TESTAMENTARY. PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION.What is a Petition for Probate with a Will Annexed?

In this situation, there are two (2) petitions involved:

1. Petition filed by any interested person in a will stating the grounds why letters testamentary should not issue to the persons named therein executors, or any of them, and at the same time,

2. Filing of Petition for Letters of Administration with the will annexed.Who will file a Petition with a will annexed?

It is that person who has NO custody of the will or any person interested in a will.

What are the requirements for opposition to petition for administration?

1. Filing of a written opposition by any interested person, contesting the petition on the ground of:

a. Incompetency of the person for whom letters are prayed therein, orb. On the ground of the contestants own right to the administration.2. And may pray that the letters issue to himself, or to any competent person or persons named in the opposition.

Can Letters of Administration be granted to stranger?

Yes. Letters of Administration may be granted to any qualified applicant, though it appears that there are other competent persons having better right to the administration, if such persons fail to appear when notified and claim the issuance of letters to themselves.

RULE 80- SPECIAL ADMINISTRATORAn administrator is of two kinds, what are they?

Special Administrator ( also of two kinds): With the will or Without a will annexed;

Regular Administrator

What is the distinction between an executor and an administrator?

The executor is the one appointed by the decedent as embodied in the will. The administrator is the one appointed by the court if there in no will, or if there is a will but does not designate an executor, or even if there is an executor, the executor refuses to accept the trust or fails to put up a bond. These are the requirements: He is either not qualified; he fails to accept the trust; or he fails to put up a bond so an administrator may be appointed

When may a Special Administrator appointed?

A special administrator may be appointed when:

1. There is delay in granting letters testamentary or of administration by any cause including appeal from the allowance or there is disallowance of the will.

2. The executor is a claimant of the estate he represents (Rule 86 Section 8)

What are the duties of Special Administrator?

He shall have the following duties:

1. He shall take possession and charge of goods, chattels, credits, and estate of the deceased,

2. He shall preserve the same for the executor or administrator afterwards appointed and for that purpose may commence and maintain suits as administrator,

3. He may sell only such,

a. Perishable properties

b. As the court orders to be sold.

4. He shall be liable to pay any debts of the deceased is ordered by the court.

When will Special Administrator ceases to be such?

When questions causing the delay are decided and executors or administrators are appointed.RULE 81- BONDS OF EXECUTORS AND ADMINISTRATORSThe bonds under Section 4 thereto for Special Administrator, shall be in a sum as the court directs conditioned that he will make and return a true inventory of the properties in possession while in case of regular administrator, the bond will be conditioned to the entire estate for its preservation. The regular executor may serve without a bond as directed by the testator in the latters will or with only his individual bond conditioned only to payment of debts of the testator, but the court may require such executor the filing of a further bond in case a change in his circumstances or for other sufficient cause. Such latter bond is called STATUTORY BOND, as prescribed for by statutes and will continue so long as the court has jurisdiction over the case.

What are the duties of executors and administrators?

1. To make and return to the court, within 3 months, a true and complete inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge or to the possession of any other person for him.

2. To administer according to these Rules the estate, and from proceeds, to pay and discharge all debts, legacies and charges on the same or such dividends declared.3. To render a true and just account of his administration to the court within 1 year and at any other time when required by the court.4. To perform all orders of the court.5. Duty to sell, encumber or mortgage6. Duty for distribution of the estate remaining.RULE 82- REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS AND ADMINISTRATORSWhen will administration be revoked?

Administration is revoked if a will is discovered.

When may a court remove an executor or administrator or accepts his resignation?

1. If an executor or administrator neglects to render his account within 1 year and when required by court,

2. If he neglects to settle estate according to the Rules,

3. If he neglects to perform an order or judgment of the court or a duty expressly provided by Rules,

4. When he absconds, or

5. When becomes insane, or otherwise incapable or unsuitable to discharge the trust.

*When an executor or administrator dies, resigns or is removed, the remaining executor or administrator may administer the trust alone UNLESS the court grants letters to someone to act with him. If there is no remaining executor or administrator, administration may be granted to any suitable person.The acts before revocation, resignation or removal are considered valid.

