rem law 2008 specpro final

8/3/2019 Rem Law 2008 Specpro Final

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I. PRELIMINARY MATTERS

DEFINITION

SPECIAL PROCEEDINGS A remedy bywhich a party seeks to establish a status, rightor a particular fact. [Rule 1, Sec. 3(c)

]

APPLICABLE RULES

If special rules are provided, they shallapply. But in the absence of such specialprovisions, the rules applicable in specialproceedings shall be applied. [Rule 72, Sec. 2

] There are special proceedings which are not

part of the ROC (e.g. Writs of amparo andhabeas data), as special proceedings are ingeneral cases wherein one seeks to establishthe status/right of a party or a particular fact.

The State has an overriding interest in eachspecial proceeding, and the matter is not acontroversy between private parties purely.[Bautista]

The distinction between final and interlocutoryorders in civil actions for purposes ofdetermining the issue of applicability, is notstrictly applicable to orders in specialproceedings. Rule 109 specifies the orders fromwhich appeals may be taken. [Regalado]

Rule 33 regarding judgment on demurrer toevidence is applicable to special proceedings.[Matute v. CA (1969)]

ORDINARY ACTIONS VIS--VIS SPECIALPROCEEDINGS

Ordinary action Special proceeding

To protect/enforce a rightor prevent/redress awrong

To establish a right/statusor fact

Involves 2 or moreparties

May involve only 1 party

Governed by ordinaryrules, supplemented byspecial rules

Governed by special rules,supplemented by ordinaryrules

Initiated by a pleading,and parties respond

through an answer

Initiated by a petition,and parties respond

through an opposition

VENUES AND JURISDICTIONS FOR

DIFFERENT SPECIAL PROCEEDINGS

Venue Jurisdiction

Estate settlement

Province of decedent'sresidence at the time ofdeath

MTC - If estate's grossvalue does not exceedP300K (P400K in MetroManila)

If non-resident decedent- Province where he had

estate

RTC - If estate's grossvalue exceed MTC's

jurisdictionEscheat

If decedent diesintestate and withoutheirs - Province wheredecedent last resided orwhere estate is

XXXXX

If reversion - Provincewhere land lieswholly/partially

XXXXX

Guardianship

Where ward resides orwhere his property islocated (if non-resident)

Family Court - If minorward

RTC - If other than minorward

Trusteeship

Where the will wasallowed or where theproperty affected by thetrust is located

RTC

Adoption

If domestic - Whereadopter resides

Family Court

If inter-country - Whereadoptee resides (if filedwith Family Court)

Family Court or Inter-Country Adoption Board

If rescission of adoption- Where adoptee resides

Family Court

Habeas corpus

Where detainee isdetained (if filed in RTC)

SC (on any day and at anytime, enforceableanywhere in thePhilippines)

XXXXX Sandiganbayan (only in aid

of its appellate jurisdiction)

XXXXX CA (in instances authorizedby law, enforceableanywhere in thePhilippines)

XXXXXX RTC (on any day and atany time, enforceable onlywithin its judicial district)

Writ of amparo

Where the threat oract/comission or any ofits elements occurred, atany day and time) (iffiled in RTC)

SC, CA, Sandiganbayan,RTC

Writ of habeas data

Petitioner's residence orwhere the place theinformaion isgathered/collected/stored, at the petitioner'soption

RTC

SC, CA, Sandiganbayan -If the action concernspublic data files ofgovernment offices

Change of name

If judicial - Where theperson applying for thechange of his nameresides

RTC

If administrative - Local civil registry orPhilippine consulate

a) Local civil registrywhere the record soughtto be changed is kept

XXXXX

b) Local civil registry ofthe place of residence ofinterested party (only ifpetitioner migrated toanother place in thePhilippines and it wouldbe impractical to file inthe place where recordssought to be changedare kept)

XXXXX

c) Philippine consulates(only for Philippinecitizens who reside inforeign countries)

xXXXX

Cancellation/correction of entries in the civilregistry

If judicial - Where theconcerned civil registry islocated

RTC

If administrative - Local civil registry orPhilippine consulate

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a) Local civil registrywhere the record soughtto be changed is kept

XXXXX

b) Local civil registry ofthe place of residence ofinterested party (only ifpetitioner migrated toanother place in thePhilippines and it wouldbe impractical to file in

the place where recordssought to be changedare kept)

XXXXX

c) Philippine consulates(only for Philippinecitizens who reside inforeign countries)

XXXXX

Declaration of absence and appointment of their

representative

Where absentee residedbefore his disappearance

RTC



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II. SETTLEMENT OF ESTATE

OF DECEASED PERSONS

A. VENUE AND

JURISDICTION

Special proceedings for settlement of estatemay be testate (where the deceased left a will)or intestate (if there is no will). Probate of a will is mandatory and takesprecedence over intestate proceedings. If in the course of intestate proceedings, itis found that the decedent left a will,proceedings for the probate of the latter shouldreplace the intestate proceedings.

WHERE ESTATE SETTLED

1. If decedent is a resident of thePhilippines (whether citizen or alien) Court ofthe place where the decedent resided at thetime of death.

2. If decedent is a non-resident of thePhilippines Court of the place where thedecedent had his estate.a) RTC if estate is greater

than P300K (P400K in Metro Manila)b) MTC if estate is less than

P300K (P400K in Metro Manila)

3. Note: Upon dissolution of marriageby the death of either the husband or the wife,

the partnership affairs must be liquidated in thein/testate proceedings of the deceased spouse.If both have died, liquidation may be made inthe in/testate proceedings of either. [Rule 73,Sec. 2

] If separate proceedings have beeninstituted for each estate, both proceedingsmay be consolidated if they were filed inthe same court [Bernardo v. CA].

RESIDENCE Personal/actual/physicalhabitation, his actual residence or place ofabode [Fule v. CA], and not his permanentlegal residence of domicile [Pilipinas Shell v.

Dumlao

]. Wrong venue is a waivable proceduraldefect, and such waiver may occur by lacheswhere a party had been served notice of thefiling of the probate petition for a year andallowed the proceedings to continue for suchtime before filing a motion to dismiss. [Uriartev. CFI] Extent of courts jurisdiction: Limited

jurisdiction. It may only determine and ruleupon the following issues:

1) Administration of the estate;2) Liquidation of the estate;3) Distribution of the estate.

4) Other issues that may beadjudicated on:a) Who are the heirs of the decedent.[Reyes v. Ysip

]b) Recognition of a natural child.[Gaas v. Fortich]c) Validity of disinheritance effectedby the testator. [Hilado v. Ponce deLeon]

d) Status of a woman who claims tobe the decedents lawful wife. [Torresv. Javier]e) Validity of a waiver of hereditaryrights. [Borromeo-Herrera v.Borromeo]f) Status of each heir.g) Whether property in inventory isconjugal or exclusive property of

deceased spouse.h) All other mattersincidental/collateral to the settlementand distribution of the estate.

Exception: [Coca v.Borromeo] Where a particularmatter should be resolved by theRTC in the exercise of its general

jurisdiction or its limited probate jurisdiction is not a jurisdictionalissue but a mere question ofprocedure and can be waived.

DETERMINATION OF OWNERSHIP

General rule: Not allowed. Exceptions:1) Provisionally, ownership may be

determined for the purpose of includingproperty in inventory, without prejudiceto its final determination in a separateaction.

2) If all the parties are heirs and theysubmit the issue of ownership toprobate court, provided that the rightsof 3rd parties are not prejudiced.

3) If the question is one of collation oradvancement.

4) If the parties consent to theassumption of jurisdiction by theprobate court.

EXCLUSIONARY RULE[Rule 73, Sec. 1

]

General rule: The court first takingcognizance of the settlement of the estate ofthe decedent shall exercise jurisdiction to theexclusion of all other courts. The probate courtacquires jurisdiction from the moment thepetition for the settlement of estate is filed withsaid court. It cannot be divested of such

jurisdiction by the subsequent acts of theparties (e.g. if they entered into anextrajudicial partition settlement). [Sandoval v.Santiago

] Note: In Rodriguez v. Borja, the SCsaid that the delivery of the will is sufficientfor jurisdiction to be acquired, even if nopetition is filed. Exception: Estoppel by laches.

REMEDY IF THE VENUE IS IMPROPERLY

LAID

General rule: Ordinary appeal, and notcertiorari or mandamus.

Exception: If want of jurisdictionappears on the record of the case. [Rule73, Sec. 1; Eusebio v. Eusebio]

ISSUANCE OF WRIT OF EXECUTION:

General rule: Probate court cannot issuewrit of execution.



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Rationale: Its orders usually refer to theadjudication of claims against the estatewhich the executor/administrator maysatisfy without the need of executoryprocess.

Exception:[Vda. de Valera v. Ofilada]1) To satisfy the contributive shares ofthe devisees/legatees/heirs when thelatter had entered prior possession over

the estate. [Rule 88, Sec. 6

]2) To enforce payment of theexpenses of partition. [Rule 90, Sec. 3

]3) To satisfy the costs when a personis cited for examination in probateproceedings. [Rule 142, Sec. 13

]

B. PRESUMPTION OF DEATH

General rule: A person is dead for thepurpose of settling his estate if he has beenmissing for 10 years. [Art. 390, CC

] However, if the absentee disappeared after

the age of 75 years, an absence of 5 yearsis sufficient for the opening of succession.

