AQUINO, Jennifer C.

CABAUTAN, Evangeline
CATBAGAN, Julie Ann O.
DEPIDEP, Jocelyn
IGNACIO, Jonh Felix
SALVADOR, Kathleen Allysa V.

SPECIAL PROCEEDINGS

I INTRODUCTION

A) What is a special proceeding?

ANSWER: A special proceeding is a remedy by which the party seeks to establish a

status, right, or a particular fact. It is generally non-adversarial in nature, because there is
no definite adverse party in such proceedings, until the case is concluded or when there
are oppositors to the petition.

B) Define status.

ANSWER: Status: the condition of a person or thing in the eyes of the law.

C) What are the differences between a civil action and a special proceeding?

ANSWER: The differences between a civil action and special proceeding are the
following:
1) As to purpose, an action seeks to address a wrong or the violation of a right while a
special proceeding seeks to establish a right, status, or fact.
2) As to nature, an action is adversarial in nature, putting the plaintiff against the
defendant while a special proceeding is usually non-adversarial even if there is an
oppositor.
3) As to degree of evidence, in an action, the party who establishes a preponderance of
evidence in his favor is considered the victor, while in a special proceeding

Civil Action Special Proceedings

Formal demand of one’s right in a court of Application to establish a status or a right
jurisdiction
Plaintiff vs. Defendant Petitioner
Issues or disputes are stated in the Issues are determined by law and not by the
pleadings of the parties pleadings
Commenced by complaint Commenced by petition
Prescription applies Prescription does not apply

Ordinary Civil Action Special Civil Action Special Proceedings

seeks to protect or enforce a civil action subject to seeks to establish a right,
right or prevent or redress a specific rules status, or a particular fact
 wrong
plaintiff vs. defendant; two
or more parties
governed by ordinary rules,
supplemented by special
rules
initiated by complaint
heard by courts of general
jurisdiction
issues or disputes are stated
in the pleadings of the
parties
Adversarial
based on a cause of action
two or more parties
ordinary rules apply
primarily, but subject to
specific rules
some by complaint; some
by petition
heard by courts of general
jurisdiction
issues or disputes are stated
in the pleadings of the
parties
some are adversarial; some
are not
some do not require cause
of action
may involve one party
EX: correction or
cancellation of entries under
Rule 108
governed by special rules,
supplemented by ordinary
rules if applicable
initiated by petition
heard by court of limited
jurisdiction
issues are determined by
law
not adversarial
EX: correction or
cancellation of entries under
Rule 108
not based on cause of action
EX: habeas corpus

D) Name the different special proceedings in the Rules of Court and indicate what each
establishes.

ANSWER:

Rules of What it establishes

Special Proceeding
Court (Right/ Status/ Fact)
Extrajudicial Settlement of Estate
STATUS as executor/
Self-Adjudication by Sole Heir
administrator
Summary Settle of Estate of Small Value
Rules 73-90
Testate Proceedings
RIGHT of heirs to claim their
Intestate Proceedings
respective shares in the estate
Partition
RIGHT of government to
Rule 91 Escheat take ownership of estate
assets or unclaimed property
Guardianship (of incompetents other than STATUS of
Rules 92-97
minors) guardianship/ward
STATUS as trustor/ trustee/
Rule 98 Trustees
beneficiary
Rules 99 Adoption STATUS as adopter/ adoptee
 Rule 100 Rescission and Revocation of Adoption STATUS as adopter/ adoptee
Rule 101 Hospitalization of Insane Persons FACT of insanity
RIGHT to life, liberty, and
Rule 102 Habeas Corpus
property
Rule 103 Change of Name FACT, RIGHT, STATUS
Rule 104 Voluntary Dissolution of Corporation
Judicial Approval of Voluntary
Rule 105 STATUS
Recognition of Minor Natural Children
Rule 106 Constitution of Family Home
Rule 107 Declaration of Absence and Death STATUS
Cancellation or Correction of Entries in
Rule 108 STATUS; FACT
the Civil Registry

E) Give ten special proceedings provided by laws or rules other than the Rules of Court
and indicate what each establishes.

