SPECIAL PROCEEDINGS

I. Rules of Special Proceedings

Ordinary Civil
Action
An action by which
a
party
sues
another:
for
the
enforcement
or
protection of a
right, or
for
the
prevention
or
redress
of
a
wrong

Special
Proceedings
A remedy by which
a party seeks to
establish a status,
right, or a particular
fact

Non-resident, but
with property in
the PH

physical habitation
or actual residence
or place of abode,
which may not be
necessarily his legal
residence/domicile.
Province where he
had estate

JURISDICTION OF PROBATE COURT

GROSS VALUE does not exceed 300k outside MM or 400k within
MM MTC
GROSS VALUE exceeds 300k outside MM or 400k within MM
RTC.

II. Settlement of Estate of Deceased

Procedural:

VENUE

GENERAL RULE: Probate court cannot issue writs of execution

Decedent is:
Resident of PH

Venue
Province where he
last resided
Note:
Residence
and domicile, for
purposes
of
settlement
of
estate, are different.
Residence
of
a
person
is
his
personal, actual, or

EXCEPTION:
1. to satisfy contributive shares of heirs, legatees, devisees
in possession of decedents assets
2. to satisfy costs when a person is cited for examination in
probate proceeding
3. to enforce payment of expenses of partition
Substantive:
GENERAL RULE: Probate court has no authority to pass upon
issue of ownership
EXCEPTION:

MJGambon

1. interested parties are all heirs

2. question is one of collation or advancement
3. parties consent to the assumption of jurisdiction by the
probate court and rights of third persons are not impaired
4. determination is only provisional WON property can be
included in the inventory without prejudice to final
determination of title in a separate action
Diffeerent modes of Settlement of Estate:
Extra-judicial Settlement of Estate (sec. 1, R74);
Partition (R69)
Summary Settlement of Estate of Small Value (sec3 R74)
Probate of Will (R75-79)
Petition for Letters of Administration in cases of Intestacy ((R79)
R74: Settlement of Estate
Ways of Settlement of Estate
Extrajudicial Settlement: Requirements
1. Extrajudicial settlement by agreement between heirs (ALL
of the heirs agree)
Requisites:
a. decedent left no will;
b. decedent left no debts;
c. heirs are all of age (or the minors are represented
by judicial or legal representatives)
d. division of estate by means of public instrument;
e. public instrument is filed with Registry of Deeds;
f. Publication of notice of the fact of extrajudicial
settlement by once a week for 3 consecutive
weeks;

g. Bond filed equivalent to the value of the personal

property.
NOTE: Should anyone of them, however, DISAGREE, the
disagreeing party may file an ordinary court action for
partition.
2. Extrajudicial settlement by affidavit of self-adjudication in
case of sole heir
Requisites:
a. decedent left no will;
b. decedent left no debts;
c. there is only one heir;
d. division of estate by means of Affidavit of SelfAdjudication;
e. Affidavit is filed with Registry of Deeds;
f. Publication of notice of the fact of extrajudicial
settlement by once a week for 3 consecutive
weeks;
g. Bond filed equivalent to the value of the personal
property.
NOTE: 1. It shall be PRESUMED that the decedent left no debts if
no creditor files a petition for letters administration within two
years AFTER the death of the decedent.
2. No extrajudicial settlement shall be binding upon any
person who has not participated therein or had no notice thereof.
Judicial
1. Summary Settlement of Estates of Small Value:
Requisites.

MJGambon

a. gross value of the estate does not exceed

Php10,000;
b. petition filed by an interested person (or any
creditors and even without consent of the heirs);
c. hearing (shall not be less than 1 month nor more
than 3 months from the date of last publication of
a notice);
d. publication of notice for 3 consecutive weeks in a
newspaper of general circulation in the province
e. Bond to be determined by the court, conditioned
for the payment of any just claim which may be
filed under the succeeding section. (sec3,R74)
The COURT MAY SUMMARILY, without appointing any
administrator or executor and without delay, TO GRANT, if
proper the following:
a. Allowance of the will, if any, to determine who are
the persons legally entitled to participate in the
estate and to apportion and divide it among them
after payment of such debts of the estate as the
court may found to be due.
b. Make such order as may be just respecting the
costs of the proceedings.
c.
LIABILITY of Distributees and Estate (sec4, R74)
Bars distributes or heirs from objecting to an extrajudicial
partition after the expiration of two years from such partition, is
applicable only to:
a. Person who have participated or taken part or had notice
of the extra-judicial partition;
b. When the provisions of sec1R74 have been strictly
complied with.

