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RULE 73 - Settlement Of Estate Of Deceased Persons

 

By:

Almujer U. Ammang

 

In summary, Rule 73 deals about:

·         Where estate of deceased persons settled

·         Where estate settled upon dissolution of marriage

·         Process

·         Presumption of death

 

Section 1

Where estate of deceased persons settled

 

The first section of Rule 73 tells us where the estate of a deceased person will be settled – whether he/she is a Filipino citizen or an alien residing in the Philippines at the time of his death.

 

·         If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death;

 

·         if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate

 

·         The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts.

 

·         The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record

 

Section 2

Where estate settled upon dissolution of marriage

 

When the marriage is dissolved by the death of the husband or wife, the community property shall be:

 

·         inventoried,

·         administered, and

·         liquidated, and

·         the debts thereof paid, in the testate or intestate proceedings of the deceased spouse.

 

• If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either.

 

• àIf a person does not perform an order or judgment rendered by a court in the exercise of its probate jurisdiction, it may issue a warrant for the apprehension and imprisonment of such person until he performs such order or judgment, or is released.

 

Section 3

Process

 

In the exercise of probate jurisdiction, Courts of First Instance may:

 

·         issue warrants and process necessary to compel the attendance of witnesses or;

·         to carry into effect theirs orders and judgments, and all other powers granted them by law.

 

 

Section 4

Presumption of death

 

In case a decedent disappears but there is no certainty as to whether he/she is alive or not, section 4 applies…

 

·         For purposes of settlement of his estate, a person shall be presumed dead if absent and unheard from for the periods fixed in the Civil Code.

 

·         But if such person proves to be alive, he shall be entitled to the balance of his estate after payment of all his debts.

 

·         The balance may be recovered by motion in the same proceeding.

 

 

 

 

 

RULE 74 - SUMMARY SETTLEMENT OF ESTATES

 

by: Wilbert Cuala

What Are The Rules With Respect To The Estate Left By A Decedent ?
The general rule is that when a person dies leaving a property, the same should be judicially administered and the court should appoint a qualified administrator, in the order established in section 6, rule 78, in case the deceased left no will, or in case he had left one, should he fail to name an executor there in.

Section 1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT OF HEIRS
Decedent Left Several Heirs
If the decedent left no will and no debts and the heirs are of legal age, the party without securing letters of administration may divide the estate among themselves by means of public instrument or by stipulation for partition and shall file it at the registry of together with a bond equivalent to the value of the property involved as certified to under oath by the parties concerned.
 

REQUISITE OF VALID EXTRAJUDICIAL SETTLEMENT
• Decedent died intestate
• The estate has no outstanding debts at the time of settlement
• The heirs are of all legal age, or the minor are represented by judicial guardians or legal representative
• Settlement is made in public instrument, stipulation or affidavit duly filed in the registry of deeds with a bond equivalent to the amount of property
• The fact must be published in news paper of general circulation once a week for three consecutive weeks

What if the heirs does not agree Judicial Administration of the Estate?
• If the heirs cannot agree in the extra judicial partition and apportionment of the estate, the heirs can institute a special proceeding for administration of the estate.
• There must be a good reason to warrant judicial administration but not including the following reason:
Dispute among heirs
Multiplicity of suits
To have legal capacity to appear


If The Decedent Left Only One Heir
• Under the Rule if there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of registry of deeds.
What Is An Affidavit Of Self Adjudication?
• It is an affidavit require in Rule 74, Sec. 1 to be executed by the sole heir of the deceased person in adjudicating to himself the entire estate left by the decedent. It is filed with the registry of deeds.
The rule provides that the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file simultaneously with and as a condition precedent to the filing of the public instrument or stipulation in the action for partition, or of the affidavit in the registry of deeds, and a bond with the said registry of deeds, in amount equivalent to the value of the property involved as certified to under oath by the parties concerned and conditioned upon the payment of any just claim that may be filed under Section 4 of this Rule.

Section 2. SUMMARY OF ESTATE OF SMALL VALUE
• It is a summary proceeding without need of an appointment of an administrator or executor for the settlement of the estate of a deceased person who died testate or intestate. Where the gross value thereof does not exceed P10,000.00.
Requisite Summary Of Estate Of Small Value
• Value of estate does not exceed P10,000.00
• Died testate or intestate
• RTC has jurisdiction over person in interest
• Published once a week for 3 consecutive week in newspaper of general circulation in the province
• Hearing for not less than 1 month nor more than 3months
• Notice to the interested person
• The court direct may direct without executor or administrator to settle the estate


Distinguished extrajudicial from settlement of small value.
 

Requires court intervention Requires court intervention by summary proceedings
Value of estate is immaterial Applicable where the gross value of the estate is P10,000.00.
Allowed only in intestate succession Allowed in both testate and intestate estates.
Proper when there are no outstanding debts of the estate at the time of settlement Available even if there are debts.
Instituted by agreement of all heirs Instituted by any interested party and even by the creditor of the estate, without the consent of all the heirs

Section 3. BOND TO BE FILED BY DISTIBUTEES
The court before allowing the partition may require the distributees if the property other than real is to be distributed , to file a bond in an amount to be fixed by the court conditioned for the payment of any just claims which may filed.

