OVERVIEW OF RULES 72 TO 109 OF THE REVISED RULES OF

COURT DEALING WITH THE PROCEDURAL RULES ON THE

SETTLEMENT OF ESTATE, WILL, LETTERS, TESTAMENTARY
AND ADMINISTRATION, ESCHEATS, GUARDIANSHIP,
APPOINTMENT OF TRUSTEES, ADOPTION, CHANGE OF
NAME, CANCELLATION AND CORRECTION OF ENTRIES IN
THE CIVIL REGISTRY AND APPEALS IN SPECIAL
PROCEEDINGS

A Term Paper Presented to Professor Atty. Rodolfo B. Rabaja

In Partial Fulfillment of the Requirements in

Special Proceedings

by

Peter John R. Arellano

Summer Class 2015

I.
General Provision
Rule 72: Subject Matter and Applicability of General Rules
A special proceeding is an application to establish the status or right of a
party or a particular fact, or any remedy other than an ordinary suit in a court
of justice. It is generally commenced by application, petition or special form of
pleading as may be provided for by the particular rule or law.
Although (c) refers only to children, guardianship is not limited to
children but extends to incompetents. Proceedings for custody of a child
whose parents are separated may be an independent proceeding or an incident
in any other proceeding. But that for a vagrant or abused child is an
independent proceeding in itself.
While (m) speaks of declaration of absence and death there cannot be a
special proceeding instituted just to obtain a declaration of death. Actual or
presumptive death cannot be the subject of a judicial pronouncement or
declaration if it is the only question or matter involved in a case or upon which
a competent court has to pass. Such declaration may be made only in
connection with the proceedings for the settlement of the estate of the alleged
decedent
Rule 107 (absentees) is only limited to a declaration of absence. Family
code authorizes a summary proceeding for the declaration of the presumptive
death of the absentee spouse to enable the spouse present to contract a
subsequent marriage.
There are certain specific provisions for special proceedings allegations
required to be contained in the pleadings, venue and service of pleadings and
processes.
Distinction between final and interlocutory orders in civil actions for
purposes of determining appealability is not strictly applicable to orders in
special proceedings. Rule 109 specifies appealable orders, some of which are
interlocutory in civil actions.

Rule 33 regarding judgment on demurrer to evidence is applicable to

specpro.

II.
Settlement of the Estates of Deceased Persons
Rule 73: Venue and Process
Residence of decedent at time of his death is determinative of the venue
of the proceeding. Residence means his personal, actual or physical habitation,
his actual residence or place of abode and not his permanent legal residence or
domicile.
It is only where the decedent was a non-resident of the Philippines at the
time of his death that venue lies in any province in which he had estate.
o CFI thereof first taking cognizance acquires jurisdiction to the exclusion of
other courts. Subject to preferential jurisdiction of the court where testate
proceedings are filed.
Question of residence is determinative only of the venue and does not
affect jurisdiction of the court. Venue may be waived, submission of affected
parties to proceeding is a waiver of objection to error in venue.
The branch of the court first taking cognizance of proceeding acquires
exclusive jurisdiction to resolve all questions concerning the settlement of the
estate to exclusion of all other courts or branches of same court (even
questions of venue seasonably filed).
The probate court acquires jurisdiction over the proceeding from the
moment the petition for settlement is filed. It cannot be divested of such
jurisdiction by subsequent acts of the interested parties, as in entering into an
extrajudicial partition of the estate or by filing another petition for settlement in
a proper court of concurrent venue. SC may however order a change of venue
under its supervisory authority.

Conjugal partnership shall be liquidated in the proceedings for the

settlement of the estate of the deceased spouse, or if both died, in proceedings
for either estate. If separate proceedings were instituted, they may be
consolidated if filed with the same court.
Probate court has jurisdiction to determine whether the property is
conjugal as it has to liquidate the conjugal partnership to determine the estate
of the decedent. Since liquidation may be made in either proceeding where both
are still pending, it is a matter of sound judicial discretion in which one it
should be made.

Upon death of spouse no action can be maintained against the surviving

spouse for recovery of a debt chargeable against the conjugal partnership,
claim should be filed in the settlement proceeding of the estate of the deceased
spouse. Neither may surviving spouse enter into an agreement novatory of a
contract executed by both of them during lifetime of deceased.
Estates of deceased spouses may be settled in one proceeding. In all
other instances, even if they are related as ascendants and descendants, their
separate estates must be settled in different proceedings.
If in determination of conjugal nature of such property a question of title
thereto is raised by a third person, the probate court has no jurisdiction to
determine the title to said property as the issue should be threshed out in a
proper action. Especially true in summary proceedings and to avoid delay, as
distribution is always subject to the results of the appropriate suit and the
claimants rights can be protected by notice of lis pendens.
The probate court may pass upon the question of title to property only
where: a. interested parties who are all heirs of the deceased consent thereto
and interests of third parties are not prejudiced (as where the parties are all
heirs of the deceased); b. in a provisional manner, to determine whether the
property should be included in or excluded from the inventory, without
prejudice to the final determination of title in a separate action (especially
where property is in possession of a third party who has certificate of title
thereto).
Probate court has the power to determine questions as to: who are the
heirs of the decedent; the recognition of a natural child; the validity of
disinheritance effected by the testator; and the status of a woman who claims

to be the lawful wife of the decedent; also jurisdiction to pass upon validity of
waiver of hereditary rights; whether property in the inventory is conjugal or
exclusive property of the deceased spouse.
Its jurisdiction extends to matters incidental or collateral to the
settlement and distribution of the estate.
Probate court generally cannot issue writs of execution because its
orders usually refer to adjudication of claims against the estate which the
executor or administrator may satisfy without the need of executor processes.
The rules specify instances wherein probate court may issue writ of
execution: to satisfy contributive shares of devisees, legatees and heirs in
possession of decedents assets; to enforce payment of expenses of partition;
and to satisfy costs when a person is cited for examination in probate
proceedings.
Inclusion unius est exclusion, these would be the only instances when
probate court may issue writ of execution.
Absentee shall be presumed dead for purposes of opening his succession
after absence of 10 years but if he disappeared after age of 75 years, 5 year
absence is sufficient. If absentee was on board vessel lost during sea voyage or
airplane which is missing, was in armed forces and has taken part in war or
has been in danger of death under other circumstances, only 4 years is
required.
Taken conjointly with Art. 392 of the Civil Code, recover of the returning
absentee of his estate is subject to the conditions that: a. All his debts must
have been paid; b. He shall recover his property in the condition in which it
may be found, together with the price of any property that may have been
alienated or the property acquired therewith; and c. He is not entitled to fruits
or rents.
Rule 74: Summary Settlement Of Estates
This rule actually provides for two exceptions to the requirement that the
estate should be judicially administered through an administrator or executor
a. Extrajudicial settlement
b. Summary settlement of estates of small value
The salient distinctions between these two methods of settlement are as
follows:

Extrajudicial settlement
Does not require court
intervention
Value is immaterial

Only
in
intestate
succession
Proper only when no
outstanding debts at
time of settlement
Only at the instance
and by agreement of all
heirs

Bond is equal to the

value
of
personal
property as established
by
instrument
of
adjudication

Summary settlement
Involves
judicial
adjudication although
in summary proceeding
Applies
only
where
gross estate value does
not exceed P10,000
(amt is jurisdictional)
Allowed both in testate
and intestate
Available even if there
are debts (court will
make provisions for
payment thereof)
May be instituted by
any interested party
and even by a creditor
without consent of all
the heirs
Bond determined by the
court