RULE 83- INVENTORY AND APPRAISAL; PROVISION FOR SUPPORT OF FAMILYWhat are the other duties of executors or administrators?

1. When 3 months after his appointment, he shall return to the court a true inventory and appraisal of all real and personal estate of the deceased which has come to his possession or knowledge. In such appraisement, the court may order one or more inheritance tax appraisers to give his or their assistance.

2. To make an inventory of the assets of the administered estate, to the exclusion of wearing apparels of the surviving husband or wife and minor children, the marriage bed and beddings and such provisions and other articles for the subsistence of the family of the deceased.3. To give allowance to widow and minor children, NOT TO GRANDCHILDREN.

What will be done if such allowance has to be given but there isnt enough cash by the estate?

This time, a sale can be done, say to pay taxes.

Q: Who are entitled to allowance during proceedings?

1. legitimate surviving spouse; and

2. children of the decedent (legitimate & illegitimate children)

Relate to Art. 194, Family Code: Children, even if 18 years of age are still entitled to support from the estate. Read Ruiz CaseRULE 84- GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORSWhat are the powers of executors or administrators of the estate?

1. To have access to and examine and take copies of books and papers relating to partnership in case of a deceased partner.

2. To examine and make invoices of the property belonging to partnership in case of deceased partner.

3. To maintain in tenantable repairs, houses and other structures and fences and to deliver the same in such repair to the heirs or devisees when directed so to do by the court.4. To make improvements on the properties under administration with necessary court approval except for necessary repairs.

5. To possess and manage the estate when necessary for:a. Payment of debtsb. Payment of expenses of administration.What are the restrictions on the Power of an Administrator or Executor?

1. Cannot acquire by purchase the property under administration.

2. Cannot borrow money without authority of the court.

3. Cannot speculate with fund under administration.

4. Cannot lease the property for more than 1 year.5. Cannot continue the business of the deceased unless authorized by court.6. Cannot profit by the increase or decrease in the value of the property under administration. (Rule 85, Section 2)

RULE 85- ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORSCase: Lacson vs. Hon. Reyes (RTC of Cavite), and Atty. Ephraim Serquina, February 26, 1990, J. Sarmiento.

Facts: Atty. Ephraim Serquina petitioned the respondent court for the probate of the last will and testament of Carmelita Farlin, the same having been allowed without opposition. Serquina filed a motion for attorneys fees against petitioners, herein heirs of Farlin alleging that the heirs agreed to pay for his legal services rendered the sum worth 68,000. It was granted; hence, Serquina moved for its execution. Petitioners filed a notice of appeal in appealing to such decision. But trial court dismissed the same arguing that a record on appeal is required and not a notice of appeal. Petitioner, on the other hand that it should be admitted as an appeal although it falls short of the requirements by the Rules and that the trial court gravely abused discretion in granting such motion for attorneys fees being contrary to Rule 85, Section 7 of the Rules of Court. However, Atty Serquina opposed such allegation and opined that in collecting attorneys fees, he was not acting as executor of Farlins will because there was no letters testamentary that has been issued.

Issues:

(1) Whether a notice of appeal will do in this case.

(2) Whether Atty. Serquina can be granted his motion for attorneys fees.Held:

(1) Yes. It has been held that in appeals arising from an incident in a special proceeding, a record on appeal is necessary, otherwise, the appeal faces a dismissal. It has likewise been held, however, that in the interest of justice, an appeal, brought without a record on appeal, may be reinstated under exceptional circumstances. Thus:

xxx xxx xxx

It is noted, however, that the question presented in this case is one of first impression; that the petitioner acted in honest, if mistaken, interpretation of the applicable law; that the probate court itself believed that the record on appeal was unnecessary; and that the private respondent herself apparently thought so, too, for she did not move to dismiss the appeal and instead impliedly recognized its validity by filing the appellee's brief.