However, the following persons would beconsidered absent even for the purpose ofopening succession after just 4 years: [Art.391, CC

]1) A person on board a vessel lostduring a sea voyage, or an aeroplanewhich is missing.2) A person in the armed forces whohas taken part in war.3) A person who has been in danger of

death under other circumstances. If the absentee turns out to be alive, shallbe entitled to the balance of his estate afterpayment of all his debts. The balance may berecovered by motion in the same proceeding.[Rule 73, Sec. 4

]

C. WAYS OF SETTLING THEESTATE

General rule: Estate settlement should be judicially administered through an

administrator/executor. Exceptions:

1) Extrajudicial settlement byagreement between/among heirs.[Rule 74, Sec. 1

]2) Summary settlement of estates ofsmall value. [Rule 74, Sec. 2]

a. EXTRAJUDICIAL

SETTLEMENT BY

AGREEMENT

BETWEEN/AMONG HEIRS

PROCEDURE IN EXTRAJUDICIAL

SETTLEMENT BY AGREEMENT BETWEEN/

AMONG HEIRS

REQUISITES

A. Substantive

1) The decedent left:a) No will.b) No debts.

It is sufficient if any debtsthat the decedent incurred hasbeen paid at the time of the extra-

judicial settlement. [Guico v.Bautista]

There is also the disputablepresumption that the decedent leftno debts if no creditor files apetition for letters of administrationwithin 2 years after the death of

the decedent.2) The heirs are all of age

If there are minors, they should berepresented by their judicial or legalrepresentatives duly authorized for thepurpose.

B. Procedural1) Division of estate must be in a publicinstrument or by affidavit of adjudication inthe case of a sole heir

Private instrument is valid.The requirement of a public instrumentin Rule 74, Sec. 1 is not constitutive ofthe validity but is merely evidentiary in

nature. (Hernandez v. Andal) However, reformation ofthe instrument may be compelled.[Regalado]

2) Filed with proper registry of deeds.3) Publication of notice of the fact ofextrajudicial settlement at least once aweek for 3 consecutive weeks.

An extrajudicial settlement, despitethe publication thereof in a newspaper,shall not be binding on any person whohas not participated therein or who hadno notice thereof. [Rule 74, Sec. 1

]4) Bond filed equivalent to the value of

the personal property. The bond is required only whenpersonalty is involved. If it is a realestate, it shall be subject to a lien infavor of creditors, heirs or otherpersons for the full period of 2 yearsfrom such distribution and such liencannot be substituted by a bond. The bond is the value of thepersonal property certified by the


Publication of notice of the fact of extrajudicialsettlement once a week for 3 consecutive weeks in a

newspaper of general circulation

Death of the decedent

Division of estate in public instrument or affidavitof adjudication

The public instrument or affidavit of adjudicationmust be filed with the proper Registry of Deeds

Filing of bond equivalent to the value of personalproperty


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parties under oath and conditionedupon payment of just claims filed underRule 74, Sec. 4.

b. SUMMARY SETTLEMENT OF

ESTATES OF SMALL VALUE

PROCEDURE IN SUMMARY SETTLEMENT

OF ESTATES OF SMALL VALUE

REQUISITES

1) Gross value of the estate must not exceedP10K.2) Application must contain allegation of grossvalue of estate.3) Date of hearing:

a) Shall be set by court not less than1 month nor more than 3 months from dateof last publication of notice.b) Order of hearing published once aweek for 3 consecutive weeks in anewspaper of general circulation.

4) Notice shall be served upon such interestedpersons as the court may direct.

A summary settlement is not

binding upon heirs/creditors who were notparties therein or had no knowledgethereof. [Sampilo v. CA

]5) Bond in an amount fixed by the court (notvalue of personal property) conditioned uponpayment of just claims under Rule 74, Sec. 4.

REMEDIES OF AGGRIEVED PARTIES

AGAINST EXTRAJUDICIAL SETTLEMENT /

SUMMARY SETTLEMENT

1. CLAIM AGAINST THE BOND OR REALESTATE OR BOTH [Rule 74, Sec. 4

]

Remedies:1) If there is an undue deprivation oflawful participation in the estate2) The existence of debts against theestate or undue deprivation of lawfulparticipation payable in money

This remedy can be availed of only within 2years after the settlement and distribution ofthe estate. Such bond and such real estate shallremain charged with a liability tocreditors/heirs, or other persons for the fullperiod of 2 years after such distribution,notwithstanding any transfers of real estatethat may have been made. Period for claim of minor or incapacitatedperson: Within 1 year after the minority orincapacity is removed.

2. PETITION FOR RELIEF [Rule 38]

Grounds for petition for relief: FAME fraud, accident, mistake, excusable negligence. Period: 60 days after the petitioner learnsof the judgment, final order or otherproceeding to be set aside, and not more than

6 months after such judgment or final orderwas entered.

3. REOPENING BY INTERVENTION WITHINREGLEMENTARY PERIOD

Who is allowed to intervene with leave ofcourt:A person who either:

1) Has a legal interest in the matter inlitigation;2) Has such legal interest in thesuccess of either of the parties, or aninterest against both;3) Is so situated as to be adversely

affected by a distribution/disposition ofproperty in the custody of the court or ofan officer thereof.

Period: Anytime before rendition of judgment by the TC. As long as withinreglementary period of 2 years.

4. NEW ACTION TO ANNUL SETTLEMENTWITHIN REGLEMENTARY PERIOD


Hearing to be held not less than 1 month normore than 3 months from the date of the last

publication of notice


An application for summary settlement with anallegation that the gross value of the estate does

not exceed P10K

Publication of notice of the fact of extrajudicialsettlement once a week for 3 consecutive weeksin a newspaper of general circulation (the court

may also order notice to be given to otherpersons as such court may direct

Court to proceed summarily, without appointingan executor/administrator, and to make orders

as may be necessary such as:

Grant allowance of the will, if any

Determine persons entitled to estate

Pay debts of estate which are due

Filing of bond fixed by the court

Partition of estate


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Reglementary period: The2 years, and notthe prescription period.

5. RESCISSION IN CASE OF PRETERITION OFCOMPULSORY HEIR IN PARTITION TAINTEDWITH BAD FAITH [Art. 1104, CC

]

6. ACTION TO ANNUL A DEED OF

EXTRAJUDICIAL SETTLMENT ON THEGROUND OF FRAUD WHICH SHOULD BEFILED WITHIN 4 YEARS FROM THEDISCOVERY OF FRAUD [Gerona v. DeGuzman]

EXTRAJUDICIAL SETTLEMENT VS.

SUMMARY SETTLEMENT

Extra-judicialsettlement

Summary settlement

No court intervention Requires summaryjudicial adjudication

Estate's value is

immaterial

Gross estate value must

not exceed P10KThere must be nooutstanding debts at thetime of settlement

Available even if thereare debts (since thecourt will makeprovisions for payment)

Resorted to at theinstance and byagreement of all theheirs

May be instituted by anyinterested party, even bya creditor of the estate,without the consent of allthe heirs

Amount of bond is equalto the value of thepersonal property

Amount of bond is to bedetermined by the court

c. JUDICIAL SETTLEMENTTHROUGH AN

ADMINISTRATOR/ EXECUTOR

PROCEDURE IN JUDICIAL SETTLEMENT

THROUGH AN ADMINISTRATOR/

EXECUTOR

Special proceedings for estate settlementmay be testate (where the deceased left a will)or intestate (if there is no will). There must be judicial settlement throughan administrator/executor if it does not fallunder the 2 exceptions, regardless of the

existence or non-existence of a will. The allowance of the will shall be conclusiveas to its due execution. [Rule 75, Sec. 1

]

i. VENUE AND

JURISDICTION

RTC if estate is greater than P300K(P400K in Metro Manila). MTC if estate is less than P300K(P400K in Metro Manila).

AS TO THE INTRINSIC VALIDITY OF A WILL General rule: No. The probate courts

authority is limited to:1) Extrinsic validity of the will.2) Due execution thereof.3) Testators testamentary capacity.4) Compliance with the requisites orsolemnities prescribed by law.

Exception: PRINCIPLE OF PRACTICALCONSIDERATION Waste of time/effort/expense plus added anxietyare the practical considerations thatinduce us to a belief that we might aswell meet head-on the issues of thevalidity of the provisions of the will.

[Nuguid v. Nuguid

] If there is a defect that is apparenton the face of the will. [Nepomuceno v.CA

]

ii. ALLOWANCE/

DISALLOWANCE OF

THE WILL

PERSONS WHO MAY FILE PETITION[Rule 76, Sec.1

]1) Executor;2) Devisee/legatee named in the will;

3) Person interested in the estate;4) Testator himself during his lifetime;5) Any creditor as a preparatory step forfiling of his claim therein.

CONTENTS IN THE PETITION FOR PROBATE [Rule76, Sec. 2]

1) Jurisdictional facts: Death of thetestator and his residence at the time of death


Petition for probate of the will, if any

Issuance of Letters Testamentary/Administration

Filing of Claims

Payment of claims: sale/mortgage/encumbranceof estate properties

Distribution of remainder, if any(but can be made before payment if a bond is

filed by the heirs)


Court order fixing the time and place for probate

The court shall cause notice of such time andplace to be published 3 weeks successively in anewspaper of general circulation. Notice shallalso be given to the designated/known heirs,legatees and devisees, and the executor if the

one petitioning for allowance of the will is not thetestator


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or the place where the estate was left by thedecedent who is a non-resident.2) Names/ages/residences of the heirs,legatees, and devisees.3) Probable value and character of theestate property.4) Name of the person for whom theletters are prayed.5) Name of the person having custody of

the will if it has not been delivered to the court. But no defect shall render void theallowance of the will, or the issuance ofletters testamentary or of administrationwith the will annexed.