ANSWER:

What it establishes
Source Special Proceeding (Right/ Status/
Fact)
Administrative Correction of Entry/ Change Of
R.A. No. First Name or Nickname
9048, as Correction of Date of Birth (day and month only)
amended by Change of Sex of a Person (clerical or FACT
R.A. No. typographical or mistake in entry only)
10172 Clerical or Typographical Errors which can be
corrected by the Civil Registry
A.M. No. 03-
Guardianship of Minors STATUS
02-05-SC
Domestic Adoption STATUS
A.M. No. 02-
Rescission of Adoption STATUS
06-02-SC
Inter-country Adoption STATUS
RIGHT to custody
Custody of Minors
A.M. No. 03- of minors
04-04-SC RIGHT to custody
Habeas Corpus in relation to minors
of minors
Declaration of nullity of void marriage or
A.M. No. 02-
Annulment of marriage Civil STATUS
11-10-SC
A.M. No. 02-
Legal Separation Civil STATUS
11-11-SC
Petition on Foster Care and Temporary
R.A. No. STATUS
Custody
8369
Declaration of Nullity of Marriage Civil STATUS
 RIGHT to life,
A.M. No. 07-
Writ of Amparo liberty, and
09-12-SC
property
RIGHT to life,
A.M. No. 08-
Writ of Habeas Data liberty, and
01-16-SC
property
RIGHT to a
A.M. No. 09-
Writ of Kalikasan balanced and
06-08-SC
healthful ecology

II SETTLEMENT OF ESTATE

A) What is settlement of estate?

ANSWER: Settlement of estate refers to the process of determination of all the assets of
the estate, payment of its liabilities, and distribution of the residual to those entitled to the
same.

B) What is the purpose of settling the estate of a person?

ANSWER: As held in Limjoco vs Intestate Estate of Pedro O. Fragrante, the settlement

of estate is for the purpose of enabling a disposition of the assets to be properly made,
and, although natural persons as heirs, devises, or creditors, have an interest in the
property, the artificial creature is a distinct legal entity.

The interest which natural persons have in it is not complete until there has been a due
administration; and one who forges the name of the decedent to an instrument purporting
to be a promissory note must be regarded as having intended to defraud the estate of the
decedent, and not the natural persons having diverse interests in it, since ha cannot be
presumed to have known who those persons were, or what was the nature of their
respective interest.

C) Who may settle the estate of a deceased person?

ANSWER: The estate may be settled by any interested party. An interested party is one
who would be benefited by the estate, such as an heir, or one who has a claim against the
estate, such as a creditor; thus interest must be material and direct, not merely indirect or
contingent.

D) What are the two kinds of settlement of estate? Give three differences between the
two.

ANSWER: The two kinds of settlement of estate are judicial and extrajudicial
settlement.
1) As to court intervention, it is required in judicial settlement but not in extrajudicial
settlement.
 2) As to existence of debt, extrajudicial settlement requires that there be no outstanding
debts at the time of settlement of estate. Compared to judicial settlement, it is
available even if there are debts, for it is the court which will make the provision for
its payment.
3) As to who may institute, extrajudicial settlement may be resorted to at the instance of
and by the agreement all heirs, while judicial settlement may be instituted by any
interested party, even the creditors of estate without the consent of all heirs.

Extrajudicial settlement Judicial settlement

Done outside the courts Done within the courts
Can be done whether decedent dies testate
Can be done if decedent dies intestate
or intestate
Initiated through deed or affidavit Initiated through petition

III EXTRAJUDICIAL SETTLEMENT

A) What are the two ways of settling an estate extrajudicially?

ANSWER: The two ways to settle an estate extrajudicially are through public instrument
or in an affidavit. The form of extrajudicial settlement depends on the number of heirs.

If the decedent left more than one heir, the settlement must be made in a public
instrument. If the decedent left only one heir, it suffices that the heir executes an affidavit
of self-adjudication.

B) What are the requisites so that an estate may be settled extrajudicially?