In view of these circumstances, and in the interest of justice, the Court feels that the petitioner should be given an opportunity to comply with the above-discussed rules by submitting the required record on appeal as a condition for the revival of the appeal. The issue raised in his appeal may then be fully discussed and, in the light of the briefs already filed by the parties, resolved on the merits by the respondent court.

In the instant case, the Court notes the apparent impression by the parties at the outset, that a record on appeal was unnecessary, as evidenced by: (1) the very holding of the respondent court that "[i]t is now easy to appeal as there is no more need for a record on appeal . . . [b]y merely filing a notice of appeal, the appellant can already institute his appeal . . . ;" (2) in its order to amend notice of appeal, it did not require the appellants to submit a record on appeal; and (3) Atty. Serquina interposed no objection to the appeal on that ground.

(2) No. It is pointed out that an attorney who is concurrently an executor of a will is barred from recovering attorney's fees from the estate. The rule is therefore clear that an administrator or executor may be allowed fees for the necessary expenses he has incurred as such, but he may not recover attorney's fees from the estate. His compensation is fixed by the rule but such a compensation is in the nature of executor's or administrator's commissions, and never as attorney's fees. In one case, 18 we held that "a greater sum [other than that established by the rule] may be allowed 'in any special case, where the estate is large, and the settlement has been attended with great difficulty, and has required a high degree of capacity on the part of the executor or administrator.'" It is also left to the sound discretion of the court. With respect to attorney's fees, the rule, as we have seen, disallows them. Accordingly, to the extent that the trial court set aside the sum of P65,000.00 as and for Mr. Serquina's attorney's fees, to operate as a "lien on the subject properties," the trial judge must be said to have gravely abused its discretion (apart from the fact that it never acquired jurisdiction, in the first place, to act on said Mr. Serquina's "motion for attorney's fees").

The next question is quite obvious: Who shoulders attorney's fees? We have held that a lawyer of an administrator or executor may not charge the estate for his fees, but rather, his client. Mutatis mutandis, where the administrator is himself the counsel for the heirs, it is the latter who must pay therefor.

The records also reveal that Atty. Serquina has already been paid the sum of P6,000.00. It is our considered opinion that he should be entitled to P15,000.00 for his efforts on a quantum meruit basis. Hence, we hold the heirs liable for P9,000.00 more.

General rule: The executor or administrator is accountable for the whole estate of the deceased.

Exception: He is not accountable for properties which never came to his possession.

Exception to the exception: When through untruthfulness to the trust or his own fault or for lack of necessary action, the executor or administrator failed to recover part of the estate which came to his possession.

What will be the compensation for executor or administrator if there is no provision in the Will?

1. P4.00 a day for the time actually and necessarily employed; OR

2. Commission

a. 2%- first 5,000b. 1%- >5,000 but not >30,000c. 1%- >30,000 but not >100,000d. %- >100,0003. Greater sum may be allowed if:

a. The estate is large;

b. The settlement has been attended with great difficulty;

c. The settlement has required a high degree of capacity of the executor or administrator.

When will the executor or administrator render account?

General rule: Within 1 year from the time of receiving letters testamentary or of administration.

Exception: An extension of time is allowed by the court for presenting claims against or paying debts or for disposing of the estate, he shall render the same as the court may require until the estate is wholly settled.

Will an examination with respect to account on oath be mandatorily done?

No. Because it can be dispensed with when:

1. No objection is made to the allowance of the account.

2. Its correctness is satisfactorily established by competent proof.

*The heirs, legatees, devisees and creditors have the same privilege of being examined.

RULE 86- CLAIMS AGAINST ESTATEWhat may be claimed against the estate?