PROCEDURE AFTER WILL IS DELIVERED TO, ORWHEN A PETITION FOR ALLOWANCE OF A WILL ISFILED IN, THE COURT:

1) The court shall fix a time and place forproving the will.

Rationale: So that all concernedmay appear to contest the allowancethereof, if such is the case.

2) The court shall cause notice of suchtime and place to be published 3 weekssuccessively in a newspaper of generalcirculation. This rule on newspaper publicationdoes not apply if the probate of the will hasbeen filed by the testator himself.3) The court shall give notice of thedesignated time and place to:

a) Designated/known heirs,legatees and devisees.b) Executor and co-executor (if not the petitioner).

The probate court acquires jurisdiction overthe interested persons and the res only

after the publication and notices are sent.Also, if the testator himself is the oneasking for the allowance of the will, thenotice shall be sent only to his compulsoryheirs.

MODES OF NOTIFICATION[Rule 76, Sec. 4]1) If by mail 20 days before hearing.2) If through personal notice 10 daysbefore hearing.

DISALLOWANCE OF WILL[Rule 76, Sec. 9]1) If the formalities required by law havenot been complied with

2) If the testator was insane, or otherwisementally incapable of making a will, at the timeof its execution3) If it was executed through force orunder duress, or the influence of fear, orthreats4) If it was procured by undue andimproper pressure and influence, on the part ofthe beneficiary or of some other person5) If the s ignature of the testator wasprocured by fraud6) If the testator acted by mistake or didnot intend that the instrument he signed shouldbe his will at the time of affixing his signaturethereto

iii. DUTY OF CUSTODIAN/

EXECUTOR OF WILL

DUTY OF THE CUSTODIAN OF THE WILL[Rule 75,Sec. 2

] To deliver the will within 20 days after heknows of the death of the testator to the court

having jurisdiction or to the executor named inthe will.

DUTY OF THE EXECUTOR NAMED IN THE WILL[Rule 75, Sec. 3

]1) It is his duty to present the willwithin 20 days after (a) he knows of the deathof the testator or (b) after he knows that he isnamed the executor to the court having

jurisdiction, unless the will has reached thecourt in any other manner.2) Signify to the court in writing hisacceptance of the trust or his refusal to acceptit.

FAILURE TO FULFILL ABOVE DUTIES Without a satisfactory excuse, they shall befined a sum not exceeding P2K. [Rule 75, Sec.4

] If he retains the will and does not deliver itto the court, he may be committed to prisonand kept there until he delivers the will. [Rule75, Sec. 5

]

iv. PROOF OF WILL

In the hearing for the probate of a will, thecompliance of publication and notice must firstbe shown before introduction of testimony insupport of the will. [Rule 76, Sec. 5]

EVIDENCE REQUIRED IN SUPPORT OF THE

WILL

1) Uncontested wills: [Rule 76, Sec. 5

]a) Notarial wills Testimony of at least 1

of the subscribing witnesses may beallowed, if such witness testifies that thewill was executed as is required by law.

If all subscribing witnesses resideoutside the province Deposition isallowed. If the subscribing witnesses aredead, insane, or if none of them residesin the Philippines The court mayadmit testimony of other witnesses toprove the sanity of the testator and thedue execution of the will; and asevidence of the execution of the will, itmay admit proof of the handwriting of

the testator and of the subscribingwitnesses or of any of them.

b) Holographic wills The testimony of 1witness who knows the handwriting andsignature of the testator may be admitted.In the absence thereof, the testimony of anexpert witness may be admitted. If thetestator himself petitioned for theallowance of his holographic will, hisaffirmation is sufficient evidence of thegenuineness and due execution of the will.

2) Contested wills: [Rule 76, Sec. 11

]a) Notarial wills All subscribingwitnesses and the notary public before

whom the will was acknowledged must beproduced and examined.

However, the will may be allowed ifthe court is satisfied from thetestimony of other witnesses and fromall the evidence presented that the willwas executed and attested in themanner required by law if any or all ofthem either:



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(1) Testify against the dueexecution of the will;

(2) Do not remember havingattested to it;

(3) Are otherwise of doubtfulcredibility.

b) Holographic will 3 witnesses whoknow the handwriting of the testator must

be produced. In the absence thereof, thetestimony of an expert witness may beresorted to.

FACTS THAT SHOULD BE PROVED TO ALLOW ALOST OR DESTROYED WILL[Rule 76, Sec. 6

]1) That the will has been duly executed bythe testator;2) That the will was in existence when thetestator died, or if it was not, that it has beenfraudulently/accidentally destroyed in thelifetime of the testator without his knowledge;and3) The provisions of the will are clearly

established by at least 2 credible witnesses.

When a lost will is proved, the provisionsthereof must be distinctly stated and certifiedby the judge, under the seal of the court, andthe certificate must be filed and recorded asother wills are filed and recorded.

PROBATE OF LOST/DESTROYED HOLOGRAPHICWILL

General rule: Not allowed. Exception: A lost/destroyed holographic

will could be proved by photostatic or xeroxcopies thereof. [Rodelas v. Aranza]

PROOF OF HOLOGRAPHIC WILL IF TESTATORPETITIONS FOR PROBATE[Rule 76, Sec. 12]

The fact that he affirms that theholographic will and the signature are in hisown handwriting shall be sufficient evidence ofthe genuineness and due execution thereof. If contested, the burden of disproving thegenuineness and due execution thereof shall beon the contestant. The testator may presentsuch additional proof as may be necessary torebut the evidence for the contestant.

v. CONTEST TO WILL

Procedure: The person contesting the willmust state his opposition in writing and serve acopy thereof on the petitioner and other partiesinterested in the estate. [Rule 76, Sec. 10]

vi. ALLOWANCE OF WILL

PROVED OUTSIDE THE

PHILIPPINES

A will allowed/probated in a foreign countrymust be reprobated in the Philippines.

Administration of an estate extends only tothe assets of the decedent found within thestate or country where it was granted. Theadministrator appointed in one state has nopower over property in another state orcountry. [Leon & Ghezzi v. Manufacturer LifeInsurance]

Petition to be filed in the RTC. The RTCwhere such petition is filed shall fix a time andplace for the hearing and cause notice thereof

to be given as in case of an original willpresented for allowance. [Rule 77, Sec. 1 and2

]

PROOF IN THE REPROBATE OF THE FOREIGN WILL[Suntay v. Suntay]

1) The testator had his domicile in the foreigncountry;2) The will has been admitted to probate in

such country;3) The fact that the foreign tribunal is aprobate court;4) The law on probate procedure of the saidforeign country and proof of compliancetherewith;5) The legal requirements in said foreigncountry for the valid execution of the will.

EFFECTS OFREPROBATE[Rule 77, Sec. 3 and 4

]1) The will shall have the same effect as iforiginally proved and allowed in the Philippines.2) Letters testamentary or administration witha will annexed shall extend to all estates of the

Philippines.3) Such estate, after the payment of justdebts and expenses of administration, shall bedisposed of according to the will, so far as suchwill may operate upon it, and the residue, ifany, shall be disposed of as provided by law incases of estates in the Philippines belonging topersons who are inhabitants of anothercountry.

vii. LETTERS

TESTAMENTARY/

ADMINISTRATION

QUALIFICATIONS

PERSONS WHO MAY BEEXECUTORS/ADMINISTRATORS

1) EXECUTOR The person named in the willto administer the decedents estate and carryout the provisions thereof.2) ADMINISTRATOR (regular or special) The person appointed by the court toadminister the estate where the decedent diedintestate. An administrator may also be one

appointed by the court in cases when,although there is a will, the will does notappoint any executor, or if appointed, saidperson is either incapacitated or unwillingto serve as such.

3) A corporation/association authorized toconduct the business of a trust company in thePhilippines may be appointed as an executor,administrator, guardian of an estate, ortrustee, in like manner as an individual; but itshall not be appointed guardian of the personof a ward. [Art. 1060, CC]4) The marriage of a single woman also shallnot affect her authority to serve under aprevious appointment. [Rule 78, Sec. 3

]

PERSONS WHO ARE INCOMPETENT TO SERVE ASEXECUTORS/ADMINISTRATORS [Rule 78, Sec. 1and 2]

1) A minor.2) A non-resident.3) One who, in the opinion of the court, isunfit to exercise the duties of the trust byreason of:

a) Drunkenness.



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b) Improvidence.c) Want of understanding/integrity.d) Conviction of an offense involvingmoral turpitude.

4) The executor of an executor cannotadminister the estate of the first testator.

Executor Administrator

Nominated by the

testator and appointedby the court

Appointed by the court if

the testator did notappoint, of if theappointee isincapacitated or refused

Duty to present the willto court

No such duty

Testator may providethat executor may servewithout bond (but thecourt may direct him togive bond to pay debts)

Administrator mustalways give a bond

Compensation may beprovided for by thetestator in the will;otherwise, Rule 85, Sec.

7 shall apply

Compensation is to begoverned by Rule 85,Sec. 7

SEVERAL CO-EXECUTORS NAMED IN THE WILL BUTNOT ALL CAN ACT

If all of the named co-executors cannot actbecause of incompetency, refusal to accept thetrust, or failure to give bond, on the part of oneor more of them, letters testamentary mayissue to such of them as are competent, acceptand give bond, and they may perform theduties and discharge the trust required by thewill. [Rule 78, Sec. 5]

ORDER OF PREFERENCE IN GRANTING LETTERS OFADMINISTRATION

1) Surviving spouse or next of kin. NEXT OF KIN Those persons who are

entitled under the statute of distribution tothe decedents property.

2) Any one or more of the principalcreditors.3) Stranger.

