Spec Proc

San Beda College of Law
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MEMORY AID IN REMEDIAL LAW
SPECIAL PROCEEDINGS
SPECIAL PROCEEDINGS - A remedy by

which a party seeks to establish a status, supplemented by by ordinary rules
a right or a particular fact. (Rule 1, special rules
Section 3) heard by courts of heard by courts of
general jurisdiction limited jurisdiction
JURISDICTION
GENERAL RULE: Regional Trial Court Initiated by a Initiated by means of
EXCEPTION: MTC has jurisdiction in the pleading and parties a petition and parties
respond through an respond by means of
following cases: answer an opposition
1. Probate proceedings whether testate
or intestate where the gross value of DIFFERENT MODES OF SETTLEMENT OF
the estate does NOT exceed ESTATE OF DECEASED PERSON
P300,000 or P400,000 in Metro 1. Extrajudicial Settlement of
Manila, EXCLUSIVE of interest, Estate (Section 1, Rule 74)
damages of whatever kind, 2. Partition (Rule 69)
attorneys fees, litigation expenses 3. Summary Settlement of Estate of
and costs. Small Value (Section 3, Rule 74)
2. DELEGATED JURISDICTION 4. Probate of Will (Rule 75 to 79)
in Cadastral and Land 5. Petition for letters of
Registration Cases covering lots Administration in cases of
where there is no controversy or Intestacy (Rule 79)
opposition or contested lots where
the value of which does not exceed P PROCEDURE IN SETTLEMENT
100T. PROCEEDINGS
appeal is taken to the CA, not
to the RTC since MTC is equal to RTC
in this instance. Probate of the Will if
3. SPECIAL JURISDICTION any (Rule 75 76)
petitions for writ of Habeas
Corpus in case of absence of RTC
judges. Issuance of Letters
Testamentary/Administration
SC and CA have original jurisdiction (A special administrator may be
appointed) (Rule 77-80)
over Habeas Corpus cases, concurrent
with the RTC.
ORDINARY SPECIAL Filing of Claims

(Rule 86)
ACTION PROCEEDING
to protect or involves the

enforce a right or establishment of the Payment of Claims
prevent or redress a right, status or fact Sale/Mortgage/Encumbrance
wrong of Properties of the Estate
involves two or may involve only

more parties one party
Distribution of Residue, if any
(But this can be made even before
payment if a bond is filed by the heirs)
governed by governed by special
ordinary rules rules supplemented
REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan,
Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
101
RULE 73 EXAMPLES OF OTHER QUESTIONS

VENUE AND PROCESS WHICH THE PROBATE COURT CAN
DETERMINE
VENUE 1. Who are the heirs of the
INHABITANT OF PHILIPPINES decedent;
(whether citizen or alien) Court 2. The recognition of a natural
of province/city where he child;
resides at the time of death. 3. The validity of disinheritance
INHABITANT OF FOREIGN effected by the testator;
COUNTRY RTC of any province 4. Status of a woman who claims to
wherein he had his estate. be the lawful wife of the
decedent;
Residence means his personal, actual 5. The validity of a waiver of
or physical habitation, his actual hereditary rights;
residence or place of abode. (Fule vs. 6. The status of each heir;
CA, L-40502, Nov. 29, 1976) 7. Whether property in inventory is
conjugal or exclusive property of
Where estate of deceased persons deceased spouse;
settled. (Sec.1) 8. All other matters incidental or
collateral to the settlement and
2 KINDS OF SETTLEMENT distribution of the estate.
A. EXTRAJUDICIAL SETTLEMENT -
(Rule 74, Section 1) PRINCIPLE OF EXCLUSIONARY RULE
The court first taking cognizance of the
B. JUDICIAL SETTLEMENT - Testate or settlement of the estate of the
Intestate Proceedings instituted in decedent, shall exercise jurisdiction to
the country where decedent has his the exclusion of all other courts.
residence
The probate court acquires jurisdiction
EXTENT OF JURISDICTION from the moment the petition for the
Probate courts are courts of LIMITED settlement is filed with said court. It
jurisdiction. It may only determine and cannot be divested of such jurisdiction
rule upon issues relating to the by the subsequent acts of the parties as
settlement of the estate, namely: by entering into extrajudicial partition
1. administration of the estate; of the estate (Sandoval vs. Santiago, 88
2. liquidation of the estate; and PHIL 784); or filing another petition for
3. distribution of the estate. settlement in a proper court of
concurrent venue (De Boria vs. Tan, 77
GENERAL RULE: Probate court cannot Phil 872).
determine issue of ownership.
EXCEPTIONS: EXCEPTION:
1. Provisionally, ownership may be Estoppel by LACHES
determined for the purpose of
including property in inventory, Jurisdiction under Rule 73 Sec. 1
without prejudice to its final does NOT relate to jurisdiction per se
determination in a separate action; but to venue. Hence, institution in the
or court where the decedent is neither an
2. When all the parties are heirs and inhabitant or have his estate may be
they submit the issue of ownership waived. (Uriarte vs. CFI, L-21938-39,
to the probate court provided that May 29, 1970)
the rights of third parties are not
prejudiced. (Bernardo vs. CA, L- Improper venue must be seasonably
18148, Feb. 28, 1963) raised. (Eusebio v. Eusebio, 100 PHIL
593)

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REMEDY IF THE VENUE IS IMPROPERLY EXTRAJUDICIAL SETTLEMENT BY

LAID AGREEMENT BETWEEN HEIRS (Sec.1)
ORDINARY APPEAL not certiorari or Requisites:
mandamus UNLESS want of jurisdiction A. Substantive
appears on the record of the case. 1. The decedent left -
a) no will
RTC may issue writs and processes. b) no debts
(Sec.3, Rule 73) 2. The heirs are all of age or the
minors are represented by their
GENERAL RULE: Probate court cannot judicial or legal representatives
issue writs of execution. duly authorized for the purpose
Reason: its orders usually refer to the
adjudication of claims against the estate B. Procedural
which the executor/administrator may 1. Division of estate must be in a
satisfy without the need of executory PUBLIC INSTRUMENT or by
process. AFFIDAVIT of ADJUDICATION in
EXCEPTIONS: EXCLUSIVE (expressio the case of a sole heir.
unius est exclusio alterius) 2. Filed with proper Registry of
1. To satisfy the contributive share Deeds
of the devisees, legates and 3. Publication of notice of the fact
heirs when the latter had of extrajudicial settlement once
entered prior possession over the a week for 3 CONSECUTIVE WKS.
estate. (Sec. 6, Rule 88) 4. Bond filed equivalent to the
2. To enforce payment of the value of PERSONAL property.
expenses of partition. (Sec. 3,
Rule 90) The bond is required only when
personalty is involved or the real estate
Where the estate settled upon is subject to a lien in favor of creditors,
dissolution of marriage (Sec.2) heirs or other persons for the full period
Upon the death of either the husband or of 2 years from such distribution and
the wife, the partnership affairs must be such lien cannot be substituted by a
liquidated in the testate or intestate bond.
proceedings of the deceased husband or
wife. If both have died, liquidation may The bond is the value of the personal
be made in the testate or intestate property certified by the parties under
proceedings of either. oath and CONDITIONED upon payment of
just claims filed under Sec. 4, Rule 74.
RULE 74 BOND
SUMMARY SETTLEMENT OF ESTATE 1. equivalent to the value of
personal property
GENERAL RULE: If a person dies, his 2. certified by parties under oath
estate is submitted to a judicial by an affidavit
settlement proceeding. 3. conditioned upon the payment of
EXCEPTION: The heirs may resort to: just claims filed under Sec. 4.
1. Extrajudicial settlement of estate;
or If they cannot agree to the manner of
2. Summary settlement of estate must partition among themselves, they may
be conducted in accordance with resort to Ordinary Action of Partition. If
regular procedure NOT under rules despite the institution of such action
of summary procedure. (Regalado) they subsequently arrived at an
agreement, they may enter into the
In these exceptions an administrator corresponding stipulation and register
or executor need not be appointed.

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the same with the Register of Deeds. SUMMARY SETTLEMENT OF ESTATE OF

(Regalado) SMALL VALUE (Sec.2)
GROSS VALUE of the estate must NOT
Is a Public Instrument necessary for the EXCEED P10, 000.
validity of an extrajudicial settlement?
NO. Private instrument/document or This is jurisdictional. (Del Rosario vs.
Oral agreement of partition is valid Conanan, L-37903, March 30, 1977)
among the heirs who participated in the
extrajudicial settlement. The IMPORTANT REQUIREMENTS
requirement under Sec. 1, Rule 74 that 1. Application must contain
it must be in public instrument is NOT allegation of gross value of
constitutive of the validity but is merely estate.
evidentiary in nature. (Hernandez vs 2. Date for hearing
Andal) a) shall be set by court not less
than 1 MONTH nor more
However, Reformation may be than 3MONTHS from date of
compelled. (Regalado) last publication of notice;
b) published, ONCE A WEEK FOR
EXTRAJUDICIAL JUDICIAL 3 CONSECUTIVE WKS in a
SETTLEMENT SETLLEMENT newspaper of general
No court intervention requires summary circulation.
judicial adjudication 3. Notice shall be served upon such
value of the estate gross estate must not interested persons as the court
immaterial exceed P10T may direct.
allowed only in allowed in both 4. Bond - amount fixed by the
intestate succession testate and intestate court (not value of personal
there must be no available even if prop) conditioned upon payment
outstanding debts of there are debts; it is of just claims under Sec.4.
the estate at the the court which will
time of settlement make provision for LIABILITY OF DISTRIBUTEES AND
its payment ESTATE (Sec.4)
resorted at the May be instituted by
instance and by ANY INTERESTED
REQUISITES OF TWO-YEAR PERIOD LIEN
agreement of ALL PARTY even a
1. persons have taken part or have
heirs creditor of the
notice of extrajudicial partition
estate without the
2. compliance with the provisions
consent of all heirs
of Sec.1, Rule 74 (Sampilo vs.
CA)
amount of bond is bond to be
equal to the value of determined by the
BASIS TO COMPEL SETTLEMENT OF THE
personal property court
ESTATE
1. undue deprivation of lawful
While the Rules provide that the
participation in the estate.
decedent must not have left any debts,
2. existence of debts against the estate
it is sufficient if any debts he may have
or undue deprivation of lawful
left have been paid at the time of the
participation payable in money.
extrajudicial settlement is entered into.
(Guico vs. Bautista, 110 Phil 584)
REMEDIES
1. WITHIN 2 YRS. - claim against
DISPUTABLE PRESUMPTION THAT
the bond or the real estate.
DECEDENT LEFT NO DEBTS
2. Action to Annul a deed of
If no creditor files a petition for letters
extrajudicial settlement on the
of administration within 2 years after
ground of FRAUD within 4
the death of the decedent.