1. Contractual money claims;

2. Funeral expenses;

3. Expenses for the last illness; and

4. Judgments for money.

Situation: A was hospitalizing at St. Lukes Hospital and finally died leaving behind lots of hospital expenses.

How will St. Lukes collect that? It has to file a claim against the estate of A.

Is this claim a separate and distinct petition from settlement of the estate of A? No, it is ancillary to testate or intestate proceeding. Hence, if there is settlement, you can file it in that court having jurisdiction. However, if there was none or there was no testate or intestate proceeding instituted yet, then you can file for the settlement of estate of A as a CREDITOR, well under Any person interested in the estate.

Judgment for money

This is illustrated in a scenario wherein H, in his lifetime, had incurred obligation against, or he is obliged to do something, but died eventually. The person entitled to any against H cannot sue H personally, as the latter already died. But what can he do is to file a claim against the estate of H.

*Pertinent provision- Section 20, Rule 3 of the Rules of Court

When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not dismissed but shall instead be allowed to continue UNTIL ENTRY OF FINAL JUDGMENT. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person.

Illustrate: A files B for a sum of money based on a contract between them as parties. B, however died. The case was not dismissed but instead proceeded up until entry of judgment. In entry of judgment, no more appeal is required, much more, Motion for Reconsideration or Motion for New Trial. With that period of time, judgment already becomes executory. However, instead of proceeding to Rule 39 which is execution of an executory judgment, in this case, a claim against the estate under Rule 86 applies, falling under JUDGMENT FOR MONEY.

How will you distinguish money claims under Section 5 of Rule 86 from judgment for money? For money claims under Rule 86 Section 5, it could be filed even if not due or contingent, much more those already due. However, for judgment for money, it presupposes that the same has already been adjudicated.

What are contingent claims?

These are conditional claims that are subject to the happening of a future uncertain event. *Claims not yet due or contingent may be approved at their present value.

What is a deficiency judgment in this respect?

It is a contingent judgment 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.

Example: You have a millionaire uncle, and before he died he made a promise to give you something when you complied with his condition. However, before the happening of the condition, he died. The condition was for you to pass the bar.

What happens to contingent claim then?

You can pursue the same by mere affidavit, showing the oral contract you had with your uncle, although the same is unenforceable, being not in writing.

Is this a valid claim against the estate?

Yes, because the money claim against the estate could be due, undue or even contingent.

Suppose they are not due yet, can they be filed against the estate?

Yes, since whether due, not yet due, or contingent, you can file against the estate.Statute of Non-claims

What is Statute of Non-Claims?

It is the period fixed by the Rule for the filing of the claims against the estate.

When do you file it?

You can file it not more than 12 months nor less than 6 months after the date of first publication. Otherwise it is deemed waived which is also known as the STATUTE OF NON- CLAIMS.

Is there an exception to this strict period rule?

Yes, with respect to BELATED CLAIMS. These are claims not filed within the original period fixed by the court. However, 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 on such terms as are equitable, allow such claim to be filed within a time NOT exceeding 1 month from the order allowing belated claims. This is also in the form of COUNTERCLAIM. The obligation by reason of mortgage due from estate is distinguished between Rule 86, Section 7, in which the estate is a mortgagor while in Rule 87 Section 5, the estate is a mortgagee.

What is the relationship between a statute of non-claims and limitations?

A statute of non claims supersedes a statute of limitations. The statute of limitation is a period provided for in the Civil Code where actions prescribe. An ordinary prescriptive period in a civil case is 10 years from accrual. A statute of limitation is not applicable if in conflict with statute of non-claim. This is precedence of statute of non-claims than statute of limitations. The statute of non-claims prevails over the statute of limitations. However, the statute of non- claims will not apply if there is no settlement proceedings.Illustration: Mr. A took the bus, Philippine Rabbit, owned by Mr. B to Baguio. He never reached his destination because the bus fell over a ravine on January 5, 1990. That is the date of the accrual of the cause of action (Jan. 5, 1990).