Section 4. Liability of Distributees and Estate
Presumption That The Decedent Left No Debts

It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (2) years after the death of the decedent.
The rule bars distributees or heirs from objecting the partition after two years from such partition. Is the rule applicable to persons who had no knowledge of it?
The limitation are not applicable. The provision of Sec. 4, barring the distributee or heirs from objecting to an extra judicial partition is applicable only to :
1. Person who participated or taken part or had notice of the extra judicial partition
2. When the provision of Sec.1 has been strictly complied with.

Section 5. Period For The Minor Or An Incapacitated Person To File Claim.
Section 5 provides that if on the date of the expiration of the period of two years prescribed in preceding section the person authorized to file claim is a minor or mentally incapacitated , or is in prison or outside of the Philippines he may present his claim within one year after such disability is removed.
What Are The Remedies
3. Within 2 years: claims against bond or the real estate or both
4. Rescission: incase of preterition of compulsary heir in partition tainted with bad faith
5. Reconveyance of real property
6. Action to annul a deed of extra judicial settlement
7. Petition for relief
8. Action to annul settlement within two years


Sample Problem
A died intestate, leaving several heirs and substantial property here in the Philippines.
1. Assuming that A died without debts, as a counsel for A heirs, what step would you suggest to settle A’s estate in least expensive manner.
As a counsel for the heir of A, I would suggest that the estate be settled in a least expensive manner by an extrajudicial settlement of estate by agreement among heirs executed by means of public instrument to be file to the registry of deeds together with a bond in an amount equivalent to the value of the property involved as certified under oath and conditioned upon payment of any just claim that may be filed within two years by an heir or other person unduly deprived of participation in the estate.

2. Assuming that A left only one heir and no debts, as counsel for A’s lone heir what step would you suggest?
A’s lone heir may adjudicate to himself the entire estate by executing an affidavit of self adjudication to be filed with the office of the registry of deed upon submission of other documents.

3. Assuming that the value of A’s estate does not exceed P10,000.00 what remedy is available to obtain speedy settlement of his estate
To obtain speedy settlement of his estate the remedy available is to proceed with the summary settlement of estate of small value under adhering to the provision of Section 2, Rule 74 of the rules of court


Sample Problem
Nico claim to be an illegitimate child of the deceased Charis, instituted an intestate proceeding to settle the estate of the latter. He also prayed that he be appointed administrator of the said estate. Caloy the surviving spouse, opposed to the petition and Nico’s application to be appointed as administrator of the said estate. Subsequently Caloy claiming to be the sole heir of Charis executed an affidavit of adjudication, adjudicating unto himself the entire estate of the deceased wife. Afterwards Caloy sold the entire estate to Tricia.
Does the action of Caloy legal?
The action of Caloy in adjudicating the entire estate his late wife to himself is not legal because under the Rules of Court, an affidavit of self adjudication is allowed only if the affiant is the sole heir of the deceased. In this case , it appears that there is someone who also claims to be an heir that there is a pending judicial proceeding for the settlement of the estate would suggest that there is a doubt to whether he is the sole heir.

Question:
If the person had no knowledge or had not participated in the extrajudicial settlement, is he bound thereby by reason of constructive notice of publication.
Answer:
No, publication in this case does not constitute constructive notice. Extrajudicial Settlement of Estate under Sec.1 of Rule 74 is an ex-parte proceeding, and the rule plainly states that person who does participate or had no notice of an extra judicial settlement will not be bound thereby and contemplate a notice that has has sent out or issued before any deed of settlement or partition is agreed upon, and not after such an agreement has been executed.
The publication of the settlement does not constitute constructive notice of the heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution; the requirement of publication is geared for the protection of the creditor and was never intended to deprived heirs of their lawful participation in the decedent estate.

Utolo vs Pasion
 

 

 

RULE 75 - PORDUCTION OF WILL LLOWANCE OF WILL NECESSARY

 

By: Efren Dela Paz

 

 

Production or Allowance of Wills.

It is the act of proving in court a document purporting to be the last will and testament of a certain deceased person for the purpose of its official recognition, registration and carrying out its provision in so far as they are in accordance with law.

 

Is the allowance of a will necessary?

Yes, the allowance of a will is necessary. Rule 75, section 1 is explicit. No will shall pass either real or personal estate unless it is proved and allowed in the proper court.

 

Is the probate of the will necessary?

Yes. The probate of the will is mandatory.

Does a will have force and effect even if not probated?

No. until admitted to probate, a will has no effect and no right can be claimed thereunder.

 

Is a decree of probate conclusive as to it’s due execution?manahan

Yes, such allowance of the will shall be conclusive as to its due execution as stated in rule 75, section 1.