The requisites of a valid extrajudicial settlement are: a. Decedent died

intestate; b. No outstanding debts of the estate at time of the settlement; c.
Heirs are all of age or the minors are represented by their judicial guardian or
legal representatives; d. Settlement made in a public instrument, stipulation or
affidavit duly filed with the register of deeds; and e. The fact of such
extrajudicial settlement must be published in a news paper.
Extrajudicial settlement presupposes concurrence among all heirs to the
partition of the estate as provided in the instrument. If they cannot agree on
the manner of the partition they may institute an action for partition unless
same is prohibited by an agreement, by the donor or testator, or by law. If
despite such action they subsequently arrive at an agreement, they may enter
into the corresponding stipulation and register the same with the register of
deeds.
Where case is proper for extrajudicial settlement, a dissenting heir
cannot insist on instituting administration proceedings which would be

superfluous and unnecessary unless he can establish good reasons for not
resorting to an action for partition.
Public instrument is now required for registration. If the settlement is in
a private instrument, it is believed that the same is still valid and reformation
of the instrument may be compelled (Art. 1359, CC).
While the rule provides that the decedent must have not left any debts, it
is sufficient if any debts he may have left have been paid at the time the
extrajudicial settlement is entered into. It is presumed that decedent left no
debts if no creditor files a petition for letters of administration within 2 years
after death of decedent. (rebuttable presumption)
A bond is required only when personalty is involved in the extrajudicial
partition, real estate is subject to a lien in favour of creditors, heirs or other
persons for the full period of two years from such distribution and such lien
cannot be substituted by a bond. Value of personal property which must be
covered by bond is determined from sworn declaration of the parties in the
instrument of settlement or affidavit of adjudication, or if not mentioned
therein in tan affidavit stating such valuation which the register of deeds shall
require them to execute.
Minor distributee in an extrajudicial settlement should be represented
therein by a judicial guardian. If property adjudicated to him is not worth more
than P2,000 he may be represented by his legal guardian.
Summary settlement of estates of small value is now within the
jurisdiction of inferior courts.

The amount of bond to be filed by the distributees of personal property in

summary settlement is determined by the court.
As a rule, probate court cannot pass upon issue of title in summary
proceedings when one of heirs asserts an adverse claim to the property
involved therein, Where it is clear that the property really belongs to the
decedent, probate court may determine in a summary settlement who are the
parties entitled thereto since in such a proceedings it is directed to act
summarily and without delay.
The 2-year lien upon the real property distributed by extrajudicial or
summary settlement shall be annotated on the title issued to the distributees
and, after the lapse of the period, may be cancelled by the register of deeds
without need of a court order. Lien cannot be discharged nor the annotation
cancelled within the 2-year period even if the distributes offer to post a bond to
answer for the contingent claims for which the lien is established
The discovery of unpaid debts after the extrajudicial settlement has been
effected does not ipso facto invalidate the partition. In such a case, the creditor
may ask for administration of enough property of the estate sufficient to pay
the debt, but the heirs can prevent such administration by paying the
obligation Or the creditor can file an ordinary action against the distributees
for his claim.
Where estate has been summarily settled, unpaid creditor may, within 2year period, file a motion in the court wherein such summary settlement was
had for the payment of his credit. After the lapse of the period, an ordinary
action may be instituted against the distributees within the statute of
limitations, but not against the bond.
An extrajudicial settlement, despite the publication thereof in a
newspaper, shall not be binding on any person who has not participated
therein or who had no notice thereof.
Summary settlement is likewise not binding upon heirs or creditors who
were not parties therein or who had no notice thereof.
Said heirs or creditors may vindicate their rights either by proceeding
against the estate, the distributees or against the bond within the 2-year
period, or even thereafter but within the statute of limitations, but, this time,
they can no longer proceed against the bond.

The action to annul a deed of extrajudicial settlement on the ground of

fraud should be filed within four years from the discovery of fraud.

If special proceedings are pending or there is a need to file one, for the
determination of heirship, that issue should be determined in said special
proceedings. Where those special proceedings had been finally terminated and
the putative heir had lost his right to be declared therein as a co-heir, an
ordinary civil action can be timely filed for his declaration as an heir.

Rule 75: Production of will. Allowance of will necessary

The probate of a will refers to its due execution and settles only formal or
intrinsic validity of the will. Whether the testator being of sound mind freely
executed the will in accordance with the formalities prescribed by law. It does
not affect or pertain to the intrinsic validity of the provisions thereof which
determination normally comes after allowance of the will.
Such allowance in a final judgment is conclusive on that issue and
cannot be assailed in another proceeding, except on the ground of fraud in the
procurement of the decree.
The doctrine of estoppel does not apply in probate proceedings since the
presentation and the probate of a will are required by public policy and they
involve public interest. In exceptional cases, as where the defect is apparent on
its face, the probate court may determine the intrinsic validity of the will even
before its formal validity is established, as the probate of a will may become a
useless ceremony if the will is intrinsically invalid.
If the custodian of the will delivers it to the executor named therein, such
executor must in, turn, deliver that will to the court within 20 days therefrom
and signify whether he accepts the trust.
Delivery of the will is made to the clerk of court of the RTC having
jurisdiction over the estate.
Testate proceedings take precedence over intestate proceedings for the
same estate. If during the pendency of intestate proceedings, a will of the
decedent is discovered, proceedings for the probate of the will shall replace the

intestate proceedings even if an administrator had already been appointed

therein. Should the will not be allowed to probate, then the proceedings shall
be continued as an intestacy. Doubts should be resolved in favour of testacy,
especially where the will evinces the intent of the testator to dispose of his
whole estate.
It is not proper for the probate court to make a finding in an intestate
proceeding that a will discovered after the intestate proceeding have been
revoked. The court should order the filing of a petition for the probate of said
will by the party interested therein.

Rule 76: Allowance Or Disallowance Of Will

Petition for probate of the will is not subject to bar by the statute of
limitations and does not prescribe, as such petition may be filed at any time
and is required by public policy.
The jurisdictional facts required to be alleged in the petition for probate
are: a. That a person died leaving a will; b. In the case of a resident, that he
died in his residence within the territorial jurisdiction of the court, or in the
case of a non-resident, that he left an estate within such territorial jurisdiction,
and c. That the will has been delivered to the court.
A creditor of the decedent may file a petition for the settlement of the
latters estate as a preparatory step for the filing of the formers claim therein,
but an heir who has assigned or renounced his hereditary rights has no legal
interest as would authorize him to initiate such proceedings.
The probate of a will is a proceeding in rem and the publication provided
for by this Rule is a jurisdictional requirement. The personal service of notice
upon the heirs is a matter of procedural convenience and not a jurisdictional
requisite. However, where the names of the heirs and their residences are
known, notice of the hearing of the petition in accordance with Sec. 4, Rule 76
must be forwarded to them and such requirement cannot be satisfied by mere
publication.
The requirement of three successive weeks of publication in Sec. 3 does
not mean that three full weeks or 21 days should intervene between the first
publication and the date of hearing. It is sufficient that publication has been

made once a week successively three times, even if less than 21 days
intervened between the first publication and the hearing.
Where
lifetime, no
compulsory
considered a

the testator himself petitions for the probate of his will in his
publication is required and notice is required only for his
heirs. Such notice should, under these circumstances, be
jurisdictional requisite.

Sec. 5 provides for the requisite proof where the petition for the probate
of the will, notarial or holographic, is not contested. In the absence of any
opposition to such probate, the evidence for the petitioner may be received ex
parte. In the case of a holographic will, and there is no contest, only one
witness is required and in his absence, expert evidence may be resorted to. If
the testator of the holographic will himself testifies, he need merely affirm his
handwriting and signature.