Can Mr. A file a case against Mr. B on March 2001?

No, because the action is barred by the statute of limitations.

Suppose Mr. B died in 1995. What should A do?

File a claim against the estate within a period of not less than 6 mos. and not more than 12mos from the date of first publication. So, the presumption here is that there is a settlement of the estate of B. Otherwise, the statute of non-claims will not apply.

Suppose notice was given on March 1, 1995. So you have 6 months and it was published March 20, you have not less than 6 months from March 20, nor more than up to the 19th of March 1996. Can you file it in 1998?

No, because it is beyond the statute of non-claims. Even if it is within the statute of limitations, you can no longer file it because it is beyond the statute of non-claims. That is the meaning of the statute of non-claims supersedes the statute of limitations.On the other hand, if B died in 1999 of December, you have only have up to January of 2000 because the action has already prescribed, the ordinary action. The statute of non-claims prevails over the statute of limitations. However, the statute of non- claims will not apply if there is no settlement proceeding.

What is the time-frame in Section 2 of Rule 86?

The court is bound to give notice to those who have claims against the estate. The notice here is a sort of publication which is NOT the same as publication in probate since in the latter the notice refers to NOTICE OF HEARING.

How will you pursue your money claim?

It is provided for under Section 7 thereto, which a claim must be filed with the clerk of court with affidavit supported by vouchers. The clerk of court will now relay to executor or administrator who has duty to file his answer within 15 days whether he agrees or not.

How was this treated by the court?

If there is no opposition or with admission, pay 50,000 to set aside the claim. While pay 150,000 to the court and send the 150,000 the notice of hearing with respect to 150,000.The court will then decide if valid or not. If there is contest by any other heir, payment of 50,000 should be made but WILL IN NO WAY CREATE PREFERENTIAL RIGHT NOR LIEN ON ESTATE.

What happens next?

The distribution will commence at the proper time, in due course of administration. This is so because distribution only arises when everything else is paid.

STATUTE OF LIMITATIONS: prescriptive period in the Civil Code.

FCC vs Santibanez

Q: What were the issues assigned as errors before the CA?

A: Issues

1. Whether or not estoppel applies

2. Whether or not the extra judicial partition bet among the heirs were valid

3. Whether or not it is necessary for a partition to be approved by the probate court

4. Whether or not the respondent could be held jointly liable with Santibanez.

Testate Proceeding.

Provisions on a holographic will. It wasnt clearly stated in this case.

The parties entered into an agreement.

Q. Can prospective heirs whether under the testate or intestate enter into a partition over the properties belonging to the estate?

A. There can be no partition until and unless the will is allowed or probated.

Q. Was it really a partition?

A: According to the SC they may act to put an end in any indivision is considered and deemed to be a partition.

There can be no partition in a testate proceeding before the will is allowed.

Q: What is the rationale behind that?

A: Because the SC said if it is allowed then you are divesting the court of its jurisdiction over the property partition. Bec it is partition, it amounts to distribution. Distribution is the final stage in a settlement proceeding and there will be no distribution of the estate until and unless all debts has been paid. The court looks into it as an act of divesting of its jurisdiction.

Q: Can principle of estoppel be applied?

A: The SC said the principle of estoppel will not apply because the basis which is the extra judicial partition is in fact void, a void act of declaration or omission of a party cannot be used as evidence against the party. If the act is null and void, estoppel will not arise therefrom.

Q: Are the heirs liable?

A: The SC said he did not even established the fact that you are the proper party in interest because Union Bank did not show any evidence to prove that you are really the affiny.