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YEARS from the discovery of If the testator should make a

fraud. partition of his properties by an
3. Reconveyance of real property. act inter vivos, or by will, such
partition shall stand in so far as
Where the estate has been summarily it does not prejudice the
settled, the unpaid creditor may, within legitime of the forced heir.
2 years, file a motion in the court (Mang-Oy vs. CA, 144 SCRA 33).
wherein such summary settlement was 3. IMPRESCRIPTIBLE because of
had, for the payment of his credit. the public policy to obey the will
of the testator.
EXCEPTION: If on the date of the 4. The DOCTRINE OF ESTOPPEL
expiration of the two-year period, the does not apply.
creditor or heir is - Reason: presentation and
a) A minor or incapacitated, or probate of will is required by
b) In prison or public policy and involves public
c) Outside the Philippines, interest. (Fernandez vs.
he may present his claim within one year Dimagiba)
after such disability is removed. (Sec. 5
Rule 75)
RULE 76
The 2-year lien upon the real property ALLOWANCE OR DISALLOWANCE OF
distributed by extrajudicial or summary WILL
settlement shall be annotated on the
title issued to the distributees and after Probate or Allowance of Wills - act of
2 years will be cancelled by the register proving in a court a document purporting
of deeds without need of court order to be the last will and testament of a
(LRC CIRCULAR 143) deceased person in order that it may be
officially recognized, registered and its
Such lien cannot be discharged nor the provisions carried insofar as they are in
annotation be cancelled within the 2 accordance with law.
year period even if the distributees offer
to post a bond to answer for contingent Who may petition for allowance of will?
claims from which lien is established. (Sec.1)
(Rebong vs. Ibanez, 79 Phil 324) 1. any creditor - as preparatory
step for filing of his claim
therein (Regalado, p.26)
RULE 75 2. devisee or legatee named in the
PRODUCTION OF WILL/ ALLOWANCE OF will
WILL NECESSARY 3. person interested in the will
(e.i., heirs)
Section 1. Allowance necessary, 4. testator himself during his
conclusive as to execution. lifetime the possession of the
will is not necessary
NATURE OF PROBATE PROCEEDINGS
1. IN REM -binding on the whole Who may be a party in probate?
world. Generally, any person having a direct
2. MANDATORY - no will shall pass and material interest in the will or
either real or personal property estate.
unless it is proved and allowed in
the proper court. HOWEVER, it CONTENTS OF THE PETITION (Sec.2)
has been held in one case that a 1. the jurisdictional facts death
will may be sustained on the of the testator and his residence
basis of Article 1080 of the Civil at the time of death or the
Code which reads as follows: province where estate was left

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by the decedent who is a non- COURT APPOINTS TIME FOR PROVING

resident; WILL. NOTICE THEREOF TO BE
2. the names, ages, and residences PUBLISHED (Sec.3)
of the heirs, legatees, devisees
of the testator or decedent; When does court acquire jurisdiction
3. the probable value and character over interested persons and res?
of the property of the estate; Upon PUBLICATION for 3 WKS
4. the name of the person for successively of the order setting the case
whom the letters are prayed; for hearing AND sending NOTICES to all
5. the name of the person having persons interested.
custody of the will if has not NOTICES MUST BE GIVEN TO:
been delivered to the court. 1. designated or known heirs,
legatees and devisees; and
But no defect in the petition shall render 2. executor and co-executor if not
void the allowance of the will, or the the petitioner.
issuance of letters testamentary or of
administration with the will annexed. MODES OF NOTIFYING
By mail: 20 days before hearing
EFFECT OF THE PROBATE OF A WILL Personal notice: 10 days before hearing
It is conclusive as to the EXECUTION and
the VALIDITY of the will (even against 3 weeks successively is not strictly 21
the state). Thus, a criminal case against days.
the forger may not lie after the will has
been probated. ANTE MORTEM
If petition for probate is on testators
ISSUE IN THE PROBATE OF A WILL own initiative during his lifetime -
GENERAL RULE: 1. no publication is necessary; and
Only determination of the extrinsic 2. notice shall be made only to the
validity not the intrinsic validity or compulsory heirs.
testamentary dispositions.
EXCEPTION: Where the entire or all PROOF OF HEARING (Sec.5)
testamentary dispositions are void and At the hearing, compliance of
where the defect is apparent on its face. Publication and Notice must first be
(Acain vs. IAC GR No. 72706, Oct. 27, shown before introduction of testimony
1987; Nepumuceno vs. CA, 139 SCRA in support of the will.
206)
EVIDENCE in support of will:
EXTRINSIC VALIDITY - means due 1. UNCONTESTED WILL (Sec.5)
execution of the will. a) Notarial Wills - testimony of at
least 1 of the subscribing
MEANING AND EXTENT DUE EXECUTION witnesses is allowed.
Due execution means that: - if all subscribing witnesses
1. the testator is of sound and reside outside the province
disposing mind when he deposition is allowed.
executed the will; - if subscribing witnesses
2. the will was NOT executed under reside is dead, insane, or none
duress, fraud or other reside in the Philippines Court
circumstances that vitiates may admit testimony of the
consent; witnesses to prove the sanity of
3. the required formalities have the testator, and the due
been strictly complied with; and execution of the will, and as
4. the will is genuine and not a evidence of the execution of the
forgery. will, it may admit proof of the
handwriting of the testator and

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of the subscribing witnesses or of 1. due execution and validity of the

any of them. will;
b) Holographic Wills - the 2. will was in existence when
testimony of 1 witness who testator died, or if it was not,
knows the handwriting and that it has been fraudulently or
signature of the testator. In the accidentally destroyed in the
absence thereof, testimony of an lifetime of the testator without
expert witness. his knowledge; and
3. the provisions of the will are
2. CONTESTED (Sec.11) clearly established by at least
a) Notarial Wills - ALL subscribing two credible witnesses.
witnesses AND notary public.
HOWEVER, if any or all the RULE 77

witnesses (i) testify against the ALLOWANCE OF WILL PROVED OUTSIDE
execution of the will, (ii) do not OF PHILIPPINES AND ADMINISTRATION
remember attesting thereto, or OF ESTATE THEREUNDER
(iii) of doubtful credibility, the
will may be allowed if the court A will allowed or probated in a foreign
is satisfied from the testimony of country, must be RE-PROBATED in the
other witnesses and from all the Philippines. If the decedent owns
evidence presented that the will properties in different countries,
was executed and attested in separate administration proceedings
the manner required by law. must be had in said countries.
b) Holographic Wills - 3 witnesses TWO TYPES OF ESTATE PROCEEDINGS:

who knows the handwriting of 1. Domicilliary administration -
testator. In the absence thereof, the proceeding instituted in last
testimony of an expert witness residence of the decedent.
may be resorted to. 2. Ancillary administration - the
administration proceedings
HOWEVER, in Codoy vs. where he left his estate.
Calugay, GR NO. 123486, Aug.
12, 1999, the SC ruled that if the REQUISITES OF ANCILLARY
holographic will is contested, 3 ADMINISTRATION (Sec.2)
witnesses who know the 1. there must be a will (inferred
handwriting and signature of the from the wordings of Rule 77);
testator are now 2. filing of:
required/mandatory to prove its a) copy of the will executed in
authenticity and for its foreign country;
allowance. b) order or decree of foreign
court allowing such will; and
GENERAL RULE: Holographic will if c) authentication of requisites
destroyed CANNOT be probated. a and b above;
EXCEPTION: If there exists a Photostat 3. notice of time and place of
or Xerox copy thereof. (Gan vs. Yap, 104 hearing;
Phil 509) 4. hearing; and
5. certificate of allowance.
Proof of lost or destroyed will (Sec.6) Can a will executed and proved in a
Facts which should be proved in order foreign country be allowed in the
that a lost or destroyed will may be Philippines under Rule 77?
allowed: YES. Provided that the following must
be proved:

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1. foreign court must have Administrator - One appointed by the

jurisdiction over the proceeding; Court in accordance with the Rules or
2. domicile of testator/decedent in governing statutes to administer and
the foreign country and not in settle the intestate estate or such
the Philippines; testate estate, where the testator did
3. that the will has been admitted not name any executor or that the
to probate in such country; executor so named refuses to accept the
4. it was made with the formalities trust, or fails to file a bond, or is
prescribed by the law of the otherwise incompetent.
place in which the decedent
resides, or according to the Administrator with a will annexed - one
formalities observed in his appointed by the court in cases when,
country, or in conformity with although there is a will, the will does not
the formalities prescribed by our appoint any executor, or if appointed,
Civil Code; and said person is either incapacitated or
5. due execution of the will in unwilling to serve as such.
accordance with the foreign
laws. (Regalado) WHO MAY SERVE AS EXECUTOR/
ADMINISTRATOR?
EFFECTS Any COMPETENT person may serve as
1. the will shall have the same executor or administrator.
effect as if originally proved and
allowed in court of the WHO ARE INCOMPETENT TO SERVE AS
Philippines. EXECUTOR/ADMINISTRATOR?
2. letters testamentary or 1. a minor
administration with a will 2. a non-resident
annexed shall extend to all 3. one who in the opinion of the
estates of the Philippines. court is unfit to exercise the
3. Residue of estate after payment duties of the trust by reason of:
of debts, etc. shall be disposed a) drunkenness
of as provided by law in cases of b) improvidence
estates in Philippines belonging c) want of understanding and
to persons who are inhabitants integrity
of another state or country. d) conviction for an offense
involving moral turpitude
RULE 78 Executor of executor shall not, as

LETTERS TESTAMENTARY AND OF such, administer the estate of the first
ADMINISTRATION WHEN AND TO WHOM testator. (Sec. 2)
ISSUED
Letters testamentary - Authority issued
PERSONS WHO CAN ADMINISTER THE to an executor named in the will to
ESTATE administer the estate.
1. Executor;
2. Administrator, regular or special Letters of administration Authority
(Rule 80); and issued by the court to a COMPETENT
3. Administrator with a will person to administer the estate of the
annexed (Rule 79, Section 1). deceased who died intestate.
Executor - The one named by the

testator in his will for the administration
of his property after his death.