ANSWER: The following are the requisites for extrajudicial settlement:

1) Decedent died intestate;
2) There are no outstanding debts at the time of settlement;
3) Heirs are all of legal age or minors represented by judicial guardians or legal
representatives;
4) The settlement is made in a public instrument or by means of an affidavit, in case of a
sole heir, duly filed with Register of Deeds.
 5) Publication of the extrajudicial settlement in newspaper of general circulation in the
province once a week for 3 consecutive weeks;
6) Filing of bond equivalent to value of personal property posted with Register of Deeds.

C) May an estate be settled through a Deed of Extrajudicial Partition?

ANSWER: No, an estate cannot be settled through a Deed of Extrajudicial Partition,

because it is invalid insofar as it affects the legitimate share pertaining to the heir in the
property in question.

IV JUDICIAL SETTLEMENT

A) Is judicial settlement of estate the same as a probate proceeding?

ANSWER: NO, Probate is a special proceeding for establishing the validity of a will. It
seeks to prove that instrument submitted is the will of the testator, that it was executed
according to the formalities required by law, and that the testator had the testamentary
capacity at the time of execution, while a judicial settlement does not only entail a
probate of will, it also includes a summary settlement of estate of small value, petition for
letters of administration.

B) How may an estate be settled judicially?

ANSWER: An estate may be judicially settled in the following:

a. If no will, no debts, more than one heir, and should heirs disagree – Partition
[Rule 69]
b. Summary Settlement of Estate of Small Value [Sec. 2, Rule 74
c. Petition for Letters of Administration [Rule 79]
d. Probate of a Will [Rules 75-79]
i. Petition for Letters Testamentary or
ii. Petition for Letters of Administration with the will annexed (if no named
executor)

C) Which court has jurisdiction over judicial settlement of estate?

ANSWER: Municipal Trial Courts and Regional Trial Courts are both empowered to
take cognizance of estate proceedings. The gross value delineates which court has
jurisdiction in the settlement of estate. MTC has exclusive jurisdiction to settle an estate
if its gross value does not exceed P300, 000 or P400, 000 if within Metro Manila. If it
exceeds said amount, then the RTC has jurisdiction.

V INTESTATE PROCEEDINGS

A) When may a person be considered to have died intestate?

 ANSWER: A person may be considered to have died intestate under the following
instances:
1) If a person dies without a will;
2) If a person dies with a void will;
3) If a person dies with a will that has subsequently lost its validity;
4) When the will does not institute an heir or when said institution is void;
5) When the will does not dispose of all the property belonging to the testator;
6) If the suspensive condition attached to the institution of the heir does not happen or is
not fulfilled;
7) If the heir predeceases or repudiates the inheritance; and
8) If the heir is incapacitated.
B) How may the estate of a person who died intestate be settled?

ANSWER: Through an application for Letters of administration

C) What are the jurisdictional facts that must be alleged in a petition to be filed in
intestate proceedings?

ANSWER: In Garcia Vda.de Chua vs CA, the jurisdictional facts required in a petition
for issuance of letters of administration are the following:
1) Death of testator
2) Residence at the time of death in the province where the probate court is located; and
3) If the decedent is a non-resident, the fact of being a resident of foreign country and
that the decedent has left an estate in the province where the court is sitting.

D) Prepare a diagram of the procedure to be followed in the appointment of an

administrator

ANSWER:

VI TESTATE PROCEEDINGS

A) What is probate?

ANSWER: Probate is a special proceeding for establishing the validity of a will. It seeks
to prove that instrument submitted is the will of the testator, that it was executed
according to the formalities required by law, and that the testator had the testamentary
capacity at the time of execution.

No will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court. (Art. 838)

B) What is a will?
 ANSWER: A will is an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of this estate, to take
effect after his death. Article 783

C) What is a testament?

ANSWER: A will is defined as a species of conveyance whereby a person is permitted,

with the formalities prescribed by law, to control to a certain degree the disposition of his
estate after his death.