In the case of a contested notarial will, it is the duty of the petitioner to

produce all the available attesting witnesses and the notary public, but he is
not concluded by the testimony witnesses, even if adverse, as the court may
still admit the will to probate on the basis of other satisfactory evidence. This is
an exception to the rule that a party is generally bound by the testimony or
evidence that he presents, because here, unlike ordinary actions, he has no
choice in the evidence as he is duty-bound to account for all attesting
witnesses. It has been held that the testimony of the notary before whom the
will was acknowledged will prevail over that of the two attesting witnesses who
claim undue execution of the will.
In the case of a holographic will, it is not mandatory that witnesses be
first presented before expert testimony may be resorted to, unlike notarial wills
wherein the attesting witnesses must be presented or accounted for. This is so
because holographic wills are not required to be witnessed and the existence of
a qualified witness may be beyond the control or knowledge of the proponent of
the will.
This section provides the requisite quantum of evidence to prove a lost or
destroyed notarial will in the absence of contest, and constitutes an exception
to the rule on secondary evidence in Sec. 5, Rule 130.

The witnesses required here, who need not be attesting witnesses

(although testimony of the latter would be entitled to greater weight) must
clearly establish: a. The due execution and formal validity of the will; b. The
existence of the will at the time of the death of the testator or its fraudulent or
accidental destruction in the lifetime of the testator and without his knowledge,
and c. The provisions of said will, to be testified to by at least two credible
witnesses.
If however, the probate of such lost or destroyed notarial will is contested,
then Sec. 11 of this Rule has to be complied with, that is, all the subscribing
witnesses and the notary public must be accounted for and, if available, their
testimony must be secured, and all the facts stated in Sec. 6 must be
established by them or by two credible witnesses.
Where a lost will is shown to have been in the possession of the testator
when last seen or that the testator had ready access to the will and it cannot be
found after his death, the presumption is that he destroyed or cancelled it and
not that it was destroyed by other persons without his knowledge or authority.
This section applies to a lost or destroyed notarial will and not a
holographic will. A lost or destroyed holographic will cannot be proved by the
bare testimony of witnesses who have seen and/or read such will as the
probate thereof requires identification of the handwriting and signature of the
testator presupposing the availability of the holographic will in court.

The SC however intimated that perhaps it may be proved by

photographic, photostatic or carbon copies or similar means, it was definitely
held that the lost holographic will could be proved by photostatic or Xerox
copies thereof.
In the case of a notarial will where none of the attesting witnesses are
available, the court may admit other witnesses and admit proof of the
handwriting of the testator and the attesting witnesses.
Rule 77: Allowance of will proved outside of Philippines
And administration of estate thereunder
A will allowed to probate in a foreign country must be probate again in
the Philippines. The venue for the petition for reprobate is the same as that
provided in Rule 73. If the decedent had properties in different countries,
separate administration proceedings must be had in said countries, the

proceeding in his last domicile being the principal administration and any
other administration proceeding being termed the ancillary administration.
These two proceedings are separate and independent of each other, but a
Philippine court may grant ancillary letters to the domiciliary representative, if
the relatives of the decedent mentioned in the order of preference are
unsuitable for the trust. The court may in the exercise of its sound discretion
also appoint some other person.
At the proceedings for reprobate in the Philippines, the proponent must
prove: a. That the testator was domiciled in the foreign country; b. That the will
has been admitted to probate in such country; c. That the foreign court was
under the laws of said foreign a probate court with jurisdiction over the
proceedings; d. The law on probate procedure in said foreign country and proof
of compliance therewith, and e. The legal requirements in said foreign country
for the valid execution of the will.
In the absence of proof of the foreign law, it is presumed that it is same
as that in the Philippines.
The local administrator has power only over the property of the decedent
in the Philippines. However such property of a foreigner in the Philippines shall
be disposed of in accordance with his national law, especially on the matter of
the order of succession, Any surplus of the estate in the hands of the
Philippine ancillary administrator shall be remitted to the domiciliary
jurisdiction, but the SC has also noted that it would be advisable for Philippine
courts to retain in custodia legis a sufficient amount to protect Philippine
claimants with contingent claims, such as when there are pending cases for
payment thereof or for the determination of the status or right of one who
claims as an heir to the estate, since said administrator also represents the
interests of Philippine creditors, heirs or legatees.
Rule 78: Letters testamentary and of administration,
When and to whom issued
An executor is the person named in the will to administer the decedents
estate and carry out the provisions thereof. An administrator is the person
appointed by the court to administer the estate where the decedent died
intestate, or where the will was void and not allowed to probate, or where no
executor was named in the will, or the executor named therein is incompetent
or refuses to serve as such.

A corporation or association authorized to conduct the business of a

trust company in the Philippines may be appointed as an executor or
administrator of an estate in the same manner as an individual.
More than one executor may be issued letters testamentary in
accordance with the nomination in the will. Also, while as a rule the court
appoints only one administrator for intestate estates, more than one
administrator may also be appointed by the court.
The general practice is that co-executors or co-administrators will
exercise joint supervision over the entire estate, but the court for justifiable
reasons may charge a co-administrator with powers over a particular portion of
the estate for administration by him independent of his co-administrator, but
he must act in close cooperation with the latter.
This is the order of preference in the appointment of an administrator
but the same may be disregarded for valid cause. A full-dress hearing to
determine the competence of the person named as administrator should be
conducted. The directive of the testator in his will is not conclusive as
supervening circumstances may have rendered unfit the person named to the
trust.
In the appointment of the administrator of the estate of a deceased
person, the principal consideration is the interest in the said estate of the one
to be appointed as administrator.
The underlying assumption for this rule is that those who will reap the
benefits of a wise, speedy and economical administration of the estate, or on
the other hand suffer the consequences of waste, improvidence or
mismanagement have the higher interest and most influential motive to
administer the estate correctly. However, the order of preference does not rule
out the appointment of co-administrators and the same may be resorted to by
the probate court in the exercise of sound discretion.

Thus appointment of co-administrators has been upheld for various

reasons: 1. To have the benefit of their judgment and, perhaps, at all times to
have different interests represented; 2. Where justice and equity demand that
opposing parties or factions be represented in the management of the estate; 3.
Where the estate is large or, from any cause, an intricate and perplexing one to
settle; 4. To have all interested persons satisfied and the representatives to

work in harmony for the best interests of the estate, and 5. When a person
entitled to the administration of an estate desires to have another competent
person associated with him in the office.
The term next of kin has been defined as those persons who are
entitled under the statute of distribution to the decedents property. Generally,
the nearest of kin, whose interest is more preponderant, is preferred in the
choice of administrator. Among members of a class, the strongest ground for
preference is the amount or preponderance of interest. As between next of kin,
the nearest of kin is to be preferred.
A party indebted to the decedents estate cannot compatibly perform the
duties of an administrator and should not be appointed as such. Where such
fact of indebtedness was only subsequently discovered after the administrator
had been duly appointed, he should not be removed, absent any other lawful
ground.
An administrator is not supposed to represent the interests of any
particular party and his acts are deemed to be objectively for the protection of
the rights of everybody concerned with the estate of the decedent. On the other
hand, however, it is evidently implicit in Sec. 6, fixing the priority among those
to whom letters of administration should be granted, that the criterion in the
selection of the administrator is not his impartiality alone, but more
importantly, the extent of his interest in the estate, so much so that the one
assumed to have greater interest is preferred to another who has less.
Clerks of court and other court personnel of the probate courts should
not be appointed as administrators or receivers of estates of deceased persons
so as not to compromise their objectivity and impartiality in the performance of
their regular functions.
Rule 79: Opposing issuance of letters testamentary, Petition
and contest for letters of administration
When a petition for probate of the will has been filed, Sec. 1 authorizes a
person interested in the estate not only to challenge the qualifications of the
person nominated therein as executor but, at the same time and in
anticipation of such disqualification, to file a petition for administration with
the will annexed. The court will thus have two petitions pending before it nut in
the event the nomination of the executor is approved by the court with the
issuance of letters testamentary to him, the petition for administration with the
will annexed must necessarily be denied.