A decree of probate is conclusive with respect to the due execution of the will and it cannot be impugned on any grounds except that of fraud, in any separate or independent action or proceeding.

 

Concept and extent of the meaning of due execution.

Due execution covers the following:

·         The will was executed in accordance with the strict formalities of the law.

·         The testator was of sound and disposing mind at the time of the execution of the will.

·         Consent is not vitiated by any duress, fear or threats.

·         The will was not procured by any undue influence from the beneficiary or by some other person of his benefit;

·         The signature of the testator is genuine.

 

 

May a probate court pass upon the intrinsic validity of a will?

No. in a special proceeding for probate of a will, the issue by and large is restricted to the extrinsic validity of the will, i.e. whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. As a rule, the question of ownership is an extraneous matter which the probate court cannot resolve with finality.

 

Is the doctrine of estoppel applicable in probate proceedings?

No. the doctrine of estoppel is not applicable in probate proceedings since the presentation and the probate of a will are required by public policy.

 

What are some issues that may be brought up before the probate court?

The determination of whether a property should be included in the inventory within the jurisdiction of a probate court. It may also include the determination of who are the heirs of the decedent; the validity of a waiver of hereditary rights; the status of each heir and all other matters incidental to the administration, settlement and distribution of the estate.

 

Is the probate court a court of limited jurisdiction?

Yes. A probate court is a court of limited jurisdiction. As such, it may only determine and rule upon issues relate to settlement of the estate of deceased person such as administration, liquidation and distribution of the estate. A probate court is a tribunal of limited jurisdiction. It acts on matters pertaining to the estate but never on the rights to property arising form contracts.

 

 

 

 

Rule 76 - Allowance and Disallowance of Will

by: Kring De Vera

 

 

 

Who may file a petition for probate of a will?

·         Executor

·         Devisee

·         Legatee

·         Testator

Any interested party

Interested Party is a person who would be benefited by the estate either as an heir or a claimant.

When must a will be presented for probate?

 

·         during his lifetime

·         at any time after the death of the testator

·         Contents of PetitionThe jurisdictional facts

·         Names,ages, residence of the heirs,legatees, devisees of the testator or decedent.

·         Character and value of the estate,

·         Person prayed to be the administrator

·          Person in possession of the will.             

When does the court acquire jurisdiction over interested persons and res?

·         Upon publication for 3 weeks successively of the order setting the case for hearing AND sending notices to all persons interested.

                ANTE MORTEM     
                No publication is necessary when the probate is done by the testator himself during his lifetime               and notice shall be made only to the compulsory heirs.

Modes of Notifying:
                Notice must be given to the designated or known heirs, legatees, devisees, executor or co-       executor .
 

·         Through mail: 20 days before the hearing.

·          Personal Notice: 10 days before the hearing.

Proof at hearing  (Uncontested will)
 

·         Notarial will- at least one subscribing witness should testify as to the due execution of the will.

·         Holographic will- at least one witness to prove the handwriting and the signature of he testator.

Proof of lost or destroyed will

·         due execution and validity of the will;

·         will was in existence when testator died, or if it was not, that it has been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge; and

·         the provisions of the will are clearly  established by at least two credible witnesses.

 

Proof when witness  do not reside in the province
                Deposition is done in an office outside the court to refresh the memory of the witness or to      impeach their testimony. It is usually used where the deponent has become unavailable.

 

How will the deposition be taken?
A copy of the will shall be sent along with the questions drafted by both parties and the witnesses shall be examined regarding the will as if he testified in court.

 

Proof when witnesses dead or insane or do not reside in the Philippines
The court may admit the testimony of other witnesses to prove the sanity of the testator and the
 due execution of a will. It may admit testimony of 1 witness to prove the handwriting of the testator.

Meaning of Due Execution

               

·         That the will was executed strictly in accordance with the formalities required by law

·         That the testator was of sound and desposing mind at the time of its execution

·         That there was no vitiation of consent through duress, fear or threats

·         That the signature of the testator is genuine.

If all the subscribing witnesses are dead, incompetent or unavailable, it will not prevent the establishment of the due execution and attestation of the will as long as its essentials are proved.

 

If the proponent cannot present all the subscribing witnesses, proof of will by non-subscribing witness cannot be authorized.

Grounds for disallowance of will:

·         If not excuted and attested as required by law;

·         If the testator was insane or otherwise mentally incapable at the time of its exeution;

·          If it was executed under duress or  influence of fear or threats. 

·         If it was procured by undue and improper pressure and or on the part of beneficiary, or of some other person for his benefit.

·         If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the of time of fixing his signature  thereto.

Probate of a Notarial will
Formal solemnities include subscription, attestation and acknowledgement.

Probate of a Holographic will
It must be autographic or must be entirely written, dated and signed by the testator himself.

 

Subtantial Compliance

  If the will has been executed in substantial compliance with the formalities of law, and the possibility of fraud or badfaith is obviated, said will must be admitted for probate.

Separate wills which contain essentially the same provision and pertain to properties  which  are conjugal in nature,  dictate their joint probate.