A “last will and testament,” or simply a “will,” is “an act whereby a person is permitted,
with the formalities prescribed by law, to control to a certain degree the disposition of his
estate”. It is a document whereby a person, called the “testator,” disposes of his/her
properties or “estate,” to take effect upon his/her death.

D) What are the two kinds of wills? Give ten differences between them.

ANSWER: The two kinds of wills are notarial will and holographic will.

Notarial Will Holographic Will

1 Requires attestation by the witnesses Does not require attestation

2 Must be acknowledged before a notary Need not be acknowledged

public by a testator and the attesting
witness.
3 As to nature, the testimony of the The only guarantee of authenticity is the
subscribing or instrumental witnesses handwriting itself;
guarantees the authenticity
4 If the ordinary will is lost, the Loss of the holographic will entails the
subscribing witnesses are available to loss of the only medium of proof
authenticate.
5 In the case of ordinary wills, it is quite Witnesses’ testimony cannot be checked
hard to convince three witnesses (four
with the notary) deliberately to lie. And
then their lies could be checked and
exposed, their whereabouts and acts on
the particular day, the likelihood that
they would be called by the testator, their
intimacy with the testator
6 Witnesses cannot receive anything on Witnesses to the handwriting and
account of the will, otherwise, they are signature of testator can receive on
loaded witnesses account of will
7 Where the attestator is deaf or deaf-mute, No such requirement, because there are
it requires that he must personally read no attestators in HW
the will, if able to do so
 8 If the testator is blind, the will should be
read to him twice; once, by anyone of the
witnesses thereto, and then again, by the
notary public before whom it is
acknowledged.
9 Not entirely written by the testator,
because it was prepared with the
assistance of a third person
10 Its attestation clause need not be written
in a language or dialect known to the
testator since it does not form part of the
testamentary disposition.
11 The language used in the attestation
clause likewise need not even be known
to the attesting witnesses.
12 Complete lack of attestation clause
would result in the invalidity of the will
13 Witnesses must also sign the will and
every page thereof in the presence of the
testator and of one another
14 Testator can expressly cause another to
sign the will
No such requirement for the reading of
the HW to the testator, as he himself has
entirely wrote the will
Entirely written, dated, and signed by the
testator himself.
The entirety must be in writing and must
have been executed in a language or
dialect known to the testator.
There are no witnesses in the execution
of HW, so the language used in the HW
need not be understood by a third person
Lack of attestation clause would not
result in the invalidity of the will
Only the signature of testator is required
Testator cannot cause another to sign the
will

E) What is allowance of a will?

ANSWER: 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 the law
It is the statutory method of establishing the proper execution of an instrument and giving
notice of its contents.

F) What is the purpose of allowing a will?

ANSWER: It is for the official recognition, registration and carrying out of the
provisions of the will in so far as they are in accordance with law.

Its purpose is to finally and definitively settle all questions concerning the capacity of the
testator and the proper execution and witnessing of his last will and testament,
irrespective of whether its provisions are valid and enforceable or otherwise.

G) What is the effect of the allowance of a will?

ANSWER: It has the effect of passing either real or personal estate (Section 1, Rule 75)

It conclusively established against the whole world the fact that a will was duly executed
with the formalities prescribed by law and that the testator had the capacity to make the
 will. In short, the allowance of will cannot be impugned on any grounds authorized by
law, except that of fraud, in any separate or independent action or proceeding.

H) What is the difference between intrinsic and extrinsic validity?

ANSWER: Extrinsic validity deals with the form of the will and its due execution,
rather than its content. It determines (1) whether the instrument is truly the decedent’s
last will; 2) whether it complies with the formalities prescribed by law; 3) whether the
testator had testamentary capacity at the time he executed the will; and, 4) whether the
testator voluntarily executed the will (Ajero v. Court of Appeals, 236 SCRA 488). These
tests will be applied to determine the extrinsic validity of your father’s last will. If it
passes the tests, then his will is extrinsically valid. It will be allowed in court, regardless
of its content.

