SPECIAL PROCEEDINGS
NOV. 11, 2010
Rule 72
Sec. 1
Sec. 1 enumerates the subject matter. This enumeration is not exclusive.
There are other special proceedings found in substantive laws, like:
1. Summary judicial proceedings under the Family Code
2. Declaration of status of children as abandoned, dependent or neglected under PD 603.
3. Suspension, termination or restoration of parental authority
4. Voluntary rehabilitation of a drug dependent under RA 9165 (Dangerous Drugs Law)
5. Writ of amparo
6. Writ of habeas data
Sec. 2
Do you apply the rules applicable to ordinary actions?
Yes, as far as practicable.
What is a special proceeding?
It is an application or proceeding to establish status or right of a party or a particular fact
STATUS for example: annulment of marriage
RIGHT OF PARTY for example: right to be free (habeas corpus); right not to be threatened, that is threat to life or liberty (writ of amparo); right to privacy (writ of habeas data)
In special proceedings, the remedy is granted generally upon application of motion.
Liquidation of an insolvent corporation is a special proceeding.
Petition for declaration of nullity is a special proceeding.
Nature proceeding in rem. So almost always, there is publication. And the judgment is juridically binding against the whole world.
How do you distinguish special proceedings from ordinary action?
Ordinary action or special action one sues another in a court of justice for the enforcement or protection of a right or the redress or prevention of a wrong; special proceeding establish a status or right of a party or a particular fact
In ordinary action we talk about cause of action (Elements: rights of the plaintiff, obligation on the part of the defendant, violation of the right of plaintiff by the defendant, causing damage or prejudice to the plaintiff); not so in special proceeding
In ordinary there must be a formal demand; not so in special proceeding
A special action falls within the jurisdiction of a court of general jurisdiction, that is ordinary civil actions; special proceeding within a court of limited jurisdiction, e.g. probate court a court of limited jurisdiction
In ordinary action if the suit involves members of the same family, plaintiff must allege earnest efforts to have the case amicably settled among the heirs; that is not applicable to special proceedings
In a recently decided case, one of the heirs filed a petition for issuance of letter of administration intestate/testate. The co-heirs filed a motion to dismiss because the petitioner failed to allege earnest efforts as required by law. SC said, not required because a special proceeding, intestate/testate, is not a suit. So the rule on earnest efforts applies to ordinary civil actions only.
Special proceeding is commenced by application, motion or petition. Action by complaint.
Special proceeding is as a rule, not an adversarial action (no plaintiff, no defendant); action an adversarial action
Special proceeding terminated either by decision, like change of name, or order, like rehabilitation of a drug dependent, if not, decreed, like decree of adoption; action is terminated by judgment or decision
Rule 73
Rule 73 is venue not jurisdictional.
GR: There must be judicial administration when the court issues letters of administration because if no administration, the creditors might cause chaos (levies any kinds of properties), thus, there must be judicial administration.
Sec. 1
Where is the estate of the deceased person settled?
It depends upon whether the deceased is a resident or non-resident, inhabitant or non-inhabitant.
If decedent is inhabitant, whether citizen or alien, his will shall be proved or letters of administration granted and his estate settled in the proper court because of RA 7691 (the law expanding the jurisdiction of the MTC). RA 7691, if the gross value of the estate is more than 400K, RTC. Less or 400K, MTC. In the proper court in the province in which the decedent resides at the time of his death.
If he is an inhabitant of a foreign country, then, province in which he had stayed.
Now, there is a rule of exclusion. The first court taking cognizance of the proceedings excludes all other courts. The rule says that jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent or location of the estate, shall not be contested in a suit or proceeding except in appeal from that court in the original case or when the want of jurisdiction appears on the record.
Residence here is actual residence, not domicile. Domicile applies only to election law.
The estate is a distinct personality separate and distinct from the heirs. If there are suits between the heirs, the estate should not be included.
The estate of a deceased person is a juridical entity that has a personality of its own, independent of the heirs, and considered a person. So that the death of the administrator or administrators does not have the effect of divesting the court of jurisdiction. Jurisdiction subsists because the proper party is the estate of the decedent. The administrator or executor is only a representative of the estate. So the estate of the decedent is an indispensable party. It is the real-party-in-interest.
Proceedings for settlement of estate, generally, are proceedings to the settlement of a deceased person for the benefit of the creditors and those entitled to the residue, meaning the heirs, after paying debts, expenses, taxes, so kung unsay nahabilin, residue shall be distributed to the heirs.
Nature of administration proceedings in rem. Probate court acquires jurisdiction over the heirs, legatees, devisees, and other interest persons, like creditors, by means of publication or notice to the interested parties. Kung in rem gani, usually, publication gyud nah to bind the whole world, just like application for land title.
The phrase here so far as it depends on the place of residence of the decedent or the location of his estate is in reality a matter of venue. So if not one of the heirs, legatees, devisees, interested persons, like creditors, object to venue, then the objection is waived. It is also a rule of law in our jurisdiction that the court cannot motu proprio dismiss an action or special proceeding on the ground that venue is improperly laid there must be a motion.
Upon the allowance of the will, proceedings are terminated. But after the allowance of the will, which settles only the extrinsic validity of the will, the case is terminated and the probate court loses jurisdiction.
The petition for settlement of estate is different and distinct from and is not a continuation of the petition for probate of the will. So that the probate court, which earlier probated the will, in the case of holographic will, cannot claim jurisdiction over the settlement of the estate filed after the death of the testator. The probate court, which probates the will, and the probate court which settles the estate, will be one and the same only when the probate of a will is made after the testator dies.
Apply the doctrine of exclusion the court which first acquires jurisdiction by the filing of the petition excludes all other courts.
NOTE: If a testator dies and there is a custodian of the will and the custodian delivers the will to the court without filing a petition for probate, it is the task of the court to fix the time and date of probing the will. Mu-file lng ka, imo lng gdeliver sa court without proper pleadings, the court has already acquired jurisdiction to probate the will. But you have to pay docket and other lawful fees.
If a will is delivered to the court, there shall be no separate filing of probate because the rule is the court first acquiring jurisdiction excludes other courts. With more reason, there shall be no petition for intestacy.
Proceedings for the settlement of the estate of a decedent may be testate where there is a will, intestate if there is no will.
Jurisdiction depends upon the gross value. Now 400K.
A probate court is a court of limited jurisdiction.
The question of ownership or title to property is extraneous in the probate proceedings. Probate court cannot decide with finality the issue of ownership or title to property. It can provisionally settle the issue of title of ownership for purposes only of including the real estate in the inventory.
The long standing rule is that probate courts or those in charge of proceedings, whether testate or intestate, cannot adjudicate or determine title to properties claiming to be part of the estate and is claimed to belong to outside parties. (Cortes vs CA) Exception:
1. When the parties are all heirs of the decedent, then they have the option to submit the issue of title or ownership to the probate court. Kung naay third persons nga ma prejudice, dli puydi. But if all of them agreed that the probate court shall, with finality, resolve the issue of ownership, then the probate court may take cognizance of the case.
2. When the claimant of the property and all other parties having interests (heirs, devisees, legatees, creditors), expressly or impliedly, submit the question of ownership to the probate court for the interest of third persons are not thereby prejudiced. Although generally, a probate court may not decide the question of title or ownership, yet if the interested parties are all heirs or the question is one of probation or advancement or the parties consent to the assumption of jurisdiction by the probate court and rights of third parties are not prejudices, then the probate court is competent to decide the question of ownership.