Testate proceedings take precedence over intestate proceedings. Hence if

intestate proceedings had been filed and a will is discovered, probate
proceedings may be instituted in a separate proceeding or by appropriate
motion in the same court. Should the probate be denied, the proceeding shall
continue as an intestacy.
In order to be a party, a person must have material and direct and not
one that is only indirect or contingent interest. Hence, where the right of a
claimant is dependent on the disallowance of the second will and the
incapability to inherit of the legatees instituted by the testator in the first will,
such contingent interest does not make the claimant an interested party.
Where an heir has validly assigned all his rights to the estate before the
institution of settlement proceedings thereover, he no longer has the requisite
interest to participate therein.
Where the assignment is made during the pendency of the settlement
proceedings, it requires the approval of the court for its validity. However, it has
been held that in this situation, even if that assignment has been approved by
the court, such approval is not deemed final until the proceeding over the
estate is closed, as such approval can still be vacated, hence the assignor
remains as an interested party in the proceeding.
Sec. 6 (b), Rule 78, provides that the preference given to the surviving
spouse or next of kin may be disregarded by the court where said persons
neglect to apply for letters of administration for 30 days after decedents death.
Sec. 6 of this Rule reiterates such provision.
RULE 80: Special Administrator
This section authorizes the appointment of a special administrator. The
other instance when special administrator may be appointed is when the
regular administrator or executor has a claim against the estate, in which case
a special administrator shall be appointed by the court with respect to such
claim.
Clerks of court and court employees should not be appointed special
administrators as their objectivity and impartiality may be compromised by
extraneous considerations.

The order of preference in the appointment of regular administrators

does not apply to the appointment of a special administrator, but such order of
preference may be followed by the judge in the exercise of sound discretion.
The grounds for the removal of the regular administrator do not apply
strictly to the special administrator as he may be removed by the court on
other grounds in its discretion.
The order appointing a special administrator is an interlocutory order
and is not appealable.
The special administrator also has the duty to submit an inventory and
to render and accounting of his administration as required by the terms of his
bond.
While a special administrator may commence and maintain suits under
Sec. 2 he cannot be sued by a creditor for the payment of a debt of the
deceased. Such suit must await the appointment of a regular administrator.
However, it was subsequently held that a special administrator may be made a
defendant in a suit against the estate where the creditor would suffer the
adverse effects of the running of the statute of limitations against them if the
appointment is delayed. A mortgagee may bring an action for the foreclosure of
a mortgage of a property of the estate against a special administrator, otherwise
the very purpose for which the mortgage was constituted will be defeated.
Rule 81: Bonds Of Executors And Administrators
The bond posted by administrators and executors is intended as an
indemnity to the creditors, the heirs and the estate. The court shall fix the
amount thereof and hold it accountable for breach of duty on the part of the
administrator or executor. The enforcement of such liability may be sought by
motion in the administration proceedings or in a separate civil action.
Under Sec. 2 even if the testator has directed in his will that his executor
serve without bond, the court may still require him to file a bond conditioned
only to pay the debts of the testator; and thereafter, based on the
circumstances, the court may require further bond from said executor to
answer for breaches in his administration.
Rule 82: Revocation of administration, death, resignation
And removal of executors or administrators

It is only when the newly-discovered will has been admitted to probate

that the letters of administration may be revoked by the probate court.
The mere fact that it was subsequently discovered that the duly
appointed administrator was indebted to the decedent is not a ground for his
removal, absent any other circumstance indicative of bad faith or lack of
integrity on his part.
The fact that the administratix was later held to be without the right to
intervene in the settlement of the estate as an heir is not a ground for her
removal as such adminsitratix since even a stranger can be appointed as such.
Rule 83: Inventory And Appraisal Provision For Support Of Family
The 3 month period provided herein is not mandatory and the court
retains jurisdiction even if the inventory is filed after said period, but such
delay, if not satisfactorily explained, may be a ground for the removal of the
administrator under Sec. 2, Rule 82.
Property claimed by third persons may be included in the inventory as
part of the assets of the estate and the probate court may order such inclusion,
but such order of the probate court is only a prima facie determination and
does not preclude the claimants from maintaining an ordinary civil action for
the determination of title.
Sec. 3 allows support to be given to the surviving spouse and the minor
or incapacitated children of the decedent during the settlement of the estate.
The allowances for support are subject to collation and deductible from the
share in the inheritance of said heirs insofar as they exceed the fruits or rents
pertaining to them.
Rule 84: General Powers And Duties Of Executors And Administrators
An administrator or executor has all the powers necessary for the
administration of the estate and which powers he can exercise without leave of
court. The constitution of a lease over property of the estate is an act of
administration and leave of court is not required.
Any interested party who desires to impugn the same must do so in an
ordinary civil action as the probate court has no jurisdiction over the lessee.

If the lease contract exceeds one year, the same is no longer considered a
mere act of administration, and leave of court should ordinarily be required. A
view is held, however, that the aforesaid provisions on agency should not apply
to leases entered into by an executor or administrator, under the theory that
they represent not only the estate but also the parties interested therein, that
they are required to file a bond and that their acts are subject to specific
provisions of law and orders of the probate court, which circumstances are not
true with respect to agents.
Regarding sale, mortgage or other encumbrance on property of the
estate, the same are regulated by Rule 89.
Rule 85: Accountability And Compensation Of Executors And Administrators
These sections provide for the accountability of administrators or
executors with respect to their omissions or for acts performed by them in the
administration of the estate.
The administrator or executor is entitled to charge in his accounts all
expenses of administration incurred by him.
Not proper expenses of administration, therefore not chargeable against
the estate: a. Services rendered by administrator in favor of an heir which
services were not beneficial to the estate; b. Premiums for his bond; c.
Expenses for the repair of property of the estate being occupied and used by
him; d. Expenses for the keeping of ordinary records and receipts involved in
his administration work; and e. Losses incurred in the conduct of business
with the use of the funds of the estate.
Where an attorney renders services to the administrator or executor
personally to aid in the execution of his trust, the administrator or executor is
liable for the fees, but he can move for reimbursement and charge such fees as
expenses of administration where the same is reasonable and proved beneficial
to the estate.
Where however attorneys services were rendered in a litigation involving
such administrator or executor in his capacity as trustee of the estate and for
the protection of the interest of such estate, the attorneys fee is chargeable to
the estate.
To recover attorneys fees, the attorney may either bring an independent
action personally against the executor or administrator, or file a petition in the

administration proceedings for the probate court to allow the same and to
direct the payment of his fee as an expense of administration.
The compensation of the executor shall primarily be that fixed in the will
and if there is no such provision or he renounces the same, then it will be as
provided in Sec. 7.
Even if the final accounts of the executrix had already been approved but
said executrix subsequently received funds of the estate, she must account for
the same; and this duty cannot be waived by the act of the heirs in receiving
dividends from said funds without requiring said accounting.
Rule 86: Claims Against Estate
The period fixed by Sec. 2 for filing of claims is sometimes referred to as
the statute of non-claims and supersedes the ordinary statute of limitations.
o The period for filing of such claim starts to run from the date of the first
publication of notice referred to in Sec.1 and runs even against the State.
Sec.2 means that the filing of claims contemplated therein should be
during a period of 6 months starting from the 6th month after the date of the
first publication of the notice own to the 12th month. Within the range of said
period, the probate court is permitted to set the period for filing of claims and
the period once fixed by the court is mandatory.
The court for good cause shown may grant a 1 month period for a
creditor to file a claim which he failed to file during the original period granted
for filing of claims. Such motion for leave to file a claim beyond original period
may be file at any time during the administration proceedings provided no
order of distribution has yet been entered. Sec.2 should not be interpreted to
mean that 1 month period commences to run from the expiration of the
original period for filing claims. What it means is that said claims must be filed
within a time not exceeding 1 month from the order of the court allowing the
filing of such particular claim.
A notice to creditors to file their claims is not proper if only a special
administrator has been appointed, he is generally not empowered to pay debts
of the deceased and his bond unlike that of a regular administrator is not
conditioned upon the payment of such debts.
The publication of the notice to the creditors is constructive notice to all,
hence a creditor cannot be permitted to file his claim beyond the period fixed in