Contest to a will
                Contestant must:

·         State the opposition in writing

·         Serve a copy on the petitioner and other interested parties.

Subscribing witness produced or accounted in a contested will
Notarial wills- ALL subscribing witnesses AND notary public.
 If any or all the witnesses (i) testify against the execution of the will, (ii) do not remember attesting thereto, or (iii) of doubtful credibility, the will may be allowed if the court is satisfied  from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law.

Holographic Wills - 3 witnesses who know the handwriting of testator. In the absence thereof, testimony of an expert witness may be resorted to.

General Rule: Holographic will if destroyed CANNOT be probated unless there exists a Photostat or Xerox copy thereof.

Probate of a Holographic will by the testator
If the petition for probate is filed by the testator himself and where no contestion is filed, the will must be admitted for probate.

 

If contested, the burden of proof of disproving its genuineness and due execution shall be on the part of contestant.

Certificate of allowance attached to a proved will

When the will has been proved, a certificate of allowance, signed by the judge and attested by the seal of the court shall be attached to the will and recorded by the clerk. Attested copies of devising real estate &certificate of allowance thereof shall be  recorded in the Register of Deeds of  the province which the lands lie.

 

 

 

 

 RULE 77  ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER

 

SECTION 1.

  Will proved outside Philippines may be allowed here.

 

SECTION 2.

  Notice of hearing for allowance.

WHAT SHOULD BE FILED

Petition for allowance accompanied with:

  Authenticated copy of the will

  Authenticated decree of the allowance thereof.

 

SECTION 3.

  When will allowed, and effect thereof.

 

REQUISITES OF THE ALLOWANCE OF A WILL ALLOWED IN A FOREIGN STATE

The applicant must introduce evidence to establish:

The due execution of the will in accordance with the foreign laws;

The testator has his domicile in the foreign country and not in the Philippines

 

REQUISITES OF THE ALLOWANCE OF A WILL ALLOWED IN A FOREIGN STATE

The will has been admitted to probate in such country

 the fact that the foreign tribunal is a probate court

 the laws of a foreign country on procedure and allowance of wills

 

Section 4.

  Estate, how administered.

 

EFFECTS OF THE ALLOWANCE OF A WILL UNDER RULE 77:

 Treated as if originally proved and allowed in the Philippine Courts

 Letters of administration shall extend to all estates in the Philippines

 

EFFECTS OF THE ALLOWANCE OF A WILL UNDER RULE 77:

After payment of just debts and expenses of administration, the residue of the estate shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country

 

 

 

 

RULE 78 LETTERS TESTAMENTARY AND OF ADMINISTRATION WHEN AND TO WHOM ISSUED

 

BY: MARJEAN R. VALMONTE

 

PERSONS WHO CAN ADMINISTER THE ESTATE

Executor

Administrator; and

Administrator with a will annexed.

 

WHO MAY SERVE AS EXECUTOR/ADMINISTRATOR?

Any competent person may serve as executor or administrator.

 

SECTION 1. WHO ARE INCOMPETENT TO SERVE AS EXECUTOR/ADMINISTRATOR?

 

· a minor

· A non-resident of the Philippines

· One who, in the opinion of the court is unfit to exercise the duties of trust by reason of:

- drunkenness

-improvidence

-want of understanding and integrity

-Conviction for an offense involving moral turpitude.

 

MAY THE EXECUTOR OF AN EXECUTOR BE ALLOWED TO ADMINISTER THE ESTATE?

 

No, Under Section 2, the executor of an executor shall not, as such, administer the estate of the first testator.

 

MAY A MARRIED WOMAN SERVE AS EXECUTRIX OR ADMINISTRATRIX?

· Yes, she may serve as provided under Section 3 of Rule 78. Likewise, the marriage of a single woman shall not affect her authority so to serve under a previous appointment.

 

WHAT AUTHORITY IS ISSUED TO THE PERSON WHO ADMINISTERS THE ESTATE?

· Letters testamentary- authority issued to an executor named in the will to administer the estate;

· Letters of administration- authority issued by the court to a competent person to administer the estate of the deceased who died intestate;

· Letters of administration with a will annexed- authority issued by the court to a competent person to administer the estate of the deceased if the executor named in the will refused to accept the office, or is incompetent.

 

WHAT IS THE RULE IF SOME CO-EXECUTORS ARE DISQUALIFIED?

Section 5 provides that when all of the executors named in a will can not act because of incompetency, refusal to accept the trust, or failure to give bond, on the part of one or more of them, letters testamentary may issue to such of them as are competent, accept and  give bond, and they may perform the duties and discharge the trust required by the will.

 

 

SECTION 6. WHEN AND TO WHOM LETTERS OF ADMINISTRATION GRANTED.

If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted:

 

· To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if incompetent and willing to serve;

· If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve;

· If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.

 

CAN THE COURT SET ASIDE THE ORDER OF PREFERENCE?

As a general rule, the court cannot. The Rules of Court provides for the order of preference in the appointment of an administrator.