NOTE: An heir or other person has been unduly deprived of his

lawful participation in the estate may COMPEL the settlement of
the estate in courts for the purpose of satisfying such lawful
participation.
(payments shall be against the bond)
Intestate Proceedings for settlement: Issuance of letters
administration
Testate Proceedings: Delivery of will: Probate of Will and Issuance
of Letters testamentary;
Actions
to
compel
settlement
of
lawful
participation/Partition/Reconveyance
R75: Production of Will; Allowance of Will Necessary.
Probate of Will
RULE: No will shall pass either real or personal UNLESS it is
PROVED and ALLOWED in the proper court. (Appealable)

Allowance of the will shall be CONCLUSIVE as to its due

execution.

RULES and PROCEDURE:

1. CUSTODIAN of the will shall, within 20 days AFTER having
knowledge of death of the testator, deliver the will to the
court or to the executor named therein.
2. The EXECUTOR of the will shall, within 20days after having
knowledge of the death of the testator or that he is
named executor (if he obtained such knowledge after the
death of the testator) present such will to the court
UNLESS the will has reached the court in any other
manner, within such period. Thus, he must signify to the
court in writing his acceptance of trust or his refusal to
accept it.

MJGambon

NOTE: the custodian of the will, after the death of the testator,
who neglects without reasonable cause to deliver the same,
when ordered to do so, the court may order for his arrest and
there kept until he delivers the will.
R76: ALLOWANCE OR DISALLOWANCE OF THE WILL
Who may petition for the allowance of the will:
a. Executor, devisee or legatee named in the will; or
b. Any other person interested in the estate (may be a
creditor)
c. Testator himself may, during his lifetime, petition the court
for the allowance of his will.
GENERAL RULE: Probate of will involves only the extrinsic
validity (dict due execution, identity of the testator, compliance
with the formalities prescribed by law, testamentary capacity of
the testator)
EXCEPT: If on its face, the will is null and void or theres
preterition.
NOTE: There must be notice of the time and place (fixed by the
court) for proving the will to be addressed to known heirs,
legatees, and devisees of the testator either by mail or personal
service. MANDATORY.

Notice of time and place must be PUBLISHED for 3 weeks

successively EXCEPT when the testator himself filed for
the probate of the will.
Copies of the notice must also be given to the designated
heirs, legatees, and devisees of the testator resident in
the PH at their respective residences EXCEPT when the

testator himself ask for the allowance, notice shall be sent

only to compulsory heirs.
By mail: deposit in the post office with postage prepaid thereon
at least 20 days prior the hearing.
By personal service: at least 10 days prior the hearing.
PROOF AT HEARING:
If NO person appears to CONTEST the allowance of the
will, the court may grant allowance thereof on the
testimony of one subscribing witness only.
In case of NOTARIAL WILL (NW), all subscribing witnesses
and the notary must be produced and examined.
If all or some of them are present in the PH but outside
the province where the will has been filed, their deposition
must be taken.
In case of holographic will (HW), at least one witness who
knows the handwriting and signature of the testator.
In case the HW is contested, 3 witnesses who knows the
handwriting and signature is necessary to prove the
authenticity and for its allowance.
In the absence of such witnesses and if the court deem it
necessary, the expert witness may be resorted to.
PROOF OF LOST OR DESTROYED WILL:
RULE: No will shall be proved as a lost or destroyed will UNLESS:
1. The due execution and validity of the will is
established;
2. The will is proved to have been in existence at the
time of death of the testator; or
3. Shown to have been fraudulently or accidentally
destroyed in the lifetime if the testator without his
knowledge;