said notice on the bare ground that he had no knowledge of the administration
proceedings, since the proceeding for filing claims is in rem.
As the period for the filing of claims starts to run from the first
publication of the notice to creditors, unless such publication is effected by the
administrator or the executor, the result would be to correspondingly extend
the time for the presentation of claims.
Where a claimant with a claim under a judgment for money against the
deceased files a petition for the issuance of letters of administration over the
estate of the decedent within the 10 year period from the finality of its
judgment, and after said 10 year period filed a claim against the estate of the
deceased under administration, said claim retroacts to the date of the filing of
the petition for letters of administration and therefore has not prescribed.
The claims referred to in Sec. 5 must be for money which are not secured
by a lien against property of the estate. If the claim is for recovery of real or
personal property from the estate or the enforcement of any lien thereon, an
action should be instituted for that purpose against the executor or
administrator. These claims must have arisen from liabilities contracted by the
decedent before his death and money claims arising after his death cannot be
presented, except funeral expenses and expenses of his last illness.
First type of money claims required to be filed under this section is one
arising from contract, express or implied, which was entered into by the
decedent in his lifetime. Consequently, a money claim against the estate arising
from a crime or a quasi-delict committed by the decedent is not included in the
concept of claims which have to be filed under this Rule, but should be the
subject of an action against the executor or administrator or against the heirs.
Also claims by the Government for unpaid taxes, filed within the period
of limitations prescribed in the NIRC are not covered by the statute of nonclaims as these are monetary obligations created by law.
Claims for taxes due and assessed after the death of the decedent need
not even be presented in the form of a claim; the probate court may just direct
the executor or administrator to pay the same. In fact, even after the
distribution of the estate, claims for taxes may be enforced against the
distributees in proportion to their shares in the inheritance. However, a claim
based upon a quasi-contract shall be deemed included in the concept of claims
under Sec. 5 which speaks of implied contracts.

A contingent claim is one which depends for its demandability upon the
happening of a future uncertain event (includes claims subject of suspensive
condition). Claims which are not yet due, or are contingent, may be approved at
their present value but as no payment thereof can yet be authorized by the
court until their demandability arises, a portion of the estate may be reserved
for payment of the claims.
Claims not filed within the period for filing claims are barred, but if the
claimant is sued by the administrator or executor either within the period or
thereafter, such claim may be availed of by the defendant as a counterclaim
and if he proves the same, he may recover thereon against the estate.
A money claim upon a liability contracted by the deceased must be duly
filed even if the deceased in his will acknowledged and ordered payment of such
debt.
Where the defendant dies before final judgment in the FCI and the action
is for recovery of money, debt or interest thereon the case shall not be
dismissed but shall continue until entry of judgment.
If at the time of death of a decedent, an action is pending against him
but for the primary purpose of recovery of money, debt or interest, his heirs or
other legal representatives will merely be substituted for the decedent in said
action without the appointment of an executor or administrator (3.16).
If final judgment had already been rendered against the decedent prior to
his death, but without levy on execution having been effected against his
property such judgment for a sum of money must also be filed as a claim
against the estate in the manner provided by this Rule. If levy had already been
made before his death, execution shall proceed (39.7c). However if the final
judgment rendered against the decedent in his lifetime is for the recovery of
personal property other than money or the enforcement of a lien thereon then
the claimant has merely to obtain a writ of execution for enforcement against
the executor, administrator or successor-in-interest of the deceased (39.7b)
Where the defendant dies while the action for a sum of money against
him is pending in the CA he shall be substituted therein by his legal
representative but the final judgment of the appellate court cannot be enforced
by a writ of execution but should be filed in the probate court as a money claim
in accordance with 86.5.

An action or a sum of money based on culpa contractual for the death of

a passenger cannot be maintained against the heirs of the bus operator who
had died thereafter. Plaintiff heirs should have filed their claims against, and in
the settlement of, the estate of the deceased operator since such claims were
based on a contract of carriage. Even if the action was filed after the settlement
of the estate of the deceased operator, neither can the suit be maintained
against his heirs as the distributees of his estate, since that may be done only
if a contingent claim had been filed in the estate settlement in accordance with
The first option granted to the mortgage creditor is to abandon his security and
prosecute his claim. By filing his claim against the estate as a money claim, he
is deemed to have abandoned the mortgage and he can not thereafter file a
foreclosure suit in the event he fails to recover his money claim against the
estate.
The second alternative is for the mortgage creditor to institute a
foreclosure suit and recover upon the security.
The foreclosure suit should be against the executor or administrator as
party defendant. If the creditor fails to obtain full recovery, he may obtain a
deficiency judgment and file it as a claim against the estate, provided he does
so within the period for filing claims against the estate, otherwise it will be
barred. The safer recourse is for the mortgage creditor to file a claim, for any
probable deficiency within the period for filing claims. It has been held that a
deficiency judgment is a contingent claim.
The third recourse of the mortgage creditor is to rely solely upon his
mortgage and foreclose the same at any time within the statute of limitations. If
at the time he files the foreclosure suit the administration proceedings are still
pending, the executor or administrator shall be made the party defendant.
However, if at the time of the foreclosure suit there has been an order of
distribution, then the party defendants should be the heirs to whom the
mortgaged property has been awarded. This includes extrajudicial foreclosure
and with the same consequences as a judicial foreclosure, the mortgage
creditor waives any further deficiency claim.
Where the mortgagor died during the pendency of a judicial foreclosure
suit against him, the decision therein shall be enforced by the trial court by
writ of execution in the foreclosure proceeding. Such enforcement cannot be
delegated to the probate court handling the settlement of the estate of the
decedent, since the probate court as a court of limited jurisdiction has no
authority to enforce a mortgage lien.

It has been held that the mortgagee can also resort to preliminary
attachment of sufficient property of the mortgagor where the mortgaged
property is insufficient to satisfy the mortgage account and the properties of
the mortgagor are being disposed of in fraud of creditors.
Pertains to the second instance wherein a special administrator may be
appointed by the court. The special administrator shall have authority to act
only with respect to the claim of the regular administrator or the executor.
A judgment of the probate court approving or disapproving a claim shall
be appealable as in ordinary cases with a record on appeal and with a 30-day
reglementary period.
If there is no instrument evidencing the debt of the decedent and no
writing is offered as proof thereof, the claim cannot be proved. This appears to
be sustained by the Dead Man Statute (disqualifies parties surviving parties
under the circumstances from testifying to any matter of fact occurring before
the death of the decedent).
It is assumed however that said provision does not apply to money claims
for funeral expenses or for the last sickness of the deceased as these are claims
arising after death.
A probate court has no jurisdiction to entertain a claim in favour of the
estate against a third person as the same should be the subject of an ordinary
action generally to be prosecuted by the executor or administrator under 87.2.
Exception is 86.10 which authorized executor or administrator to interpose any
counterclaim in offset of a claim against the estate. Such counterclaim
regardless of its basis is treated like a compulsory counterclaim since its failure
to file it shall bar the claim forever.
Rule 87: Actions by and against Executors and Administrators
An administrator or executor may be sued in either his personal or
representative capacity. Actions authorized under this rule are brought against
him in his representative capacity. The general rule is that if the action would
result in a direct charge upon the estate the executor or administrator is to be
sued in representative capacity. For violation of or noncompliance with duties
of the trust such executor or administrator shall be sued in his personal
capacity.

Does not bar a suit against the administratrix for the revival of a
judgment for a sum of money adjudged in that judgment but merely to keep
alive said judgment so that the sums awarded in the action for revival may be
presented as claims against the estate.