Settlement of Estate

Sec 7. Mortgage debt due from estate

Remedy

1. Claim against the estate

after all the debts has been paid; upon distribution

2. Foreclose the mortgage - judicial

deficiency judgement by motion only in the same action

3. Extrajudicial foreclosure

you solely rely on his mortgage, you dont get any deficiency judgement

Q: Sec 9 How to file a claim

A: In form of a simple application form

1. Deliver the claim to the clerk of court

2. Serve a copy on the executor or administrator

3. if the claim is due, it must be supported by affidavit stating the amount due and the fact that there has been no effects.

4. if the claim is not due or contingent, it must be accompanied by affidavit stating the particulars

Sec 10 Answer of executor or administrator

1. Executor may file answer within 15 days from the service of claim

2. Answer must set forth claims which decedent has against claimant or else it will be barred forever.

RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORSClaims that survive

Rule 87, Section 1Claims that do not survive

Rule 86, Section 5

Actions that may be commenced directly against the executor and administratorActions that may be commenced against the estate of the deceased

1. Recovery of real/personal property (or any interest therein)

2. Enforcement of lien thereon

3. Action to recover damages arising from tort

4. Action for revival of money judgment may be filed against administrator to preempt prescription of judgment1. Money claims, debts incurred by the deceased during his last illness arising from contract

2. Claims for funeral expenses or for the last illness of the decedent

3. Judgment for money against decedent

We have limited claims against the estate to the following:

1. Contractual money claims;

2. funeral expenses;

3. expenses for the last illness; and

4. judgments for money.

These are considered as contractual money claims under Rule 86. When you go to Rule 87, you will note that you cannot file a claim against the estate if it is claimable under Rule 86. So contractual money claims, hindi. That is why in Rule 87, you are also limited to the following claims or actions:

1. Recovery of real or personal property;

2. Recovery of interest or lien therein;

3. Judgment arising from injuries

When can the heirs sue on behalf of the estate of the deceased?

It is when an order of the court assigning such lands to such heir or devisee or until the time allowed for paying debts has expired although an executor or administrator is appointed and assigned the trust.

When can an executor or administrator compound with the debtor of the deceased?

Within the approval of the court, an executor or administrator may compound with the debtor of the deceased for a debt due, and may give a discharge of such debt on receiving a just dividend of the estate of the debtor.

Q: In actions by and against executors and administrators, where will the executor or administrator get his money to satisfy your prayer in your action? Hindi ba from the estate? So why not against the estate, bakit against the executor or administrator?

A: Rule 86 is not an action tapos na dyan yung action, it is already through. In 87, it is a separate and distinct action, so that if it is a complaint, you always file it against the executor or administrator. Pero dito, tapos na yan. Hence, dahil tapos na, it is urgent urgency of the subject matter so the presumption in 86, that there must an estate proceeding, whether testate or intestate without that , you cannot file any claim. Suppose wala, ano gagawin mo? Iinitiate the testate or intestate proceeding so that you file a claim. It is not an independent action here.

But in 87, it is an independent action. Meron bang testate or intestate proceeding? Not necessarily. You might say, bakit executor, administrator? Kaya nga or because when you say executor, meron yan. Kung walang executor, administrator. You mean to say that there can be no administrator without an estate proceeding? No. There can be an administrator even if there is no estate proceeding because you can even undertake extrajudicial settlement of the estate. In extrajudicial settlement there can be an agreement by and between the parties as to the administrator of the estate. The estate does not have a separate and distinct personality. It is only an entity authorized by law in special cases.

What will the court do when an executor or administrator, heir or other interested in the estate of the deceased complains of a person being suspected of having concealed, embezzled, or conveyed away any of the property of the deceased, or when such person is in possession or has knowledge of any deed, conveyance, bond, contract or other writing which contains evidence of or tends to disclose the right, titled, interest or claim of the deceased to real or personal property or the will of the deceased?

The court may cite such suspected person to appear before it any may examine him on oath on the matter of such complaint; and if the person so cited refuses to appear, or to answer on such examination or such interrogatories as are put to him, the court may punish him for contempt, and may commit him to prison until he submits to the order of the court. The interrogatories put any such person, a