Rationale: The underlying assumption isthat those who will reap the benefits of awise/speedy/economical administration of theestate or those who will most suffer the

consequences of waste/improvidence/mismanagement, have thehigher interest and most influential motive toadminister the estate correctly. Letters of administration may be granted toany person or any other applicant even if thereare other competent persons with a better rightto the administration, if such persons fail toappear when notified and claim the letters tothemselves. [Rule 79, Sec. 6

] If a petition for letters of administration isfiled, such court shall fix a time and place forhearing the petition and shall cause noticethereof to be given to the known heirs and

creditors of the decedent, and other personsbelieved to have an interest in the estate.[Rule 79, Sec. 3

]

OPPOSITION TO ISSUANCE

OPPOSITION OF THE ISSUANCE OF LETTERSTESTAMENTARY [Rule 79, Sec. 1

] Any interested person in the will.

He should state the grounds in writing whyhe is opposing and he may attach a petition forletters of administration.

CONTENTS OF A PETITION[Rule 79, Sec. 2

]1) Jurisdictional facts.2) Names/ages/residences of heirsand creditors.3) Probable value and character of the

estate.4) Name of the person for whom theletters are prayed for.

But no defect in the petition shallrender void the issuance of letters ofadministration

GROUNDS FOR OPPOSING[Rule 79, Sec. 4

]1) in Letters Testamentary:

Incompetence.2) in Letters of Administration:

Incompetence. Preferential right under

Rule 78, Sec. 6.

SPECIAL ADMINISTRATORS

Court EEs should not be appointed specialadministrators as their objectivity andimpartiality may be compromised byextraneous considerations.[Medina v. CA] The order of preference in the appointmentof regular administrators does not apply to theappointment of a special administrator, butsuch order of preference may be followed bythe judge in the exercise of sound discretion.[Matias v. Gonzales] Similarly, the grounds for the removal ofthe regular administrator do not apply strictlyto the special administrator as he may beremoved by the court on other grounds in itsdiscretion. [Junquera v. Borromeo

] The order appointing a specialadministrator is an interlocutory and is notappealable. [Garcia v. Flores]

WHEN APPOINTED1) Delay in granting of letters including appealin the probate of the will. [Rule 80, Sec. 1

]2) Executor is a claimant of the estate he

represents. [Rule 86, Sec. 8

] In this case, the administrator shallhave the same powers as that of a generaladministrator.

Regular administrator Special administrator

Appointment may be thesubject of appeal

Appointment is aninterlocutory order andmay not be the subject ofan appeal

One of the obligations isto pay the estate's debts

He cannot pay the estate'sdebts

Appointed if decedentdied intestate or did notappoint an

administrator, or if theappointee refused or isnot qualified

Appointed if there is delayin granting letterstestamentary or letters of

administration, or if theexecutor is a claimant ofthe estate he represents

DUTIES AND GENERAL POWERS OF

ADMINISTRATORS AND SPECIAL

ADMINISTRATORS



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DUTIES/POWERS OF THE GENERALADMINISTRATOR

1) To have access to, and examine and takecopies of books and papers relating to thepartnership in case of a deceased partner.2) To examine and make invoices of theproperty belonging to the partnership in case ofa deceased partner.3) To make improvements on the properties

under administration with the necessary courtapproval except for necessary repairs.4) To maintain in tenantable repair the housesand other structures and fences and to deliverthe same in such repair to the heirs or deviseeswhen directed to do so by the court.5) To possess and manage the estate whennecessary for (1) the payment of debts, and(2) for the payment of expenses ofadministration.6) Make a true inventory and appraisal of allreal/personal property of decedent within 3months after his appointment (except clothesof family, marriage bed, and other articles for

subsistence of family).7) To render true an just account of hisadministration within 1 year of appointment.8) To perform all orders by the court.9) Discharge all debts/legacies/charges asshall be decreed by the court.10) Give allowance to legitimate survivingspouse or children of the decedent if the courtdecrees such (grandchildren are not entitled).

DUTIES/POWERS OF THE SPECIALADMINISTRATOR

1) Possession and charge of the goods,chattels, rights, credits and estate of the

deceased.2) Preserve the same.3) Commence and maintain suit for theestate.4) Sell only: (1) perishable property; and (2)property ordered by the court.5) Pay debts only as may be ordered by thecourt.6) Make a true inventory and appraisal of allreal/personal property of decedent within 3months after his appointment (except clothesof family, marriage bed, and other articles forsubsistence of family).7) To render true an just account of his

administration within 1 year of appointment.8) To perform all orders by the court.9) Give allowance to legitimate survivingspouse or children of the decedent if the courtdecrees such (grandchildren are not entitled).10) Deliver property he received to personappointed as executor or administrator or tosuch other person as may be authorized by thecourt.

RESTRICTIONS ON THE POWER OF ANADMINISTRATOR/EXECUTOR

1) Cannot acquire by purchase, even at publicor judicial auction, either in person ormediation of another, the property underadministration.2) Cannot borrow money without authority ofthe court.3) Cannot peculate with funds underadministration.4) Cannot lease the property underadministration for more than 1 year.5) Cannot continue the business of thedeceased unless authorized by the court.

6) Cannot profit by the increase/decrease inthe value of the property under administration.

POWERS OF A NEW EXECUTOR/ADMINISTRATOR(AFTER THE FIRST RESIGNS, IS REMOVED, ORREVOKED)

1) Collect and settle the estate notadministered.2) Prosecute/defend actions commenced by or

against the former executor/administrator.3) Recover execution on judgments in thename of former executor/administrator.

BOND A bond is necessary. Even if the testatorprovides that the executor shall serve without abond, the court may still require the executorto give a bond, but the only condition whichattaches to the bond is the payment of thedebts of the testator. [Rule 81, Sec. 2

] Additional bond may be required:

1) When there is a change incircumstances of the

executor/administrator or for othersufficient cause. [Rule 81, Sec. 2

]2) In case of sale/mortgage/encumbranceof the property of the estate conditionedthat the administrator/executor account forthe proceeds of the sale or encumbrance.[Rule 89, Sec. 7(c)

] For joint executors and administrators: Thecourt may take separate bonds from each or a

joint bond from all. [Rule 81, Sec. 3

]

ACCOUNTABILITY AND COMPENSATION

OF EXECUTORS AND ADMINISTRATORS

ACCOUNTABILITY FOR THE ENTIRE ESTATE:

The executor/administrator is accountablefor the entire estate of the deceased.However, he is not accountable for propertieswhich never came to his possession. [Rule 85,Sec. 1] However, he would still be liable forproperties which never came to his possessionif through unfaithfulness to the trust or his ownfault or lack of necessary action, theexecutor/administrator failed to recover part ofthe estate which came to his knowledge. Generally, the executor/administrator is not

liable for debts due the estate which are notyet paid; unless it remained uncollectedbecause of his fault. [Rule 85, Sec. 1

] Income from realty when used by theadministrator/executor: The administrator shallaccount for it as may be agreed upon by himand the parties interested, or adjusted by thecourt with their assent. If the parties do notagree upon the sum to be allowed, the samemay be ascertained by the court whosedetermination shall be final. [Rule 85, Sec. 4

] Neglects or delays to raise or pay money:The administrator shall be liable therefore onhis bond. [Rule 85, Sec. 5

]

EXPENSES OF ADMINISTRATION Expenses necessary for the management ofthe property, for protecting it againstdestruction or deterioration, and possibly forthe production of fruits.

COMPENSATION TO EXECUTOR/ADMINISTRATOR[Rule 85, Sec. 7]

That provided by the will is controlling.



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However, if there is no compensationprovided, the compensation shall be either:

1) P4/day for the time actually andnecessarily employed;

2) Commission upon the value of somuch of the estate as comes into hispossession and finally disposed of by him;3) 2% of the first P5K, 1% in excess

of P5K up to P30K, % in excess of P30Kup to P100K, and % in excess of P100K. For 2 or more executors/administrators:The compensation shall be apportioned amongthem by the court according to the servicesactually rendered by them respectively. Charge of legal fees rendered byexecutor/administrator to the estate: Notallowed.

RENDER OF ACCOUNT Within 1 year from receiving letterstestamentary/letters of administration. [Rule85, Sec. 8]

The court also may examine theexecutor/administrator upon oath as to anymatter relating to the account rendered by him.[Rule 85, Sec. 9

] Before the account is allowed, notice shallbe given to interested persons in order forthem for examination. [Rule 85, Sec. 10]

REVOCATION OF ADMINISTRATION;

DEATH/RESIGNATION/REMOVAL OF

ADMINISTRATORS AND EXECUTORS

ROLE OF ADMINISTRATOR IF A WILL IS

DISCOVERED If the letters of administration have beengranted because of the belief that the decedenthad died intestate, and then a will is discoveredand allowed by the court, the administrationshall be revoked and the administrator shallsurrender the letters of administration to thecourt and render his account of administration.

It is within the courts discretion on WONthe intestate proceeding should be discontinuedand a new proceeding should be constituted.

The discovery of a will does not ipso factonullify the administration unless the will has

been proved and allowed. [De Parreo vAranzanso]

Acts of the administrator done before hisremoval/resignation/revocation are valid unlessproven otherwise. [Rule 82, Sec.3

]

GROUNDS FOR REMOVAL OFEXECUTOR/ADMINISTRATOR [Rule 82, Sec. 2

]1) Neglect to render accounts (within 1year when the court directs).2) Neglect to settle estate according to theROC.3) Neglect to perform an order/judgmentof the court or a duty expressly provided by the

ROC.4) Absconding.5) Insanity or incapacity or unsuitability todischarge the trust

viii. CLAIMS AGAINST THE

ESTATE

STATUTE OF NON-CLAIMS

Definition: Period fixed by the ROC for thefiling of claims against the estate forexamination and allowance. The Statute ofNon-Claims applies only to claims that do notsurvive.