MJGambon

4. Its provisions are clearly and distinctly proved by

at least 2 credible witnesses.
When a LOST WILL is PROVED, the provisions thereof must be
distinctly stated and certified by the judge under the seal of the
court and the certificate must be filed and recorded as other will
are filed and recorded.
GROUNDS for DISALLOWING the WILL:
a. Not executed and attested as required by law;
b. Testator was insane, or otherwise mentally incapable to
make a will at the time of its execution;
c. Executed under duress or the influence of fear or threats;
d. Procured by unde and improper pressure and influence on
the part of the beneficiary or of some other person for his
benefit;
e. Signature of the testator was procured through fraud, or
trick.
REPROBATE OF THE WILL: Necessary Evidence.
a. Due execution of the will in accordance with the foreign
laws;
b. Testator had his domicile in the foreign country and not in
the PH;
c. The will has been admitted to probate in such foreign
country;
d. The fact that the foreign tribunal is a foreign court;
e. Laws of a foreign country on procedure on allowance of
wills.
R78: Letters Testamentary and of Administration, WHEN
and TO WHOM Issued.
INCOMPETENT to serve as executors or administrators:
1. Minor;

2. Not a resident of the PH; and

3. In the opinion of the court UNFIT to execute the duties of
the trust by reason of DRUNKENNESS, IMPROVIDENCE,
WANT OF UNDERSTANDING or INTEGRITY and by reason of
CONVICTION of an offense involving moral turpitude.
ORDER OF PREFERENCE when NO executor is named, or the
executor/s are incompetent, refuse the trust or fail to give the
bond or a person dies intestate.
1. Surviving husband or wife, as the case may be, or next of
kin, or both, in the dicretion of the court;
2. If such surviving husband or wife, as the case may be, or
the next of kin, or person selected by them, be
incompetent or unwilling or neglects to apply for
administration or requst that the administration be
granted within 30 days after the death of the testator, it
may be granted to one or more PRINCIPAL CREDITORS;
3. If there is no such creditor competent and willing to serve,
it may be granted to such other person as the court may
select.
R80: Special Administrator
Special Administrator -- representative of decedent appointed by
the probate court to care for and preserve his estate until an
executor or general administrator is appointed.
OBJECT for appointment of special administator:
To preserve the estate until it can pass into the hands of a
person fully authorized to preserve it for the benefit of the
creditors and heirs.
APPOINTMENT of Special Administrator: When.
1. When theres delay in granting letters testamentary or
administration;

MJGambon

2. When the executor has a claim against the estate he

represents.
NOTE: Appointment of special administrator is not appealable.
The order appointing special administrator is interlocutory.
BONDS:
Individual Bond is one which is subject only to one condition, to
pay the debts of the estate.
Additional Bonds: When.
1. Theres a change in circumstance;
2. Other sufficient cause.
R82: Revocation of Administration, Death, Resignation
and Removal of Executors and Administrators.
NOTE: Mere discovery of a document purporting to be the last
will and testament of the decedent after appointment of an
administrator does not ipso facto nullify the letters of
adminitrator already issued or even authorized their revocation
until the will has been roved and allowed UNTIL the will has been
proved and allowed.
PURPOSE of Administration:
Liquidation of the estate and distribution of the residue
among the heirs and legatees.
NOTE: Approval of the project of partition does not necessarily
terminate administration.
GROUNDS for Removal of an Administrator: (NOT exclusive)
1. Neglects to render an ACCOUNT and settle the estate
accdg to law;
2. Neglects to perform an ORDER or judgment of the court;

3. Neglects to perform DUTY expressly provided by law;

4. ABSCONDS, or becomes INSANE or otherwise incapable or
unsuitable to discharge trust.
R86: Claims against the Estate.
PURPOSE of Presentation of Claims against the Estate:
To apprise the administrator and the probate court of the
existence of claim so that a proper and timely
arrangement may be made for its payment in full or in by
pro rata portion in the ue course of the administration.
STATUTE of NonClaims (sec2R86)
PURPOSE: to settle the estate with dispatch, so that the residue
may be delivered to the persons entitled thereto without being
afterwards called upon to respond in their claims.
TIME within which Claim must be filed:
Shall not be less than 6 months not more than 12 months
from the day of the first publication of the notice thereof.
EXCEPTION:
ROC gives the court discretion to ALLOW claims BEYOND
the period fixed by law PROVIDED they are filed within one
month from the expiration of such period but in no case
beyond the entry of the order of distribution. (BELATED
CLAIMS)
NOTE: at any time before an order of distribution is not
exclusive. Money claims against the estate may be allowed any
time before an order of distribution is entered at the discretion of
the court for cause and upon such terms as are equitable.
PHILOSOPHY behind the rule:

MJGambon

Upon the death of a defendant, all money claims should

be filed in the testate or intestate proceedings to avoid
useless duplicity of procedure.