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TO WHOM LETTERS OF Who may oppose the issuance of

ADMINISTRATION GRANTED letters?
GENERAL RULE: Any person interested
Order Of Preference in the will. (Section 1)
1. The surviving husband or wife or EXCEPTION: Even where a person who
the next of kin, or both in the had filed a petition for the allowance of
discretion of the court, or to the will of the deceased person had no
such person as such surviving right to do so in view of his lack of
spouse or next of kin, request to interest in the estate, nevertheless,
have appointed, if competent where the interested persons did not
and willing to serve. (SURVIVING object to its application, the defect in
SPOUSE OR NOMINEE) the petition would be deemed cured.
2. If the surviving spouse or the The filing of the petition may be
next of kin or the person considered as having been ratified by the
selected by them be interested parties. (Eusebio vs.
incompetent or unwilling to Valmores 97 PHIL 163)
serve, or if the surviving spouse
or next of kin neglects for 30 Petition for Opposition may at the same
days after the death of the time be filed for Letters of
decedent to apply for Administration with the will annexed.
administration, ANY one or more
of the PRINCIPAL CREDITORS, if Contents of a petition for letters of
competent and willing to serve. administration: (Sec.2)
3. If there is no such creditor a) jurisdictional facts;
competent and willing to serve, b) name, age, residence of heirs
it may be granted to such other and creditors;
person as the court may select. c) probable value and character of
(STRANGER) the estate; and
d) name of the person for whom
The Order of appointment of Regular letters is prayed for.
administrator is final and appealable.
No defect in the petition shall render
BASIS FOR THE PREFERENTIAL RIGHT void the issuance of the letters of
The underlying assumption is that those administration.
who will reap the benefits of a wise,
speedy and economical administration of Grounds for Opposition:
the estate or on the other hand, suffer 1. In Letters Testamentary
the consequences of waste, a) incompetence
improvidence or mismanagement, have 2. In Letters of Administration
the higher interest and most influential a) incompetence;
motive to administer the estate b) preferential right of the heir
correctly. under Sec. 6, Rule 78.
RULE 79 Publication for 3 Weeks and notice to

OPPOSING ISSUANCE OF LETTERS heirs, creditors and other persons
TESTAMENTARY PETITION AND believed to have an interest in the
CONTENTS FOR LETTERS OF estate is required before hearing.
ADMINISTRATION
Letters can be granted to any person or
What is the MAIN ISSUE in an any other applicant even if other
administration proceeding? competent persons are present if the
Who is the person rightfully entitled to latter fail to claim their letters when
administration. notified by the court. (Sec. 6, Rule 79)

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RULE 80 Is appointment of special administrator

SPECIAL ADMINISTRATOR appealable?
NO, the same is INTERLOCUTORY.
When may a probate court appoint a However, appointment of a REGULAR
special administrator? ADMINISTRATOR is appealable because it
1. Delay in granting of letters is a final order.
including appeal in the probate
of the will. It is possible for the executor or
2. Executor is a claimant of the administrator whose appointment is
estate he represents. challenged by appeal to be appointed
- in this second instance, the also as the special administrator pending
administrator shall have the such appeal. There is no harm in
same powers as that of a appointing the same person as special
general administrator. administrator because there is a vast of
difference between the powers and
ORDER OF APPOINTMENT duties of the two positions.
DISCRETIONARY
The preference accorded by Sec. 6 of
Rule 78 of the Rules of Court to surviving RULE 81
spouse refers to the appointment of a BONDS OF EXECUTOR AND
regular administrator, NOT to that of ADMINISTRATOR
special administrator, and that the order
appointing the later lies within the BOND OF EXECUTOR/ADMINISTRATOR
discretion of the probate court, and is (Sec.1)
not appealable. (Pijuan vs. De Gurrea,
124 Phil. 1527) When filed?
Before an executor or administrator
POWERS AND DUTIES enters upon execution of his trust
1. Possession and charge of the Amount? Fixed by the court
goods, chattels, rights, credits,
and estate of the deceased; CONDITIONS
2. Commence and maintain suit for 1. Make an INVENTORY of property
the estate; which came to his knowledge
3. Sell ONLY and possession within 3 MONTHS.
a) perishable property; and 2. ADMINISTER the estate and from
b) those ordered by the court; the proceeds pay all debts and
4. Pay debts ONLY as may be charges.
ordered by the court. 3. Render an ACCOUNT within ONE
YEAR
DURATION OF POWER OF SPECIAL 4. Perform all orders of the court.
ADMINISTRATOR
Until questions causing the delay is ADMINISTRATORS BOND STATUTORY
decided and the regular administrator is BOND
appointed. Conditions prescribed by statute forms
part of bond agreement.
When does the power of a special
administrator cease? Terms and effectivity of bond does not
After the questions causing the delay are depend on payment of premium and
resolved and letters are granted to does not expire until the administration
regular executor or administrator. is closed. As long as the probate court

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retains jurisdiction of the estate, the expressly provided by these

bond contemplates a continuing liability. rules;
(Luzon Surety vs. Quebrar, 127 SCRA 4. absconding; or
295). 5. insanity or incapability or
unsuitability to discharge the
BOND OF SPECIAL ADMINISTRATOR trust. (Sec. 2)
(Sec.4) These grounds are EXCLUSIVE.
Conditions
1. make inventory. Lawful acts of an administrator or
2. render accounting when required executor before the revocation,
by court. resignation, or removal are valid unless
3. deliver the same to person proven otherwise. (Sec.3)
appointed executor or
administrator or other POWERS OF NEW EXECUTOR OR
authorized persons. ADMINISTRATOR (Sec. 4)
1. collect and settle the estate not
The bond is effective as long as the administered;
court has jurisdiction over the 2. prosecute or defend actions
proceedings. commenced by or against the
former executor or
administrator; and
RULE 82 3. recover execution on judgments
REVOCATION OF ADMINISTRATION, in the name of former executor
DEATH, RESIGNATION AND REMOVAL OF or administrator.
EXECUTORS AND ADMINISTRATORS
If after letters of administration have RULE 83

been granted on the estate of the INVENTORY AND APPRAISAL PROVISION
decedent as if he had died intestate, his FOR SUPPORT OF FAMILY
will is allowed and proved by the court,
the letters of administration shall be Inventory and appraisal must be made
revoked and all powers thereunder within 3 MONTHS from the grant of
cease, and the administrator shall letters testamentary or of
forthwith surrender the letters to the administration. (Sec.1)
court, and render his account within
such time as the court may direct. Approval of an inventory is not a
conclusive determination of what assets
The discovery of a will does NOT ipso constituted the decedents estate and of
facto nullify the letters of administration the valuation thereof. Such
already issued until the will has been determination is only provisional and a
proved and allowed pursuant to Rule 82 prima facie finding of the issue of
Sec. 1. (De Parreno vs. Aranzanso, GR ownership.
No. L-27657, Aug. 30, 1982)
ALLOWANCE TO WIDOW AND FAMILY
RESIGNATION OR REMOVAL OF (Sec.3)
EXECUTOR/ ADMINISTRATOR (SEC.2) Allowance - monetary advances subject
Grounds to collation and deductible from their
1. neglect to render accounts; share in the estate of the decedent.
(w/in 1 YEAR or when the court
directs); Who are entitled to allowance during
2. neglect to settle estate proceedings?
according to these rules; 1. Legitimate surviving spouse
3. neglect to perform an order or (Nepomuceno vs CA); and
judgment of the court or a duty 2. Children of the decedent.

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According to Art. 188 of the Civil SOME RESTRICTIONS ON POWER OF

Code, the children need not be minors ADMINISTRATOR/EXECUTOR
or incapacitated to be entitled to 1. Cannot acquire by purchase,
allowance. (Santero vs CFI of Cavite, GR even at public or judicial
No. 61700-03, Sept. 24, 1987) auction, either in person or
mediation of another, the
Grandchildren are NOT entitled to property under administration.
allowance under Rule 83. (Heirs of Ruiz 2. Cannot borrow money without
vs CA) authority of the court.
3. Cannot speculate with
When liabilities exceed the asset of the funds under administration.
estate, his widow and children are not 4. Cannot lease the property for
entitled to support pending the more than one year.
liquidation of the intestate estate, on 5. Cannot continue the business of
the ground that such support, having the the deceased unless authorized
character of an advance payment to be by the court.
deducted from the respective share of 6. Cannot profit by the increase or
each heir during distribution. (Wagner decrease in the value of the
vs. Moore) property under administration.
RULE 84 RULE 85
GENERAL POWERS OF EXECUTORS AND ACCOUNTABILITY AND COMPENSATION
ADMINISTRATORS OF EXECUTORS AND ADMINISTRATORS
POWERS OF EXECUTOR/ GENERAL RULE: The executor or

ADMINISTRATOR OF THE ESTATE administrator is accountable for the
1. To have access to, and examine whole estate of the deceased.
and take copies of books and
papers relating to the EXCEPTION: He is not accountable for
partnership in case of a properties which never came to his
deceased partner; possession.
2. To examine and make invoices of
the property belonging to the EXCEPTION TO THE EXCEPTION: When
partnership in case of a through untruthfulness to the trust or his
deceased partner; own fault or for lack of necessary action,
3. To make improvements on the the executor or administrator failed to
properties under administration recover part of the estate which came to
with the necessary court his knowledge.
approval except for necessary
repairs; Administrator or executor shall not profit
4. To possess and manage the by the increase of the estate nor be
estate when necessary: liable for any decrease which the estate,
a) for the payment of debts; without his fault, might have sustained.
and
b) for payment of expenses of EXPENSES OF ADMINISTRATION: those
administration; necessary for the management of the
5. To maintain in tenantable property, for protecting it against
repairs houses and other destruction or deterioration, and
structures and fences and to possibly for the production of fruits.
deliver the same in such repair
to the heirs or devisees when
directed so to do by the court.

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When shall executor or administrator the date of the FIRST PUBLICATION.

render an account? (Sec.8) Otherwise, they are BARRED FOREVER.
RULE: Within one year from the time of Even if the testator acknowledged the
receiving letters testamentary or letters debt in his will and instructed the
of administration. executor to pay the debt, the statute of
EXCEPTION: An extension of time is non-claims must still be complied with;
allowed for presenting claims against or otherwise the claim may also be barred.
paying the debts of the estate for
disposing of the estate but even in such EXCEPTION: Belated Claims.
cases, the administration should be
terminated in not more than two-years Belated Claims are claims not filed
and a half. within the original period fixed by the
court. On application of a creditor who
has failed to file his claim within the
RULE 86 time previously limited, at ANY TIME
CLAIMS AGAINST ESTATE BEFORE an order of distribution is
entered, the court MAY, for cause shown
Claim - any debt or pecuniary demand and on such terms as are equitable,
against the decedents estate. allow such claim to be filed within a
time NOT EXCEEDING 1 MONTH from the
When may a court issue notices to order allowing belated claims.
creditors to file their claims?
Immediately issued after granting letters Statute of Non-Claims supersedes the
testamentary or of administration. Statute of Limitations insofar as the
debts of deceased persons are
PURPOSE: for the speedy settlement of concerned. However, BOTH statute of
the affairs of the deceased person and Non-Claims and Statute of Limitations
early delivery of the property of the MUST CONCUR in order for a creditor to
estate into the hands of the persons collect.
entitled to receive it.
Claims which are not filed within the
Claims arising AFTER his death cannot be Statute of Non-Claims are barred
presented except for: forever (Sec.5)
a) funeral expenses; and Claims referred to under this section
b) expenses of the last sickness of refer to claims for the recovery of
the decedent. money and which are not secured by a
lien against the property of the estate.
Claims for taxes (inheritance and estate) (Olave vs. Carlos, 208 Phil 678)
due and assessed after the death of the
decedent need not be presented in the Claims which should be filed under the
form of a claim. The court in the Statute of Non-claims?
exercise of its administrative control 1. Money claims, debts incurred by
over the executor or administrator may deceased during his lifetime
direct the latter to pay such taxes. And arising from contract
the heirs, even after distribution are 2. express or implied
liable for such taxes. 3. due or not due
4. absolute or contingent
STATUTE OF NON-CLAIMS (Sec.2) 5. Claims for funeral expenses and
for the last illness of the
When should the claims be filed? decedent.
GENERAL RULE: Within in the time fixed 6. Judgment for money against
in the notice which shall not more than decedent.
12 MONTHS nor less than 6 MONTHS after