PERIOD FOR CLAIMS[Rule 86, Sec. 2

]

General rule: Within the time fixed in the

notice which shall not be more than 12 monthsnor less than 6 months after the date of thefirst publication. Otherwise, the claims arebarred forever. Even if the testator acknowledged the debt

in his will and instructed the executor topay such debt, the Statute of Non-Claimsmust still be complied with.

Exception: BELATED CLAIMS Claimsnot filed within the original period fixed bythe court. On application of a creditor whohas failed to file his claim within the timepreviously limited, at any time before an

order of distribution is entered, the courtmay, for cause shown and on such termsas are equitable, allow such claim to befiled not exceeding 1 month from the orderallowing belated claims (the order may bein open court or not).

The Statute of Non-Claims and the Statuteof Limitations must concur in order for acreditor to collect.

A creditor barred by the Statute of Non-Claims may file a claim as a counterclaim inany suit that the executor or administratormay bring against such creditor.

CLAIMS THAT DO NOT SURVIVE[Rule 86, Sec. 5

]1) Money claims, debts incurred by thedeceased during his lifetime, arising fromcontract:

a) Express or implied;b) Due or not due;c) Absolute or contingent.

2) Claims for funeral expenses or for the lastillness of the decedent.3) Judgment for money against decedent.

However, a creditor barred by the statuteof non-claims may file a claim as acounterclaim in any suit that the executor oradministrator may bring against such creditor.

NOTICE REQUIREMENT IN CLAIMING AGAINST THEESTATE:

1) The court, after granting letterstestamentary/letters of administration, mayimmediately issue notices to creditors to filetheir claims.2) This notice must be published for 3successive weeks in a newspaper of generalcirculation and province, and post the same in4 public places in the province and 2 publicplaces in the municipality where the decedentlast resided.3) Within 10 days after the notice has beenpublished and posted in accordance with thepreceding section, the executor/administratorshall file or cause to be filed in the court aprinted copy of the notice accompanied with anaffidavit setting forth the dates of the first andlast publication thereof and the name of thenewspaper in which the same is printed.

SOLIDARY OBLIGATION OF DECEDENT



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The claim shall be filed against thedecedent as if he were the only debtor, withoutprejudice to the right of the estate to recovercontribution from the other debtor. [Rule 86,Sec. 6

]

If the obligation of the decedent is jointwith another debtor: The claim shall be

confined to the portion belonging to him. [Rule86, Sec. 6

]

MORTGAGE DEBT DUE FROM ESTATE

Remedies of a creditor holding a claimagainst the deceased secured by a mortgage orother collateral security:[Rule 86, Sec. 7

]1) ABANDON the security and prosecute his

claim against the estate and share in thegeneral distribution of the assets of theestate.

2) FORECLOSE his mortgage or realize uponhis security by action in court making theexecutor or administrator a party defendantand if there is judgment for deficiency, hemay file a claim (contingent) against theestate within the Statute of Non-Claims.

3) RELY SOLELY ON HIS MORTGAGE andforeclose (judicial or extrajudicial) thesame at anytime within the period of theStatute of Limitations but he cannot beadmitted as creditor and shall receive noshare in the distribution of the other assetsof the estate.

These remedies are alternative; theavailment of one bars the availment of the

other remedies.

EXECUTORS/ ADMINISTRATORS CLAIM

AGAINST THE ESTATE

If executor/administrator has a claim: Heshall give notice to the court in writing and thecourt thereafter shall appoint a specialadministrator. [Rule 86, Sec. 8

]

PROCESS FOR CLAIMS [Rule 86, Sec. 10

]

1) Deliver the claim with the necessary

vouchers to the clerk of court.2) Serve a copy thereof on theexecutor/administrator.3) If the claim is due, it must be supported byaffidavit stating the amount due and the factthat there has been no offsets.4) If the claim is not due or contingent, itmust be accompanied by an affidavit statingthe particulars thereof.5) Executor must file his answer to the claimwithin 15 days after service of a copy of theclaim.

Answer should contain:

Either admit or deny the claim andset forth the substance of the matterswhich are relied upon to support suchadmission or denial. If the executor/administrator hasno knowledge sufficient to enable himto admit or deny specifically, he shallstate such want of knowledge. The answer must also set forthclaims which the decedent has against

the claimant or else it will forever bebarred.

A claim admitted by theexecutor/administrator may be opposed byan heir/legatee/devisee. [Rule 86, Sec. 11

] The court may refer contested claims to a

commissioner. [Rule 86, Sec. 12]

APPEAL FROM JUDGMENT ON A CLAIM

AGAINST ESTATE

Judgment is appealable like in ordinarycases.

A judgment against executor/administratorshall be that he pay the amount ascertained tobe due and shall not create any lien upon theproperty of the estate, or give the judgmentcreditor any priority of payment. [Rule 86, Sec.13]

The mode of appeal is record on appeal andmust be filed within 30 days from notice of

judgment. When the executor /administrator admitsand offers to pay part of a claim, and theclaimant refuses to accept the amount offeredin satisfaction of his claim, if he fails to obtain amore favorable judgment, he cannot recovercosts, but must pay to theexecutor/administrator costs from the time ofthe offer. Where an action commenced againstthe deceased for money has been discontinuedand the claim embraced therein presented as inthis rule provided, the prevailing party shall beallowed the costs of his action up to the time ofits discontinuance. [Rule 86, Sec. 14

]

ix. ACTIONS BY OR

AGAINST EXECUTORS/

ADMINISTRATORS

Heirs may not sue theexecutor/administrator for recovery of propertyleft by the decedent until there is an order ofthe court assigning such lands to such heir oruntil the time for paying debts has expired.[Rule 87, Sec. 3

]

CLAIMS THAT SURVIVE

CLAIMS THAT SURVIVE - Actions thatmay be commenced directly against theexecutor and administrator.[Rule 87, Sec. 1

]1) Recovery of real/personal property (or any

interest therein) from the estate.2) Enforcement of a lien thereon.3) Action to recover damages arising from

tort.

CLAIMS THAT DO NOT SURVIVE[Rule 86,Sec. 5

]

1) Money claims, debts incurred by thedeceased during his lifetime arising fromcontract:

a) Express or implied;b) Due or not due;c) Absolute or contingent.

2) Claims for funeral expenses or for the lastillness of the decedent.3) Judgment for money against decedent.



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PROCEEDINGS ON MORTGAGE DUE

ESTATE

Executor/administrator can foreclose amortgage belonging to the decedent. [Rule 87,Sec. 5

]

PROCEEDINGS WHERE PROPERTY CONCEALED,

EMBEZZLED, OR FRAUDULENTLY CONVEYED Concealment/embezzlement/conveyanceaway any of the property of the deceased: Thecourt may cite such suspected person toappear before it and examine him on oath onthe matter of such complaint. [Rule 87, Sec. 6

]

If the suspected person refuses to appearor to answer questions asked him during theexamination, the court may punish him forcontempt and may commit him to prison untilhe submits to the order of the court. [Rule 87,Sec. 6]

If even before the granting of the letters

testamentary/letters of administration, suchperson shall be liable for double the value ofthe property sold, embezzled, or alienated tobe recovered for the benefit of the estate.[Rule 87, Sec. 8

]If decedent who fraudulently conveys theproperty to defraud creditors and there is adeficiency of assets in the hands of theadministrator: Executor/administrator maycommence and prosecute an action for therecovery of such property for the benefit ofcredits BUT he shall not be bound to commencethe action unless either: [Rule 87, Sec. 9

]1) The creditors making the

application pay such part of the costs andexpenses;2) Give security therefore to theexecutor/administrator.

Requisites before creditor may bring action[Rule 87, Sec. 10]

1. There is a deficiency of assets in the handsof an executor/administrator for thepayment of debts and expenses ofadministration.

2. In his lifetime, the deceased had made orattempted to make a fraudulentconveyance of his property or had so

conveyed such property that by law, theconveyance would be void as against othercreditors.

3. The subject of the attempted conveyancewould be liable to attachment in hislifetime.

4. The executor/administrator has shown nodesire to file the action or failed to institutethe same within a reasonable time.

5. Leave is granted by the court to thecreditor to file the action.

6. A bond is filed by the creditor.

7.The action by the creditor is in the name of

the executor/administrator. The last 3 requisites are unnecessarywhere the grantee is theexecutor/administrator himself, in which event,the action should be in the name of all thecreditors.

PROCEEDINGS WHERE PROPERTY

ENTRUSTED BY EXECUTOR/

ADMINISTRATION TO 3RD PERSON [Rule87, Sec. 7]

Complaint of executor/administratoragainst person entrusted with estate: The courtmay require such person entrusted with theestate to appear before it and render a fullaccount of all property which came into his

possession. Refusal to appear or give an accountingmay be punished with contempt.

x. PAYMENT OF DEBTS

OF THE ESTATE

IF ESTATE IS SUFFICIENT

General rule: The payment of the debts ofthe estate must be taken: (a) from the portionor property designated in the will; (b) from thepersonal property; and (c) from the realproperty, in that order. If there is still adeficiency, it shall be met by contributions bydevisees, legatees, or heirs who have been inpossession.[Rule 88, Sec. 2, 3 and 6]

Exception: Instances when realty can becharged first:

1) When the personal property isnot sufficient. [Rule 88, Sec. 3]2) Where the sale of suchpersonalty would be detriment of theparticipants (everyone) of the estate.[Rule 88, Sec. 3

]3) When sale of personal property

may injure the business or interests ofthose interested in the estate. [Rule89, Sec. 2

]4) When the testator has notmade sufficient provision for paymentof such debts/expenses/legacies. [Rule89, Sec. 2

]5) When the decedent was, in hislifetime, under contract, binding in law,to deed real property to beneficiary.[Rule 89, Sec. 8

]6) When the decedent during hislifetime held real property in trust foranother person. [Rule 89, Sec. 9

]

Requisites for exception to ensue:1) Application byexecutor/administrator;2) Written notice to personsinterested;3) Hearing.