 

 

UNDER WHAT CIRCUMSTANCES MAY THE COURT REJECT THE ORDER OF PREFERENCE?

In case the persons who have the preferential right to be appointed under the Rule are not competent or are unwilling to serve, administration may be granted to such other person as the court may appoint.

 

 

WHAT IS THE SCOPE OR LIMIT OF ADMINISTRATION?

The general rule universally recognized is that administration extends only to the assets of a decedent found within the state or country where it was granted, so that an administrator appointed in one state or country has no power over the property in another state or country.  

 

Problem 1

Sergio Punzalan, Filipino, 50 years old, married, and residing at Ayala Alabang Village, Muntinlupa City, of sound mind and disposing mind, executed a last will and testament in English, a language spoken and written by him proficiently. He disposed of his estate consisting of a parcel of land in Makati City and cash deposit at the City Bank in the sum of P300 million. He bequeathed P50 million each to his 3 sons and P150 million to Susan, his favorite daughter-in-law. He named his best friend, Cancio Vidal, as executor of the will without bond.

 

Question

 

Can the probate court appoint the widow as executor of the will?

 

Answer

Yes, the probate court can appoint the widow as executor of the will as Section 6 of Rule 78 of the Rules of Court provides that if the executor named in the will is incompetent, refuses the trust, or fails to give bond, administration shall be granted to the surviving spouse as the case may be, if competent and willing to serve.

Problem 2

An illegitimate sister of the deceased, and the latter’s legitimate spouse could not agree as to who should be appointed by the court as special administrator.

 

Question

Who has preference and why?

 

Answer

The surviving spouse is to be preferred, as in the appointment of a regular administrator. The reason for the preference is clear: aside from her share in the conjugal partnership, the spouse also is an heir of the deceased. She has, therefore, a greater interest in administering the entire property correctly than any other relative.

 

CASE: NAVAS SIOCA VS. GARCIA

 

 

 

RULE 79 - Opposing Issuance of Letters Testamentary, Petition and Contest for Letters of Administration

 

By: James Villalon

 

Sec  1. of rule 79

Opposition to issuance of letters testamentary. Simultaneous petition for administration.

-state grounds why LT should not be issue to the executors

-instantaneous filing of LA with will annexed

 

Grounds for Opposition

a. In Letters Testamentary

                        -incompetence

b. In Letters of Administration

-incompetence

-preferential right of the heir

 

Letters of Administration with will annexed?

- It is the authority issued  by the court to a competent person to administer the estate if the executor named in the will refused to accept

 

Sec  2. of rule 79

Contents of petition for letters of administration

1.Jurisdictional facts

2.names, ages, and residences of the heirs, and the names and   residences of the creditors, of the decedent

3.probable value and character of the property of the estate
4. name of the person for whom letters of administration are prayed.

 

Who may oppose or petition?

-Any person interested in a will (Saguinsin v. Landayag 6 SCRA 874)

 

Who are interested person?

One who would  be benefited by the estate such as :

·         An heir

·          has a claim against the estate (creditor)

Jurisdictional facts

·         Death of the testator

·          his residence at the time of death

·          the province  of his estate –if inhabitant of a foreign country

 

Sec  3. of rule 79

Court to set time for hearing. Notice thereof.

-court fix the time and place for hearing

- Cause notice to the interested person

 

Sec 4. of rule 79

Opposition to petition for administration.

-interested person may contest the petition on the ground of INCOMPETENCY or Contestant’s OWN RIGHT

 

Sec 5. of rule 79

Hearing and order for letters to issue.

-must be first shown that notice has been given

·         Court will hear the proofs

·         Issue LA to the entitled party

 

Sec 6. of rule 79

When letters of administration granted to any applicant.

-if such persons fail to appear when notified and claim the issuance of letters

 

 

the end…

Any law which violates the inalienable rights of man is essentially unjust and tyrannical; it is not a law at all.

Maximilien Robespierre

 

 

 

Rule 80 - Special Administrator

by: May Florence Manaog

 

When may the court appoint a Special Administrator?

·         When there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will, the court may appoint a special administrator to take possession and charge of the estate of the deceased until the questions causing the delay are decided and executors or administrators appointed.

·         A special administrator may also be appointed if the executor or administrator is a claimant against the estate he represents.

 

What is the effect of the appointment of a special administrator?

·         It means or implies a denial of the power to appoint a regular administrator during the pendency of the appeal. (De La Cavada vs. Butte, 100 Phil. 635)

 

State the powers and duties of a Special Administrator.

Those are:

·         To take possession and charge of the goods, chattels, rights, credits, and estates of the deceased and preserve the same for the executor or administrator afterwards appointed;

·          To commence and maintain suits;

·          To sell such perishable or other property as the court orders sold; and

·          to pay such debts of the deceased only upon orders of the court. (Sec. 2)

In case of suits for payment of debts of the deceased, may the special administrator be made a defendant?

                Yes. In Liwanag va. Reyes, Sept. 29, 1964, the SC said that for purposes of paying the debts of the decedent, the special administrator may be made a defendant in a foreclosure suit.

 

When shall the power of a Special Administrator cease to operate?

                The moment letters testamentary or administration are granted on the estate of the deceased, the powers of a special administrator shall cease.

 

What shall be done by the Special Administrator after his powers shall have ceased?

·         He shall forthwith deliver to the executor or administrator the goods, chattels, money, and estate of the deceased  in his hands.

·          The executor or administrator may prosecute to final judgment suits commenced by such special administrator. (Sec. 3)

 

What is the basis of the appointment and removal of a Special Administrator?

          They are based on the sound discretion of the court and is not appealable. ( De Gala vs. Gonzales, 53 Phil. 104; Pijuan vs. Vda.  De Gurrea, L-21917, Nov. 29, 1966)

 

Is it possible to appoint a Special Administrator for the conjugal estate and another Special Administrator for the estate of the deceased spouse?

·         As a rule, no, because only one special administrator may be appointed to administer an estate temporarily. ( Roxas vs. Pecson, 82 Phil. 407).

·         However, if there are two factions among the heirs and the court deems it best to appoint more than one Special Administrator, justice and equity demand that both factions be represented in the management of the estate of the deceased.

·         But, even in such case, there is only one Special Administration, the powers of which shall be exercised jointly by two Special Administrators. (Matias vs. Gonzales, 101 Phil. 852)

 

May an executor be appointed Special Administrator during the pendency of the appeal form the order admitting a will to probate?

         Yes, because the appointment of  a special administrator is based on the sound discretion of the court. (Ozeata vs. Pecson, 93 Phil. 416)

 

Is it possible for a legatee to intervene in the appointment of an administrator?

           Yes, because the legacy gives him sufficient  personality to act in protection of his rights granted by the will. (De La Cavada vs. Butte) 

 

 

 

 

RULE 81 - BONDS OF EXECUTORS AND ADMINISTRATORS 

 

by: Vinzin M Savando

 

 

 

SECTION 1.  Bond to be given before issuance of letters.   Amount. Conditions.

ž

AMOUNT: 

How much is the bond required by the Court?

·         In such sum as the Court directs

                  

When shall the bond be filed? 

·          Before executor  or administrator enter upon the  execution of his trust.

 

Who may file a bond?

·         The Executor or Administrator

 

What is the bond intended for?

·         žThe bond shall serve as security given by administrator or executor to guarantee that they shall perform their duties appointed as such.  That in case of UNFAITHFULLNESS to execute administrator’s trust the bond shall answer TO indemnify creditors, heirs, legatees and the estate for their liability.

 

 

What are the CONDITIONS  that must be performed by ADMINISTRATOR/EXECUTOR in connection to their duties, authorities and bond?

 

·         Make an INVENTORY of property which came to his knowledge and possession, or to the possession of other person for him within 3 MONTHS.

·         ADMINISTER the estate and from the proceeds pay all debts   and charges.

·         Render an ACCOUNT of properties  within ONE YEAR

·         Perform all orders of the court.

 

SECTION 2. BOND OF EXECUTOR WHERE DIRECTED IN WILL.  WHEN FURTHER BOND REQUIRED

              

·         žWhen testator directs in his will the executor to serve without a bond, or only his individual bond (ALLOWED BY COURT)

·         Further bond may be required by court in case of change of executors circumstances.

 

 

Is the requirement of filing a bond “absolute”?

·         žNo, If the testator directs in his will that his appointed executor or administrator may execute his trust without filing a bond it is allowed by Court.  Therefore it is only when the testator is silent as to the requirement of a bond then the court shall require a bond, and another if the testator so expressly provide in his will a bond.

 

SECTION 3. BONDS OF JOINT EXECUTORS & ADMINISTRATORS

 

·         žEither separate or joint bond if 2 or more persons are appointed as executors or administrators

 

ž

SECTION 4. BOND OF SPECIAL ADMINISTRATOR

 

How much is the bond required by Court for Special Administrator?

 

·         In such sum as the court directs

 

žWhat are the Conditions required to be accomplished by SPECIAL ADMINISTRATOR?

 

1. make inventory.

2. render accounting when required by court.

3. deliver the same to person appointed executor or administrator or other authorized persons.

 

 

 

* Notes:

   The bond is effective as long as the court has jurisdiction over the proceedings.

 

DEFINITIONS

 

Individual bond-  a fidelity bond specifying a single person as principal

 

Property- in this particular rule refers to the GOODS, CHATTELS, RIGHTS, CREDITS, and ESTATE of the deceased

 

 

LUZON SURETY vs QUEBRAR

 

 

RULE 82

REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS AND ADMINISTRATORS

 

By:

Almujer U. Ammang

 

In summary, Rule 82 deals about:

·         Proceedings of revocation of administration upon discovery of will;

·         Proceedings upon death, resignation, or removal of executor or administrator;

·         Acts before revocation, resignation, or removal to be valid.