The second aspect, which is the intrinsic validity of the will, deals with dispositions
stipulated by the testator. It refers to the legality of the provisions of the will for the right
granted to a person to designate the person or persons who are to succeed him or her, is
not absolute. It is subject to limitations placed by law.

The difference between intrinsic and extrinsic validity are as follows:

1) As to the probate of wills, the authority of the court is limited to ascertaining the
extrinsic validity of the will, and generally, it cannot rule upon intrinsic validity of
will.
2) As to coverage, extrinsic validity seeks to determine the existence of testamentary
capacity, due execution and the identity of the instrument with that of the
testator’s will, while intrinsic validity concerns about the distribution in
accordance with the will, especially the provisions on legitime and the
qualifications of the beneficiary to succeed.
3) As to significance, intrinsic validity is significant for substantive validity such as
issues concerning legitimes, capacity of the heirs, those involving disqualification
of certain heirs, preterition, collation, representation and validity of substitution;
while extrinsic validity is significant for formal validity which the law requires
that is, a will be in proper form and made by one with testamentary capacity.

I) What must be considered in determining the extrinsic validity of a will? Define each.

ANSWER: The following shall be considered in determining the extrinsic validity of

will:
1) Testamentary Capacity refers to the capacity of testator to comprehend the nature
of the transaction in which the testator is engaged at the time, to recollect the
property to be disposed of and the persons who would naturally be supposed to
have claims upon the testator, and to comprehend the manner in which the
instrument will distribute his property among the objects of his bounty.
2) Legal formalities refers to the law in force at the time of execution of will, which
shall be complied with by the testator.
 3) Due execution refers to the voluntariness of the testator to dispose his estate. If a
person is unduly influenced or pressured to execute a will, there is really no intent
to bestow that property.

J) Who may petition for the allowance of a will?

ANSWER: Any executor, devisee, or legatee named in a will, or any other person
interested in the estate, may, at any time after the death of the testator, petition the court
having jurisdiction to have the will allowed, whether the same be in his possession or not,
or is lost or destroyed. The testator himself may, during his lifetime, petition the court for
the allowance of his will. (Sec. 1, Rule 76)

In Heirs of Fran vs Salas, the persons who may petition for allowance of will are the
executor, devisee, legatee, any other person interested in the estate, and the testator
himself. A devisee or legatee named in the will need not be a relative of the decedent t
enable such person to file the petition. An interested party allowed to petition for
allowance of will is one who would be benefited by the estate, such as heir, or one who
has claim against the estate such as creditor.

K) May an heir who has renounced his inheritance ask for the allowance of a will?

ANSWER: No, an heir who renounced his inheritance cannot ask for allowance of will,
because he is not an interested party. An interested party is one who would be benefited
by the estate, such as an heir, or one who has a claim against the estate such as a creditor.
In renunciation of inheritance, one expressly waives his rights to the estate. In effect, he
cannot be benefited by the estate, thus, he is not an interested party and he cannot ask for
allowance of a will.

L) What are the jurisdictional facts to be alleged in a petition for probate?

ANSWER: A person died leaving a will; in case of a resident, that he resided within the
territorial jurisdiction of the court; in case of a non0-resident, he left an estate within such
territorial jurisdiction of the court .Jurisdictional facts refer to the fact of death of the
decedent, his residence at the time of his death in the province where the probate court is
sitting, or if he is an inhabitant of a foreign country, the estate he left in such
province. The rules do not require proof that the foreign will has already been allowed
and probated in the country of its execution. (G.R. No. 169144, January 26, 2011; IN RE:
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RUPERTA
PALAGANAS WITH PRAYER FOR THE APPOINTMENT OF SPECIAL
ADMINISTRATOR, MANUEL MIGUEL PALAGANAS and BENJAMIN GREGORIO
PALAGANAS, Petitioners, vs. ERNESTO PALAGANAS, Respondent)

M) What are the jurisdictional requirements for the allowance of a will?