A legatee may bring an action against the executor against the executor
or administrator to compel the payment of the legacy. But qualified by 88.15
wherein probate court may allow him sufficient period of time within which to
pay such legacy.
While the heirs have no standing in court to sue for the recovery of
property of the estate represented by an executor or administrator it has been
held that the heirs may maintain such action if the executor or adminsintrator
is unwilling to bring suit, when he is alleged to have participated in the act
complained of. 3.10 he would be in a position of an unwilling co-plaintiff.
Even if administration has been commenced heirs may still bring suit in
behalf of the estate if administrator hasnt been appointed (rights to succession
transmitted upon death).
In an action by the administrator to recover properties of the estate the
judgment of the court ordering the possessors to surrender the property and to
account for the fruits thereof, is a final and appealable judgment.
The prohibition in sec 3 applies only to heirs and devisees and not to be
a done inter vivos who may sue the administrator for the delivery of the
property donated or a reserve who can sue to recover the property which the
deceased was bound to reserve.
Where in his lifetime a final judgment had been rendered in favour of the
deceased said judgment shall be enforced by execution on motion of the
executor or administrator.
These proceedings are merely in the nature of fact-finding inquiries. If in
the proceedings authorized under this section the persons alleged to have
converted the property of the estate assert title thereto, the probate court
cannot determine the issue of title. The executor or administrator must file an
ordinary action in court for the recovery of the properties or damages thereto.

These sections contemplate fraudulent transfers or fictitious contracts of

the decedent in fraud of creditors. The executor or administrator may, on his
own initiative or on motion of the creditors and as directed by the court
institute an action for the recovery of said property, but since said action is for
the benefit of the creditors the court may direct the creditors to defray part of
the costs and expenses of the suit. If the executor or administrator still fails to
bring such action, any of the creditors may bring suit in his own name, with
leave of court, upon the filing of an indemnity bond for such costs and
expenses as may arise from suit. Where, the action is against the executor or
administrator himself, the suit shall be in the names of all the creditors and
leave of court and the indemnity bond shall not be required.

Rule 88: Payment of The Debts Of The Estate

Provisions of section 15 for the payment of debts and legacies is directory
and extensions of the period may be granted by the court taking into account
the circumstances attending the distribution of the estate.
The payment of the debts of the estate as a general rule, must be taken
(a) from the portion or property designated in the will (b) from the personal
property and (c) from the real property in that order. The court on petition of
the interested parties may modify such order of disposition.
A legacy is not a debt of the estate, hence the probate court cannot issue
a writ of execution for the payment or satisfaction thereof.
On the other hand section 6 authorizes execution against the
contributive shares of the devisees, legatees and heirs in possession of the
decedents assets to satisfy the debts of the estate.
These two sections provide for the payment of contingent claims. If the
contingent claim becomes absolute and is presented to the courts as an
absolute claim within two years from the time allowed for the presentation of
claims, it will be paid in the same manner as the other absolute claims. After
said period, the creditor may proceed against the distributees, provided said
contingent claims had been seasonably filed in and allowed by the probate
court. The property reserved for the payment of such contingent claims may
therefore be retained by the administrator or executor only within said two-year
period a thereafter the same shall be included among assets for distribution to
the heirs.

Under these provisions, the preference of credits has been specifically

incorporated in the rule, to be followed in the payment of debts where the
estate is not sufficient therefor.
Rule 89: Sales, Mortgages, and other encumbrances
of property of decedent
The court may allow only the sale of personal property for the purposes
in section 1 and not encumbrance thereof.
With respect to real property the court may permit the same to be sold,
mortgaged or otherwise encumbered under sections 2, 4, 5, 6. Under both
sections 4 and 6, if it will not be for the convenience of or beneficial to the heirs
and not for payment of debts, administration expenses and legacies, real
property can only be allowed to be sold and not encumbered.

As a rule, unless the testator had made provisions to the contrary in his
will, the personal property of the estate must first be sold for the payment of
debts, expenses of administration or legacies. If the same is still insufficient,
the real property may be proceeded against. Nevertheless, personalty may
always be sold at any time if it is necessary for the preservation of its value.
The sale or encumbrance of real property may be allowed by the court if
the petition therefore avers: (a) that the personal estate is not sufficient to pay
the debts, expenses of administration and legacies or that the sale of such
personalty may injure the business or the interests of persons interested in the
estate; (b) that the testator has not otherwise made sufficient provisions for the
payment of such debts, expenses of administration and legacies; and (3) that
such sale or encumbrance would be beneficial to the parties interested in the
estate. The averment as to the value of the personal estate is a requisite in the
petition for sale of real property, without such averment court has no
jurisdiction to authorize sale of realty. Sale of such is null and void.
Personal property may be sold, or the real property may be sold,
mortgaged or otherwise encumbered for the following reasons: Payment of
debts, expenses of administration and legacies in the Philippines; When such
sale would be beneficial to the persons interested in the estate; Payment of
debts, expenses of administration and legacies involved in the settlement of the
estate of a decedent in a foreign country.

If the administrator or executor sells property of estate without the

requisite authority of the court, such sale is null and void. The same rule
would apply to encumbrances of real property without authority of the court.
Also such application for authority to sell or encumber property of the
estate must be with notice to the heirs, devisees and legatees. Otherwise, the
sale is void. Such notice is presumed to have been given absent proof to the
contrary and order of the court granting such authority cannot be assailed in a
collateral proceeding.
The Prohibitions: Executors and administrators cannot purchase the
property of the estate under administration. Also justices, judges, prosecuting
attorneys, clerks of court and other officers and employees connected with the
administration of justice cannot purchase the property and rights in litigation
or levied upon an execution before the court within whose jurisdiction or
territory they exercise their respective functions. Same prohibition applies to
lawyers with respect to the property and rights which may be the object of any
litigation in which they may take part by virtue of their profession. Any sale
covered by this prohibition will be null and void.

If the opposition to the sale is based on the fact that the oppositor claims
title to the property sought to be sold, the court can hold in abeyance the
authority to sell such property until the issue of title has been settled in an
ordinary civil action, as the probate court generally has no power to adjudicate
the question of ownership in the administration proceedings.
After the sale or encumbrance of the property is effected in accordance
with this section, the document of sale must be submitted for the approval of
the court. The court may also require the administrator or executor to deposit
the proceeds of the sale in a banking institution.
The authority granted to the probate court by section 8 presupposes that
there is no controversy as to the contract contemplated therein and that the
assets of the estate will not be reduced to the extent of depriving the creditor of
full payment of his claim or his just dividend. If such objections obtain, the
remedy of the person seeking the execution of the contract is an ordinary and
separate action to compel the same.

Under section 9 the court can authorize such conveyance only if there is
no controversy and even if creditors may be affected since unlike the situation
in section 8, the properties contemplated do not form part of the estate of the
deceased who merely held the same in trust.
Notice of such application must be given to all interested parties,
otherwise both the order of the court and the conveyance made pursuant
thereto are completely void.
Rule 90: Distribution And Partition Of The Estate
Partial distribution of the decedents estate pending the final termination
of the estate or intestate proceeding should as much as possible be
discouraged by the courts and except in extreme cases such form of advances
of inheritance should not be countenanced.
Before the court can issue an order of distribution, the debts, funeral
charges, expenses of administration, allowance to the widow and inheritance
tax must first have been paid.
While it speaks only of allowance to the widow, it should also include the
allowance to the children of the deceased as the payment of such allowances
during the pendency of the administration proceedings. Legacies must have
been paid (88.15), an advance or partial distribution may be allowed provided
the forgoing obligations are secured by a bond.
Under this section the probate court is specifically granted jurisdiction to
determine who are the lawful heirs of the deceased as well as their shares.
Hence there is no further need to institute an independent civil action to pass
upon the status of a person who claims to be an heir.
The order of distribution must also be at the same time a declaration of
heirs since a separate action for the declaration of heirs is not proper. If the
proceedings have been closed the same may be reopened to pass upon the
status of one claiming to be an heir.
The heirs may also by agreement submit a project of partition to serve as
a basis of the order of distribution. The heirs who do not agree may submit a
counter project of partition.
In approving a project for partition it is not necessary for the court to
state the specific property adjudicated to an heir but may award the same to
the heirs in pro indiviso shares.