Now an incident which might arise in connection with special proceedings such as the following:
1. Impugning the validity of the will;
2. Objecting to the authentication thereof;
3. And all demands and claims filed by an heir, legatee, devisee, or party-in-interest to the testate or intestate succession
shall be acted upon and decided in the same proceeding
GR: Probate court cannot issue a writ of execution. Walay executory process ang special proceedings probate. Writ of execution, general rule, ari rani sa ordinary civil actions.
REASON: Because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the necessity of resorting to a writ of execution.
Exceptions where a writ of execution in special proceedings may be issued:
1. To satisfy distributive shares of devisees, legatees and heirs in possession of decedents assets.
ex. na distribute na adto sa mga heirs ang properties, naay nikalit tunga nga creditor or one heir who was excluded. So, mo contribute sila kato nakadawat na.
Suppose nabaligya na nila? What is the remedy. recovery. so writ of execution will issue
another exception
2. to enforce payment of expenses of partition
illustration: ang mga heirs nag partition sa property, they hired a geodetic engineer, unya notarized man, notary public, naa gyuy bayranan, so mag amot. ang katong dili mu amot, WRET OF EXECUTION (lolz)
3. then to satisfy the cost when a person is cited for examination in probate proceedings
sec. 2
Where estate or property upon death of spouse settled
If marriage is dissolved then community property shall be inventoried, administered, and liquidated and the debts paid, etc. in the testate/intestate proceedings of the deceased spouse
If both have died, then in the testate or intestate proceedings of either
Husband and Wife, X and Y, borrowed money, 500k, the wife died. The creditor filed an action for sum of money against the husband. Puyde ba? NO!
It must be in the testate/intestate proceedings of the deceased spouse. Remember conjugal partnership ceases upon dissolution of marriage.
Where there are no debts to pay, the liquidation and partition may be made in an ordinary action.
When the interested parties, children and the widow, have already reached a compromise agreement for a viable consideration, the widow renounced in favor of the children all interest and rights in the estate of the deceased, it is no longer necessary to prepare an inventory of the conjugal properties and make a liquidation.
Sec. 3 Process
Unsa may process sa testate/intestate proceedings? Sec. 3 dili mo makabasa diha ug writ of execution, it only says may issue warrants and processes necessary to compel the attendance of witnesses or to carrying into effect their orders or judgment and all other powers granted them by law
Usually kung dili ka mu tuman, contempt of court.
If the person does not perform an order or judgment it may issue warrant for the apprehension and imprisonment of such person until he performs such order or judgment for his release
Sec. 4 Presumption of death
Dili lang ta mag discuss kay tapos na ninyo sa sevel low, and i know u have mastered sevel low (class: hilaw nga katawa*)
Judicial Declaration of Presumptive Death cannot become final. Of course you know that.
Rule 74
Sec. 1, extra judicial settlement of estate between heirs and Sec. 2, summary settlement of estates of small value
As i said, the general rule is judicial administration. So that ang mga creditors dili magkagubot. Naay mo bira sa 6x6 truck, naay mu bira sa balay, nya gubot kaayo sa tana. so aron hapsay, dunay testate/intestate proceedings, the executor or administator will of course receive claims from the creditors
There are two exceptions, meaning no Judicial Administration
1. Sec. 1, extra judicial settlement by agreement between heirs
2. Sec. 2, summary settlement of estate of small value
The second seems obsolete, pero sigi lang kay naa may rules of court and it may still apply.
Extra judicial settlement by agreement between heirs, two or heirs for example
when applicable: if the decedent left no will and no debts
Kay kaning administration as i said, kung naay utang, para dili gyud magkagubot
the heirs are all of legal age or if there are minors they are represented
So what shall be done?
The parties may without securing letters of administration divide the estate among themselves as they see fit. By means of public instrument among themselves filed with the office of the register of deeds.
So no will and no debts. Heirs are all of legal age.
What document shall they prepare? Deed of Extrajudicial Settlement by Agreement, know by all men these present (ambot unsa ni)
Suppose they disagree, dili magkasabot ang igsoun. Then they shall resort to an ordinary action of partition. Again, no judicial administration. Kay unsa may mahimo, sila raman sad, so partition.
Suppose there is only one heir, unsa may agreement nga siya raman usa?No? What is the procedure? He may adjudicate to himself the entire estate. How? By executing an affidavit of self adjudication. File with the register of deeds.
Whether it is by agreement or by affidavit of self adjudication, the distributee/s shal post a bond, filed with the register of deeds. How much? In an amount equivalent to the value of the personal property involved. Ang bond, required lang kung personal property. Kung real property ang gibahin, no bond, okay?
Then what is the condition of the bond? Conditioned upon the payment of any just claim that may be filed under section 4 of this rule. Posible man paghuman sa partition or paghuman submit sa extrajudicial settlement, naay mo tunga na creditor or naay mutunga na heir who was not able to participate. So that is the purpose of the bond.
It shall be presumed that the decedent left no debts if no creditor files a petition or letters of administration within two years after the death of the decedent.
Sec. 1 requires publication in a newspaper of general circulation. but no extrajudicial shall be binding upon any person who has not participated therein or who had no notice thereof
Now even when a coheir did not execute any affidavit recognizing extrajudicial partition. However where he was present during the trial and did not take the witness stand and object, then he is estoppd from denying the extrajudicial partition.
Gen. Rule : Judicial Partition
Exceptions:
1. Summary Settlement
2. Extrajudicial Partition
Gen Rule: When a person dies intestate or testate but fails to name an executor of his will or the executor is incompetent/refuses to accept the task, or executor fails to furnish bond required by the rules of court, the the decedents estate shall be judicially administered and the competent court shall appoint an administrator.
Sec. 1 rule 74 does not preclude the heirs from instituting administrator proceedings, even if the estate has no debts or obligation if for good reasons they do not resort to ordinary action of partition.
Is oral partition valid? Yes it is valid. But of course you cannot have title to yourself. Inig adto nimo sa Register of Deeds, inig bahin nimo, unsa man, oral?aw dili nana magsilbi.
So there must be a written partition kung gusto naka magpatitle.
The requirement that a partition be put in a public document and registered has for its purpose protection of the creditors and of the heirs themselves against party claims.
The object of registration is to serve as constructive notice to others.
No law requires partition among heirs to be in writing and be registered in order to be valid (Vda De Reyes vs CA)
Reason: Partition among heirs is not legally deemed conveyance of property considering that it involves not a transfer from one to another but rather a confirmation or ratification of title or right to property that an heir is renouncing in favor of another heir who accepts and receives the inheritance.
Diba inig kamatay sa parents, title passes to the heirs. So there is no conveyance. Iconfirm lang. Are you heirs?Yes. So gi confirm lang ang ownership of the heirs.(ears)
Now what are the remedies against extra judicial settlement approved by the court?
X, Y, and Z, heirs, naghimo sila ug deed of extra judicial partition. Naa d i na prejudice, half brother or unsa. So what is the remedy of the excluded ear(heir).
Either file a petition for relief under rule 38, nakahinumdum mu? The judgment has already become final and executory but because of fraud, accident, mistake, excusable negligence a party is prejudiced. File a petition for relief. There are two periods, is it not? 6 months and 60 days.
The other remedy is to file a petition to anOL(annul) the extra judicial settlement. Annulment here is under rule 47, lack of jurisdiction and extrinsic fraud. Period limitation is 4 years from the discovery of the fraud.
Even a petition(?) for issuance of letters of administration has been filed, the court upon motion may convert the petition into a petition for partition, to avoid delay where the decedent left no debts and the heirs and legatees are all of age.