·         Powers of new executor or administrator. Renewal of license to sell real estate.

 

SECTION 1

Administration revoked if will discovered. Proceedings thereupon.

 

·         In the event that a person dies and no will is instantly found after his/her death, that person is deemed to have died “INTESTATE” giving room for the legality of granting letters of administration…

 

However, if a will eventually resurfaces after the appointment of an administrator, and the newfound will is proved and allowed by the court, the rules in section 1 is applied which provides for the following:

 

·         The letters of administration shall be revoked;

·         acting administrator will lose all powers of administration;

·         Letters of administration will have to be surrendered in court;

·         Administrator will have to render an account within the period set forth by the court;

·         Proceedings for the issuance of letters testamentary or of administration shall be provided for.

 

·         mere discovery of a document purporting to be the last will of a deceased person does not, ipso facto, nullify the issued letters of administration until said “will” is probated.

 

 

SECTION 2

Court may remove or accept resignation of executor or administrator. Proceedings upon death, resignation, or removal.

 

·         The court has discretionary powers to either remove or accept resignation of an executor or administrator in case the executor/administrator commits the following:

 

·         Neglects to render an account;

·         Settle the estate according to law;

·         Fails to perform a court order/judgment/other duty expressly provided for;

·         Absconds;

·         Becomes insane;

·         Becomes incapable/unsuitable to carry out his/her role;

 

·         In such case, the court may remove him or may permit him to resign

·         In case administration is jointly carried out by another individual, that individual may resume as a sole administrator or the court may appoint another individual to take the place of the erstwhile administrator.

·         If no originally appointed administrator is left, the court may appoint any suitable individual to perform the task.

 

 

·         temporary absence is not a ground for removal as an administrator

·         grounds for removal is not exclusive

 

 

SECTION 3

Acts before revocation, resignation, or removal to be valid.

 

·         What acts before revocation, resignation, or removal of an administration are valid?

 

·         Only lawful acts or acts in good faith of an executor/administrator before the revocation of the letters of administration are valid.

 

 

SECTION 4

Powers of new executor or administrator. Renewal of license to sell real estate.

 

·         Like literally stepping in the shoes of the removed administrator, the newly appointed administrator will have the same powers as the old one and will take up where the old one has left.

 

·         Like the old administrator, the new administrator shall have the following powers:

·         Power to collect and settle the estate;

·         Prosecute or defend actions commenced by the old administrator;

·         Execute judgments recovered in the name of former executor;

 

·         In case the old executor is authorized to sell/mortgage the estate, the new one may renew such authority without further need for notice or hearing.

 

·         order of removal is appealable

 

 

 

 

 

Rule 83:  INVENTORY  AND APPRAISAL PROVISION FOR THE SUPPORT OF FAMILY

 

by: Wilbert Cuala

 

 

Section 1.

Inventory And Appraisal To Be Returned Within Three Months.

 

Within three months after his appointment every executor or administrator shall return to the court a true inventory and appraisal of all the real and personal estate of the deceased which has come into his possession or knowledge.

In the appraisement of such estate, the court may order one or more of the inheritance tax appraisers to give his or their assistance.

 

As expressly provide that after three (3) months after his appointment an executor or administrator must return to the court a true inventory and appraisal of all the real and personal estate of the deceased which come into his possession or knowledge.

 

The administrator or executor is not chargeable with the administration of  estate which has not come into his possession

The delay in filing of inventory if not satisfactorily explained by the administrator  may be a ground for removal of appointment.

 

Section 2.
Certain Articles Not To Be Inventoried.

     

        The wearing apparel of the surviving husband or wife and minor children, children, the marriage bed and bedding, and such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased, under the direction of the court, shall not be considered assets nor administered as such, and shall not be included in the inventory.

         The wearing apparel of the surviving husband or wife  and minor children including conjugal bed, bedding and such provisions and other articles as will necessarily consumed for the subsistence of the family of the deceased shall not be included in the inventory.

Property claimed by a third person may be included in the inventory as part of the assets of the estate and the probate court may order such inclusion, but such order is only prima facie determination and does not preclude the claimants from maintaining an ordinary civil action for the determination of title.

Article 3.
Allowance To Widow and Family.

The widow and minor or incapacitated children of a deceased person, during the settlement of the estate, shall receive therefrom, under the direction of the court, such allowance as are provided by law.

 

During the settlement of the estate of the deceased, the widow and minor or incapacitated children of the deceased, shall receive therefrom under the direction of the court, such allowance as are provided by law

If the cash in the possession of the administatrix is sufficient  for the monthly allowance being paid to the heirs the court may not order the sale of property of the deceased.

The support should not be limited to the minor or incapacitated children as provided in Article 133 of the Family Code that regardless of their age, civil status or gainful employment are entitled to provisional support from the funds of the estate.

 

Grandchildren is not included in the provision for the support of the deceased.

 

Case for discussion

Hiers of Jose Sy Bang et al. 

versus

Rolando Sy,  Rosalino Sy et al

G.R. No. 114217, October 13, 2009

Question?

End Of Presentation

THANK YOU

 

 

 

Rule 84  General Powers and Duties of Executors and Administrators

by: Dela Paz

 

1.01 WHAT ARE THE GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS?

 

The general power and duties are the following:

a)Shall at all times have access to, and may examine and take copies of, books and papers relating to the partnership business,

b)May examine and make invoices of the property belonging to such properties,

c)Shall maintain in tenantable repair the houses and other structures and fences belonging to the estate, and deliver the same in such repair to the heirs or devisees when directed so to do by the court,

d)Shall have the right to the possession and management of the real as well as the personal estate of the deceased so long as it necessary for the payment of the debts and the expenses of administration.

 

1.02 IS THE RIGHT OF AN EXECUTOR OR ADMINISTRATOR TO THE POSSESSION AND MANAGEMENT OF PROPERTIES LEFT BY THE DECEASED ABSOLUTE?

The right of an executor or administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be exercised “so long as it is necessary for the payment of the debts and expenses of the administration.”

 

1.03 IN THE EXERCISE OF THE POWERS OF ADMINISTRATION BY THE EXECUTOR OR ADMINISTRATOR, MUST THERE BE LEAVE OF COURT?

 

An administrator or executor has all the powers necessary for the administration of the estate and which powers he can exercise without leave of court.

It has long been held that the constitution of the lease over property of the state is an act of administration and leave of court is not required.

In the following circumstances, however, leave of court is necessary as the acts are not considered within the power of administration, to wit;

An administration of an intestate cannot exercise the right of legal redemption over a portion of the property owned in common sold by one of the other co-owners since this is not within the powers of administration.

Where estate of a deceased person is already the subject of a testate or intestate proceeding the administrator cannot enter into any transaction involving it without any prior approval of the Court.

 

 

 

 

 

 

 

 

RULE 85 ACCOUNTABILITY AND COMPENSATION OF EXECUTRS AND ADMINISTRATORS
Kristina C. de Vera

The administrator or executor is accountable for the whole of the estate of the deceased which has come to his possession but not for the estate which he has never possessed. As distinguished from his duty to present inventory, the executor or administrator is accountable for a complete and correct inventory not only of all the property which has come into his possession but also the property which has come to his knowledge.

Exception to the exception: If the administrator or executor failed to recover part of the estate which came to his knowledge, he is accountable for the property so lost.

When is the administrator or executor accountable even for the properties he has never possessed?
If the executor or administrator failed to take possession of the property through his fault or negligence, no action has been brought for the recovery, he is accountable for the property so lost.

What is the extent of accountability of administrator or executor? The administrator or creditor shall not profit by the increase of the estate nor shall be held liable for any decrease which the estate without his fault might have sustained. He is likewise liable for unnecessary delay in the settlement or closing of the estate.
What the law imposes upon him is an ordinary or usual care for the want of which he is personally liable. The administrator cannot be held liable the loss of personal property under his administration during fortuitous event.

When not accountable for debts due estate?
The debts contemplated in this section are confined to MONEY CLAIMS. The administrator or executor is not accountable for the uncollected debts without his fault.

Can an administrator be a lessee of the estate he is administering? YES. If the administrator was the original lessee before he was named as administrator but NOT during the pendency of his administration for it would amount to self-dealing. The wording of the law under Section 4, Rule 85 is in present tense as it use the word “uses or occupies”.

What is the liability of an administrator or executor who neglects or delays to pay or raise money?
the value of the estate is thereby lessened. unnecessary cost or interest accrues, or persons interested suffers loss. The heirs, devisees, legatees and creditors have the right to run after the administrator or executors.


What cost may the administrator charge against the estate?
Generally, cost charged against an administrator or executor in actions brought or prosecuted by or against him should be paid out of the estate of the deceased unless he acted in bad faith.

What expenses and fees allowed executor or administrator?
Expenses of Administration refers to those necessary for the management of the property, for protecting it against destruction or deterioration, and possibly for the production of fruits such as payment of debts and distribution of residue among persons entitled thereto.
Expenses for renovation and improvements of family home and to maintain family’s social standing in the community are allowable as legitimate administration expenses of the deceased.
Attorney’s fees may be allowed as expenses of administration when attorney’s services have been rendered to the executor to assist him in the execution of his trust.

Administrator’s duty to render accounting Administrator or executor is under obligation to a true and just account of his administration to the court.

When shall executor or administrator render an account? Every executor or administrator shall render an account of his administration within 1 year from the time of receiving letters testamentary or letters of administration unless the court for presenting claims against, or paying debts of the estate, or disposing the estate; and he shall render such further accounts as the court may require until the estate is wholly settled.

What can the probate court or lawyer do to verify accounting done by the executors or administrator?
The court may examine the executor or administrator under oath to verify the accounting done. Same shall be extended to the heirs, legatees, and creditors.

 

 

RULE 86: Claims against estate

by: Nicko Recento