If they cannot agree on their respective specific participations they can

thereafter resort to an action for partition.
The judicial decree of distribution vests title in the distributees and any
objection thereto should be duly raised in a seasonable appeal, otherwise it will
have binding effect like any other judgment in rem.
After the institution of the testate or intestate proceedings, the
assignment pendent lite by one heir of his hereditary share requires the
approval of the probate court.
The sale by a widow of land belonging to the conjugal partnership is valid
with respect to her one-half share therein even if the sale was made before
partition, except where there are numerous assets of the partnership as in that
case the particular and corporeal share of the widow cannot be determined
until after the liquidation and partition thereof.
The probate court loses jurisdiction of an estate under administration
only after payment of all debts and the delivery of the remaining estate to the
heirs.
The finality of the approval of the project of partition does not terminate
the probate proceeding.
As long as the order of distribution has not been complied with, the
probate proceedings cannot be deemed terminated because a judicial partition
is not final and conclusive and does not prevent the heir from bringing an
action to obtain his share within the prescriptive period.
The better practice for the heir who has not received his share is to
demand the same through a proper motion in the same probate or
administration proceedings or for reopening of said proceedings if already
closed but still within the reglementary period for appeal and not through an
independent action.
Where the order closing the intestate proceeding was already final and
executory the same cannot be reopened on a motion therefor filed after the
lapse of the reglementary period.
Rule 91: Escheats

Petitions for escheats may only be filed in the name of the republic of the
Philippines by the solicitor general or his representative such as the provincial
or city prosecutor.
Even if the decedent died testate but his will was not allowed to probate,
it is as if he died intestate and if he has not known heirs and there are no
persons entitled to his property, the same can still be escheated.
Art. 1014 provides that the 5-year period is to reckoned from the date the
property was delivered to the state and further directs that if the property had
been sold the municipality or city shall be accountable only for such part of the
proceeds as may not have been lawfully spent.
Actions for reversion are proper in illegal sales of land to disqualified
aliens. Unlike petition for escheat the action for reversion shall be filed in the
province where the land lies in whole or in part.
The 1987 constitution requires that the Congress shall provide
efficacious procedures and adequate remedies for the reversion to the State of
all lands of the public domain and real rights connected therewith which were
acquired in violation of the Constitution or the public land laws, or through
corrupt practices.

Guardianship
Rule 92: Venue
There are three kinds of guardians under the law. The legal guardian is
such by provision of law, without need of appointment, as in the case of the
parents over the persons of their minor children or father or in his absence the
mother with respect to property of minor children not exceeding P 50,000.00 in
value. The guardian ad litem who may be any competent person appointed by
the court for purposes of a particular action or proceeding involving the minor.
o The judicial guardian who is a competent person appointed by the court over
the person and/or property of the ward to represent the latter in all his civil
acts and transactions, and is one contemplated in the aforementioned rules.
Judicial guardianship may be with respect only to the person of the
ward, or his property or of both. Where the ward has no property, guardianship
may be only with respect to his person; in case of a non-resident ward,
guardianship may be with respect only to his property.

While there is no prohibition against appointment of different judicial

guardians, one for person and one for property, the practice is to appoint
judicial guardians for both unless otherwise called for by the circumstances.
Under BP 129 inferior courts no longer have concurrent jurisdiction to
appoint guardians over persons or properties of incompetents.
o However, where the minor or incompetent is a party to an action in a n
inferior court, he may be assisted by or may sue or be sued therein through his
legal guardian or the inferior court may appoint a guardian for him.
Where in a guardianship case an issue arises as to who has a better right
or title to the properties in the course of the proceedings, the controversy
should be threshed out in a separate ordinary action as the dispute is beyond
the jurisdiction of the guardianship court.
o However, where the right or title of the ward to the property is clear and
indisputable, the guardianship court may issue an order directing its delivery
or return.
Rule 93: Appointment Of Guardians
The courts should not appoint as a guardian any person who is not
personally subject to their jurisdiction, such as nonresidents of the Philippines.
In case of a minor, the petition may be filed by the DSWD and in case of
an insane minor who needs to be hospitalized, by the Secretary of Health.
Notice of the petition for the appointment of a general guardian must now
be given to all relatives of the ward, instead of only to the next of kin required
in the old rules. The giving of notice to relatives is a jurisdictional requirement.
Service of notice upon a minor who is more than 14 years if age or an
incompetent is jurisdictional.
In the appointment of a guardian the courts should take into
consideration the competency, character and financial condition of the
prospective guardian. No person should be appointed guardian if his interests
conflict with those of the ward or if he is a non-resident of the Philippines.
The court has no jurisdiction to appoint a guardian over the person of a
non-resident minor but there can be guardianship over the property of such
non-resident minor.

The appointment of a guardian is good until set aside and despite an

appeal therefrom, the guardian can do whatever is necessary under the
direction of the court, for the protection of the ward or his property.

Amended by FC Art. 225.

Rule 94: Bond of Guardians
Rule 95: Selling and Encumbering property of ward
For the sale or encumbrance of property of the ward, a verified petition
therefor is required, but no such verification is required for that purpose with
respect to the estate of a decedent and a mere motion therein will suffice.
The notice to next of kin required by section 2 is jurisdictional. The next
of kin referred does not mean next of kindred but relatives whose relationships
are such as to entitle them to shares in the estate as distributees.
An order empowering the guardian to sell property of his ward shall not
be effective for more than one year after it has been granted. In the case of
mortgages and other encumbrances, the one-year period does not apply.
A guardian may lease property of the ward, but if the lease is to be
recorded there must be proper authority by the court.
o It is believed that the same is required if the term of the lease is more than
one year as such is an act of dominion.
Appeal, not certiorari or mandamus is the proper remedy against an
order of the court a quo authorizing the sale of wards property.
Rule 96: General Powers And Duties Of Guardians
The executor or administrator must render within one year and at any
other time when required by the court. In case of a guardian he has to render
an inventory and account annually.
A guardian just like a trustee is prohibited from making a donation of the
properties entrusted to him (Art. 736).
Since only the estate of the ward should be included in the inventory in
the case of a married woman under guardianship by reason of insanity her half
of the property in a subsisting conjugal partnership should not be included in

the inventory since the determination thereof requires the prior liquidation of
the conjugal partnership.
Rule 97: Termination Of Guardianship
The court which appointed the guardian is also the court competent to
decide the petition for restoration to capacity which is merely a continuation of
the original guardianship proceeding.
The petition for the removal of the guardian must be filed in the same
guardianship proceeding. It must be based only on the grounds in section2
which must be satisfactorily proved.
The notice to the guardian and the ward required in section 1 is only
procedural, not jurisdictional, the lack of which only affects the validity of the
proceeding only when prejudice is caused thereby.
Marriage or voluntary emancipation terminates guardianship only over
the person but not the property of the ward.
Rule 98: Trustees
This rule applies only to express trusts as these are understood in 14431446 of civil code, does not apply to implied trusts which arise by operation of
law.
Express trusts necessarily involve three parties the trustor, the trustee,
and the beneficiary also known as cestui que trust.
A petition for the appointment of a trustee may also be filed in the
administration proceedings over a testate estate where the appointment of such
trustee is necessary to carry into effect the provisions of a will, as where
testator has provided therein that certain portions of his property be placed in
trust.
Section 1 determines the venue of the petition for the appointment of a
trustee.
An executor will not be exempted from posting a bond even if such
exemption is provided in the will, but a trustee appointed in the will may be
exempted from such bond when so directed in the will.