What are the requirements for validity under section 1.
1. decedent left no debts
2. heirs and creditors all of legal age
3. partition by means of public instrument or affidavit
A written partition or extrajudicial settlement duly acknowledged before a notary public is necessary to enable the heirs to register the same and secure a transfer certificate of title of the land which has been adjudicated to them.
Of course do not forget payment of taxes. Dili gyud na ma transfer without payment of taxes.
A judicial partition in probate or intestate proceedings bind the heirs who are not parties thereto.
Sec. 2, summary settlement of estate of a small value
Again no judicial administrator because the gross value of the estate is 10k only. nganu ni ingon man ko obsolete? You have to file a petition with the court. So you have to hire a lawyer, 10k ra. Acceptance fee 20k. asa naman 10k? Publication in a newspaper of general circulation, 3 successive weeks. Pila man per publication, kung sunstar i think its 5k or 10k. So hain naman ang estate of e-small value? Papas. But mahitabu gihapon ni. Even if the property is worth 10k, kung duna nay sentimental value to you, it may be worth 1melyon to you.(char)
So what is the procedure? Determine the value. Gross value of the estate not exceeding 10k. So necessarily ani ni sya sa MTC, kaning RTC diri sayop ra ni ha.
How will you commence? File a petition.
Who will file? Interested person.
After filing, notice then hearing.
So notice to interested persons for may proceed summarily without delay.
And grant a proper allowance of the will bisag 10k ra. no?
Then to determine who are the persons entitled to participate in the estate and to apportion and divide it among themselves. SO na distribute.
Ang distributees are required to post bond under section 3. That is before allowing the partition or to require the distributees a property other than real (blah?), so personal na jd ni.
File ka ug bond, what is the condition of the bond? For the payment of any just claim which may be filed under sec. 4. So recess. One hour. hikhik
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class: ahh grabihaaaa, *laughter
mai2x: salva, ikaw daw mu transcribe
salva: diii madaaa oi
Mai2x: wa daw mo transcribe, hikhik
(pero ang ending kami ni maimai ang nag transcribe T_T)
SPECIAL PROCEEDINGS
NOV. 11, 2010 (PART 2)
Sec. 4. Liability of distributees and estate. - If it shall appear at any time within two (2) years after the settlement and distribution of an estate in accordance with the provisions of either of the first two sections of this rule, that 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 in the manner hereinafter provided for the purpose of satisfying such lawful participation. And if within the same time of two (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 having jurisdiction of the estate 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 distributee shall contribute in the payment thereof, and may issue execution, if circumstances require, against the bond provided in the preceding section or against the real estate belonging to the deceased, or both. Such bond and such real estate shall remain charged with a liability to creditors, heirs, or other persons for the full period of two (2) years after such distribution, notwithstanding any transfers of real estate that may have been made.
Liability of distributes
So they sign an extrajudicial settlement. 2 years later or within 2 years, somebody came forward and says that I am a creditor or an heir. Thats Sec. 4.
If it shall appear, at any time within 2 years after the settlement and distribution of the estate, that an heir or other person has been unduly deprived of his participation. So what is the right of that person who was unlawfully excluded?
Answer: Compel the settlement of the estate in the courts. What is the purpose? For the purpose of satisfying such lawful participation.
Suppose within 2 years, it was discovered that there are debts outstanding against the estate which has not been paid or that an heir or person has been unduly deprived of his lawful participation, what shall the court do?
It shall order to settle the amount of such debts or lawful participation and order how much and in what manner each distributee shall contribute in payment thereof.
If the distributee failed or refused to contribute, then, a writ of execution may be issued. That is writ against the bond or against the real estate belonging to the deceased or both.
What is the purpose of the bond?
Those who have been deprived of their rights may go after the bond or file an action to recovery of their share in the real property.
When is the 2-year-period to object not applicable?
The provision barring distributee or heirs from objecting to an extrajudicial partition after the 2-year-prescriptive period is applicable only to persons who have participated or taken part or had notice of the extrajudicial partition and in addition, when the provision of Sec. 1 Rule 74 has been complied with.
Without the participation of all persons involved in the proceedings, the extrajudicial settlement cannot be binding on said persons.
If you buy a parcel of land, be sure to investigate because if you failed to investigate the history of the title, you cannot claim good faith and the sale or mortgage of the land to you may be voided.
Heirs are not required to respond with their personal property for the death of the deceased ancestor.
Sec. 5. Period for claim of minor or incapacitated person. - If on the date of the expiration of the period of two (2) years prescribed in the preceding section the person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim within one (1) year after such disability is removed.
Period for claim of minor or incapacitated person
If on the date of the expiration of the 2-year-period, the person authorized to file a claim is a minor or incapacitated person, he may present his claim within 1 year after such disability is removed.
How do you distinguish extrajudicial settlement (EJS) from summary settlement (SS)?
1. EJS no debts; SS there may be debts, in fact, anyone may claim within 2 years.
2. EJS no will; SS there may be a will
3. EJS no judicial proceeding; SS judicial because you have to file a petition
Now the heirs and distributes are liable despite transfers of their shares.
RULE 75
PRODUCTION OF WILL;
ALLOWANCE OF WILL NECESSARY
Sec. 1. Allowances necessary; Conclusive as to execution. - No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.
No will shall pass, real or personal property, unless it is proved and allowed. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution (extrinsic).
2 kinds of wills:
1. Notarial will executed with the intervention of the notary public under the Civil Code. There are also attesting witnesses.
2. Holographic will in accordance with Art. 810, one that is entirely written, dated, and signed by the hand of the testator himself.
Purpose of probate:
To definitely settle all questions concerning capacity of the testator, proper execution and witnessing of the will and testament irrespective of whether the provisions are valid and enforceable.
Probate courts inquiry is limited to the extrinsic validity of the will.
In order that a will may take effect, it has to be probated, legalized or allowed in the proper testamentary proceeding.
GR: Extrinsic validity of a will is not considered since consideration thereof comes only after the will has been proved and allowed. But there is an exception.
E: Where the intrinsic validity was first determined as when the defect of the will is apparent on its face and the probate of the will will become a useless ceremony if it is intrinsically invalid.
Sec. 2. Custodian of will to deliver. - The person who has custody of a will shall, within twenty (20) days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor named in the will.
What is the duty of custodian of the will?
Duty is to deliver the will to the court or to the executor within 20 days after knowledge of the death of the testator.
Sec. 3. Executor to present will and accept or refuse trust. - A person named as executor in a will shall, within twenty (20) days after he knows of the death of the testator, or within twenty (20) days after knows that he is named executor if he obtained such knowledge after the death of the testator, present such will to the court having jurisdiction, unless the will has reached the court in any other manner, and shall, within such period, signify to the court in writing his acceptance of the trust or his refusal to accept it.
It is the task of the executor to present the will and accept or refuse the trust. So he shall signify in writing his acceptance of the trust or his refusal to accept it.
Sec. 4. Custodian and executor subject to fine for neglect. - A person who neglects any of the duties required in the two last preceding sections without excuse satisfactory to the court shall be fined not exceeding two thousand pesos.
Under Sec. 4, a custodian or an executor who neglects any of his duties under the last 2 preceding sections shall be subject to fine.
Sec. 5. Person retaining will may be committed. - A person having custody of a will after the death of the testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the court having jurisdiction, may be committed to prison and there kept until he delivers the will.