ANSWER: The jurisdictional requirements for the allowance of a will are:

1) Attachment of copy of will to the probate petition; or
 2) Delivery of will to the court

Note: Original will need not be attached, for it is not a jurisdictional requirement. Mere
delivery is sufficient. If the will is delivered to the court, the court may motu proprio fix
time and place for proving the will and issue corresponding notice.

When the petition for probate is made after the deposit of will, petition relates back to the
time when the will was delivered (date of filing = date of delivery or deposit of will.

Our rules require merely that the petition for the allowance of a will must show, so far as
known to the petitioner: (a) the jurisdictional facts; (b) the names, ages, and residences of
the heirs, legatees, and devisees of the testator or decedent; (c) the probable value and
character of the property of the estate; (d) the name of the person for whom letters are
prayed; and (e) if the will has not been delivered to the court, the name of the person
having custody of it. (G.R. No. 169144, January 26, 2011; IN RE: IN THE MATTER OF
THE PETITION TO APPROVE THE WILL OF RUPERTA PALAGANAS WITH
PRAYER FOR THE APPOINTMENT OF SPECIAL ADMINISTRATOR, MANUEL
MIGUEL PALAGANAS and BENJAMIN GREGORIO PALAGANAS, Petitioners, vs.
ERNESTO PALAGANAS, Respondent)

N) When is notification to the heirs a jurisdictional requirement?

ANSWER: When the petition for probate is filed by persons other than the testator, the
court has to send notice of time or place of hearing to the designated or known heirs,
legacies, or devisees, who are residents of the Philippines. The duty to notify attaches
only when the heirs, legacies, or devisees are known and their residence are known.

Section 4, Rule 76 - If the testator asks for the allowance of his own will, notice shall be
sent only to his compulsory heirs

O) What is your remedy if a will is allowed despite your opposition?

ANSWER: The remedy is appeal. In Rule 109, Sec. 1, an interested person may appeal
in special proceedings from an order or judgment of allowance of will.

P) Give six grounds for the disallowance of a will.

ANSWER: The following are the grounds for the disallowance of a will.
1) If the formalities required by law are not complied with;
2) If the testator was insane, or otherwise mentally incapable of making a will, at the
time of its execution;
3) If it was executed through fraud or under duress, or influence of fear or threats;
4) If it was procured by undue and improper pressure and influence, on the part of
the beneficiary or of some other person;
5) If the signature of the testator was procured through fraud; or
 6) If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto

Q) Who may ask for the disallowance of a will?

ANSWER: The following persons may ask for disallowance of will:

1) Executor;
2) Devisee;
3) Legatee;
4) Any interested person;
5) Testator himself

R) What is the remedy if a will is disallowed?

ANSWER: Certiorari is the remedy in case a will is disallowed. In Maninang vs CA

(1982), an act done by a probate court in excess of its jurisdiction in dismissing the
Testate Case, may be corrected by Certiorari. And even assuming the existence of the
remedy of appeal, in the broader interests of justice, a petition for Certiorari may be
entertained, particularly where appeal would not afford speedy and adequate relief.

S) What is the effect of the disallowance of a will?

ANSWER: The disallowance of will has the effect of ensuing intestate proceeding, and
thereafter, the issuance of Letters of Administration. Letters of Administration refers to
the authority issued by the court to a competent person to administer the estate of the
deceased who died intestate or without a will.

T) ALLOWANCE OF HOLOGRAPHIC WILL

1) What must be proven in the allowance of a holographic will?

ANSWER: The following are to be proven in the allowance of holographic will:

1) Proof of notice of hearing
2) Death of the decedent
3) Residence at the time of death
4) If post-mortem, it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare the will and
 signature are in the handwriting of the testator. In case of opposition, at least
three witnesses shall be required.
5) If ante-mortem, it is sufficient for the testator to affirm his will and signature.
In case of opposition, the burden is on the contestant.
6) If lost or destroyed, the following shall be proved:
a. Execution and validity of will;
b. Will exists at the time of death or shown to have been fraudulently or
accidentally destroyed during the testator’s lifetime without his
knowledge; and
c. Contents of the will.

2) Make a diagram of the procedure to be followed if a testator would seek the

allowance of his holographic will.