PURPOSE for such time:

1. To insure speedy settlement of the affairs of the deceased
person; and
2. Te early delivery of the property to the person entitled to
the same.

Executor

Administrator

Person named by
the testator in the
will

Appointed by the
court when:
1. testator did
not name
any executor
in the will;
2. executor
named is
incompetent,
refuses to
accept the
trust or fails
to give a
bond

Testator may
provide that he
may serve without
a bond
Compensation may
be provided in the
will

Must always give a

bond

CLAIMS that must be filed with the Probate court otherwise

barred forever:
a. All claims for money against the decedent arising from
contract, express or implied;
b. All claims for funeral expenses and expenses for the last
sickness of the decedent;
c. Judgment for money against the decedent.
HOW to File a Claim:
A claim may be filed by:
1. Delivering the same with the necessary vouchers to the
clerk of court; and
2. By serving a copy thereon to the
executors/administrators.

If the claim be founded on a bond, bill or note or any other

instrument, the original need not be filed, BUT a copy
thereof with all indorsements shall be attached to the
claim and filed therewith.
On demand, however, of the executor/administrator or by
ordr of the court, the original shall be attached UNLESS it
be lost or destroyed.

Administrator v. Executor v. Special Administrator

Special
Administrator
Instances when
appointed:
1. when theres
delay in
granting the
letters
testamentary
or letters of
administration
;
2. when the
executor
named has a
claim against
the estate he
represents
Must give a bond

Compensation
governed by ROC
Appointment may
be subject of appeal
One of its obligation
is to pay debts of
the estate

Order of appointment
is interlocutory.
Hence, unappealble.
Cannot pay debts
unless ordered by the
court
General
rule:
creditors cannot sue
him for payment of

MJGambon

debts
Except:
1. creditor would
suffer adverse
effect
od
running
of
statute
of
limitations;
2. mortgagee
may bring an
action
for
foreclosure of
mortgage
of
property.
Claims Against Estate v. Claims against
Executor/Administrator
Claims Against
Estate
1. all money claims
against
decedent arising
from contract
2. all claims for
funeral
expenses and
expenses for
last sickness of
decedent
3. money
judgment
against
decedent

Claims Against
Executor/Administ
rator
1. actions to
recover personal
or real property
from the estate
or an interest
therein
2. actions to
enforce a lien
thereon
3. actions to
recover damages
for an injury to
persons or
property

EFFECT of Death on Pending Actions:

1. At time of death of decedent, action is still pending:
a. if action for recovery of money claims: proceed
with the action and in case of favorable judgment,
plaintiff should enforce the judgment as a claim
against the estate (Rule3, Sec.20)
b. if action involves claims other than money claims:
the executor/administrator will be substituted as
defendant.
2. At time of death of decedent, there is already a final
judgment:
a. if there is no levy yet on property:
(i)
money claim should be filed against
estate.
(ii)
Execution will issue of action is for
recovery of real or personal property
b. if there already a levy on the property: proceed
with the execution (since property already
separated from the estate).
REMEDIES of creditors holding a mortgage:
1. Abandon the security and prosecute the claim against the
estate

MJGambon

2. Foreclose the mortgage ad realize upon his security. Any

deficiency may be recovered by filing a claim against the
estate.
3. Rely upon the mortgage and foreclose the same at any
time within the period of the statute of limitations.
a. if at the time of foreclosure, no distribution yet: file
claim against executor/administrator.
b. otherwise: file claim against the heir who has
possession of the mortgaged property.
GENERAL RULE: Creditors cannot maintain an action in behalf
of the estate.
EXCEPT: When the following requisites are present:
1. there is a deficiency of assets in the hands of the
executor/administrator for the payment of debts
2. the decedent had made or attempted to make in his
lifetime fraudulent conveyances of his property and such
conveyance would be void as against his creditors
3. the executor or administrator has shown no desire to file
an action or failed to institute such action within
reasonable time
4. leave if court is granted to the creditor/s to file an action
5. bond is filed
6. the action of the creditor/s is in the name in the
executor/administrator.
GENERAL RULE: Heirs cannot bring suit on behalf of the estate
of decedent if there is an administrator or executor
EXCEPT:
1. the administrator or executor is unwilling or refuses to
bring suit
2. the administrator or executor is alleged to have
participated in the act complained of and he is made a
party defendant.

MJGambon