A person retaining the will or who neglects without reasonable cause to deliver the will may be committed to prison and there kept until he delivers the will.
RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
Sec. 1. Who may petition for the allowance of will. - Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition the court for the allowance of his will.
Who may petition for the allowance of the will?
The following:
1. Executor
2. Devisee
3. Legatee named in a will
4. Or any other person interested in the estate, like the creditor
When shall the petition be filed?
At any time after the death of the testator.
The rule on prescription or reglementary period does not apply because no will shall pass either real or personal property unless the will is proved and allowed.
Now, petition must be filed whether the will is in the possession of the petitioner or even if the will is lost or destroyed because if the will is lost or destroyed, then the petitioner must prove its loss or destruction in accordance with the Rules.
Testator himself, during his lifetime, may petition the court for the allowance of the will.
What is the meaning of the phrase person interested in the estate?
This phrase refers to an heir or one who has a claim against the estate such as the creditor.
What is the reason why probate may be allowed during the lifetime of the testator?
According to the SC in a case, it is far easier for the courts to determine the mental condition of the testator during his lifetime than after his death. That probate during the testators life will lessen the number of contests.
Sec. 2. Contents of petition. - A petition for the allowance of a will must show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent;
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters are prayed;
(e) If the will has not been delivered to the court, the name of the person having custody of it.
But 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.
Contents of petition:
1. Jurisdictional facts
2. Names, ages, and residences of the heirs, legatees and devisees of the testator or decedent
3. Probable value and character of the property of the estate
It is not actual value but probable value only because some properties may be excluded or included. There may be collation.
Character real or personal, corporeal or incorporeal, capable of manual delivery or not capable of manual delivery
4. Name of person for whom letters are prayed
5. If the will has not been delivered to the court, the name of the person having custody of it
Annexing of the original of the will in the petition is not a jurisdictional requirement. The petitioner may present a machine copy or Xerox copy only subject of course to the presentation of the original copy under the best-evidence rule.
We have a new rule on electronic evidence. An electronic document is a functional equivalent of a paper-based document.
What is the next step?
Sec. 3
Sec. 3. Court to appoint time for proving will. - Notice thereof to be published. When a will is delivered to, or a petition for the allowance of a will is filed in, the court having jurisdiction, such court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province.
But no newspaper publication shall be made where the petition for probate has been filed by the testator himself.
The court shall fix the time and place for probate of the will, then, cause notices to be sent, then publication in the newspaper of general circulation three weeks successively. If filed by the testator himself, no publication is required.
Sec. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. - The court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator resident in the Philippines at their places of residence, and deposited in the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if such places of residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he be not be petitioner; also, to any person named as co-executor not petitioning, if their places of residence be known. Personal service of copies of the notice at least ten (10) days before the day of hearing shall be equivalent to mailing.
If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs.
Services of notice on individual heirs or legatees or devisees is a matter of procedural requirement, not a jurisdictional requirement.
How shall the heirs, devisees, legatees and executors be notified?
Either by mail or personally at their places of residence.
Notice must likewise be furnished the executor.
Personal service of the notice at least 10 days before the hearing, shall be equivalent to mail.
Sec. 5. Proof at hearing. - What sufficient in absence of contest. At the hearing compliance with the provisions of the last two preceding sections must be shown before the introduction of testimony in support of the will. All such testimony shall be taken under oath and reduced to writing. If no person appears to contest the allowance of the will, the court may grant allowance thereof on the testimony of one of the subscribing witnesses only, if such witness testify that the will was executed as is required by law.
In the case of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. In the absence of any such competent witness, and if the court deem it necessary, expert testimony may be resorted to.
Then hearing presentation of evidence
At the hearing, the lawyer must show compliance with the provisions of Secs. 3 and 4 Rule 76. Then, present testimonial evidence.
If no person appears to contest the will, meaning there is no oppositor, then only testimony of 1 person is required if the witness testify that the will is executed as is required by law.
How about holographic will?
1 witness who knows the handwriting and signature of the testator explicitly declared that the will and the signature are in the handwriting of the testator.
The court may resort to expert testimony.
Sec. 6. Proof of lost or destroyed will. - Certificate thereupon. No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and 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, nor unless its provisions are clearly and distinctly proved by at least two (2) credible witnesses. When a lost will is 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 as other wills are filed and recorded.
Burden of proof is on the proponent.
What is the procedure in proving lost or destroyed will? What shall the proponent do?
First, prove the execution and validity of the will and that the will is proved to have been in existence at the time of the death of the testator. He might have destroyed it before his death.
Or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge. So there was really no intention to revoke.
Nor unless its provisions are clearly and distinctly proved by at least 2 credible witnesses.
Suppose there is lack of opposition, will that relieve the proponent of establishing due execution?
Answer is in the negative. He must still prove due execution of the will.
Sec. 7. Proof when witnesses do not reside in province. - If it appears at the time fixed for the hearing that none of the subscribing witnesses resides in the province, but that the deposition of one or more of them can be taken elsewhere, the court may, on motion, direct it to be taken, and may authorize a photographic copy of the will to be made and to be presented to the witness on his examination, who may be asked the same questions with respect to it, and to the handwriting of the testator and others, as would be pertinent and competent if the original will were present.
Suppose the witnesses do not reside in the province, what shall be done?
Sec. 7. Take the deposition and the photocopy of the will may be presented to the deponents.
Sec. 8. Proof when witnesses dead or insane or do not reside in the Philippines. - If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that none of them resides in the Philippines, the court may admit the testimony of other witnesses to prove the sanity of the testator, and the due execution of the will; and as evidence of the execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or of any of them.
Suppose the witnesses are dead or insane, what shall be done?
The court may admit testimonies of other witnesses to prove sanity of the testator, due execution of the will, etc.
Sec. 9. Grounds for disallowing will. - The will shall be disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) 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;
(e) 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.
Grounds for disallowance:
1. Not executed and attested as required by law
2. Testator was insane, or otherwise mentally incapable to make a will, at the time of its execution
3. Executed under duress, or the influence of fear, or threats
4. Procured by undue and improper pressure and influence, on the part of the beneficiary, or some other person for his benefit
5. 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
On the issue in the probate of will, it is extrinsic validity pertaining to the testamentary capacity and compliance with the normal requirements of solemnities as prescribed by law.
Intrinsic validity relates to descend and distribution. It should come later.
Sec. 10. Contestant to file grounds of contest. - Anyone appearing to contest the will must state in writing his grounds for opposing its allowance, and serve a copy thereof on the petitioner and other parties interested in the estate.
Suppose there is an oppositor or contestant, contestant or oppositor shall state in writing the grounds for opposing the will.
When may a person be allowed to intervene or to contest?
He must have an interest in the estate or in the will or in the property to be affected by either as executor or claimant of the estate.
An interested party has been defined as one who benefited by the estate such as an heir, or one who has a claim against the estate, like a creditor.
Sec. 11. Subscribing witnesses produced or accounted for where will contested. - If the will is contested, all the subscribing witnesses, and the notary in the case of wills executed under the Civil Code of the Philippines, if present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactory shown to the court. If all or some of such witnesses are present in the Philippines but outside the province where the will has been filed, their deposition must be taken. If any or all of them testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may, nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law.
If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator; in the absence of any competent witness, and if the court deem it necessary, expert testimony may be resorted to.
When shall subscribing witnesses be produced?
If the will is contested, all the subscribing witnesses, including the notary public, in the case of will executed under the Civil Code, if present. So they must be produced and examined.
If they are residing out of the province, then take the deposition.