The same principles apply if the debt of theestate is in another country. The court may authorize anexecutor/administrator tosell/mortgage/encumber real estate acquiredby him on execution or foreclosure sale, underthe same circumstances and under the sameregulations as prescribed in this rule for the

sale/mortgage/encumbrance of other realestate. If testator orders the payment of a debt hebelieves he owes but does not in fact owe: Thedisposition shall be considered as not written. Ifas regards a specified debt more than theamount thereof is ordered paid, the excess isnot due, unless a contrary intention appears. Order of the sale of personal property:[Rule 89,Sec. 1]



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1) To pay the debts and expenses of administration;

2) To pay legacies;3) To cover expenses for the preservation of

the estate.

EXCEPTIONS;

SALE/MORTGAGE/ENCUMBRANCE OF

REALTY EVEN IF PERSONALTY ISSUFFICIENT TO PAY DEBTS

WHEN REALTY IS CHARGED FIRST1) When the personal property is notsufficient. [Rule 88, Sec. 3

]2) Where the sale of such personalty would bedetriment of the participants (everyone) of theestate. [Rule 88, Sec. 3]3) When sale of personal property may injurethe business or interests of those interested inthe estate. [Rule 89, Sec. 2

]4) When the testator has not made sufficientprovision for payment of suchdebts/expenses/legacies. [Rule 89, Sec. 2]5) When the decedent was, in his lifetime,under contract, binding in law, to deed realproperty to beneficiary. [Rule 89, Sec. 8

]6) When the decedent during his lifetime heldreal property in trust for another person. [Rule89, Sec. 9

]

REGULATIONS FOR GRANTING AUTHORITY TOSELL/MORTGAGE/ENCUMBER ESTATES[Rule 89,Sec. 7]

1) The executor/administrator shall f ile awritten petition setting forth the debts duefrom the deceased, the expenses ofadministration, the legacies, the value of thepersonal estate, the situation of the estateto be sold/mortgaged/encumbered, and suchother facts as show that thesale/mortgage/encumbrance is necessary orbeneficial;2) The court shall thereupon fix a timeand place for hearing such petition, and causenotice stating the nature of the petition, thereason for the same, and the time and placeof hearing, to be given personally or by mail tothe persons interested, and may cause suchfurther notice to be given, by publication orotherwise, as it shall deem proper;3) If the court requires it, theexecutor/administrator shall give an additionalbond, in such sum as the court directs,conditioned that such executor/administratorwill account for the proceeds of thesale/mortgage/encumbrance;4) If the requirements in the precedingsubdivisions of this section have been compliedwith, the court, by order stating suchcompliance, may authorize theexecutor/administrator tosell/mortgage/encumber, in proper cases, suchpart of the estate as is deemed necessary, andin case of sale the court may authorize it to bepublic or private, as would be most beneficialto all parties concerned. Theexecutor/administrator shall be furnished witha certified copy of such order;5) If the estate is to be sold at auction,the mode of giving notice of the time and placeof the sale shall be governed by the provisionsconcerning notice of execution sale;6) There shall be recorded in the registryof deeds of the province in which the real

estate thus sold/mortgaged/encumbered issituated, a certified copy of the order of thecourt, together with the deed of theexecutor/administrator for such real estate,which shall be as valid as if the deed had beenexecuted by the deceased in his lifetime.

If sale/mortgage/encumbrance of theproperty of the decedent prevented by aninterested person: That person can give abond, in a sum fixed by the court, conditionedto pay the debts, expenses of administration,and legacies, and such bond shall be for thesecurity of the creditors, as well as of theexecutor/administrator, and may be prosecutedfor the benefit of either. [Rule 89, Sec. 3]

Effect if the sale, mortgage, orencumbrance of the decedents property isdone without notice: Void. Since the heirs arethe presumptive owners, they succeed to therights and obligations of the deceased at themoment of the latters death, and are the

persons directly affected by the sale/mortgageand therefore cannot be deprived of theproperty, except in the manner provided bylaw. [Maneclang v. Baun]

PAYMENT OF CONTINGENT CLAIMS[Rule88, Sec. 4]

CONTINGENT CLAIM Claim that issubject to the happening of a future uncertainevent.

If the court is satisfied that a contingentclaim duly filed is valid, it may order the

executor/administrator to retain in his handssufficient estate to pay such contingent claimwhen the same becomes absolute, or, if theestate is insolvent, sufficient to pay a portionequal to the dividend of the other creditors.

Requisites for the estate to be retained tomeet contingent claims:1) Contingent claim is duly filed within the 2

year period allowed for the creditors topresent claims;

2) Court is satisfied that the claim is valid;3) The claim has become absolute.

If contingent claim that is not presented

after becoming absolute within the 2 yearperiod allowed: The assets retained in thehands of the executor/administrator, notexhausted in the payment of claims, shall bedistributed by the order of the court to thepersons entitled to the same; but the assets sodistributed may still be applied to the paymentof the claim when established, and the creditormay maintain an action against the distributeesto recover the debt, and such distributees andtheir estates shall be liable for the debt inproportion to the estate they have respectivelyreceived form the property of the deceased.

CONTRIBUTIVE SHARE OFDEVISEES/LEGATEES/HEIRS IN

POSSESSION OF PORTIONS OF ESTATE

FOR DEBTS

If heirs have taken possession of portionsof the estate before the debts have beensettled, they shall become liable to contributefor the payment of debts and expenses, and



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the court may, after hearing, settle the amountof their several liabilities, and order how muchand in what manner each person shallcontribute. [Rule 88, Sec. 6

]

PAYMENT IF ESTATE INSOLVENT OR

ASSETS INSUFFICIENT

If insufficient estate to pay all debts: Theexecutor/administrator shall pay the debtsaccording to the concurrence and preference ofcredits provided by Art. 1059 and 2239-2251,CC. [Rule 88, Sec. 7

]

After following the order of preference ofcredits, if all the creditors belonging to thatclass cannot be paid in full, then all of them willsuffer a reduction in proportion to that creditorsclaim No creditor of any one class shall receiveany payment until those of the preceding classare paid. [Rule 88, Sec. 8

]

Estate of an insolvent non-resident

disposed of: His estate in the Philippines shallbe so disposed of that his creditors in andoutside the Philippines may receive an equalshare, in proportion to their respective credits.[Rule 88, Sec. 9

]

Claim proven outside the Philippinesagainst an insolvent residents estate paid:Claims proven outside the Philippines wherethe executor had knowledge and opportunity tocontest its allowance therein may be added tothe list of claims in the Philippines against theestate of an insolvent resident and the estatewill be distributed equally among thosecreditors. The claims of foreign creditors

against insolvent non-residents and againstinsolvent residents would not be able torecover from the estate if there is noreciprocity with that creditors country grantingthe same benefit to Filipinos. [Rule 88, Sec.10

]

However, the benefit of this and the pre-ceding sections shall not be extended tothe creditors in another country if theproperty of such deceased person therefound is not equally apportioned to thecreditors residing in the Philippines and theother creditors, according to their

respective claims.

ORDER OF PAYMENT OF DEBTS

Before the expiration of the time limited forthe payment of debts (1 year, but may beextended), the court shall order the paymentthereof. [Rule 88, Sec. 11]

The court may suspend the order for thepayment of debts or may order the distributionif an appeal is taken, among the creditorswhose claims are definitely allowed, leaving inthe hands of the executor/administrator

sufficient assets to pay the claim disputed andappealed. [Rule 88, Sec. 12

]

TIME FOR PAYMENT OF DEBTS AND

LEGACIES; PERIOD FOR SUCCESSOR OF

DECEASED ADMINISTRATOR/EXECUTOR[Rule 88, Sec. 15 and 16]

Need not exceed 1 year in the firstinstance; but court may extend on applicationof executor/administrator and after hearing andnotice thereof. Extension must not exceed 6 months forsingle extension. The whole period allowed tothe original executor/administrator shall notexceed 2 years. The successor of deadexecutor/administrator may be allowed anextension not to exceed 6 month.

xi. SALES AND

CONVEYANCE OF

PERSONALTY/REALTY

FOR OTHER REASONS

WHEN BENEFICIAL TO INTERESTED

PERSONS

Authorization of sale as beneficial tointerested persons: [Rule 89, Sec. 4

]1) Upon application by theexecutor/administrator and on notice tointerested persons (heirs/devisees, etc.),the court may authorize theexecutor/administrator to sell the whole orpart of the estate.2) Authority shall not be granted ifinconsistent with the provisions of a will.The proceeds of such sale shall be assignedto the persons entitled to the estate in theproper proportions.

CONVEYANCE OF REALTY WHICHDECEASED CONTRACTED TO CONVEY

DURING LIFETIME

AUTHORIZATION OF CONVEYANCE OF REALTYWHICH DECEASED CONTRACTED TO CONVEY [Rule88, Sec. 8]

If the decedent was in his lifetime undercontract, binding in law, to deed real propertyon an interest therein, the court may authorizethe executor/administrator to convey suchproperty according to such contract, or withsuch modifications as are agreed upon by the

parties and approved by the court. If the property is to be conveyed to theexecutor/administrator, it is the clerk of courtwhich shall execute the deed.