ANSWER:

3) May a petition for probate filed by the testator himself be subject to opposition?

ANSWER: Yes, the petition for probate filed by the testator himself may be subject
to opposition on grounds of lack of testamentary capacity. Testamentary capacity is
determined at the time the will was executed. If the testamentary capacity of the
testator is questioned, the person who alleges the insanity of the testator has the
burden of proof.

4) Make a diagram of the procedure to be followed if a person would seek the

allowance of a holographic will, without any opposition.

ANSWER:

5) Make a diagram of the procedure to be followed if a person would seek the

allowance of a holographic will, if there is an opposition.

ANSWER:

U) ALLOWANCE OF NOTARIAL WILL

1) What must be proven in the allowance of a notarial will?

ANSWER: The following are to be proven in the allowance of notarial will:

1) Proof of notice of hearing;
2) Death of the decedent;
3) Residence at the time of death;
4) Testimony of at least one subscribing witness is sufficient. If contested, all the
subscribing witnesses and notary who notarized the will shall testify; and
5) If lost or destroyed, the following shall be proved:
a. Execution and validity of will;
 b. Will exists at the time of death or shown to have been fraudulently or
accidentally destroyed during the testator’s lifetime without his
knowledge; and
c. Contents of the will.

2) Make a diagram of the procedure to be followed if a testator would seek the

allowance of his notarial will.

ANSWER:

3) Make a diagram of the procedure to be followed if a person would seek the

allowance of a notarial will, without any opposition.

ANSWER:

4) Make a diagram of the procedure to be followed if a person would seek the

allowance of a notarial will, if there is an opposition.

ANSWER:

VII EXECUTORS

A) Who is an executor?

ANSWER: An executor is a person nominated by the testator in his will to carry out his
direction and request thereof and to dispose of the property according to his testamentary
provisions after his death.

B) Who may become an executor?

ANSWER: Anyone may become the executor, provided he is not disqualified under the
following conditions:
1) Minor;
2) Not resident of the Philippines; or
3) In the opinion of the court, he is unfit to execute the duties of trust by reason of
drunkenness, improvidence, or want of understanding or integrity, or by reason of
conviction of an offence involving moral turpitude.

C) How may one become an executor?

ANSWER: One may become an executor upon the issuance of Letters Testamentary.
Letters Testamentary is the authority issued to the executor named in the will to manage
 and administer the estate. Provided further, the executor is competent, accepts the trust,
and gives the required bond.

D) How may one be removed as an executor?

ANSWER: One may be removed as an executor upon filing of a Motion for Opposition-
in-Intervention in the issuance of Letters Testamentary. The motion shall allege any of
the following grounds, but not limited to:
1) Neglects to:

(a) Render his account

(b) Settle the estate according to law
(c) Perform an order or judgment of the court, or a duty expressly provided by
these rules;

2) Absconds;
3) Becomes insane; or
4) Becomes incapable or unsuitable to discharge the trust.

E) What are the qualifications of an executor?

ANSWER: The qualifications of an executor are:

1) At least 18 years old
2) Resident of Philippines
3) The court deems such person as fit

F) What are the duties of an executor?

ANSWER: The duties of an executor are:

1) Maintain the estate in tenantable repair; and
2) Deliver the same to the heirs or devisees when directed by the court.

G) What are the powers of an executor?

ANSWER: The powers of an executor are:

1) Possess and manage estate of the deceased to pay debts and expenses of
administration (Rule 84, Sec 2);
 2) The administrator of estate of a deceased partners can have access to, examine and
take copies of books and papers relating to the partnership business, and examine and
make invoices of the property belonging to such partnership (Rule 84, Sec 1); and
3) With the approval of the court, to compound or compromise with a debtor of the
deceased (Rule 87, Sec 4).

VIII ADMINISTRATORS

A) Who is an administrator/administratrix?

ANSWER: An administrator is a person appointed by the court of probate to administer

and settle intestate estates and such testate estates where no executor is named, or the
executors named are incompetent, refuses the trust or fails to give bond.