The will may be allowed if the court be satisfied from the testimony of witnesses and from evidence presented that the will was executed and attested in the manner required by the Civil Code.
What if the will contested is holographic will? How many witnesses?
At least 3 witnesses who know the handwriting of the testator and explicitly declare that the will and the signature and the handwriting of the testator.
In the absence of competent witnesses, the court may invite expert witnesses.
Objective of solemnities of execution of will. What is the purpose of probating non-holographic will?:
To close the door against bad faith and fraud
To avoid substitution of wills and testaments
To guaranty the truth and authenticity
These formal solemnities include subscription, attestation and acknowledgment required under Art. 805 Civil Code.
What law governs forms of will?
Law enforced at the time of execution of the will governs the validity of the will as to form.
Sec. 12. Proof where testator petitions for allowance of holographic will. - Where the testator himself petitions for the probate of his holographic will and no contest in filed, the fact that he affirms that the holographic will and the signature are in his own handwriting, shall be sufficient evidence of the genuineness and due execution thereof. If the holographic will is contested, the burden of disproving the genuineness and due execution thereof shall be on the contestant. The testator may, in his turn, present such additional proof as may be necessary to rebut the evidence for the contestant.
Testator must affirm that the holographic will and the signature are his own handwriting. It shall be sufficient evidence of the genuineness and due execution.
If contested, the burden of disproving genuineness and due execution shall be on the contestant.
Sec. 13. Certificate of allowance attached to proved will. - To be recorded in the Office of Register of Deeds. If the court is satisfied, upon proof taken and filed, that the will was duly executed, and that the testator at the time of its execution was of sound and disposing mind, and not acting under duress, menace, and undue influence, or fraud, a certificate of its allowance, signed by the judge, and attested by the seal of the court shall be attached to the will and the will and certificate filed and recorded by the clerk. Attested copies of the will devising real estate and of certificate of allowance thereof, shall be recorded in the register of deeds of the province in which the lands lie.
When shall the certificate of allowance be issued and where shall it be recorded?
If court is satisfied that the will was duly executed, testator was of sound and disposing mind, no vice of consent, then a certificate of allowance signed by the judge, attested by the seal of the court, shall be attached to the will. And the will and certificate filed and recorded by the clerk of court.
What are the steps in the allowance of wills? Summary:
First, a will is delivered to or a petition for allowance of the will is filed in the court of proper jurisdiction. Bisan gideliver rana siya, the court will acquire jurisdiction upon its receipt of the will, even if there is no petition.
Second, court shall fix the time and place of hearing or proving the will.
Third, notice of time and place which should be published 3 successive weeks in the newspaper of general circulation.
Fourth, probate.
Last, allowance or disallowance.
RULE 77
ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER
Sec. 1. Will proved outside Philippines may be allowed here. - Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines.ch
This is a situation where there is a will proved and allowed abroad and the decedent has property or properties in the Phils.
There are 2 kind of administration:
1. Principal administration abroad
2. Ancillary administration here in the Phils.
Sec. 2. Notice of hearing for allowance. - When a copy of such will and of the order or decree of the allowance thereof, both duly authenticated, are filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance.
A will proved outside the Phils. may be allowed, filed and recorded by the proper court.
What is the task of the court?
Copy of the will and order or decree of allowance, authenticated by the executor or person interested. So court is required to fix the time and place of hearing.
Sec. 3. When will allowed, and effect thereof. - If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the judge, and attested by the seal of the court, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court.
After hearing, what happens?
Sec. 3
If it appears that the will shall be allowed in the Phils., then the court shall allow it and the certificate of its allowance shall be issued.
A foreign will which has been executed and probated in a foreign country in accordance of the laws of that foreign country may be reprobated in the Phils. so kung giprobate abroad, unya dad-on sa Phils. kay naai property dnhi sa decedent, its called reprobate.
Subject matter: property of the decedent in the country
Now, in our jurisprudence, Phil. courts cannot take judicial notice of foreign laws and procedures. Kung unsai law sa uban country, its not a question of law here, its a question of fact. You have to prove. The only exception perhaps is if the foreign law is a generally accepted principle of international law which becomes part of the law of the land because of the doctrine of incorporation. So there is a necessity of presenting evidence on the foreign laws upon which the probate in the foreign country was done. In the absence of proof of that probate law and procedure, it is presumed that the law and procedure there is the same as our procedure here in the Phils.
Sec. 4. Estate, how administered. - When a will is thus allowed, the court shall grant letters testamentary, or letters of administration with the will annexed, and such letters testamentary or of administration, shall extend to all the estate of the testator in the Philippines. Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it; and the residue, if any, shall be disposed of as is provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country.
So how shall the estate be administered?
Sec. 4. By a principal administration tua man sa abroad, dnhi ancillary manta. The courts shall grant letters of testamentary or administration and such letters of testamentary or administration shall extend to all the estate of the testator in the Phils. Then debts and expenses shall be paid and the residue shall be disposed of according to the will.
So what is ancillary administration? Or when is it proper?
It is proper whenever the person dies leaving in the country other than that of his domicile, property to be administered in the nature of assets of the decedent, liable for his individual debts or to be distributed among his heirs.
What is the distinction between principal administartion and ancillary administration?
If the person dies in a state owning property in the country of his domicile as well as in a foreign country, administration shall be had in both countries. That which is granted in the jurisdiction of the decedent or decedents last domicile is termed principal administration. While other administration is termed ancillary administration.
RULE 78
LETTERS TESTAMENTARY AND OF ADMINISTRATION,
WHEN AND TO WHOM ISSUED
Kung dunai will, letters testamentary. If there is no will or if there is an executor but is incompetent or if there is an executor but refuses to accept the trust or if there is an executor, he fails to post bond, so instead of letters testamentary, it will be letters of administration.
Sec. 1. Who are incompetent to serve as executors or administrators. - No person is competent to serve as executor or administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude.
Who are competent to serve as executors or administrators?
The following are disqualified:
Minor
Non-resident
Unfit to execute the duties of the trust
Sec. 2. Executor of executor not to administer estate. - The executor of an executor shall not, as such, administer the estate of the first testator.
Executor of executor cannot administer the estate
Sec. 3. Married women may serve. - A married woman may serve as executrix or administratrix, and the marriage of a single woman shall not affect her authority so to serve under a previous appointment.
Married woman may serve
What is the meaning of unsuitableness for appointment as administrator?
Unsuitableness may constitute or consists in adverse interest of some kind with hostility to those immediately interested in the estate to such an extent as to render the appointment inadvisable.
Sec. 4. Letters testamentary issued when will allowed. - When a will has been proved and allowed, the court shall issue letters testamentary thereon to the person named as executor therein, if he is competent, accepts the trust, and gives bond as required by these rules.
When the will is proved and allowed, under Sec. 4, then the court shall issue letters testamentary. That is if the executor is competent, accepts the trust and posts bond. The 3 requirements. If usa ka requirement dili ma comply, then the executor may be replaced by an administrator.
The rule in the Phils. is it is incumbent upon the court to respect the desire of the testator. It is the prerogative of the testator to choose the executor of his estate.
Sec. 5. Where some coexecutors disqualified others may act. - When all of the executors named in a will can not act because of incompetency, refusal to accept the trust, or failure to give bond, on the part of one or more of them, letters testamentary may issue to such of them as are competent, accept and give bond, and they may perform the duties and discharge the trust required by the will.
Suppose there are several executors, some of them are disqualified, under Sec. 5, those qualified may serve.