PROCEDURE There should be an application for suchpurpose and notice should be given to theinterested persons and such further notice, bypublication or otherwise, as the court deemsproper. [Rule 89, Sec. 8] While Rule 89, Sec. 8 does not specify who

should file the application, it stands toreason that the proper party must be one

who is to be benefited/injured from the judgment or one who is entitled to theavails of the suit (i.e. even people not theexecutor/administrator can file theapplication). [Heirs of Spouses Sandejas v.Lina

]

CONVEYANCE OF REALTY WHICH

DECEASED HELD IN TRUST



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Authorization of conveyance of realty whichthe deceased held in trust: Following the noticerequirement required as in the case where thedecedent was under contract to convey realty,the court may allow the executor/administratorto deed such property to the person for whoseuse and benefit the property was held. Thecourt may order the execution of such trustwhether by deed or by law. [Rule 89, Sec. 9

]

xii. PARTITION AND

DISTRIBUTION OF

ESTATE

WHEN ORDER FOR DISTRIBUTION OF

RESIDUE IS MADE

General rule: Order of distribution shall bemade after payment of all debts, funeralexpenses, expenses for administration,allowance of widow, and inheritance taxes.

[Rule 90, Sec. 1

] Exception: If the distributes or any of

them gives a bond conditioned for thepayment of said obligation, the order ofdistribution may be made even before thepayment of the debts and expenses.

Title to the property is vested from thefinality of the order of distribution. An orderwhich determines the distributive share of heirsis appealable. If not appealed, it becomesfinal.

PROCEDURE [Rule 90, Sec. 1, 2 and 4]

1) There should be an application by theexecutor/administrator or any personinterested in the estate.2) The requirements for notice and hearingmust be fulfilled.3) Certified copies of final orders and

judgments of the court relating to the realestate or the partition thereof shall be recordedin the registry of deeds of the province wherethe property is situated.4) The final order of the court as to questionson advancement shall be binding on the personraising the questions and on the heir.

EXPENSES OF PARTITION[Rule 90, Sec. 3

]

General rule: If there are sufficient effectsin the hands of the executor/administrator, andif it not inconsistent with the intention of thetestator, then such may be applied for thepayment of the expenses of partition. Exception: If it cannot be paid by the

executor/administrator, it should be paidby the parties in proportion to theirrespective shares or interest in the estate,and the apportionment shall be settled andallowed by the court.

Person interested in the partition does notpay his proportion/share of the expenses ofpartition, the court may issue an executionin the name of the executor/administratoragainst him.

REMEDIES AGAINST JUDGMENT OF

PARTITION

Partition may be set aside only if interestedparty is left out by reason of circumstancesbeyond his control or mistake/inadvertence notimputable to negligence.

Remedies: Motion to reopen within the 30-day reglementary period; then appeal from theorder of denial (the latter is not an independentaction.

Since it is a proceeding in rem, allinterested persons have constructive notice,and jurisdiction of probate court is exclusive.

Non-distribution of estate is not aground for reopening. Remedy for such caseis a motion for execution, or, if beyond thereglementary period, a separate action forrecovery of shares.



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III. GUARDIANSHIP

PROCEDURE FOR GUARDIANSHIP UNDER

RULES 92-97

DEFINITION

KINDS OF GUARDIANS [Regalado

]

1) LEGAL GUARDIAN Deemed as guardian

by provision of law, without need of courtappointment. [Art. 320, CC; Art. 225, FC

]

2)GUARDIAN AD LITEM Appointed by the

courts of justice to prosecute or defend aminor, insane or person declared to beincompetent, in a court action.

3) JUDICIAL GUARDIAN Appointed by thecourt in pursuance to law, as guardian forinsane persons, prodigals, minor heirs ordeceased war veterans and other incompetentpersons.

a) Guardian over the person;b) Guardian of the property;

c) GENERAL GUARDIAN Hascustody and care of the wards person andproperty.

BASIS

It is the States duty to protect the rights ofpersons/individuals who because ofage/incapacity are in an unfavorable positionvis--vis other parties. This parens patriae isinherent in the supreme power of the State. Itis a most beneficent function and oftennecessary to be exercised in the interest ofhumanity and for the prevention of injury tothose who cannot protect themselves. [Nery v.Lorenzo, (1972)

]

NECESSITY Jurisdiction over an incompetents personcannot be had unless a guardian was appointedupon whom summons and notice of theproceedings may be served. [Gorostiaga v.Sarte

]

SCOPE AND APPLICABILITY


Petition for the appointment of a guardian

Court order fixing the hearing of the petition

Notice of the hearing

Hearing and appointment of the guardian

Service of judgment on the local civil registrar

Filing of bond by the guardian

Termination of guardianship


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Rules 92-97 have been amended by AM-03-02-05-SC (April 1, 2003). Guardianship ofincompetents who are not minors continues tobe under the jurisdiction of the regular courtsand governed by Rules 92-97. Guardianship ofminors, however, is now governed by AM-03-02-05-SC. [Regalado

]

In a guardianship case, if an issue arises as

to who has the better right/title to theproperties conveyed in the guardianshipproceedings, the issue should be threshed outin a separate ordinary action as it is beyond the

jurisdiction of the guardianship court. [Parco v.CA (1982)

] However, where the wardsright/title to the property is clear andindisputable, the guardianship court may issuean order directing its delivery/return. [Pacientev. Dacuycuy (1982)

]

INCOMPETENTS [Rule 92, Sec. 2]

1) Persons suffering the penalty of civil

interdiction;2) Hospitalized lepers;3) Prodigals;4) Deaf and dumb who are unable to read andwrite;5) Those who are of unsound mind, eventhough they have lucid intervals;6) Persons not being of unsound mind, but byreason of age, disease, weak mind, and othersimilar causes, cannot, without outside aid,take care of themselves and manage theirproperty, thereby becoming an easy prey fordeceit and exploitation.

TRANSFER OF VENUE [Rule 92, Sec. 3]

The court taking cognizance of aguardianship proceeding may transfer the sameto the court of another province/municipalitywherein the ward has acquired real property, ifhe has transferred thereto his bona-fideresidence. The latter court shall have full

jurisdiction to continue the proceedings,without requiring payment of additional courtfees.

PETITION FOR APPOINTMENT OF A

GUARDIAN

WHO MAY PETITION

1) For resident incompetents: [Rule 93, Sec.1

]a) Any relative/friend/person onbehalf of the incompetent who has noparent or lawful guardian;b) Health Secretary, in favor of:

(1) an insane person whoshould be hospitalized;(2) an isolated leper.

2) For non-resident incompetents: [Rule 93,

Sec. 6]a) Any relative/friend;b) Anyone interested in theincompetents estate.

If the interested person is acreditor and mortgagee of the wardsestate, he cannot be appointedguardian of the wards person andproperty. No man can serve twomasters. [Garchitorena v. Sotelo

]

PETITIONS CONTENTS [Rule 93, Sec. 2

]1) Jurisdictional facts;2) Incompetency rendering the appointmentnecessary/convenient;3) Names/ages/residences of theincompetents relatives, and of the personshaving him in their care;4) Estates probable value and character;

5) Name of the person for whom letters ofguardianship are prayed.

The petition shall be verified; but no defectin the petition or verification shall render voidthe issuance of letters of guardianship. [Rule93, Sec. 2]

HEARING

When a petition is filed, the court shall fix atime and place for hearing. The court shallcause notice to be given to the persons

mentioned in the petition residing in theprovince, including the incompetent himself.[Rule 93, Sec. 3

]

Notice to the wards relatives is ajurisdictional requirement. [Yangco v. CFI

]

OPPOSITION [Rule 93, Sec. 4

] Any interested person may file a writtenopposition and pray that:

1) Petition be dismissed;2) Letters of guardianship issue tohimself or to any suitable person named inthe opposition.

Grounds for opposition:1) Competency of the alleged incompetent;2) Unsuitability of the person for whom letters

are prayed.

CONSIDERATIONS IN THE CHOICE OF THEGUARDIAN [Francisco v. CA (1984)]

The court may consider the financialsituation, the physical condition and sound

judgment, prudence and trustworthiness, themorals, character and conduct, and the presentand past history of a prospective appointee, aswell as the probability of his being able toexercise the powers and duties of a guardian

for the full period during which guardianshipwill be necessary.

The courts should not appoint as aguardian any person who is not personallysubject to their jurisdiction (e.g. non-residents). [Guerrero v. Teran

]

The best interests of a ward can overrideprocedural rules and even the rights of parentsto the custody of their children.

A person who is incompetent to act as anexecutor/administrator does not necessarilyneed to be placed under guardianship. But if aperson is incompetent to act as executor oradministrator, then he is not the incompetentperson envisaged in the law of guardianship.[Lopez Vda. De Baluyot v. Ines-Luciano(1976)]

GUARDIANS APPOINTMENT

The alleged incompetent must be presentat the hearing, if able to attend. It must also beshown that the required notice was given. Thecourt shall then hear parties evidences. If theperson in question is an incompetent, the court



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shall appoint a suitable guardian of hisperson/estate/both. [Rule 93, Sec. 5

]

The guardians appointment is good untilset aside; and, despite and appeal therefrom,the guardian can do what is necessary (undercourts direction) for the protection of theward/estate. [Zafra-Sarte v. CA (1970)

]

SERVICE OF JUDGMENT

The final order or judgment shall be servedupon the civil registrar of the municipality/citywhere the incompetent resides or where hisproperty is situated. [Rule 93, Sec. 8]

GUARDIANS BOND

Before an appointed guardian enters uponthe execution of his trust, or letters ofguardianship issue, he shall give a bond. [Rule94, Sec. 1

]

Conditions on the bond: [Rule 94, Sec. 1

]

1) To make and return,within 3 months, the estates inventory;2) To faithfully execute theduties of his trust, to manage and disposeof the estate according to wards bestinterests, and to provide for the wardsproper care/custody/education;3) To account for the estateand all proceeds/interest derivedtherefrom;4) At the expiration of histrust, to settle his accounts with the courtand deliver the remaining estate to theperson lawfully entitled thereto;

5) To perform all courtorders.