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Contingent Claim conditional claim or protection. That power survives the

claim that are subject to the happening death of the mortgagor. (Bicol
of a future uncertain event. Savings and Loan Association vs. CA)
Claims not yet due or contingent may be 3. RELY SOLELY ON HIS MORTGAGE
approved at their present value. and foreclose the name at
anytime within the period of the
HOWEVER, a creditor barred by the statute of limitation but he
Statute of Non-claims may file a claim as cannot be admitted as creditor
a COUNTERCLAIM in any suit that the and shall not receive in the
executor or administrator may bring distribution of the other assets
against such creditor. of the estate;
SOLIDARY OBLIGATION OF DECEDENT These remedies are alternative, the

(Sec.6) availment of one bars the availment of
Claim should be filed against decedent other remedies.
as if he were the only debtor without
prejudice on the part of the estate to JUDGMENT ALLOWING CLAIM (Sec.13)
recover contribution from the other Judgment against executor and
debtor. (Jaucian vs Quero, 38 Phil 707l) administrator shall not create any lien
upon the property of the estate or does
Joint obligation of decedent not constitute a specific lien which may
The claim must be confined to the be registered on such property.
portion belonging to the decedent.
Judgment of a probate court approving
MORTGAGE DEBT DUE FROM ESTATE or disapproving a claim is appealable.
(Sec.7)
The mode of appeal is record on
ALTERNATIVE REMEDIES Of The appeal and must be filed within 30 DAYS
Creditor Holding A Claim Secured By A from notice of judgment.
Mortgage Or Other Collateral Security
1. ABANDON security and prosecute
his claim against the estate and RULE 87
share in the same general ACTIONS BY AND AGAINST EXECUTORS
distribution of the assets of the AND ADMINISTRATORS
estate;
2. FORECLOSE his mortgage or
Actions which may or may not be
realize upon his security by
brought against executor and
action in court making executor
administrator (Sec.1)
or administrator a party
Independent and separate of the
defendant and if there is
probate proceeding:
judgment for DEFICIENCY, he
1. recovery of real or personal
may file a claim (contingent)
property or any interest therein
against the estate within the
from the estate
statute of non-claims.
2. enforcement of a lien thereon
3. action to recover damages for
Agency coupled with an interest
any injury to person or property,
The power to foreclose a mortgage is real or personal (tortuous acts)
not an ordinary agency that These are actions that survive the death
contemplates exclusively the of the decedent.
representation of the principal by
the agent but is primarily an An action for revival of money judgment
authority conferred upon the may be filed against the administrator to
mortgagee for latters own

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preempt prescription of judgment. administration for it is under this

(Romualdez vs. Tiglao, 105 SCRA 762). circumstance that there may be
conveyances made by the deceased with
Heir may not sue until share assigned intent to defraud the creditor.
(Sec.3)
Before distribution is made or before any REQUISITES BEFORE ACTION MAY BE
residue is known, the heirs and devisees FILED
have no cause of action against the 1. deficiency in assets
executor or administrator for recovery of 2. the conveyance made is void (when
the property left by the decedent. there are badges of fraud)
3. subject of conveyance is liable for
Proceedings when property concealed, attachment in lifetime of
embezzled or fraudulently conveyed decedent.
(Sec.6)
PURPOSE: To elicit information or to When creditor may bring action. Lien
secure evidence from those persons for costs (Sec.10)
suspected as having possessed or having When a grantee in a fraudulent
knowledge of properties belonging to conveyance is OTHER THAN THE
deceased, or of having concealed, EXECUTOR OR ADMINISTRATOR, a
embezzled or conveyed away any creditor may commence and prosecute
properties of the deceased. the action if the following requisites are
present:
GENERAL RULE: The probate court has 1. That the executor or
no authority to decide whether or not administrator has shown to have
the properties belong to the estate or to no desire to file the action or
the person being examined since probate failed to institute the same
courts are courts of limited jurisdiction. within the reasonable time;
EXCEPTIONS: 2. Leave is granted by court to
1. Provisional determination of creditor to file the action;
ownership for inclusion in the 3. Bond is filed by creditor as
inventory; or prescribed in this provision; and
2. Submission to the courts 4. Action by creditor is in the name
jurisdiction (Bernardo vs. CA, GR of the executor or administrator.
No. 82483, Sept. 26, 1990)
These requisites need not be
Embezzlement before letters issued complied with if the grantee of the
(Sec.8) fraudulent conveyance is the executor or
The responsible person shall be liable to administrator himself, in which event
an action in favor of the executor or the action should be in the name of all
administrator of the estate for double creditors.
the value of the property sold,
embezzled, or alienated, to be
recovered for the benefit of the estate. RULE 88
Property fraudulently conveyed by the Debts paid in full if estate sufficient

deceased may be recovered. When (Sec.1)
executed or administered must bring If estate is insolvent, as in liabilities are
action (Sec.9) more than the assets, Sec.7 in relation
This provision applies when there is a to Art. 1059 and 2239 to 2251 of the
deficiency of assets in the hands of the Civil Code must apply. Use rule on
executor or administrator for the preference of creditors If it is sufficient
payment of the debts and expenses for to satisfy claims of a class.
administration

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When the will provides for payment of If the contingent claim matures after the
debts, Section 2 must be followed. expiration of the two years, the
Although testator acknowledged a creditors may sue the distributees, who
specific debt on his will, the creditor are liable in proportion to the shares in
must still file his claim in the testate or the estate respectively received by
intestate proceedings, otherwise his them. (Jaucian vs. Querol, supra)
claim will be barred.
It has been ruled that the only instance
Estate to be retained to meet wherein a creditor can file an action
contingent claims (Sec.4) against a distributee of the debtors
If the court is satisfied that contingent assets is under Sec. 5, Rule 88 of the
claim duly filed is valid, it may order the Rules of Court. The contingent claims
executor or administrator to retain in his must first have been established and
hands sufficient estate to pay a portion allowed in the probate court before the
equal to the dividend of the creditors. creditors can file an action directly
against the distributees. (De Bautista vs.
REQUISITES De Guzman, 125 SCRA 682)
1. contingent claim is duly filed;
2. court is satisfied that the claim Estate of Insolvent nonresident, how
is valid; and disposed (Sec.9)
3. The claim has become absolute. In the administration taken in the
Philippines of the estate of the
Is execution a proper remedy to satisfy INSOLVENT his estate in the Philippines
an approved claim? shall be disposed of that his creditors in
NO, because: and outside in the Philippines in
1. Payment approving a claim does proportion to their respective credits.
not create a lien upon a property
of the estate. When and how claim proved outside
2. Special procedure is for the the Philippines against insolvent
court to order the sale to satisfy residents estate paid (Sec.10)
the claim. Claims proven outside the Philippines
where the executor had knowledge and
How contingent claim becoming opportunity to contest its allowance
absolute in two years allowed and paid therein may be added to the list of
(Sec.5) claims in the Philippines against the
If such contingent claim becomes estate of an INSOLVENT RESIDENT and
absolute and is presented to the court, the estate will be distributed equally
or to the executor or administrator, among those creditors.
within two years from the time limited
for other creditors to present their However the benefit of Sections 9 and 10
claims. The residual funds within the cannot be extended to the creditors of
estate, although already in the foreign country where the property of
possession of the universal heirs, are the deceased therein is not equally
funds of the estate. The Court has apportioned to creditors residing in the
jurisdiction over them and it could Philippines and other creditors.
compel the heirs to deliver to the
administrator of the estate the Time for paying Debts and Legacies
necessary portion of such funds for the (Sec.15)
payment of any claims against the Need not exceed 1 year in the first
estate. (In re Testate Estate of instance. But court extend on
Margarita David, Sison vs. Teodoro, 98 application of executor or administrator
Phil 680) and after hearing and notice thereof.

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Extension must not exceed six months Assets in the hands of

for single extension. Whole period executor/administrator will not be
allowed to the original executor or reduced to prevent a creditor from
administrator shall not exceed 2 years receiving his full debt or diminish his
(section 15) successor of dead executor dividends.
or administrator may be given an
extension not to exceed 6 months. Without notice and hearing, the
sale, mortgage or encumbrance is void.
Notice is mandatory. Noncompliance
RULE 89 therewith under the sale is null and void.
SALES, MORTGAGE AND OTHER Reason: The reason behind this
ENCUMBRANCES OF THE PROPERTY OF requirement is that the heirs are the
THE DECEASED presumptive owner. Since they succeed
to all the rights and obligation of the
deceased from the moment of the
Order of sale of personalty (Sec.1)
latters death, they are the person
The court may order the whole or part of
directly affected by the sale or mortgage
the personal estate to be sold if
and therefore cannot be deprived of the
necessary:
property, except in the manner provided
1. to pay debts and expense of
by law. (Maneclang vs. Baun, 208 SCRA
administration;
179)
2. to pay legacies; or
3. to cover expenses for the
May the court authorize sale, mortgage
preservation of the estate.
or other encumbrance of estate to pay
debts and legacies in other countries?
When court may authorize sale,
(Sec. 5)
mortgage or other encumbrances of
When it appears from records and
realty to pay debts and legacies though
proceedings of a probate court of
personality not exhausted? (Sec. 2)
another country that the estate of the
1. If personal estate is NOT
deceased in foreign country is not
sufficient to pay debts, expenses
sufficient to pay debts and expenses.
of administration and legacies;
2. If sale of personal estate may
Application for authority to sell,
injure the business or interests
mortgage or encumber property of the
of those interested in the estate;
estate may be denied by the court if:
3. If testator has NOT made
1. the disposition is not for any of
sufficient provision for payment
the reasons specified by the
of such debts, expenses and
rules; OR
legacies;
2. under Section 3 Rule 89, any
4. If deceased was in his lifetime
person interested in the estate
under contract, binding in law to
gives a bond conditioned to pay
deed real property to
the debts, expenses of
beneficiary; (Section 8)
administration and legacies.
5. If the deceased during his
lifetime held real property in
trust for another person.
RULE 90
(Section 9)
DISTRIBUTION AND PARTITION OF THE
ESTATE
REQUISITES
a) application of
Executor/Administrator; Liquidation means the determination of
b) written notice to person all assets of the estate and payment of
interested; and all debts and expenses.
c) hearing

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When order for distribution of residue probate proceedings cannot be deemed

made (Sec.1) closed and terminated, because a
judicial partition is not final and
RULE: ORDER OF DISTRIBUTION shall be conclusive and does not prevent the
made AFTER payments of all debts, heirs from bringing an action to obtain
funeral expenses, expenses for his share, provided the prescriptive
administration, allowance of widow and period therefore has not elapsed. The
inheritance tax is effected. better practice, however, for the heir
who has not received his share, is to
In these proceedings, the court shall: demand his share through proper motion
1. collate; in the same probate or administrative
2. determine heirs; and proceedings, or for the reopening of the
3. determine the share of each probate or administrative proceedings if
heir. it had already been closed, and not
A separate action for the declaration of through an independent action, which
heirs is not necessary. would be tried by another court or judge
which may thus reverse a decision or
When is title vested? order of the probate or intestate court
From FINALITY of order of distribution. already final and executed and re-
shuffle properties long ago distributed
Only after partition is approved and not and disposed of. (Timbol vs. Cano,
before, the court may order the delivery supra).
to the heirs of their respective shares
except when the heir file a bond
conditioned to pay the debts. RULE 91
ESCHEATS
An order which determines the
distributive shares of heirs is appealable. 3 INSTANCES of ESCHEATS
If not appealed, it becomes final. 1. When a person dies intestate
leaving no heir but leaving
The probate court lose jurisdiction over property in the Philippines
the settlement proceedings only upon (Section 1)
payment of all debts and expenses of the 2. REVERSION PROCEEDINGS Sale
obligor and delivery of the entire estate in violation of the Constitutional
to all the heirs. (Timbol vs. Cano, 1 provision
SCRA 1271) 3. Unclaimed Balance Act under
Banking Laws
CONDITIONS PRECEDENT to be
complied with for the issuance of an What is the basis of the states right to
order of distribution receive property in escheat?
1. Showing that the executor, Order of succession under the Civil Code,
administrator or person the STATE is the last heir of the
interested in the estate applied decedent.
for such; and
2. The requirements as to notice Who files?
and hearing upon such Solicitor General or his representative in
application have been fulfilled. behalf of the Philippines.
PROHIBITION AGAINST INTERFERENCE Where to file?