Sec. 6. When and to whom letters of administration granted. - If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;chanrobles virtua law library
(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.
Sec. 6, when and to whom letters of administration granted?
So dili letters testamentary, kung di letters of administration. Meaning, instead of executor, administrator. In what instances?
1. Executor or executors are incompetent
2. Executor refused the trust
3. Executor failed to give bond
4. If the person dies intestate
so letters of administration shall issue. To whom?
There is an order of preference. Take not that this order of preference may be disregarded by the court if anyone or all of them are incompetent or unsuitable:
1. Surviving husband or wife
2. Person chosen by such husband or wife
3. In their absence, one or all of the principal creditors
4. Other person as the court may select
The judicial administrator is the legal representative, not only of the estate but also of the heirs, devisees, legatees and all persons interested in the estate.
In the appointment of administrator, the principal consideration is the interest in said estate of one to be appointed administrator.
GR: Order of preference in the appointment of administrator.
E: When there are attendant facts and circumstances, the court may exercise its discretion and may disregard the order of preference.
If the court gravely abuses its discretion in the appointment of administrator, then the remedy of an interested party is to file a petition for certiorari under Rule 65 of the Rules of Court.
Why is it that this order of preference may be disregarded?
Its because all of them have the same degree of interest in the estate.
GR: Probate court cannot arbitrarily disregard the preferential right of the surviving spouse. The court may appoint another if the surviving spouse is unsuitable.
A person who has liabilities to the estate or to the heirs of the deceased cannot be appointed administrator conflict of interest.
The appointment of an administrator requires that there be notice and hearing to all known heirs and interested parties. It is essential to the validity of the appointment of administrator.
The court is not precluded from appointing the surviving spouse and the next of kin as co-administrators.
RULE 79
OPPOSING ISSUANCE OF LETTERS TESTAMENTARY.
PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION
Sec. 1. Opposition to issuance of letters testamentary; Simultaneous petition for administration. - Any person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein executors, or any of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time, be filed for letters of administration with the will annexed.
Opposition, who may oppose?
Any person interested in a will. They should file a written opposition.
The next step is for the court to hear the opposition. There must be prior notice.
The petitioner may at the same time pray that letters of administration be granted to him.
An assigning heir cannot interfere or participate in settlement proceedings. Meaning, if an heir assigns his property to a third person, hes no longer a real-part-in-interest.
Interested person is one who will be benefited by the estate such as an heir or one who has a claim against the estate such as creditor and whose interest is material and direct, not contingent or incidental interest. It must be present interest or interest in esse.
Sec. 2. Contents of petition for letters of administration. - A petition for letters of administration must be filed by an interested person and must show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, and the names and residences of the creditors, of the decedent
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters of administration are prayed.
But no defect on the petition shall render void the issuance of letters of administration.
Contents of petition for letters of administration:
1. Jurisdictional facts
2. Facts about the heirs
3. Probable value and character of the property of the estate
4. Name of person for whom letters of administration are prayed
Sec. 3. Court to set time for hearing. Notice thereof. - When a petition for letters of administration is filed in the court having jurisdiction, such court shall fix a time and place for hearing the petition, and shall cause notice thereof to be given to the known heirs and creditors of the decedent, and to any other persons believed to have an interest in the estate, in the manner provided in Sections 3 and 4 of Rule 76.
Sec. 4. Opposition to petition for administration. - Any interested person may, by filing a written opposition, contest the petition on the ground of the incompetency of the person for whom letters are prayed therein, or on the ground of the contestant's own right to the administration, and may pray that letters issue to himself, or to any competent person or persons named in the opposition.
Sec. 5. Hearing and order for letters to issue. - At the hearing of the petition, it must first be shown that notice has been given as hereinabove required, and thereafter the court shall hear the proofs of the parties in support of their respective allegations, and if satisfied that the decedent left no will, or that there is no competent and willing executor, it shall order the issuance of letters of administration to the party best entitled thereto.
Sec. 6. When letters of administration granted to any applicant. - 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.
During the first hearing, counsel for petitioner must establish compliance with the jurisdictional facts. And what are these jurisdictional facts?
First, prove the death of the testator. (death certificate)
Second, residence at the time of death. If non-resident, then the fact of being a resident of a foreign country but he has estate in the country.
Third, for the court to set the time for hearing. Notices shall be sent to known heirs and creditors of the decedent or any interested party.
What is the effect of failure to give notice?
Proceedings for the settlement of the estate is void. It may be annulled.
There may be opposition to petition for administration. Who may oppose? Any interested person. They should file a written opposition and should state the grounds, like incompetency of the person for whom letters are prayed, on the ground of contestants own right to administration, or to any competent person named in the opposition.
Hearing. The opposition may be granted or denied.
So present evidence. If the court is satisfied that the decedent left no will or that there is no competent and willing executor, it shall order issuance of letters of administration.
Even if there is a qualified applicant but such qualified applicant failed to appear when notified and failed to claim the issuance of letters to themselves, then the court may grant letters of administration to any qualified person.
RULE 80
SPECIAL ADMINISTRATOR
Sec. 1. Appointment of special administrator.- When there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will, the court may appoint a special administrator to take possession and charge of the estate of the deceased until the questions causing the delay are decided and executors or administrators appointed.
When shall a special administrator be granted?
When there is delay in granting letters of administration or letters testamentary by any cause including a pending appeal, the court may appoint a special administrator.
If the regular administrator has a claim against the estate, the court may likewise appoint a special administrator until the question causing the delay are decided and executors or administrators appoint.
What is the task of the special administrator?
To take possession and charge of the estate.
Now do not be confused, the rules governing appointment of a regular administrator do not apply to appointment of special administrator such as requirement of fitness or unfitness. What is the reason why said rules do not apply to the appointment of special administrator?
Its because the appointment of a special administrator is temporary.
So also the preferential right of persons under Sec. 6 applies only to the appointment of a regular administrator, therefore, the surviving spouse may not claim preferential rights.
Court employees should not be appointed special administrators. There might be conflict of interest.
Sec. 2. Powers and duties of special administrator. - Such special administrator shall take possession and charge of goods, chattels, rights, credits, and estate of the deceased and preserve the same for the executor or administrator afterwards appointed, and for that purpose may commence and maintain suits as administrator. He may sell only such perishable and other property as the court orders sold. A special administrator shall not be liable to pay any debts of the deceased unless so ordered by the court.
What are the powers and duties of special administrators?
Take possession and charge of goods, chattels, etc
Preserve them for the executor or administrator who may be appointed and qualified in the future
And for that purpose, special administrator may commence and maintain suits as administrator.
Can the special administrator sell perishable goods?
Yes, only if there is an order of the court.
Prohibitions:
Special administrator shall not be liable to pay any debts of the deceased, exception:
If the court so orders
A special administrator is also required to post bond for the performance of his task.
Sec. 3. When powers of special administrator cease; Transfer of effects; Pending suits. - When letters testamentary or of administration are granted on the estate of the deceased, the powers of the special administrator shall cease, and he shall forthwith deliver to the executor or administrator the goods, chattels, money, and estate of the deceased in his hands. The executor or administrator may prosecute to final judgment suits commenced by such special administrator.
When shall the power of a special administrator cease?
If there is already letters testamentary or administration granted to an administrator, then the powers of the special administrator shall cease.
And what is his duty?
He shall deliver to the executor or the administrator appointed the goods, chattels, etc.
The function of a special administrator is only to collect and preserve the property of the estate and to return a complete inventory. He cannot pay the debts of the decedent unless expressly ordered by the court to do so.