Accounts of trustees must be under oath and shall be filed annually. The
latter requirement also applies to guardians although the same need not be
under oath. While those of administrators or executors are not required to be
under oath and except for the initial and final submission of their accounts,
they shall be filed only at such times as may be required by the court. It is the
duty of a trustee to deliver the trust property to the cestui qui trust free from
liens and encumbrances.
Rule 99: Adoption And Custody Of Minors
In case of separation of parents, parental authority shall be exercised by
the parent designated by the court. The court shall take into account all
relevant considerations especially the choice of the child over 7 years of age
unless the parent chose is unfit.
No child under 7 shall be separated from the mother unless the court
finds compelling reasons to order otherwise.
Rule 100: Rescission and Revocation of adoption
Rule 101: proceedings for hospitalization of insane persons
The petition may be filed by the person in custody or having charge of
insane person. If he refuses to do so and where it is required for the welfare of
the insane person or of the public, the petition shall be field by the Director of
Health or the present authorized officer.
Where insane person was judicially committed to the hospital or asylum,
the Director of Health cannot order his release without the approval of the CFI
which ordered the confinement. Also said court cannot order his release
without recommendation of the Director of Health.
An imbecile or insane person who has committed a felony can also be
directly ordered committed by the trial court and he cannot be released without
the permission of said court (Art. 12, RPC).
Rule 102: Habeas Corpus
The writ of habeas corpus is a writ directed to the person detaining
another and commanding him to produce the body of the prisoner at a certain
time and place, with the day and the cause of his caption and detention, to do,
submit to, and receive whatsoever the court or judge awarding the writ shall
consider in that behalf.

Habeas corpus under this rule is the remedy in cases of illegal

confinement or detention or where the rightful custody of a person is withheld
from one entitled to such custody. Actual and effective, and not merely nominal
or moral restraint is required. However, actual physical restrain is not always
required; any restraint which will prejudice freedom of action is sufficient.
Writ may also be availed of where as a consequence of a judicial
proceeding; There has been a deprivation of a constitutional right resulting in
the restraint of a person; The court had no jurisdiction to impose the sentence
or An excessive penalty has been imposed, such sentence being void as to the
excess.
It is necessary that the judgment of the court which resulted in illegal
deprivation of liberty is no longer appealable, in which case the writ is in the
nature of a collateral attack against a final but void judgment. If it is still
appealable, remedy of the person detained is to duly appeal therefrom as
habeas corpus is not a substitute for appeal.

Generally writ shall not issue if restrain is voluntary, but it will To enable
parents to recover custody of minor daughter although she is in custody of a
third person on her own volition Or to enable to regain custody of a minor
younger sister living voluntarily in adulterous relations with another. However,
where daughter is of legal age, living with a married man who is not restraining
her of her liberty, the writ is not available.
Writ is enforceable throughout the judicial region, may now be filed in
RTC in the region where it is sought to be enforced.
Petition is required to be verified but the defect in form will not be fatal.
It is the duty of a court to issue the writ if there is evidence that a person
is unjustly restrained of liberty within its jurisdiction even if there is no
application therefor.
Preliminary citation - Where the person is detained under governmental
authority and illegality of his detention is not patent from the petition for the
writ, court may issue a citation to the government officer having custody to
show cause why the writ of habeas corpus should not issue.

Peremptory writ issued when the cause of detention appears to be

patently illegal and the non-compliance therewith is punishable.
If detention is by reason of public authority, the return is considered
prima facie evidence of the validity of the restraint and the petitioner has
burden of proof to show that restraint is illegal.
If detention is by reason of private authority, return is considered only a
plea of facts asserted therein and the person responsible for the detention has
the burden of proof to establish that the detention is legal and justified.
Where prisoner has been detained and held without bail although the
offense is bailable he may in a habeas corpus proceeding be allowed to post
bail.
If the offense is not bailable, he cannot obtain his provisional liberty on
bail by habeas corpus.
Habeas corpus is not the proper mode to question conditions of
confinement.
Writ of Amparo addressed other fundamental human rights in the
constitution not covered by habeas corpus (Spanish for protection)

Writ of Habeas Data can be invoked by persons to find out the

information collated about him, particularly by law enforcement agencies, and
to compel them to disclose the use and purpose of such information. Reliefs
may seek the updating, rectification, suppression or destruction of the
database or information and in case of threats a plea for an order enjoining the
act complained of.
Rule 103: Change Of Name
Procedure in rule 103 and 108 are separate and distinct, if both reliefs
are sought, requirements for both must be complied with.
An alien can petition for a change of name, but he must be domiciled in
the Philippines.

The name that can be change is the one that appears in the civil register,
not one in baptismal certificate or that by which person is known in
community.
First name in civil registry is Baby petition for change is proper
remedy.
Petition must be filed by the person desiring to change name, as proper
party in the petition, even if it may be signed and verified by some other
person.
Petition for correction of name in birth certificate is actually a petition for
change of name and covered by this Rule and not Rule 108.
Married womans status is not affected by a decree of legal separation as
the vinculum is not severed, hence she must continue to use her married
name. Change of name cannot be justified by legal separation.
A change of name should not be permitted if it would give a false
impression of family relationship to another, but not if the proposed change of
name would not cause prejudice to the family whose surname it is.
A petition for change of name is a proceeding in rem and the publication
of the order is a jurisdictional requisite. To be valid and to confer jurisdiction
upon the court, such publication must give the correct information, and a
defect in such publication is fatal.
All aliases of the applicant must be set forth in the title of the petition,
otherwise though the petition has been duly published, such defect would be
fatal even if said other aliases are contained in the body.

A change of name granted by the court affects only the petitioner. A

separate petition for change of name must be filed for his wife and children.
Inceptively, a joint petition for all the qualified member of said family as copetitioners would have been permissible and should have been the appropriate
remedy.
Art 364-380 of Civil Code regulate the use of surnames. No person can
change his name or surname without judicial authority.

A decree of adoption grants the adoptee right to use that adopters

surname but not to change the formers first name which relief must be sought
in a discrete petition under 103.
Rule 104: voluntary dissolution of corporations
Rule 105: judicial approval of voluntary recognition of minor natural children
Rule 106: constitution of family home
Applicable only to such proceedings which took place prior to the
effectivity of the Family Code on August 3, 1988. The family home is deemed
constituted on a house and lot from the time it is occupied as a family
residence. No judicial or extrajudicial constitution is required (FC).
Rule 107: absentees
Rule 108: Cancellation or correction of entries in the civil registry
The proceedings under 108 may in effect be either summary or
adversary in nature. If the correction sought to be made in the civil register is
clerical, the procedure to be adopted is summary.
If the rectification affects the civil status, citizenship or nationality of a
party, it is deemed substantial and the procedure to be adopted is adversarial.
RA 9048 authorizes the City or Municipal Registrar or the Consul
General to correct a clerical or typographical error in an entry and/or change
of first name or nickname in the civil register without need of a judicial order.
A persons first name cannot be changed on the ground of sex
reassignment. All entries in the birth certificate of the petitioner were correct
since sex of a person is determined at birth. However an intersexual, may have
name changed on basis of the sex he/she wishes to adopt.
Change of Name
Corrections or
Cancellation of Entries
Venue is the residence of Venue is the place where
the petitioner
civil registry is located
Solicitor general must be Civil registrar concerned is
notified by service of a copy made a party to the
of the petition
proceeding as a respondent

Rule 109: Appeals In Special Proceedings

Under ordinary civil actions, some orders in 109.1 may be interlocutory;

the nature of special proceedings declares them as appealable orders,
exceptions to 41.2.
Reglementary period of 30 days is provided for the perfection of appeals
in special proceedings.

References

Regalado, Florenz, "Notes in Special Proceedings".