BY OTHER COURTS RTC of last residence or of location of
As long as the order of distribution of his estate in the Philippines if he is a
the estate has not been complied with, non-resident.
the probate

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If petition is sufficient in FORM and By whom: person of interest

SUBSTANCE the court shall:
1. Make an ORDER OF HEARING TO WHOM WILL THE PROPERTY
hearing shall not be more than 6 ESCHEATED BE ASSIGNED: (Sec. 3)
MONTHS AFTER ENTRY OF 1. if personal property, in the
ORDER. municipality or city where he
2. Direct publication of the copy of last resided.
order at least once a week for 2. if real property, where the
6 CONSECUTIVE WEEKS. property is situated.
3. if deceased never resided in the
REQUISITES Philippines, where the property
1. publication of the order may be found.
2. person died intestate
3. he is seized of real/personal Can court convert escheat proceedings
property in the Philippines into ordinary special proceedings or
4. he left no heir or person entitled vice-versa?
to such property NO. This is not allowed for the two
5. there is no sufficient cause to actions have different requirements in
the contrary acquiring jurisdiction. In special
proceedings, publication is once a week
The court, at the instance of an for 3 weeks while in escheat, once a
interested party, or on its own motion, week for 6 weeks.
may order the establishment of a
PERMANENT TRUST, so that only the
income from the property shall be used.
RULE 92
GUARDIANSHIP
CLAIM BY PERSONS ENTITLED TO THE
ESTATE (Sec. 4)
Guardianship of minors is now
Who?
governed by the Rule on
By devisee, legatee, heir, widow/er, or
Guardianship of Minors (A.M. No.
other person entitled thereto)
03-02-05-SC) which took effect on
When to file?
May 1, 2003. While guardianship of
- Within 5 YEARS FROM DATE OF
incompetents is still governed by
JUDGEMENT otherwise forever barred.
the provisions of the Rules of
Court on Guardianship (Rule 92 to
OTHER ACTIONS FOR ESCHEATS (Sec. 5)
Rule 97).
- actions for reversion of property
alienated in violation of
Constitution or any statute.
MINOR INCOMPETENT
- These shall be governed by Rule
91. HOWEVER, the action must 1. any relative; or 1. any relative;
be instituted in the province 2. other person on 2. friend; or
where the land lies in whole or behalf of a minor; 3. other person on
in part. or behalf of the
3. the minor resident incompe-
Period: Within 5 years from the date of himself if 14 years tent who has no
of age or over; or parents or lawful
judgment; (under ART. 1014 of the Civil
4. the Secretary of guardian; or
Code, the 5-year period is reckoned from Social Welfare and 4. the Director of
the date the property was delivered to Development AND Health in favor of
the State and further provides that if the by the Secretary of an insane person
property had been sold, the municipality Health in case of an who should be
insane minor who hospitalized or in
or city shall be accountable only for such needs to be favor of an isolated
part of the proceeds as may not have hospitalized. (Sec. leper. (Sec. 1)
been lawfully spent.) 2 AM 03-02-05-SC)

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shall be suppletory to the provisions of

the Family Code on Guardianship.
5. any one interested 5. any one interested
in the estate of a in the estate of a
Contents of Petition
non-resident non-resident
incompetent incompetent (Sec.
(Sec.12) 6) MINOR INCOMPETENT
Jurisdiction: a) the a) the

Incompetents RTC of his jurisdictional jurisdictional
residence or where his property is facts; facts;
located in case of non-residents b) the name, age b) the minority or
(Sec. 1) and residence incompetency
of the rendering the
Minor Family Court of his
prospective appointment
residence or where his property is ward; necessary or
located in case of non-resident (Sec. c) the ground convenient;
3, AM 03-02-08) rendering the c) the probable
appointment value and
KINDS OF GUARDIANS necessary or character of his
A. According to scope: convenient; estate;
d) the death of d) the names,
1. General - over the person of the
the parents of ages, and
ward or over his property the minor or residences of
2. Limited - over the property only the the relatives of
termination, the minor or
B. According to constitution: deprivation or incompetent,
1. general guardian suspension of and of the
2. legal guardian their parental e) persons having
authority; him in their
3. guardian ad litem e) the remarriage care;
of the minors f) the name of the
INCOMPETENT includes: (Sec. 2) surviving person for
1. those suffering from penalty of parent; whom letters of
civil interdiction f) the names, guardianship.
2. hospitalized lepers ages, and (Sec. 2 Rule 93)
3. prodigals residences of
relative within
4. deaf and dumb who are unable the 4th civil
to read and write degree of
5. those of unsound mind though minor, and of
they have lucid intervals persons having
6. persons not of unsound mind but him in their
by reason of age, disease, weak care and
custody;
mind and other similar causes
g) the probable
cannot take care of themselves value,
or manage their property. character and
location of the
RULE 93 property of the
APPOINTMENT OF GUARDIANS minor; and
h) the name, age
and residence
Who may petition for appointment of
of the person
guardian? for whom
The father and the mother shall jointly letters of
exercise legal guardianship over the guardianship
person and property of their minor are prayed.
without the necessity of a court
appointment. In such case, this Rule

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The petition involving minors is and family or to maintain and

required to be VERIFIED and educate ward when a minor; or
accompanied by certification against 2. when it appears that it is for
FORUM SHOPPING while that involving the benefit of the ward.
incompetent must be verified only. B. Requirements
HOWEVER, no defect in the petition or 1. petition must be verified;
verification shall render void the 2. notice must be given to the
issuance of letters of guardianship. next of kin; and
3. hearing so that they may show
There is NO requirement for cause why petition should not
PUBLICATION, only notice EXCEPT in be granted.
case of nonresident minor/incompetent.
Notice to next of kin and interested
HOWEVER, service of NOTICE upon minor persons is JURISDICTIONAL.
if 14 years of age or over, or upon
incompetent is mandatory and Next of kin - pertains to those relatives
jurisdictional. who are entitled to share in the estate
of the ward under the Law on Intestate
If the person is insane, service of notice succession including those who inherit
upon the Director of Hospital where per stirpes or by right of representation.
hospitalized is sufficient.
Sale of the wards realty by the guardian
OPPOSITION TO PETITION (Sec. 4) without authority from the court is VOID.
Grounds Under the law, a parent acting merely as
1. majority of alleged minor legal administrator of the property of
2. competency of alleged his/her children, does NOT have the
incompetent power to dispose of, or alienate, the
3. unsuitability of the persons for property of said minor without judicial
whom letters are prayed approval (Lindain vs. CA, GR No. 95305,
Aug. 20, 1992).
Procedure
a. filing of petition The Order of Sale must specify the
b. court shall set the case for grounds.
hearing
c. cause notices to be served to C. Duration of the order for sale and
the persons mentioned in the encumbrance of property - Within 1
petition, including minor, if year from the granting of the order.
14 years and above It is presumed that if the property
d. court shall receive evidence was not sold within 1 year, the ward
e. declaration of the propriety of has sufficient income.
the petition
f. issue letters of guardianship The authority to sell or encumber shall
not extend beyond 1 year unless
BONDS OF GUARDIANS renewed by the court.
Before an appointed guardian enters
upon the execution of his trust, he shall GENERAL POWERS AND DUTIES OF
give a BOND (Sec. 1 Rule 94). GUARDIANS
1. have the care and custody of the
SELLING AND ENCUMBERING PROPERTY person of the ward, and the
OF WARD: management of his estate, or
A. Grounds the management of the estate
1. when income of estate is only, as the case may be;
insufficient to maintain ward 2. pay the debts of the ward;

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3. settle accounts, collect debts 4. When the best interest of the

and appear in actions for ward; minor so requires.
4. manage the estate of the ward
frugally, and apply the proceeds B. Qualifications of Guardians (Sec. 5)
to maintenance of the ward; 1. Moral character
5. render verified inventory 2. Physical, mental and
verified within 3 MONTHS after psychological condition
his appointment and annually 3. Financial status
thereafter upon application of 4. Relationship of trust with the
interested persons; and minor
6. render to court for its approval 5. Availability to exercise the
an accounting of the property powers and duties of a guardian
for 1 YEAR from his appointment for the full period of
& every year thereafter. guardianship
6. Lack of conflict of interest with
TERMINATION OF GUARDIANSHIP the minor
7. Ability to manage the property
A. Grounds for termination of the minor.
MINOR INCOMPETENT
1. The ward has 1. competency C. Who may be appointed guardian of
come of age; or of the ward has the person or property, or both, of
2. has died been judicially a minor (Sec.6)
determined In default of parents or a court
2. guardianship appointed guardian, the court may
is no longer the following observing as far as,
necessary practicable, the ORDER OF
PREFERENCE:
B. Grounds for removal of a 1. the SURVIVING GRANDPARENT
guardian: and in case several grandparents
1. insanity; survive, the court shall select
2. incapability or unsuitability to any of them taking into account
discharge functions; all relevant considerations;
3. wastage or mismanagement of 2. the OLDEST BROTHER OR SISTER
the property of the ward; and of the minor over twenty-one
4. failure to render an account or years of age, unless unfit or
make a return within 30 days disqualified;
after it was due. 3. the ACTUAL CUSTODIAN of the
minor over twenty-one years of
SALIENT FEATURES and SPECIAL RULES age, unless unfit or disqualified;
FOUND IN THE RULE ON GUARDIANSHIP and
OF MINORS (A.M. No. 03-02-05-SC, 4. any OTHER PERSON, who in the
effective May 1, 2003) sound discretion of the court
would serve the best interests of
A. Grounds for Petition (Sec. 4) the minor.
1. Continued Absence, or
Incapacity or Death of his D. Case Study Report (Sec. 9)
parents; (AID) The court shall order a social worker
2. Suspension, Termination or to conduct a case study of the minor
Deprivation of parental and all prospective guardians and
authority; (STD) submit report and recommendation
3. Remarriage of his surviving to the court for its guidance before
parent, if the latter is found the scheduled hearing.
unsuitable to exercise parental
authority;