B) Who may become an administrator/administratrix?

ANSWER: Anyone may become the executor, provided he is not disqualified under the
following conditions:
1) Minor;
2) Not resident of the Philippines; or
3) In the opinion of the court, he is unfit to execute the duties of trust by reason of
drunkenness, improvidence, or want of understanding or integrity, or by reason of
conviction of an offence involving moral turpitude.

C) How may one become an administrator/administratrix?

ANSWER: Administrator is appointed by the court when:

1) The will did not appoint executor
2) The appointed executor is incompetent, refused the appointment, or failed to give
bond;
3) The will was disallowed;
4) The deceased died intestate

D) How may one be removed as an administrator/administratrix?

 ANSWER: One may be removed as an administrator upon filing of a Motion for
Opposition-in-Intervention in the issuance of Letters of Administration. The motion shall
allege any of the following grounds, but not limited to:
1) Neglects to:

(a) Render his account

(b) Settle the estate according to law
(c) Perform an order or judgment of the court, or a duty expressly provided by
these rules;

2) Absconds;
3) Becomes insane; or
4) Becomes incapable or unsuitable to discharge the trust.

E) What are the qualifications of an administrator/administratrix?

ANSWER: What are the qualifications of an administrator/administratrix?

1) At least 18 years old
2) Resident of Philippines
3) The court deems such person as fit

F) What are the duties of an administrator/administratrix?

ANSWER: The duties of an administrator/administratrix are:

1) Maintain the estate in tenantable repair; and
2) Deliver the same to the heirs or devisees when directed by the court.

G) What are the powers of an administrator/administratrix?

ANSWER: The powers of an administrator/administratrix are:

1) Possess and manage estate of the deceased to pay debts and expenses of
administration (Rule 84, Sec 2);
2) The administrator of estate of a deceased partners can have access to, examine and
take copies of books and papers relating to the partnership business, and examine and
make invoices of the property belonging to such partnership (Rule 84, Sec 1); and
 3) With the approval of the court, to compound or compromise with a debtor of the
deceased (Rule 87, Sec 4).

H) Who is a special administrator/administratrix?

ANSWER: A special administrator is a representative of the decedent appointed by the

probate court to care for and preserve his estate until an executor or general administrator
is appointed.

A special administrator is an officer of the court who is subject to its supervision and
control, expected to work for the best interest of the entire estate, with a view to its
smooth administration and speedy settlement.

I) When may a special administrator/administratrix be designated?

ANSWER: Rule 80 Section 1. Appointment of special administrator. — When there is

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

J) What are the qualifications of a special administrator/administratrix?

ANSWER: These are not spelled out in the Rules of Court. Thus, the appointment should
be within the sound discretion of the court. The fundamental and legal principles
governing the choice of a regular administrator should also be taken into account in the
appointment of a special administrator.

NOTE: Only one special administrator at a time may be appointed, since the appointment
is merely temporary.

When appointed, a special administrator is regarded, not as a representative of the agent

of the parties suggesting the appointment, but as the administrator in charge of the estate,
 and in fact, as an officer of the court subject to the supervision and control of the probate
court (Corona v. Court of Appeals, G.R. No. L-59821, August 30, 1982).

K) What are the limitations of the powers of a special administrator/ administratrix?

ANSWER: The special administrator’s powers are limited to the following actions:

1) Possession and charge of the decedent’s estate;

2) Preservation of the decedent’s estate;
3) Commencement and maintenance of suits as administrator;
4) Sale only of perishable and other property in accordance with the court’s order;
5) Payment of the decedent’s debts of ordered by the court;
6) Prepare and return a true inventory of the decedent’s estate that may come into his
possession or knowledge;
7) Render an accounting of the decedent’s estate he received; and
8) Deliver the decedent’s estate to the person appointed as executor or administrator
or such other person authorized to receive them.

IX TRUSTEES

A) May a trustee named in the will petition for the probate of such will?

ANSWER:

B) What are the extents of his authority?

ANSWER:
(To be continued)