Rule 81. Bonds of executors and administrators. The bonds should be posted before the issuance of letters testamentary or administration, the court shall fix the bond.
What are the conditions of the bond?
To make and return to the court a true and complete inventory of the goods and other property of the deceased which shall have come to his knowledge or even to the possession of any person for him.
To administer according to the rules of court
To render a true and correct account of his administration within 1 year and at any time when required by the court.
To perform all orders the court shall direct him to perform.
Now, the purpose of the administration is liquidation of the estate and distribution of the residue if any. Residue comes after payments of debts, charges and taxes.
If the deceased directs in his will that the executor serve without bond or only his personal bond, then he may be allowed by court to give bond in such sum and in such surety as the court approves. What is the condition? To pay the debts of the testator. Court may require further bonds if there is change in circumstances of the executor or administrator or for other sufficient cause. Two or more persons appointed as executors or as administrators may post joint bonds or separate bonds.
Under Section 4, the special administrator is also required to post a bond. What is the purpose? That he will make and return a true inventory account for the goods, chattels etc. That he will truly account for such as received by him, when required by the court.
RULE 82. Revocation, Death, Resignation, Removal
What happens if a will is discovered but letters of administration is granted? Consequence, letters of administration shall be revoked and all powers of administrator shall cease. He shall fortwith surrender the letters of the court and render his account.
Section 2. Removal, Resignation.
What are the grounds of removal of administrator or executor?
Neglect to render account and settle the estate according to law, to perform an order or judgment of the court, to perform an order or duty as expressly provided in the rules of court
He absconds
Becomes insane
Or otherwise incapable or unsuitable to discharge the trust
The court may remove him. The court may also allow the executor or administrator to resign
The determination of a persons suitability in office of judicial administrator rests in the sound discretion of the court. If the court gravely abuses its discretion amounting to lack or excess of jurisdiction then a petition for certiorari under Rule 65 lies. Now, a judicial administrator who holds an interest adverse to the estate or by his conduct shows his unfitness to discharge the trust, then he should be removed from the administration of the estate.
Section 3. Acts before revocation, resignation, and removal are valid
Section 4. Assuming that there is a new executor or administrator, what are his powers? Powers to collect and settle the estate not to administer that the former administrator have. To prosecute and defend action. Then have the execution on judgments recovered in the name of such former executor or administrator.
Rule 83. Inventory appraisal.
What shall be inventoried and appraised? Or in what period shall inventory and appraisal be returned? Within 3 months after his appointment, every executor or administrator shall return to the court of true inventory and appraisal of all the real and personal estate of the deceased which has come into his possession or knowledge, because if it is not yet in his possession but somebody informs him that a third person is holding the property of the deceased, he is tasked to recover.
There are certain articles not to be inventoried. Obvious noh! Wearing apparel, marriage bed and bedding, provisions and other articles as well necessarily be consumed in the subsistence of the family of the deceased.
Section 3. There shall be allowance not only to widow and family. If there is conflict between substantive law and procedural law, you follow substantive law from the common mass of property; support shall be given to the surviving spouse and children during the liquidation of the inventoried property. The law does not say minor children, so even those of age may be supported from the common mass of property.
Rule 84. General powers and duties of executors and administrators. You just read the sections those are the powers and duties of executors and administrators!
To have access to and may examine, take copies and make invoices of partnership books and property if the deceased was a partner during his lifetime relating to the business. Surviving partners shall exhibit to him books, papers or properties in their hands or control. Partner may be punished for contempt if he fails to do so.
Under Sec. 2 he is tasked to keep buildings in repair
Sec 3 to retain the whole estate to pay debts and to administer estate not willed. It says, he shall have the right to the possession and management of the real and personal property of the deceased, but please take note of this phrase, so long as it is necessary for the payment of the debts and expenses of administration. The right therefore of the executor or administrator to the possession and management of the properties is not absolute, it can only be exercised so long as it necessary for the payment of debt and expenses of administration.
Rule 85. Accountability, Compensation
Executor or administrator chargeable in his account with the whole of the estate of the deceased which has come to his possession at the value of the appraisement contained in the inventory. Know, the administrator shall not profit with the increase or loss by the decrease or destruction of the property without his fault of any part of the estate.
Sec 3. No executor or administrator shall be accountable for debts which has remained uncollected without his fault.
He is accountable for income from realty used by him. So, if he uses or occupies part of the real estate then he shall pay for it. If the parties cannot agree on the sum to be allowed then the court may ascertain the amount whose determination shall be final.
Sec 5. He is accountable if he neglects or delays to raise or pay money and damaged is sustained, the damage will be charged on his account and he shall be liable thereon on his bonds.
Sec 6. When allowed for money paid as cost or cost paid against him shall be allowed in his administration account.
Sec 7. What expenses or fees are allowed for executor or administrator? He shall be allowed NECESSARY expenses in the care, management, settlement of the estate and for his services. If we follow the rules no one will allow because the compensation is only P4 per day. But in special cases, where the estate is large and has required a high degree of capacity and difficulty on the part of the executor or administrator then a higher sum may be given. When the executor or administrator is a lawyer, he shall not charge against the estate any professional fees for legal services rendered by him. Reason? Conflict of interest.
When the deceased by will makes provision for the compensation of the executor then such provision shall be in full satisfaction for his services. Generally, what are administration expenses allowed? Necessary expenses in the care, management and settlement of the estate. He is entitled to possess and manage the property of the deceased as long as it is necessary for the payment of the debts and expenses of administration. He is accountable for the whole decedents estate which has come to his possession. Administration expenses should be those which are necessary for the administration of the estate for protecting it against destruction or deterioration and possibly for the production of fruits.
Now, where the administrator is the counsel for the heirs, it will be the heirs who will pay him. Attorneys fees of a lawyer employed by the executor to secure approval of the will, if the lawyer is successful, may properly be charged against the estate.
What is the procedure to collect attorneys fees? Ask the executor/administrator to pay him, if the latter refuses or fails to pay him, the lawyer has 2 remedies. He may either file an independent civil action against the executor/administrator and should judgment been rendered and there is payment, the executor or administrator may include the amount paid in his account with the probate court. The other remedy is to file a petition with the probate court praying that the court after due notice, allow his claim and direct the executor/administrator to pay his claim as expenses of administration.
Suppose the executor/administrator dies before the attorneys fees could be paid, what is the remedy? He may file a claim against the estate of the deceased, executor/administrator or a petition for the allowance of his claim with the probate court. The allowance of counsel fees in estate proceedings rests largely in the sound discretion of the court.
The circumstances that the probate court has lost jurisdiction to adjudicate the matter of fees as a result of the final closure of the estate proceeding does not prevent the lawyer from being paid. So the lawyer may pursue his claim through an independent civil action against the executor/administrator in his personal capacity and against the distributees of the assets of the estate.
Sec. 8. When shall executor/administrator render his account? Within 1 year from receipt of letters testamentary or administration. Exception: when the court otherwise directs because of extensions. Extension is granted when he shall render further accounts as the court may require until the estate is fully settled.
The executor/administrator may be examined on oath with respect to his account. That is, if there is objection to the account to be presented in court. If there is no question as to the allowance of the account and its correctness is satisfactorily established by competent court, then no examination on oath shall be conducted.
Under section 10, the account of the executor/administrator shall be settled on notice. Who shall be notified? Persons interested in the estate. The time and place of the examination and allowance shall be fixed by the court. The notice may be given personally to persons interested or through advertisement on a newspaper.
Section 11. Surety on bond may be party to accounting in a due process to the bonding company.
RULE 86. Claims against Estate.
Section 1. The court shall issue notice to creditors requiring persons having money claims against the decedent to file them in the office of the clerk of court.
Section 2. Time within which claim shall be filed. In the notice, the court shall state the time to file the claim against the estate. It shall not be more than 12 nor less than 6 months, after the date of the first publication of the notice but at any time before an order of distribution is entered. On application of the creditor who has failed to file within the time previously limited, the court may for cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding within 1 month.
Section 3. There shall be publication of notice to creditors, three of which successively in a newspaper of general circulation. In addition to publication, posting of notices in four public places in the province, two public places in the municipalities,then within 10 days after notice has been published and posted, copy of printed notice shall filed
Section 5. Claims which must be filed under the notice. Please take note of section 5, this is important! Now, which claims must be filed under the notice and what is the effect if they are not filed?
1. All claims for money against the decedent, either arising from contract, express or implied, due, not due, or contingent.
2. All claims for funeral expenses and expenses for the last sickness of the decedent
3. Judgment for money against the decedent
They must all be filed within the period limited in the notice. What is the effect if they are not filed within the period in the notice? They are barred forever. Exception: they may be set forth as counterclaim in any action that the executor may bring against the claimant, so mag-una2x ganing kiha executor or administrator; the claimant may file a counterclaim or set-off if he has a claim against the estate. The debtor may set forth by answer the claim he has against the decedent, instead of presenting it independently to the court, and mutual claims may be set off against each other. Claims not yet due or contingent may be approved at their present value. What is claim? Claim means right to payment; it refers to right or demands of a pecuniary nature which could have been enforced against the deceased during his lifetime and could have been reduced to simple money judgments. Claims referred to in section 5, are those arising prior to the death of the decedent, except for funeral expenses, they do not include claims arising after the death of the decedent.
Contingent claim- it is one, which by its nature, is necessarily dependent upon uncertain event for its existence and validity. One of which, may or may not develop into a sufficient enforceable event, to be contingent, the happening must be wholly uncertain until the event giving rise to obligation occurs. Deficiency judgment is a contingent claim.
Now please take note of your civil procedure, section 20, rule 3. Action for recovery of money arising from contract, express or implied, then defendant dies while the action is in court. Shall the action be dismissed? No the action shall be allowed to continue until entry of final judgment. If there is favorable judgment obtained by the plaintiff, then it shall be enforced in the manner specifically provided in this rules for prosecuting claim against the estate of a deceased person. What does it mean? If there is a judgment, you present it to the testate or intestate court; you need not prove the claim because the basis is the judgment. Other claimants are required to prove their claims, so there is therefore an advantage if you have a court decision. Purely personal actions are extinguished by the death of a party like for support.
Section 20. Refers to an action for recovery of money, which survives the death of the defendant. Actions which survives, involves property or property rights. Section 20 did not distinguish which court the action is pending, then said court may refer to the MTC, RTC OR CA. Then how about actions other than for recovery of money? Meaning real actions, one for the recovery of personal property or to enforce a lien thereon. How about action to recover damages for an injury to persons or property, real or personal? Do the actions also survive? Answer is yes, they also survive the death of the decedent and may therefore be prosecuted like an action for the recovery of money.
Now, what is the task of the lawyer if his client dies? Within 30 days inform the court of the death of his client. Then, give the names and addresses of the heirs. The court gives an order of substitution. Then, the last which is the more important, the court shall give an order of the appearance of the substitutes/heirs. If the defendant dies before any action for the sum of money is filed against him, then the plaintiff may prosecute his claim before the probate court. With respect to injury to persons or torts or quasi-delict, he may institute necessary action against the executor or administrator of the deceased
Section 6. Solidary obligations of the decedent. If during his lifetime, the decedent bound himself to be solidarily liable with another, then the claim shall be filed with the decedent as if he were the only debtor. Of course, without prejudice to the right of the estate to recover from the other debtors. In a joint obligation, the claims shall be confined to the portion belonging to the deceased.
Section 7. Mortgage due for the estate. What are options of the creditors who has a claim against the estate secured by mortgage?
1. He may abandon the security and prosecute his claim and share in the general distribution in the assets of the estate.
2. He may foreclose his mortgage and realize upon his security, making the executor/administrator party defendant and if there is any deficiency, he may claim deficiency judgment in the manner provided in section 6.
3. He may rely upon his mortgage and other security alone, and foreclose his mortgage any time within the period of the statute of limitations in that case he shall not be admitted as creditor but nothing contained herein shall prohibit the executor or administrator from redeeming the property mortgaged or pledged for the interest of the estate
These alternatives include extrajudicial foreclosure sale.
Section 8. Claims of executor against an estate. So what shall the court do, since the executor is the claimant? The court shall appoint a special administrator because there is conflict of interest.
How to file the claim? Deliver the claim with the necessary vouchers to the clerk of court, serve copy to the executor/administrator if anchored on bond, bill, note, then the original need not be filed but on the demand of the executor/administrator or by court order, the original shall be exhibited unless of course if the original is lost or destroyed. In which case, an affidavit/s shall be filed to court. When the claim is due, it must be supported by affidavits stating the amount justly due and that no payments have been made thereon and that there are no offsets made to the claim. If the claim is not due or contingent, it shall also be supported with affidavits stating the particulars. When the affidavit is made by other than the claimant, then the reason shall be stated why it was not made by the claimant.
Section 10. Answer of executor or administrator. Within what time? Within 15 days after service of the copy of the claim. Answer shall either admit or deny the claim specifically setting forth the substance which shall support the admission or denial of the claim. So, denied for the truth of the matter is executor or administrator shall allege in offset any claim which the decedent before death has for the claimant. Now, how shall admitted claims be disposed off? First submit the claims to the clerk of court who may approve the same without hearing, but the court in its discretion before approving the claim that the heirs, legatees, devisees be notified and heared. If upon hearing, any of the latter opposes the claim, the court may give him 15 days within which to file an answer to the claim.
Section 12. Contested claims shall be tried.
Section 13. Judgment of the court approving or disapproving the claim shall be appealable as in ordinary cases.
Section 14. Cause then examination
PIECE OF PAPER! Nag-exam!
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Rule 87. Action by and Against. What are the actions which may and may not be brought against the executor and administrator?
No action upon a claim for the recovery of money or interest thereon shall be commenced against the executor or administrator. So, ipresent na as a claim sa estate.
Actions to recover real or personal property or interest therein from the estate to enforce a lien thereon. Actions to recover damages for an injury to persons or property may be commenced against the executor or administrator.
It is the task of the executor or administrator to bring and defend actions which survive. Meaning for the recovery or protection of the property or rights of the deceased.
Action to recover real or personal property, may be prosecuted by the interested person against the executor or administrator, independently of the testate or intestate proceeding.
A probate court has no jurisdiction over money claim secured by a lien, like mortgage.
The only actions that may be instituted against the executor or administrator are those to recover real or personal property from the estate or to enforce a lien thereon, or to recover damages for an injury to person or property, they include damages for breach of contract.
Only when there is no special proceeding for the settlement of the estate of the deceased may the legal heirs bring an action out of the right belonging to their ancestor.
Prior settlement of the estate is not essential before the heirs can commence an action originally pertaining to the decease where there is no showing that an administrator has been appointed to settle the estate of the deceased.
But after appointment an executor or administrator, an heir has no right to file an action to recover title or possession of land