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E. Bond of parents as guardians of portion thereof, affected by the trust is

property of minor (Sec. 16) situated.
If the market value of the property
on the annual income of the child A trustee is necessary to carry into
exceeds P50,000, the parent effect:
concerned shall furnish a bond in a) A will where the testator
such amount as the court may omitted to appoint a trustee in
determine, but in no case less than the Philippines (Testamentary
10% of the value of such property or Trust); and
income, to guarantee the b) Other written instruments where
performance of the obligations the trustee therein declines,
prescribed for general guardians. resigns, dies, or is removed
before accomplishment of trust
A verified petition for approval of the
(Contractual Trust).
bond shall be filed in the Family Court of
the place where the child resides or, if
No persons succeeding to a trust as
the child resides in a foreign country, in
executor or administrator of a formal
the Family court of the place where the
trustee shall be required to accept such
property or any part thereof is situated.
trust.
The petition shall be docketed as a
TRUSTEE APPOINTED ABROAD (Sec. 4)
summary special proceeding in which all
When land in the Philippines is held in
incidents and issues regarding the
trust for a resident by a trustee who
performance of the obligations of a
derives his authority from abroad, such
general guardian shall be heard and
trustee must petition the RTC where the
resolved.
land is situated, otherwise, the trust will
be vacant and a new trustee will be
REMOVAL OR RESIGNATION OF
appointed.
GUARDIAN (Sec. 24)
No motion for removal or resignation
When a trust is created abroad for
shall be granted unless the guardian has
property in the Philippines, judicial
submitted the proper accounting of the
approval is still needed though trustor is
property of the ward and the court has
alive.
approved the same.
BOND OF TRUSTEES (Sec. 5)
Grounds for termination of
Neglect of trustees to file a bond will be
guardianship (Sec. 25).
interpreted by the court as resignation
The court motu propio or upon verified
or decline to accept the trust.
motion of any person allowed to file a
petition for guardianship may terminate
However, he may be exempted from
the guardianship on the ground that the
bond when requested by:
ward has COME OF AGE or has DIED. The
a. testator;
guardian shall notify the court of such
b. All persons beneficially
fact within 10 days of its occurrence.
interested in the trust.
However, the court may cancel such
exemption anytime.
RULE 98
TRUSTEES REMOVAL OR RESIGNATION OF THE
TRUSTEE (Sec. 8)
Jurisdiction: RTC in which the will was REQUISITES
allowed, if it be a will allowed in the 1. Petition filed by parties
Philippines, otherwise by the RTC of the beneficially interested;
province in which the property, or some 2. Notice to trustee; and
3. Hearing.

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Who may petition? RULES ON ADOPTION (Secs. 1-25)

Parties beneficially interested.
DOMESTIC ADOPTION
Grounds
1. essential in the interest of WHO MAY ADOPT
petitioners 1. Any Filipino Citizen -
2. insanity a) of legal age;
3. incapability of discharging b) in possession of full civil capacity
trustee and legal rights;
4. unsuitability c) of good moral character;
Rules on Sale and Encumbrance of Trust d) has not been convicted of any
Estate shall conform as nearly as may be crime involving moral turpitude;
to the provisions on Sale and e) emotionally and psychologically
Encumbrance by Guardians. capable of caring for children;
f) in a position to support and care
ADOPTION AND CUSTODY OF MINORS for his/her children in keeping
with the means of the family;
The provisions of the Rules of Court and
on Adoption have been amended by the g) at least 16 YEARS older than the
Domestic Adoption Act of 1998 and adoptee.
the Intercountry Adoption Act of 1995
EXCEPT: Secs 6 & 7 of Rule 99 2. Any alien possessing the same
qualifications as above; provided:
Effective August 22, 2002, there is a a) That his/her country has
new Rule on Adoption. diplomatic relations with the
PHILIPPINES;
NATURE AND CONCEPT OF ADOPTION b) That he/she has been living in
Adoption is a juridical act, a proceeding the Philippines for at least 3
IN REM, which creates between two CONTINUOUS YEARS prior to the
persons a relationship similar to that filing of the application for
which results from legitimate paternity adoption;
and filiation. c) Maintains residence until the
Only an adoption made through the adoption decree is entered;
court, or in pursuance with the d) Certified to have legal capacity
procedure laid down under Rule on to adopt, by his/her country;
Adoption is valid in this jurisdiction. and
e) That his/her government allows
PURPOSE OF ADOPTION the adoptee to enter his/her
The promotion of the welfare of the country as his/her adopted
child and the enhancement of his son/daughter.
opportunities for a useful and happy life,
and every intendment is sustained to 3. The guardian with respect to the
promote that objective. ward after the termination of the
guardianship and clearance of his
WHAT DOES THE COURT DETERMINE IN financial accountabilities.
ADOPTION CASES
1. capacity of the adopters The requirement of 16 YEARS difference
2. whether the adoption would be between the adopter and the adoptee is
the best interest of the child NOT applicable if the adopter is:
1. the biological parent of the adoptee
Adoption is strictly personal between the 2. the spouse of the adoptees parent
adopter and the adopted. (Teofico vs.
Del Val)

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The requirement on residency and VENUE (Sec.6)

certification of aliens qualification to Family Court where the prospective
adopt may be WAIVED for the following: adoptive parents reside.
1. The adoptee is a former Filipino
citizen who seeks to adopt a Petition shall be verified and specifically
relative within the 4th degree of state at the heading of the initiatory
consanguinity or affinity. pleading whether the petition contains
2. One who seeks to adopt the an application for a change of name,
legitimate son/daughter of rectification of simulated birth,
his/her Filipino spouse. voluntary or involuntary commitment of
3. One who is married to a Filipino children, or declaration of child as
citizen and seeks to adopt jointly abandoned, dependent or neglected.
with his/her spouse a relative
within the 4th degree of A certification of non-forum shopping
consanguinity or affinity of the shall be included pursuant to Section 5,
Filipino spouse. Rule 7 of the 1997 Rules of Civil
Procedure.
WHO MAY BE ADOPTED
1. Any person below eighteen (18) PROCEDURE
years of age who has been A. ORDER OF HEARING (Sec.12)
judicially declared available for - must be published at least once
adoption OR voluntarily a week for 3 CONSECUTIVE WKS.
committed to DSWD. - at the discretion of the court,
2. The legitimate child of one copies of the order of hearing
spouse by the other spouse. shall be furnished to the office
3. An illegitimate child by a of the Sol.Gen. through the
qualified adopter to raise the provincial or city prosecutor, the
status to that of legitimacy. DSWD and the biological parents
4. A person of legal age of the adoptee, IF KNOWN.
regardless of civil status, if, - if a change in the name of the
prior to the adoption, said adoptee is prayed for in the
person has been consistently petition, notice to the Sol. Gen.
considered and treated by the Shall be MANDATORY.
adopters as their own child since
minority. B. CHILD & HOME STUDY REPORTS
5. A child whose adoption has been (Sec.13)
previously rescinded. - social worker verifies with the
6. A child whose biological or Civil Registry the real identity
adoptive parents have died. and the name of adoptee and
7. A child not otherwise the fact that he is legally
disqualified by law or these available for adoption.
rules. - social worker may make
recommendations to the court if
GENERAL RULE: Husband and wife shall he finds some grounds to deny
jointly adopt. the petition.
EXCEPTIONS:
1. If one spouse seeks to adopt the C. HEARING (sec.14)
legitimate son/daughter of the - to be held within 6 MONTHS from
other. the date of issuance of the order
2. If one spouse seeks to adopt EXCEPT: in case of APPLICATION FOR
his/her own illegitimate CHANGE OF NAME which hearing
son/daughter. must not be within 4 MONTHS after
3. If the spouses are legally LAST PUBLICATION nor within 30
separated from each other. DAYS prior to election.

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- the petitioner and the adoptee 4. adopters shall have reciprocal

must personally appear and the rights of succession without
former must testify in court. distinction from legitimate
filiation.
D. SUPERVISED TRIAL CUSTODY (STC)
(Sec.15) All hearings and records are
Before issuance of decree of confidential. (Sec.18)
adoption the court shall give the
adopter trial custody of the adoptee INTER COUNTRY ADOPTION
for at least 6 MONTHS. (Secs. 26-32)
Reason: So the parties will adjust
psychologically and emotionally to Where to file Petition?
each other and establish a bonding - A verified petition to adopt a Filipino
relationship. child may be filed by a foreign
Court may reduce or exempt parties national or Filipino citizen
from STC. permanently residing abroad with
the Family Court having jurisdiction
GENERAL RULE: over the place where the child
Alien adopter must complete the 6 resides or may be found.
MONTHS STC. - It may be filed directly with the
EXCEPTION: Inter-Country Adoption Board.
Same as Exemptions from requirements
of residency and certification. WHO MAY ADOPT
1. any alien or Filipino citizen
E. DECREE OF ADOPTION permanently residing abroad
If issued, this will take effect as of who is at least twenty-seven (27)
the date of filing of the original years of age;
petition. 2. other requirements same as with
RA 8552.
In case of change of name, the
decree shall be submitted to the WHO MAY BE ADOPTED
Civil Registrar where the court Only a legally free child may be the
issuing the same is situated. subject of inter-country adoption.
An amended birth certificate shall A child under the Inter-Country

be issued. The original birth Adoption Act is defined as any person
certificate shall be stamped below fifteen (15) years of age.
cancelled and shall be sealed in
the Civil Registry records. RESCISSION AND REVOCATION OF
ADOPTION
The new birth certificate to be issued
to the adoptee shall not bear any Under the Domestic Adoption Act of
notation that it is an amended issue. 1998, the ADOPTER CAN NO LONGER
REVOKE the adoption, he can merely
EFFECTS OF ADOPTION disinherit the adoptee in accordance
1. adopter will exercise parental with the provisions of the Civil Code.
authority.
2. all legal ties between biological In revocation, it relates only as to the
parents and the adoptee shall be date of the judgment. Hence in
severed, except when biological revocation, vested rights prior to
parent is spouse of adopter. rescission should be respected.
3. adoptee shall be considered
legitimate child of adopter for Who files?
all intents and purposes. 1. ADOPTEE