In case of breach of the bonds conditions,the bond may be prosecuted in the sameproceeding or in a separate action, for the useand benefit of the ward or of any person legallyinterested in the estate. [Rule 94, Sec. 3

]

NEW BOND

Whenever necessary, the court may requirea new bond to be given by the guardian. Afternotice to interested persons, the sureties onthe old bond may then be discharged from

further liability when no injury will result tointerested parties. [Rule 94, Sec. 2

]

GUARDIANS GENERAL POWERS AND

DUTIES

1) To pay the ward's just debts out of:a) the personal estate and thereal estates income;

b) if insufficient, the realestate (upon obtaining court order). [Rule96, Sec. 2

]

2) To settle all the wards accounts;

demand/sue/receive for all debts due the ward,or for the same and give discharges to thedebtor, on receiving a fair and just dividend ofthe estate and effects; and appear for the wardin all actions/proceedings, unless anotherperson is appointed for that purpose. [Rule 96,Sec. 3]

3) To manage the wards estatefrugally and without waste; apply theincome/profits to the comfortable and suitable

maintenance of the ward and his family; and ifthe income/profits are insufficient,sell/encumber the real estate (upon courtauthorization). [Rule 96, Sec. 4

] If the guardian delegates his dutiesto another, he shall be responsible for theothers actions in the premises and for anyresulting loss. [Zubeldia v. Hermanos]

Exception: If he shows that he

used reasonable care and discretion inthe manner of selecting those whom heemploys.

4) To render an inventory of thewards estate within 3 months after hisappointment; and an inventory and accountannually after the appointment. [Rule 96, Sec.7]

The inventory and account may becompelled upon the application of aninterested person. The inventories and accounts shallbe sworn to by the guardian. All the estate described in the firstinventory shall be appraised. The courtmay request the assistance of inheritancetax appraisers. If any property of the ward notincluded in an inventory already rendered isdiscovered/acquired by the ward, likeproceedings shall be had for inventory andappraisement within 3 months.

5) The court may authorize theguardian to join in an assent to an estatepartition held by the ward jointly or in commonwith others. The authority shall only be grantedafter hearing, notice to the wards relatives,

and a careful investigation as to the proposedactions necessity/propriety. [Rule 96, Sec. 5

]

6) Upon complaint of theguardian/ward or any person interested in thewards estate, that anyone is suspected ofhaving embezzled/concealed/conveyed awayany of the ward/estates property, the courtmay cite the suspected person to appear forexamination and may order to secure theestate. [Rule 96, Sec. 6

]

Purpose: To secure evidence from personssuspected of embezzling, concealing orconveying away any property of the ward

so as to enable the guardian to institute theappropriate action to obtain possession ofand secure title to the property. [Cui v.Piccio]

7) Upon the expiration of a year fromhis appointment, and as often thereafter asrequired, the guardian must present hisaccount to the court for settlement andallowance. [Rule 96, Sec. 8] A non-parent guardian is allowed the

amount of his reasonable expensesincurred in the execution of his trust, plus

just compensation for his services, notexceeding 15% of the wards net income.

Extra allowance may be made ineach case as the importance anddifficulty of the management of theestate may require. [Ramos v. PNB(1957)]

A guardian may be imprisoned for failure torender his account and ordered to deliverthe estate to his successor. [Doronila v.Lopez

]



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SELLING/ENCUMBERING THE WARDS

PROPERTY

PETITION [Rule 95, Sec. 1] Grounds for the petition:

1) If the estates income is insufficientto maintain the ward and his family;2) If it appears that it is for the wards

benefit that his real estate (or part thereof)be sold/encumbered and the proceeds putout at interest or invested.

The grounds enumerated in this section areexclusive. No order will be issued for anotherpurpose not found in this rule. Sale of thewards realty without court order is void. [Intonv. Quintana

]

The guardian may file a verified petitionwith the court which appointed him. Thepetition shall set forth the grounds, and prayfor authorization of the sale/encumbrance.

SHOW CAUSE ORDER [Rule 95, Sec. 2

]

If it seems probable that thesale/encumbrance is necessary/beneficial, thecourt shall direct the wards next of kin and allinterested persons to appear and show causewhy the petition should not be granted.

Next of kin - Relatives whose relationshipsare such as to entitle them to shares in theestate as distributes. [Lopez v. Teodoro]

HEARING [Rule 95, Sec. 3] At the time and place designated in theshow cause order, the court shall hearevidences and grant/refuse the petitions

prayer as the wards best interests require.

ORDER FOR SALE/ENCUMBRANCE [Rule 95, Sec. 4] After full examination, if it appears that it isnecessary/beneficial to the ward tosell/encumber the estate (or some portion ofit), the court shall order the sale/encumbrance. Contents of the order:1) That the proceeds be expended for the

maintenance of the ward and his family, orput out at interest, or invested;

2) Specific causes why the sale/encumbranceis necessary/beneficial;

3) May direct that estate be disposed of at

either public or private sale, subject toconditions on time and manner of paymentand security.

The guardians original bond shall stand assecurity for the proper appropriation of thesales proceeds; but the judge may require anadditional bond as a condition for the grantingof the order of sale. The order of sale cannot continue in forcefor more than 1 year without a sale being had.

The court may authorize and require theguardian to invest the sale/encumbrancesproceeds or the ward's money, for the bestinterest of all concerned. The court may make

other orders for themanagement/investment/disposition of theestate and effects. [Rule 95, Sec. 5

]

This seeks to protect the wardsfunds against imprudent or unsafeinvestments by the guardian. [PhilippineTrust Co. v. Ballesteros

]

The guardian cannot acquire by purchase,even at a public or judicial auction, theproperty of his ward. [Art. 1491, CC]

If the authority to sell was obtained undersuspicious circumstances indicative of fraudand collusion, the guardians sale maysubsequently be annulled by the court.[Mendoza v. Labrador] However, thecancellation of the guardians authority to sellwill not affect the buyers rights. [Margate v.Rabacal

]

Appeal is the proper remedy against a

court order authorizing the sale of the wardsproperty. [Lopez v. Teodoro (1950)]

GUARDIANSHIPS TERMINATION

GROUNDS FOR TERMINATION

1) If the incompetent is no longerincompetent. [Rule 97, Sec. 1

] The person who was declaredincompetent, or hisguardian/relative/friend, may petition thecourt to have his present competency

judicially determined. The petition shall be verified byoath, and shall state that the subjectperson is then competent. Upon receipt of the petition, thecourt shall fix the time for hearing, andcause notice to be given to the guardianand the ward. On the trial, the guardian, therelatives and (courts discretion) anyperson may contest the right to the reliefdemanded. Witnesses may be called andexamined by the parties or by the court. Ifit is found that the person is no longer

incompetent, his competency shall beadjudged and guardianship shall cease.2) If the incompetent dies.

3) If the guardian: [Rule 97, Sec. 2]a) becomes insane orincapable/unsuitable of discharging histrust;b) wasted/mismanaged theestate;c) failed for 30 days after it isdue to render an account or make a return;d) resigns. Upon notice to the guardian, thecourt may remove him and compel him to

surrender the wards estate to the personlawfully entitled to it.

An order removing a guardian is anorder constituting a final determination ofhis rights. Hence, the guardian may appeal.[Olarte v. Enriquez (1960)

]

A guardian may resign if it appearsproper to allow him. Upon the guardiansresignation/removal, the court may appointanother in his place.

4) If it appears that the guardianship is nolonger necessary, the court may discharge the

guardian. [Rule 97, Sec. 3]

The court which appointed the guardian isalso the court competent to decide the petitionfor restoration of to capacity. This is becausethe latter is merely a continuation of theoriginal guardianship proceeding. [Crisostomov. Endencia]

Final orders or judgments on theguardianships termination shall be served upon



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the civil registrar of the municipality/city wherethe incompetent resides or where his propertyis situated. [Rule 97, Sec. 5

]

GUARDIANSHIP OF NON-RESIDENT

INCOMPETENTS

The guardian of a nonresident estate has

management of all the wards estate within thePhilippines. [Rule 96, Sec. 1

]

Only the court which appointed the non-residents guardian has jurisdiction over theguardianship. [Rule 96, Sec. 1

]

ANCILLARY GUARDIANSHIP -Guardianship in a state other than that inwhich guardianship is originally grantedand which is subservient and subsidiary tothe later. [Johannes v. Harvey

]

After filing of petition, notice and hearing, ifthe court is satisfied that the nonresident is anincompetent rendering a guardian

necessary/convenient, it may appoint aguardian for the non-residents estate. [Rule93, Sec. 6]

IV. TRUSTEES

PROCEDURE FOR APPOINTMENT OFTRUSTEES UNDER RULE 98

DEFINITION

The legal relationship between a personhaving an equitable ownership in the propertyand another person owning the legal title to theproperty; the equitable ownership of the formerentitles him to performance of certain dutiesand the exercise of certain powers by the

latter. [Saltiga v. CA (1999)

] DECLARATION OF TRUST Act by whicha person acknowledges t

rem law 2008 specpro final

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