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a) over 18 years of age or Rule 99, Section 6. Proceedings as to

b) if minor with assistance of child whose parents are separated.
DSWD The question as to the care and custody
2. GUARDIAN if over 18 but and control of a child or children of their
incapacitated or COUNSEL marriage is brought before a Regional
Trial Court by Petition or as an incident
Grounds to any other proceedings.
1. repeated physical violence and
verbal maltreatment by the When parents considered unfit to take
adopter despite having charge of the child
undergone counseling; 1. by reason of moral depravity
2. attempt on the life of the 2. habitual drunkenness
adopter; 3. incapacity
3. sexual assault or violence; or 4. poverty
4. abandonment or failure to
comply with parental ORDER OF PREFERENCE in case the
obligations. parents are unfit
1. Parental/Maternal grandparents
Venue 2. Childs oldest brother or sister
FAMILY COURT of the city or province 3. Some reputable or discreet
where the adoptee resides. (Sec. 20) person
4. Any suitable asylum, childrens
Period within which to file VERIFIED home or benevolent society.
petition (Sec. 21)
5 YEARS from reaching age of majority or No child under seven (7) years of age
from recovery of incompetency. shall be separated from its mother,
unless the court fins there are
Adverse party shall file his ANSWER compelling reasons therefor.
within 15 days from receipt of order of
court requiring him to answer. (Sec. 22) Rule 99, Section 7. Custody of Vagrant
or Abused Child
EFFECTS OF JUDGMENT OF RESCISSION Jurisdiction and Venue
1. parental authority or legal Family Courts of the territory where the
custody will be restored petitioner resides.
2. reciprocal rights of adoptee and
adopter will be extinguished Grounds
3. vested rights required prior to 1. Parents of the minor are dead;
judicial rescission shall be 2. Parents have abandoned the
respected child by reason of long absence
4. adoptee shall use the name or legal or physical impossibility;
stated in his original borth or 3. Parents cannot support the
foundling certificate child;
5. civil registrar will reinstate his 4. Parents treat the child with
original birth or foundling excessive harshness;
certificate 5. Parents give the child corrupting
orders, counsels or examples;
Unlike in revocation of guardianship, 6. Parents cause or allow the child
revocation of adoption is a separate to engage in begging;
proceeding from the adoption. 7. Parents cause or allow child to
commit offenses against the law.
RULE 99, SECTIONS 6 & 7
Sections 6 and 7 of Rule 99 of the PROCEDURE
Rules of Court referring to Custody of
Minors are still valid provisions.

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1. Filing of Petition by a 2. cases by which the rightful custody of

reputable resident of the the person is withheld from the
province person entitled thereto
2. Show Cause Order directed to
parents or in case the parents The restraint must be actual,
are dead or cannot be found, effective and material. The person need
requiring the fiscal of the not actually be confined as long as
province to show cause, why the freedom of action is limited. (Moncupa
child should not be taken from vs. Enrile, GR No. 61107, Apr. 26, 1983)
its parents, if living
3. Hearing and Order Writ of Habeas Corpus - a command
4. Service of Judgment upon the directed to the person detaining
Civil Registrar of the city or another, requiring him to produce the
municipality where the court body of the person detained at a
issuing the same is situated. designated time and place, and to
produce and to show cause and to
explain the reason for detention.
RULE 101
PROCEEDINGS FOR HOSPITALIZATION PURPOSE
OF INSANE PERSONS The essential object and purpose of the
writ of habeas corpus is to inquire into
Venue all manner of involuntary restraint as
RTC of province where the person distinguished from voluntary, and to
alleged to be insane is found. relieve a person therefrom if such
restraint is illegal. (Moncupa vs. Enrile,
Who files? supra)
Director of Health with assistance of city
or provincial fiscal. And any further rights of the parties are
left untouched by decision on the writ,
whose principal purpose is to set the
Requisites individual at liberty. (Villavicencio vs.
1. Director of Health is of the Lukban)
opinion that the commitment of
the person alleged to be insane The privilege of writ is so sacred that,
is for PUBLIC WELFARE or for according to our CONSTITUTION, it shall
THE WELFARE of said person not be suspended except in cases of
2. Such person or one having invasion or rebellion when public
charge of him is opposed or his security requires it (Art. III, Sec. 15).
being taken to hospital or asylum
IN CASES OF ILLEGAL CONFINEMENT OR
DISCHARGE OF INSANE (Sec. 4) DETENTION
Director of Health may file this petition GENERAL RULE: The release, whether
when he is of the opinion that the person permanent or temporary, of a detained
is permanently or temporarily cured or person renders the petition for habeas
may be released without danger corpus moot and academic.
EXCEPTION: When there are restraints
attached to his release which precludes
RULE 102 freedom of action, in which case the
HABEAS CORPUS court can still inquire into the nature of
his involuntary restraint. (Villavicencio
Habeas corpus extends to: (Sec.1) vs. Lukban)
1. cases of illegal confinement or
detention by which a person is Whether the State can reserve the
deprived of his liberty; and power to re-arrest a person for an

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offense after a court of competent permitted to perform the functions of a

jurisdiction has absolved him of the writ of error or appeal for the purpose of
offense. reviewing mere errors or irregularities in
We hold that such a reservation is the proceedings of a court having
repugnant to the government of laws jurisdiction over the person and the
and not of men principle. Under this subject matter. (Galvez, et al. vs. CA,
principle, the moment a person is et al., 237 SCRA 685).
acquitted on a criminal charge he can no
longer be detained or re-arrested for the The person on bail is not entitled to
same offense. (Moncupa vs. Enrile) habeas corpus because his detention is
legal and technical.
GROUNDS FOR RELIEF
1. deprivation of any fundamental Does voluntary restraint constitute
or constitutional right habeas corpus?
2. lack of jurisdiction of the court As a GENERAL RULE, NO. EXCEPT when a
to impose the sentence person restrained is a minor and the
3. excessive penalty petitioner is the father or mother or
guardian or a person having custody of
Requisites for the issuance of the Writ the minor.
in cases by which the rightful custody
of the person of a minor is withheld Voluntariness is viewed from the
from the person entitled thereto point of view of the person entitled to
1. that the petitioner has the right custody.
to the custody over the minor
2. that the rightful custody of the Supervening Events May Bar Release
minor is being withheld from the Even if the arrest of a person is illegal,
petitioner by the respondent supervening events may bar release of
3. that it is to the best interest of discharge from custody. What is to be
the minor concerned to be in the inquired into is the legality of detention
custody of the petitioner and not as of, at the earliest, the filing of the
that of respondent. (Sombong application for the writ of habeas
vs. CA, January 31, 1996) corpus. (Velasco vs. CA, July 7,1995).
Habeas Corpus can never be a Preliminary Citation - issued by the

substitute for appeal. court to show cause whether or not the
writ should be issued
Whether the petition for the writ of
habeas corpus may be properly filed Who may grant the petition (Sec.2)
together with the petition for 1. SC or any member thereon
certiorari and mandamus 2. CA or any member thereof
The Court ruled that the writs of habeas 3. RTC or any judge thereof
corpus and certiorari may be ancilliary 4. MTC - in the absence of RTC
to each other where necessary to give judges
effect to the supervisory powers of the
higher courts. A writ of habeas corpus Procedure for grant of writ
reaches the body and the jurisdictional a. verified petition signed by the
matters, but not the record. A writ of party for whose relief it is
certiorari reaches the record but not the intended; some other person in
body. Hence, a writ of habeas corpus his behalf;
may be used with the writ of certiorari b. allowance of writ;
for the purpose of review. However, c. command officer to produce;
habeas corpus does not lie where the d. service of writ by sheriff or other
petitioner has the remedy of appeal or officer;
certiorari because it will not be e. return; and

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f. hearing on return. When prisoner may be removed from

one custody to another (Sec.18)
To whom writ directed and what to 1. By legal process
require. (Sec.6) 2. Prisoner is delivered to an
Directed to officer and commands him inferior officer to carry to jail
to: 3. By order of proper court or judge
1. have the body of person before be removed from one place to
the court; and another within the Phil. for trial.
2. show cause of the imprisonment 4. In case of fire, epidemic,
or restraint. insurrection or other necessity or
public calamity.
How writ is executed and returned
(Sec.8) When does court acquire jurisdiction
Officer shall: over person of respondent?
1. Convey the person so imprisoned The writ itself plays the role as summon
before the judge, unless from in ordinary actions; court acquires
sickness or infirmity, such person jurisdiction over the person of the
cannot, without danger be respondent BY MERE SERVICE OF WRIT.
brought before the court.
2. Make the return of the writ APPEAL IN HABEAS CORPUS CASES
together with the day and the The appeal in habeas corpus cases may
cause of caption or restraint. be taken in the name of the person
detained or of the officer or person
Defect of form (Sec.9) detaining him.
NO writ can be disobeyed for defect in
form IF it sufficiently states: An appeal in habeas corpus cases shall
1. person in whose custody or be perfected by filing with the clerk of
under whose restraint the party court or the judge, within 48 hours from
imprisoned or restraint is held, notice of judgment, a notice of appeal.
and
2. court or judge before whom he is
to be brought. RULE ON CUSTODY OF MINORS AND
WRIT OF HABEAS CORPUS
When the return evidence, and when
only a plea (Sec.3) IN RELATION TO THE CUSTODY OF
If a prisoner is in custody under a MINORS (A.M. No. 03-04-04-SC)
warrant of commitment in pursuance of
law or under a judicial order, the return Who may file Petition? (Sec.3)
shall be considered PRIMA FACIE - A verified petition for the rightful
EVIDENCE OF THE CAUSE OF RESTRAINT, custody of a minor may be filed by any
however it shall only be plea of the person claiming such right.
facts set forth if restraint is by private
authority. Where to file petition? (Sec.3)
- Family Court of the province or city
When prisoner discharged if no appeal. where the petitioner resides or where
(Sec.15) the minor may be found.
If one is unlawfully imprisoned, court
shall order his discharge but such Provisional Order Awarding Custody
discharge shall not be effective until a (Sec.13)
copy of the order has been served on the As far as practicable, the following order
office or person detaining the prisoner. of preference shall be observed in the
If person detaining him does not appeal, award of custody:
the prisoner shall be released. a. Both parents jointly;

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b. Either parent, taking into anywhere in the Philippines. The

account all relevant writ may be made returnable to
considerations, especially the
choice of the minor over seven a Family court or to any regular
years of age and of sufficient court within the region where
discernment unless the parent the petitioner resides or where
chosen unfit; the minor may be found for
c. The grandparent or if there are hearing and decision on the
several grandparents, merits.
grandparent chosen by the minor
over seven years of age and of
sufficient discernment, unless RULE 103
the grandparent chosen is unfit CHANGE OF NAME
or disqualified;
d. The eldest brother or sister over Venue (Sec. 1)
twenty years of age unless he or RTC of the province in which he resides.
she is unfit or disqualified;
e. The actual custodian of the Contents of Petition (Sec.2)
minor over twenty years of age, It shall set forth:
unless the former is unfit or 1. that petitioner is a bonafide
disqualified; or resident of the province where
f. Any other person or institution petition is filed for at least three
the court may deem suitable to years prior to the date of filing;
provide proper care and 2. all names by which petitioner is
guidance for the minor. known;
3. cause for change of name;
Temporary Visitation Rights (Sec.15) 4. name asked for.
The court shall provide in its order Petition shall be signed and verified by
awarding provisional custody appropriate person desiring his name changed or
visitation rights to the non- custodial some other person in his behalf.
parent or parents, unless the court finds
said parent or parents unfit or Requirement of verification is formal,
disqualified. NOT jurisdictional requisite. It is not a
ground for dismissing petition.
Petition for Writ of Habeas Corpus
(Sec. 20) Jurisdictional Requirements
shall be filed with the Family 1. the verified petition should be
court. published for three successive
shall be enforceable within its weeks in some newspaper of
judicial region to which the general circulation in the
Family Court belongs. province;
the petition may however be 2. that both the title and caption of
filed with the regular court in the petition and its body shall
the absence of the presiding recite:
judge of three Family Court, a) name /names or aliases of
provided however that the the applicant;
regular court shall refer the case b) cause for which the change
to the family Court as soon as its of name is sought;
presiding judge returns duty. c) new name asked for. (Secan
petition may also be filed with Kok vs. Republic, 52 SCRA
the SC, CA, or with any of its 322).
members and, if so granted the
writ shall be enforceable Hearing - shall not be within 30 days
prior to an election nor within 4 MONTHS

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after the LAST PUBLICATION of notice of For administrative procedure for

hearing. Change of Name, refer to Administrative
Order 1, Series of 2004. It only applies
Effects of Discrepancy in the Petition to:
and Published Order 1. clerical errors; and
The defect in the petition and the order, 2. innocuous errors.
as to the spelling of the name of the
petitioner, is substantial, because it did
not correctly identify the party to said RULE 107
proceedings. ABSENTEES
Grounds for change of name ABSENTEE CONSEQUENCE

1. name is ridiculous, tainted with
dishonor and extremely difficult
to write or pronounce; 0-2 years --------
2. consequence of a change of
status; e.g. legitimated child; 2 years to 7 years Petition for
3. necessity to avoid confusion; declaration of
4. having continuously used and absence may be filed
been known since childhood by a Beyond 7 years Considered dead for
Filipino name, unaware of her (absence of 4 years all intents and
alien parentage; under extraordinary purposes except for
5. a sincere desire to adopt a circumstance) purposes of
Filipino name to erase signs of succession
former alienage, all in good faith For purposes of
and without prejudicing marriage: 4 years
anybody. continuous absence
shall be sufficient for
TITLE OF PETITION MUST CONTAINED present spouse to
THE FOLLOWNG remarry, 2 years only
1. Official name (birth certificate) under extraordinary
be very particular with the circumstance
spelling because it may avoid or
annul the proceedings; it is PURPOSE OF PETITION - to appoint an
jurisdictional; administrator over the
2. all aliases; and properties of the absentee.
3. name asked for. Hence, if absentee left no
properties, such petition is
All the names or aliases must appear in unnecessary.
the title or caption of the petition,
because the reader usually merely GROUNDS FOR TERMINATION OF THE
glances at the title of the petition and ADMINISTRATION
may only proceed to read the entire 1. absentee personally appears
petition if the title is of interest to him. through an agent
(Secan Kok vs. Republic,supra). 2. absentee death is proven and
heirs appear
A decree of adoption grants the adoptee 3. third person appears showing
the right to use the adopters surname that he acquired title over the
but not to change the formers first property of the absentee
name which relief must be sought in a 4. Actual or presumptive death
discrete petition under Rule 103. cannot be the subject if it is the
(Republic vs. Hernandez, GR NO. onlt question or matter involved
117209, February 9, 1996). in a case or upon which a
competent court has to pass.

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(Lukban vs. Republic, GR No. 2. The order of the hearing must be

8492, February 29, 1956) published once a week for three
consecutive weeks.
3. Notice thereof must be given to the
No independent action for Declaration Civil Registrar and all parties
of Presumption of Death affected thereby.
Exception: the need for declaration of 4. The civil registrar and any person
presumptive death for purposes of having or claiming any interest under
marriage (Article 41 of the Family Code). the entry whose cancellation or
correction is sought may, within 15
days from notice of the petition or
RULE 108 from the last date of publication of
CANCELLATION OR CORRECTION OF such notice, file his opposition
ENTRIES IN THE CIVIL REGISTRY thereto.
5. Full blown trial.
Republic Act No. 9048 which was passed
by Congress on February 8, 2001 Proceedings for the correction of
substantially amended Article 412 of the entries should not be considered as
New Civil Code, to wit: establishing ones status in a manner
conclusively beyond dispute. The status
SECTION 1. Authority to Correct Clerical corrected would not have a superior
or Typographical Error and Change of quality for evidentiary purposes. There is
First Name or Nickname.No entry in a no increase or diminution of substantive
civil register shall be changed or right. (Chiao Ben Lim vs. Zosa, L- 40252,
corrected without a judicial order, December 29, 1986)
except for clerical or typographical
errors and change of first name or PETITIONS FOR PETITIONS FOR
nickname which can be corrected or CHANGE OF THE CORRECTION,
changed by the concerned city or NAME CANCELLATION OF
municipal civil registrar or consul ENTRIES
general in accordance with the Petition to be filed Verified petition filed
provisions of this Act and its in the RTC where in the RTC where the
implementing rules and regulations. the petitioner corresponding Civil
The above law speaks clearly. Clerical or resides registry is located
typographical errors in entries of the Solicitor General Civil registrar
civil register are now to be corrected must be notified by concerned is made a
and changed without need of a judicial service of a copy of party to the
order and by the city or municipal civil the petition. proceeding as a
registrar or consul general. The obvious respondent. The
effect is to remove from the ambit of Solicitor General
Rule 108 the correction or changing of must also be notified
such errors in entries of the civil by service of a copy
register. Hence, what is left for the of the petition.
scope of operation of Rule 108 are Petition is filed by Petition is filed by
substantial changes and corrections in person desiring to any person interested
entries of the civil register. (Lee vs. CA, change his name in any ACT, EVENT,
G.R. No. 118387, October 11, 2001). ORDER or DECREE
Order for hearing Order shall also be
Requisites of Adversarial proceedings shall be published published once for
1. Proper petition is filed where the once a week for three consecutive
Civil Registrar and all parties three consecutive weeks and court shall
interested are impleaded. weeks cause reasonable
notice to persons
named in petition

Charissimae
Special
133
Service of judgment shall be upon the civil motion for a new trial or for
register concerned reconsideration.
Petition for change of name (Rule 103)
and petition for cancellation or ORDERS THAT ARE NOT APPEALABLE
correction of entries are DISTINCT 1. Order directing administrator to
PROCEEDINGS. take action to recover amount
due to the estate;
Hence, a party cannot change name and 2. Order made in administration
correct an entry in a single petition proceedings relating to inclusion
without satisfying the jurisdictional or exclusion of items of property
requirements. (Republic v. Balmore) in the inventory of executor or
administrator;
3. Order appointing special
RULE 109 administrator;
APPEALS IN SPECIAL PROCEEDINGS 4. Order granting or denying a
motion for new trial or for
Orders or judgments from which reconsideration.
appeals may be taken (Sec.1)
An interested person may appeal in APPEAL IN APPEAL IN
special proceedings from such order or ORDINARY CIVIL SPECIAL
judgment rendered which: ACTION PROCEEDINGS
1. Allows or disallows a will;
2. Determines who are the lawful PERIOD: 30 days
heirs of a deceased person, or 15 days
the distributive share of the
estate to which such person is REQUIREMENTS Record on Appeal and
entitled; Notice of Appeal and Docket Fees
3. Allows or disallows, in whole or Docket Fees
in part, any claim against the
estate of a deceased person, or No extension May be extended on
any claim presented on behalf of meritorious grounds
the estate in offset to a claim
against it;
4. Settles the account of an
executor, administrator, trustee
or guardian;
5. Constitutes, in the proceedings
relating to the settlement of the
estate of a deceased person, or
the administration of a trustee
or guardian, a final
determination in the lower court
of the rights of the party
appealing
appealing, except that no appeal
shall be allowed from the
appointment of a special
administrator; and
6. Is the final order or judgment
rendered in the case, and affects
the substantial rights of the
person appealing, unless it be an
order granting or denying a

Charissimae
Special
134
VENUE AND JURISDICTION OF SPECIAL PROCEEDINGS
SPECIAL PROCEEDING VENUE JURISDICTION
1. Settlement of the Estate Resident of the Decedent or MTC if the gross value of the
if the decedent is a non- estate does not exceed P200,000,
resident, place where he or P400,000 in Metro Manila
had an estate
RTC if the gross value of the
estate exceeds the above amounts
2. Escheat a. Person dies intestate

leaving no heir Resident of
the decedent or if non- RTC
resident, in the place where
he had an estate.
b. Reversion Where the RTC

land lies in whole or in part
c. Unclaimed Balance RTC

Where the dormant deposits
are located
5. Appointment of Where the minor or Family Court (in case of Minors)

Guardians incompetent resides RTC (Regular courtsin cases
other than minors)
Where the will was allowed

6. Appointment of or where the property or RTC
Trustees portion thereof affected by
the trust is situated
7. Adoption Where the adopter resides Family Court
8. Rescission of Adoption Where the adoptee resides Family Court
9. Habeas Corpus Where the detainee is SC, CA, RTC, MTC in the province
detained (if the petition is or city in case there is no RTC
filed with the RTC) judge

Charissimae
Special
135
10. Change of Name Where petitioner resides RTC
11. Appointment of Where the absentee resided

Representative of before his disappearance RTC
Absentee/Declaration of
Absence
12. Cancellation/Correction Where the corresponding RTC

of Entries in the Civil Civil Registry is located
Registries

Charissimae
Special

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San Beda College of Law

MEMORY AID IN REMEDIAL LAW

SPECIAL PROCEEDINGS - A remedy by

ORDINARY SPECIAL Filing of Claims

to protect or involves the

involves two or may involve only

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

RULE 73 EXAMPLES OF OTHER QUESTIONS

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

REMEDY IF THE VENUE IS IMPROPERLY EXTRAJUDICIAL SETTLEMENT BY

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

the same with the Register of Deeds. SUMMARY SETTLEMENT OF ESTATE OF

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

YEARS from the discovery of If the testator should make a

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

by the decedent who is a non- COURT APPOINTS TIME FOR PROVING

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

of the subscribing witnesses or of 1. due execution and validity of the

HOWEVER, if any or all the RULE 77

b) Holographic Wills - 3 witnesses TWO TYPES OF ESTATE PROCEEDINGS:

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

1. foreign court must have Administrator - One appointed by the

RULE 78 Executor of executor shall not, as

Executor - The one named by the

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

TO WHOM LETTERS OF Who may oppose the issuance of

RULE 79 Publication for 3 Weeks and notice to

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

RULE 80 Is appointment of special administrator

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

retains jurisdiction of the estate, the expressly provided by these

If after letters of administration have RULE 83

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

According to Art. 188 of the Civil SOME RESTRICTIONS ON POWER OF

POWERS OF EXECUTOR/ GENERAL RULE: The executor or

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

When shall executor or administrator the date of the FIRST PUBLICATION.

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

Contingent Claim conditional claim or protection. That power survives the

SOLIDARY OBLIGATION OF DECEDENT These remedies are alternative, the

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

preempt prescription of judgment. administration for it is under this

Property fraudulently conveyed by the Debts paid in full if estate sufficient

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW