SpecProc Memory Aid

8/13/2019 SpecProc Memory Aid

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San Beda College of Law100

MEMORYAIDINREMEDIALLAW

SPECIAL PROCEEDINGS

SPECIAL PROCEEDINGS - A remedy bywhich a party seeks to establish a status,

a right or a particular fact. (Rule 1,

Section 3

JURISDICTIONGENERAL RULE: Regional !rial "ourtEXCEPTION: #!" has $urisdiction in thefollowing cases%

1. &robate proceedings whether testate

or intestate where the gross 'alue of

the estate does )! e*ceed&3++,+++ or &++,+++ in #etro

#anila, "/0S2 of interest,

damages of whate'er kind,

attorneys fees, litigation e*penses

and costs.

4. 5/6A!5 70RS5"!)

8 in "adastral and /and

Registration "ases co'ering lots

where there is no contro'ersy or

opposition or contested lots where

the 'alue of which does not e*ceed &

1++!.

8 appeal is taken to the "A, not

to the R!" since #!" is e9ual to R!"

in this instance.

3. S&"A/ 70RS5"!)

8 petitions for writ of :abeas

"orpus in case of absence of R!"

$udges.

S" and "A ha'e original $urisdiction

o'er :abeas "orpus cases, concurrent

with the R!".

ORDINARYACTION

SPECIALPROCEEDING

to protect orenforce a right or

pre'ent or redress awrong

in'ol'es theestablishment of theright, status or fact

in'ol'es two ormore parties

may in'ol'e onlyone party

go'erned byordinary rules

go'erned by specialrules supplemented

supplemented byspecial rules

by ordinary rules

heard by courts ofgeneral $urisdiction

heard by courts oflimited $urisdiction

nitiated by apleading and partiesrespond through an

answer

nitiated by means ofa petition and partiesrespond by means of

an opposition

DIFFERENT MODES OF SETTLEMENT OFESTATE OF DECEASED PERSON

1. *tra$udicial Settlement of

state (Section 1, Rule ;

4. &artition (Rule ill (Rule ;? to ;=

?. &etition for letters of

Administration in cases of

ntestacy (Rule ;=

PROCEDURE IN SETTLEMENT

PROCEEDINGS

REMEDIALLAWCOMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EPS: Mar!essa N"ylan, C#arissi$ae

%en!"ra, Jocelyn &a'ala SU(JECTHEAS: Jona O'ia )Ci*il Proce+"re- Alnaia Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecialProcee+in0s- Jeenice +e Sa0"n )Cri$inal Proce+"re- Elaine Mas"ka! )E*i+ence

ssuance of /etters!estamentary@Administration

(A special administrator may beappointed (Rule ;;-+

&robate of the >ill ifany (Rule ;? 8;


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RULE 73VENUE AND PROCESS

VENUE

:AB!A! )C &:/&&S(whether citiDen or alien 8 "ourt

of pro'ince@city where he

resides at the time of death.

:AB!A! )C C)R6

")0!RE 8 R!" of any pro'ince

wherein he had his estate.

Residence means his personal, actualor physical habitation, his actual

residence or place of abode. (Fule vs.

CA, L-40502, Nov. 29, 1976)

!e"e es#$#e %& dece$sed 'e"s%nsse##(ed) (Sec.1

* +INDS OF SETTLEMENTA. !RA705"A/ S!!/#! -

,R-(e 7./ Sec#i%n 01

B. 705"A/ S!!/#! - !estate or

ntestate &roceedings instituted in

the country where decedent has his

residence

EXTENT OF JURISDICTION&robate courts are courts of /#!5

$urisdiction. t may only determine and

rule upon issues relating to the

settlement of the estate, namely%

1. administration of the estateF

4. li9uidation of the estateF and

3. distribution of the estate.

GENERAL RULE: &robate court cannotdetermine issue of ownership.

EXCEPTIONS:

1. &ro'isionally, ownership may bedetermined for the purpose of

including property in in'entory,

without pre$udice to its final

determination in a separate actionF

or

4. >hen all the parties are heirs and

they submit the issue of ownership

to the probate court pro'ided that

the rights of third parties are not

pre$udiced. (Bernardo vs. CA, L-

18148, Fe. 28, 196!)

EXAMPLES OF OT2ER UESTIONS2IC2 T2E PRO4ATE COURT CANDETERMINE

1. >ho are the heirs of the

decedentF4. !he recognition of a natural

childF

3. !he 'alidity of disinheritance

effected by the testatorF

. Status of a woman who claims to

be the lawful wife of the

decedentF

?. !he 'alidity of a wai'er of

hereditary rightsF

hether property in in'entory is

con$ugal or e*clusi'e property ofdeceased spouseF

. All other matters incidental or

collateral to the settlement and

distribution of the estate.

PRINCIPLE OF EXCLUSIONARY RULE!he court first taking cogniDance of the

settlement of the estate of the

decedent, shall e*ercise $urisdiction to

the e*clusion of all other courts.

!he probate court ac9uires $urisdiction

from the moment the petition for thesettlement is filed with said court. t

cannot be di'ested of such $urisdiction

by the subse9uent acts of the parties as

by entering into e*tra$udicial partition

of the estate ("andoval vs. "an#$a%o, 88

&'L 784F or filing another petition forsettlement in a proper court of

concurrent 'enue (e Bor$a vs. *an, 77

&+$l 872).

EXCEPTION:

stoppel by /A":S

7urisdiction under Rule ;3 Sec. 1 does

)! relate to $urisdiction per se but to

'enue. :ence, institution in the court

where the decedent is neither an

inhabitant or ha'e his estate may be

wai'ed. (r$ar#e vs. CF, L-219!8-!9,

a 29, 1970)

mproper 'enue must be seasonablyraised. (/use$o v. /use$o, 100 &'L

59!)





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REMEDY IF T2E VENUE IS IMPROPERLYLAID)R5ARE A&&A/ not certiorari or

mandamus 0/SS want of $urisdiction

appears on the record of the case.

R!" may issue writs and processes.

(Sec.3, Rule ;3

GENERAL RULE: &robate court cannotissue writs of e*ecution.

Reason% its orders usually refer to the

ad$udication of claims against the estate

which the e*ecutor@administrator may

satisfy without the need of e*ecutory

process.

EXCEPTIONS: "/0S2 (eress$oun$us es# elus$o al#er$us1. !o satisfy the contributi'e share

of the de'isees, legates and

heirs when the latter had

entered prior possession o'er the

estate. (Sec.


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the same with the Register of 5eeds.

(Regalado

Is $ P-8(ic Ins#"-5en# necess$"9 &%" #!e

$(idi#9 %& $n e;#"$!: 4 ERS. - claim against

the bond or the real estate.

4. Action to Annul a deed of

e*tra$udicial settlement on the

ground of CRA05 8 within





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EARS ro #+e d$sover o

raud.

3. Recon'eyance of real property.

>here the estate has been summarilysettled, the unpaid creditor may, within

4 years, file a motion in the court

wherein such summary settlement was

had, for the payment of his credit.

EXCEPTION: f on the date of thee*piration of the two-year period, the

creditor or heir is -

a A minor or incapacitated, or

b n prison or

c )utside the &hilippines,

he may present his claim within one yeara#er su+ d$sa$l$# $s reoved. (Sec. ?

Rule ;?

!he 4-year lien upon the real property

distributed by e*tra$udicial or summary

settlement shall be annotated on the

title issued to the distributees and after

4 years will be cancelled by the register

of deeds without need of court order

(/R" "R"0/AR 13

Such lien cannot be discharged nor the

annotation be cancelled within the 4year period e'en if the distributees offer

to post a bond to answer for contingent

claims from which lien is established.

(eon% vs. ane3, 79 &+$l !24)

RULE 7?PRODUCTION OF ILL@ ALLOANCE OF

ILL NECESSARY

Sec#i%n 0) A((%$nce necess$"9/

c%nc(-sie $s #% e;ec-#i%n)

NATURE OF PRO4ATE PROCEEDINGS1. R# -binding on the whole

world.

4. #A5A!)RE - no will shall pass

either real or personal property

unless it is pro'ed and allowed in

the proper court. :)>2R, it

has been held in one case that a

will may be sustained on the

basis of Article 1++ of the "i'il

"ode which reads as follows%

Hf the testator should make a

partition of his properties by an

act inter 'i'os, or by will, such

partition shall stand in so far as

it does not pre$udice thelegitime of the forced heir.I

(an%-: vs. CA, 144 "CA !!).

3. #&RS"R&!B/ 8 because of

the public policy to obey the will

of the testator.

. !he 5)"!R )C S!)&&/

does no# apply.

Re$s%n: presentation andprobate of will is re9uired by

public policy and in'ol'es public

interest. (Fernande3 vs.

$a%$a)

RULE 7BALLOANCE OR DISALLOANCE OF

ILL

P"%8$#e %" A((%$nce %& i((s > act ofpro'ing in a court a document purporting

to be the last will and testament of a

deceased person in order that it may be

officially recogniDed, registered and its

pro'isions carried insofar as they are in

accordance with law.!% 5$9 'e#i#i%n &%" $((%$nce %& i((=(Sec.1

1. any creditor - as preparatory

step for filing of his claim

therein (Regalado, p.4


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by the decedent who is a non-

residentF

4. the names, ages, and residences

of the heirs, legatees, de'isees

of the testator or decedentF3. the probable 'alue and character

of the property of the estateF

. the name of the person for

whom the letters are prayedF

?. the name of the person ha'ing

custody of the will if has not

been deli'ered to the court.

But no defect in the petition shall render

'oid the allowance of the will, or the

issuance of letters testamentary or of

administration with the will anne*ed.

EFFECT OF T2E PRO4ATE OF A ILLt is conclusi'e as to the "0!) and

the 2A/5!E of the will (e'en against

the state. !hus, a criminal case against

the forger may not lie after the will has

been probated.

ISSUE IN T2E PRO4ATE OF A ILLGENERAL RULE:)nly determination of the e*trinsic

'alidity not the intrinsic 'alidity or

testamentary dispositions.EXCEPTION: >here the entire or alltestamentary dispositions are 'oid and

where the defect is apparent on its face.

(Aa$n vs. AC No. 72706, :#. 27,

1987 Neuueno vs. CA, 1!9 "CA

206)

EXTRINSIC VALIDITY - means duee*ecution of the will.

MEANING AND EXTENT DUE EXECUTION

5ue e*ecution means that%1. the testator is of sound and

disposing mind when he

e*ecuted the willF

4. the will was )! e*ecuted under

duress, fraud or other

circumstances that 'itiates

consentF

3. the re9uired formalities ha'e

been strictly complied withF and

. the will is genuine and not a

forgery.

COURT APPOINTS TIME FOR PROVINGILL) NOTICE T2EREOF TO 4EPU4LIS2ED (Sec.3

!en d%es c%-"# $c-i"e GS

successi'ely of the order setting the case

for hearing A5 sending )!"S to all

persons interested.

NOTICES MUST 4E GIVEN TO:1. designated or known heirs,

legatees and de'iseesF and

4. e*ecutor and co-e*ecutor if not

the petitioner.

MODES OF NOTIFYING49 5$i(: 4+ days before hearingPe"s%n$( n%#ice: 1+ days before hearing

3 weeks successi'ely is not strictly 41

days.

ANTE MORTEMf petition for probate is on testators

own initiati'e during his lifetime -

1. no publication is necessaryF and

4. notice shall be made only to the

compulsory heirs.

PROOF OF 2EARING (Sec.?At the hearing, compliance of

&ublication and otice must first be

shown before introduction of testimony

in support of the will.

EVIDENCE in s-''%"# %& i((:1. 0")!S!5 >// (Sec.?

a No#ar$al


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1. foreign court must ha'e

$urisdiction o'er the proceedingF

4. domicile of testator@decedent in

the foreign country and not in

the &hilippinesF3. that the will has been admitted

to probate in such countryF

. it was made with the formalities

prescribed by the law of the

place in which the decedent

resides, or according to the

formalities obser'ed in his

country, or in conformity with

the formalities prescribed by our

"i'il "odeF and

?. due e*ecution of the will in

accordance with the foreignlaws. (Regalado

EFFECTS1. the will shall ha'e the same

effect as if originally pro'ed and

allowed in court of the

&hilippines.

4. letters testamentary or

administration with a will

anne*ed shall e*tend to all

estates of the &hilippines.

3. Residue of estate after payment

of debts, etc. shall be disposedof as pro'ided by law in cases of

estates in &hilippines belonging

to persons who are inhabitants

of another state or country.

RULE 7LETTERS TESTAMENTARY AND OF

ADMINISTRATION 2EN AND TO 2OMISSUED

PERSONS 2O CAN ADMINISTER T2EESTATE

1. *ecutorF

4. Administrator, regular or special

(Rule +F and

3. Administrator with a will

anne*ed (Rule ;=, Section 1.

E;ec-#%" > !he one named by thetestator in his will for the administration

of his property after his death.

Ad5inis#"$#%" - )ne appointed by the"ourt in accordance with the Rules or

go'erning statutes to administer and

settle the intestate estate or such

testate estate, where the testator didnot name any e*ecutor or that the

e*ecutor so named refuses to accept the

trust, or fails to file a bond, or is

otherwise incompetent.

Ad5inis#"$#%" i#! $ i(( $nne;ed >oneappointed by the court in cases when,

although there is a will, the will does not

appoint any e*ecutor, or if appointed,

said person is either incapacitated or

unwilling to ser'e as such.

2O MAY SERVE AS EXECUTOR@ADMINISTRATOR=Any ")#&!! person may ser'e as

e*ecutor or administrator.

2O ARE INCOMPETENT TO SERVE ASEXECUTOR@ADMINISTRATOR=

1. a minor

4. a non-resident

3. one who in the opinion of the

court is unfit to e*ercise the

duties of the trust by reason of%

a drunkennessb impro'idence

c want of understanding and

integrity

d con'iction for an offense

in'ol'ing moral turpitude

*ecutor of e*ecutor shall not, as

such, administer the estate of the first

testator. (Sec. 4

Le##e"s #es#$5en#$"9 - Authority issued

to an e*ecutor named in the will toadminister the estate.

Le##e"s %& $d5inis#"$#i%n Authorityissued by the court to a ")#&!!

person to administer the estate of the

deceased who died intestate.





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TO 2OM LETTERS OFADMINISTRATION GRANTED

O"de" O& P"e&e"ence

1. !he sur'i'ing husband or wife orthe ne*t of kin, or both in the

discretion of the court, or to

such person as such sur'i'ing

spouse or ne*t of kin, re9uest to

ha'e appointed, if competent

and willing to ser'e. (S0R226

S&)0S )R )#

4. f the sur'i'ing spouse or the

ne*t of kin or the person

selected by them be

incompetent or unwilling to

ser'e, or if the sur'i'ing spouseor ne*t of kin neglects for 3+

days after the death of the

decedent to apply for

administration, AE one or more

of the &R"&A/ "R5!)RS, if

competent and willing to ser'e.

3. f there is no such creditor

competent and willing to ser'e,

it may be granted to such other

person as the court may select.

(S!RA6R

!he )rder of appointment of Regularadministrator is final and appealable.

4ASIS FOR T2E PREFERENTIAL RIG2T!he underlying assumption is that those

who will reap the benefits of a wise,

speedy and economical administration of

the estate or on the other hand, suffer

the conse9uences of waste,

impro'idence or mismanagement, ha'e

the higher interest and most influential

moti'e to administer the estate

correctly.

RULE 7OPPOSING ISSUANCE OF LETTERSTESTAMENTARY PETITION ANDCONTENTS FOR LETTERS OF

ADMINISTRATION

!$# is #!e MAIN ISSUE in $n$d5inis#"$#i%n '"%ceedin6=>ho is the person rightfully entitled to

administration.

!% 5$9 %''%se #!e iss-$nce %&(e##e"s=GENERAL RULE: Any person interestedin the will. (Section 1

EXCEPTION: 'en where a person whohad filed a petition for the allowance of

the will of the deceased person had no

right to do so in 'iew of his lack of

interest in the estate, ne'ertheless,

where the interested persons did not

ob$ect to its application, the defect in

the petition would be deemed cured.

!he filing of the petition may be

considered as ha'ing been ratified by the

interested parties. (/use$o vs.

>alores 97 &'L 16!)

&etition for )pposition may at the same

time be filed for /etters of

Administration with the will anne*ed.

C%n#en#s %& $ 'e#i#i%n &%" (e##e"s %&$d5inis#"$#i%n% (Sec.4

a $urisdictional factsF

b name, age, residence of heirs

and creditorsF

c probable 'alue and character of

the estateF and

d name of the person for whom

letters is prayed for.

o defect in the petition shall render

'oid the issuance of the letters of

administration.

G"%-nds &%" O''%si#i%n:1. n Le##e"s Tes#$5en#$"9

a incompetence

4. n Le##e"s %& Ad5inis#"$#i%na incompetenceF

b preferential right of the heir

under Sec. eeks and notice to

heirs, creditors and other persons

belie'ed to ha'e an interest in the

estate is re9uired before hearing.

/etters can be granted to any person or

any other applicant e'en if other

competent persons are present if the

latter fail to claim their letters when

notified by the court. (Sec.


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RULE SPECIAL ADMINISTRATOR

!en 5$9 $ '"%8$#e c%-"# $''%in# $

s'eci$( $d5inis#"$#%"=1. 5elay in granting of letters

including appeal in the probate

of the will.

4. *ecutor is a claimant of the

estate he represents.

- in this second instance, the

administrator shall ha'e the

same powers as that of a

general administrator.

ORDER OF APPOINTMENT

DISCRETIONARY!he preference accorded by Sec. < ofRule ; of the Rules of "ourt to sur'i'ing

spouse refers to the appointment of a

re%ular administrator, )! to that of

se$al administrator, and that the order

appointing the later lies within the

discretion of the probate court, and is

not appealable. (&$;uan vs. e urrea,

124 &+$l. 1527)

POERS AND DUTIES1. &ossession and charge of the

goods, chattels, rights, credits,and estate of the deceasedF

4. "ommence and maintain suit for

the estateF

3. Sell )/E

a perishable propertyF and

b those ordered by the courtF

. &ay debts )/E as may be

ordered by the court.

DURATION OF POER OF SPECIALADMINISTRATOR

0ntil 9uestions causing the delay isdecided and the regular administrator is

appointed.

!en d%es #!e '%e" %& $ s'eci$($d5inis#"$#%" ce$se=After the 9uestions causing the delay are

resol'ed and letters are granted to

regular e*ecutor or administrator.

Is $''%in#5en# %& s'eci$( $d5inis#"$#%"$''e$($8(e=NO, the same is !R/)"0!)RE.:owe'er, appointment of a R60/AR

A5#S!RA!)R is appealable because itis a final order.

t is possible for the e*ecutor oradministrator whose appointment is

challenged by appeal to be appointed

also as the special administrator pending

such appeal. !here is no harm in

appointing the same person as special

administrator because there is a 'ast of

difference between the powers and

duties of the two positions.

RULE 04ONDS OF EXECUTOR AND

ADMINISTRATOR

4OND OF EXECUTOR@ADMINISTRATOR(Sec.1

!en &i(ed=Before an e*ecutor or administrator

enters upon e*ecution of his trust

A5%-n#= Ci*ed by the court

CONDITIONS1. #ake an 2!)RE of property

which came to his knowledge

and possession within 3 #)!:S.

4. A5#S!R the estate and from

the proceeds pay all debts and

charges.

3. Render an A"")0! within )

EAR

. &erform all orders of the court.

ADMINISTRATORS 4OND STATUTORY4OND"onditions prescribed by statute forms

part of bond agreement.

!erms and effecti'ity of bond does not

depend on payment of premium and

does not e*pire until the administration

is closed. As long as the probate court





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retains $urisdiction of the estate, the

bond contemplates a continuing liability.

(Lu3on "ure# vs. ?uerar, 127 "CA

295).

4OND OF SPECIAL ADMINISTRATOR(Sec.

C%ndi#i%ns1. make in'entory.

4. render accounting when re9uired

by court.

3. deli'er the same to person

appointed e*ecutor or

administrator or other

authoriDed persons.

!he bond is effecti'e as long as thecourt has $urisdiction o'er the

proceedings.

RULE *REVOCATION OF ADMINISTRATION/

DEAT2/ RESIGNATION AND REMOVAL OFEXECUTORS AND ADMINISTRATORS

f after letters of administration ha'e

been granted on the estate of the

decedent as if he had died intestate, +$s

$ll $s alloed and roved #+e our#,the letters of administration shall be

re'oked and all powers thereunder

cease, and the administrator shall

forthwith surrender the letters to the

court, and render his account within

such time as the court may direct.

!he disco'ery of a will does )! $so

a#onullify the letters of administration

already issued until the will has been

pro'ed and allowed pursuant to Rule 4

Sec. 1. (e &arreno vs. Aran3anso, No. L-27657, Au%. !0, 1982)

RESIGNATION OR REMOVAL OFEXECUTOR@ ADMINISTRATOR (S".4G"%-nds

1. neglect to render accountsF

(w@in 1 EAR or when the court

directsF

4. neglect to settle estate

according to these rulesF

3. neglect to perform an order or

$udgment of the court or a duty

e*pressly pro'ided by these

rulesF

. abscondingF or

?. insanity or incapability or

unsuitability to discharge thetrust. (Sec. 4

!hese grounds are "/0S2.

/awful acts of an administrator or

e*ecutor before the re'ocation,

resignation, or remo'al are 'alid unless

pro'en otherwise.(Sec.3

POERS OF NE EXECUTOR ORADMINISTRATOR (Sec.

1. collect and settle the estate not

administeredF4. prosecute or defend actions

commenced by or against the

former e*ecutor or

administratorF and

3. reco'er e*ecution on $udgments

in the name of former e*ecutor

or administrator.

RULE 3INVENTORY AND APPRAISAL PROVISION

FOR SUPPORT OF FAMILY

n'entory and appraisal must be made

within 3 #)!:S ro #+e %ran# o

le##ers #es#aen#ar or o

ad$n$s#ra#$on. (Sec.1

Appro'al of an in'entory is not a

conclusi'e determination of what assets

constituted the decedents estate and of

the 'aluation thereof. Such

determination is only pro'isional and a

prima facie finding of the issue of

ownership.

ALLOANCE TO IDO AND FAMILY,Sec)31A((%$nce > monetary ad'ances sub$ectto collation and deductible from their

share in the estate of the decedent.

!% $"e en#i#(ed #% $((%$nce d-"in6'"%ceedin6s=1. Le%$#$a#e sur'i'ing spouse

(Neoueno vs CA)F and4. "hildren of the decedent.





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According to Art. 1 of the "i'il"ode, the children need not be minors

%" incapacitated to be entitled to

allowance.("an#ero vs CF o Cav$#e, No. 61700-0!, "e#. 24, 1987)

6randchildren are )! entitled to

allowance under Rule 3.('e$rs o u$3

vs CA)

>hen liabilities e*ceed the asset of the

estate, his widow and children are not

entitled to support pending the

li9uidation of the intestate estate, on

the ground that such support, ha'ing the

character of an ad'ance payment to bededucted from the respecti'e share of

each heir during distribution. (henthrough untruthfulness to the trust or his

own fault or for lack of necessary action,

the e*ecutor or administrator failed to

reco'er part of the estate which came to

his knowledge.

Administrator or e*ecutor shall not profitby the increase of the estate nor be

liable for any decrease which the estate,

without his fault, might ha'e sustained.

EXPENSES OF ADMINISTRATION: thosenecessary for the management of the

property, for protecting it against

destruction or deterioration, and

possibly for the production of fruits.





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!en s!$(( e;ec-#%" %" $d5inis#"$#%""ende" $n $cc%-n#= (Sec.RULE:>ithin one year from the time ofrecei'ing letters testamentary or letters

of administration.EXCEPTION: An e*tension of time isallowed for presenting claims against or

paying the debts of the estate for

disposing of the estate but e'en in such

cases, the administration should be

terminated in not more than two-years

and a half.

RULE BCLAIMS AGAINST ESTATE

C($i5 - any debt or pecuniary demandagainst the decedents estate.

!en 5$9 $ c%-"# iss-e n%#ices #%c"edi#%"s #% &i(e #!ei" c($i5s=mmediately issued after granting letters

testamentary or of administration.

PURPOSE:for the speedy settlement ofthe affairs of the deceased person and

early deli'ery of the property of the

estate into the hands of the persons

entitled to recei'e it.

"laims arising AC!R his death cannot be

presented e*cept for%

a funeral e*pensesF and

b e*penses of the last sickness of

the decedent.

"laims for ta*es (inheritance and estate

due and assessed after the death of the

decedent need not be presented in the

form of a claim. !he court in the

e*ercise of its administrati'e controlo'er the e*ecutor or administrator may

direct the latter to pay such ta*es. And

the heirs, e'en after distribution are

liable for such ta*es.

STATUTE OF NON>CLAIMS (Sec.4

!en s!%-(d #!e c($i5s 8e &i(ed=GENERAL RULE: >ithin in the time fi*edin the notice which shall not more than

14 #)!:S nor less than < #)!:S after

the date of the CRS! &0B/"A!).

)therwise, they are BARR5 C)R2R.

'en if the testator acknowledged the

debt in his will and instructed the

e*ecutor to pay the debt, the statute ofnon-claims must still be complied withF

otherwise the claim may also be barred.

EXCEPTION:Belated "laims.

4e($#ed C($i5s are claims not filedwithin the original period fi*ed by the

court. )n application of a creditor who

has failed to file his claim within the

time pre'iously limited, at AE !#

BC)R an order of distribution is

entered, the court #AE, for cause shownand on such terms as are e9uitable,

allow such claim to be filed within a

time )! "56 1 #)!: from the

order allowing belated claims.

Statute of on-"laims supersedes the

Statute of /imitations insofar as the

debts of deceased persons are

concerned. :owe'er, B)!: statute of

on-"laims and Statute of /imitations

#0S! ")"0R in order for a creditor to

collect.

C($i5s !ic! $"e n%# &i(ed i#!in #!eS#$#-#e %& N%n>C($i5s $"e 8$""ed&%"ee" ,Sec)?1"laims referred to under this section

refer to claims for the reco'ery of

money and which are not secured by a

lien against the property of the estate.

(:lave vs. Carlos, 208 &+$l 678)

C($i5s !ic! s!%-(d 8e &i(ed -nde" #!eS#$#-#e %& N%n>c($i5s=

1. #oney claims, debts incurred bydeceased during his lifetime

arising from contract

4. e*press or implied

3. due or not due

. absolute or contingent

?. "laims for funeral e*penses and

for the last illness of the

decedent.


14/36



C%n#in6en# C($i5 conditional claim orclaim that are sub$ect to the happening

of a future uncertain e'ent.

"laims not yet due or contingent may beappro'ed at their present 'alue.

:)>2R, a creditor barred by the

Statute of on-claims may file a claim as

a ")0!R"/A# in any suit that the

e*ecutor or administrator may bring

against such creditor.

SOLIDARY O4LIGATION OF DECEDENT(Sec.


15/36



preempt prescription of $udgment.

(oualde3 vs. *$%lao, 105 "CA 762).

2ei" 5$9 n%# s-e -n#i( s!$"e $ssi6ned

(Sec.3Before distribution is made or before any

residue is known, the heirs and de'isees

ha'e no cause of action against the

e*ecutor or administrator for reco'ery of

the property left by the decedent.

P"%ceedin6s !en '"%'e"#9 c%nce$(ed/e58eHH(ed %" &"$-d-(en#(9 c%ne9ed(Sec.


16/36



!en #!e i(( '"%ides &%" '$95en# %&de8#s/ Sec#i%n * 5-s# 8e &%((%ed)Although testator acknowledged a

specific debt on his will, the creditor

must still file his claim in the testate orintestate proceedings, otherwise his

claim will be barred.

Es#$#e #% 8e "e#$ined #% 5ee#c%n#in6en# c($i5s (Sec.f the court is satisfied that contingent

claim duly filed is 'alid, it may order the

e*ecutor or administrator to retain in his

hands sufficient estate to pay a portion

e9ual to the di'idend of the creditors.

REUISITES1. contingent claim is duly filedF4. court is satisfied that the claim

is 'alidF and

3. !he claim has become absolute.

Is e;ec-#i%n $ '"%'e" "e5ed9 #% s$#is&9$n $''"%ed c($i5=NO, because%

1. &ayment appro'ing a claim does

not create a lien upon a property

of the estate.

4. Special procedure is for the

court to order the sale to satisfythe claim.

2% c%n#in6en# c($i5 8ec%5in6$8s%(-#e in #% 9e$"s $((%ed $nd '$id(Sec.?

f such contingent claim becomes

absolute and is presented to the court,

or to the e*ecutor or administrator,

within two years from the time limited

for other creditors to present their

claims. !he residual funds within the

estate, although already in thepossession of the uni'ersal heirs, are

funds of the estate. !he "ourt has

$urisdiction o'er them and it could

compel the heirs to deli'er to the

administrator of the estate the

necessary portion of such funds for the

payment of any claims against the

estate. (n re *es#a#e /s#a#e o

ar%ar$#a av$d, "$son vs. *eodoro, 98

&+$l 680)

f the contingent claim matures after the

e*piration of the two years, the

creditors may sue the distributees, who

are liable in proportion to the shares in

the estate respecti'ely recei'ed bythem. (@au$an vs. ?uerol, sura)

t has been ruled that the only instance

wherein a creditor can file an action

against a distributee of the debtors

assets is under Sec. ?, Rule of the

Rules of "ourt. !he contingent claims

must first ha'e been established and

allowed in the probate court before the

creditors can file an action directly

against the distributees. (e Bau#$s#a vs.

e u3an, 125 "CA 682)

Es#$#e %& Ins%(en# n%n"esiden#/ !%dis'%sed (Sec.=n the administration taken in the

&hilippines of the estate of the

S)/2! his estate in the &hilippines

shall be disposed of that his creditors in

and outside in the &hilippines in

proportion to their respecti'e credits.

!en $nd !% c($i5 '"%ed %-#side#!e P!i(i''ines $6$ins# ins%(en#

"esiden#s es#$#e '$id (Sec.1+"laims pro'en outside the &hilippines

where the e*ecutor had knowledge and

opportunity to contest its allowance

therein may be added to the list of

claims in the &hilippines against the

estate of an S)/2! RS5! and

the estate will be distributed e9ually

among those creditors.

:owe'er the benefit of Sections = and 1+

cannot be e*tended to the creditors of

foreign country where the property ofthe deceased therein is not e9ually

apportioned to creditors residing in the

&hilippines and other creditors.

Ti5e &%" '$9in6 De8#s $nd Le6$cies(Sec.1?

eed not e*ceed 1 year in the first

instance. But court e*tend on

application of e*ecutor or administrator

and after hearing and notice thereof.





17/36



*tension must not e*ceed si* months

for single e*tension. >hole period

allowed to the original e*ecutor or

administrator shall not e*ceed 4 years

(section 1? successor of dead e*ecutoror administrator may be gi'en an

e*tension not to e*ceed < months.

RULE SALES/ MORTGAGE AND OT2ER

ENCUM4RANCES OF T2E PROPERTY OFT2E DECEASED

O"de" %& s$(e %& 'e"s%n$(#9 (Sec.1!he court may order the whole or part of

the personal estate to be sold ifnecessary%

1. to pay debts and e*pense of

administrationF

4. to pay legaciesF or

3. to co'er e*penses for the

preser'ation of the estate.

!en c%-"# 5$9 $-#!%"iHe s$(e/5%"#6$6e %" %#!e" enc-58"$nces %&"e$(#9 #% '$9 de8#s $nd (e6$cies #!%-6!'e"s%n$(i#9 n%# e;!$-s#ed= (Sec. 4

1. f personal estate is )!sufficient to pay debts, e*penses

of administration and legaciesF

4. f sale of personal estate may

in$ure the business or interests

of those interested in the estateF

3. f testator has )! made

sufficient pro'ision for payment

of such debts, e*penses and

legaciesF

. f deceased was in his lifetime

under contract, binding in law to

deed real property to

beneficiaryF (Section ?. f the deceased during his

lifetime held real property in

trust for another person.

(Section =

REUISITESa application of

*ecutor@AdministratorF

b written notice to person

interestedF and

c hearing

Assets in the hands ofe*ecutor@administrator will not be

reduced to pre'ent a creditor from

recei'ing his full debt or diminish his

di'idends.

>ithout notice and hearing, the sale,

mortgage or encumbrance is 'oid. otice

is mandatory. oncompliance therewith

under the sale is null and 'oid.Reason% !he reason behind thisre9uirement is that the heirs are the

presumpti'e owner. Since they succeed

to all the rights and obligation of the

deceased from the moment of the

latters death, they are the person

directly affected by the sale or mortgageand therefore cannot be depri'ed of the

property, e*cept in the manner pro'ided

by law. (anelan% vs. Baun, 208 "CA

179)

M$9 #!e c%-"# $-#!%"iHe s$(e/ 5%"#6$6e%" %#!e" enc-58"$nce %& es#$#e #% '$9de8#s $nd (e6$cies in %#!e" c%-n#"ies=(Sec. ?

>hen it appears from records and

proceedings of a probate court of

another country that the estate of the

deceased in foreign country is notsufficient to pay debts and e*penses.

Application for authority to sell,

mortgage or encumber property of the

estate may be denied by the court if%

1. the disposition is not for any of

the reasons specified by the

rulesF )R

4. under Section 3 Rule =, any

person interested in the estate

gi'es a bond conditioned to pay

the debts, e*penses ofadministration and legacies.

RULE DISTRI4UTION AND PARTITION OF T2E

ESTATE

Li-id$#i%nmeans the determination ofall assets of the estate and payment of

all debts and e*penses.





18/36



!en %"de" &%" dis#"i8-#i%n %& "esid-e5$de (Sec.1

RULE:)R5R )C 5S!RB0!) shall be

made AC!R payments of all debts,funeral e*penses, e*penses for

administration, allowance of widow and

inheritance ta* is effected.

n these proceedings, the court shall%

1. collateF

4. determine heirsF and

3. determine the share of each

heir.

A separate action for the declaration of

heirs is not necessary.

!en is #i#(e es#ed=Crom CA/!E of order of distribution.

)nly after partition is appro'ed and not

before, the court may order the deli'ery

to the heirs of their respecti'e shares

e*cept when the heir file a bond

conditioned to pay the debts.

An order which determines the

distributi'e shares of heirs is appealable.

f not appealed, it becomes final.

!he probate court lose $urisdiction o'er

the settlement proceedings only upon

payment of all debts and e*penses of the

obligor and deli'ery of the entire estate

to all the heirs. (*$ol vs. Cano, 1

"CA 1271)

CONDITIONS PRECEDENT #% 8ec%5'(ied i#! &%" #!e iss-$nce %& $n%"de" %& dis#"i8-#i%n

1. Showing that the e*ecutor,

administrator or personinterested in the estate applied

for suchF and

4. !he re9uirements as to notice

and hearing upon such

application ha'e been fulfilled.

PRO2I4ITION AGAINST INTERFERENCE4Y OT2ER COURTS

As long as the order of distribution of

the estate has not been complied with,

the probate

probate proceedings cannot be deemed

closed and terminated, because a

$udicial partition is not final and

conclusi'e and does not pre'ent the

heirs from bringing an action to obtainhis share, pro'ided the prescripti'e

period therefore has not elapsed. !he

better practice, howe'er, for the heir

who has not recei'ed his share, is to

demand his share through proper motion

in the same probate or administrati'e

proceedings, or for the reopening of the

probate or administrati'e proceedings if

it had already been closed, and not

through an independent action, which

would be tried by another court or $udge

which may thus re'erse a decision ororder of the probate or intestate court

already final and e*ecuted and re-

shuffle properties long ago distributed

and disposed of. (*$ol vs. Cano,

sura).

RULE 0ESC2EATS

3 INSTANCES %& ESC2EATS1. >hen a person dies intestate

lea'ing no heir but lea'ingproperty in the &hilippines

(Section 1

4. R2RS) &R)"56S 8 Sale

in 'iolation of the "onstitutional

pro'ision

3. 0nclaimed Balance Act under

Banking /aws

!$# is #!e 8$sis %& #!e s#$#es "i6!# #%"eceie '"%'e"#9 in esc!e$#=)rder of succession under the "i'il "ode,

the S!A! is the last heir of thedecedent.

!% &i(es=Solicitor 6eneral or his representati'e in

behalf of the &hilippines.

!e"e #% &i(e=R!" of last residence or of location of

his estate in the &hilippines if he is a

non-resident.





19/36



f petition is sufficient in C)R# and

S0BS!A" the court shall%

1. #ake an )R5R )C :AR6 8

hearing shall not be more than GS.

REUISITES1. publication of the order

4. person died intestate

3. he is seiDed of real@personal

property in the &hilippines

. he left no heir or person entitled

to such property?. there is no sufficient cause to

the contrary

!he court, at the instance of an

interested party, or on its own motion,

may order the establishment of a

&R#A! !R0S!, so that only the

income from the property shall be used.

CLAIM 4Y PERSONS ENTITLED TO T2EESTATE (Sec. !%=

By de'isee, legatee, heir, widow@er, orother person entitled thereto

!en #% &i(e=- >ithin ? EARS CR)# 5A! )C

7056#! otherwise fore'er barred.

OT2ER ACTIONS FOR ESC2EATS ,Sec) ?1- actions for re'ersion of property

alienated in 'iolation of

"onstitution or any statute.

- !hese shall be go'erned by Rule

=1. :)>2R, the action must

be instituted in the pro'incewhere the land lies in whole or

in part.

Pe"i%d% >ithin ? 9e$"sfrom the date of$udgmentF (under AR!. 1+1 of the "i'il

"ode, the ?-year period is reckoned from

the date the property was deli'ered to

the State and further pro'ides that if the

property had been sold, the municipality

or city shall be accountable only for such

part of the proceeds as may not ha'e

been lawfully spent.

49 !%5% person of interest

TO 2OM ILL T2E PROPERTYESC2EATED 4E ASSIGNED: (Sec. 3

1. if personal property, in themunicipality or city where he

last resided.

4. if real property, where the

property is situated.

3. if deceased ne'er resided in the

&hilippines, where the property

may be found.

C$n c%-"# c%ne"# esc!e$# '"%ceedin6sin#% %"din$"9 s'eci$( '"%ceedin6s %"ice>e"s$=

NO. !his is not allowed for the twoactions ha'e different re9uirements inac9uiring $urisdiction. n special

proceedings, publication is once a week

for 3 weeks while in escheat, once a

week for < weeks.

RULE *GUARDIANS2IP

6uardianship of minors is now

go'erned by the Rule on6uardianship of #inors (A.#. o.

+3-+4-+?-S" which took effect on

#ay 1, 4++3. >hile guardianship of

incompetents is still go'erned by

the pro'isions of the Rules of

"ourt on 6uardianship (Rule =4 to

Rule =;.

MINOR INCOMPETENT

1. any relati'eF or

4. other person onbehalf of a minorFor

3. the minorhimself if 1 yearsof age or o'erF or

. the Secretary ofSocial >elfare and5e'elopment A5by the Secretary of:ealth in case of aninsane minor whoneeds to behospitaliDed. (Sec.

4 A# +3-+4-+?-S"

1. any relati'eF

4. friendF or3. other person on

behalf of theresident incompe-tent who has noparents or lawfulguardianF or

. the 5irector of:ealth in fa'or ofan insane personwho should behospitaliDed or infa'or of an isolatedleper. (Sec. 1





20/36



?. any one interestedin the estate of anon-resident

incompetent(Sec.14

?. any one interestedin the estate of anon-resident

incompetent (Sec.


21/36



!he petition in'ol'ing minors isre9uired to be 2RC5 and

accompanied by certification against

C)R0# S:)&&6 while that in'ol'ingincompetent must be 'erified only.

:)>2R, no defect in the petition or

'erification shall render 'oid the

issuance of letters of guardianship.

!here is ) re9uirement for

&0B/"A!), only notice "&! in

case of nonresident minor@incompetent.

:)>2R, ser'ice of )!" upon minor

if 1 years of age or o'er, or upon

incompetent is mandatory and$urisdictional.

f the person is insane, ser'ice of notice

upon the 5irector of :ospital where

hospitaliDed is sufficient.

OPPOSITION TO PETITION (Sec. G"%-nds

1. 5$ pertains to those relati'eswho are entitled to share in the estate

of the ward under the /aw on ntestate

succession including those who inherit

per stirpes or by right of representation.

Sale of the wards realty by the guardian

without authority from the court is 2)5.

0nder the law, a parent acting merely as

legal administrator of the property of

his@her children, does )! ha'e the

power to dispose of, or alienate, the

property of said minor without $udicial

appro'al (L$nda$n vs. CA, No. 95!05,

Au%. 20, 1992).

!he )rder of Sale must specify thegrounds.

C) D-"$#i%n %& #!e %"de" &%" s$(e $ndenc-58"$nce %& '"%'e"#9 > >ithin 1year from the granting of the order.

t is presumed that if the property

was not sold within 1 year, the ward

has sufficient income.

!he authority to sell or encumber shall

not e*tend beyond 1 year unless

renewed by the court.

GENERAL POERS AND DUTIES OFGUARDIANS

1. ha'e the care and custody of the

person of the ward, and the

management of his estate, or

the management of the estate

only, as the case may beF





22/36


23/36



E) 4%nd %& '$"en#s $s 6-$"di$ns %&'"%'e"#9 %& 5in%" (Sec. 1


24/36



!% 5$9 'e#i#i%n=&arties beneficially interested.

G"%-nds

1. essential in the interest ofpetitioners

4. insanity

3. incapability of discharging

trustee

. unsuitability

Rules on Sale and ncumbrance of !rust

state shall conform as nearly as may be

to the pro'isions on Sale and

ncumbrance by 6uardians.

ADOPTION AND CUSTODY OF MINORS

!he pro'isions of the Rules of "ourt onAdoption ha'e been amended by the

D%5es#ic Ad%'#i%n Ac# %& 0 andthe In#e"c%-n#"9 Ad%'#i%n Ac# %& 0?

EXCEPT: Secs < J ; of Rule ==

ffecti'e August 44, 4++4, there is a

new Rule on Adoption.

NATURE AND CONCEPT OF ADOPTIONAdoption is a $uridical act, a proceeding

R#, which creates between two

persons a relationship similar to thatwhich results from legitimate paternity

and filiation.

)nly an adoption made through the

court, or in pursuance with the

procedure laid down under Rule on

Adoption is 'alid in this $urisdiction.

PURPOSE OF ADOPTION!he promotion of the welfare of the

child and the enhancement of his

opportunities for a useful and happy life,

and e'ery intendment is sustained topromote that ob$ecti'e.

2AT DOES T2E COURT DETERMINE INADOPTION CASES

1. capacity of the adopters

4. whether the adoption would be

the best interest of the child

Adoption is strictly personal between the

adopter and the adopted. (*eo$o vs.

el >al)

RULES ON ADOPTION ,Secs) 0>*?1

DOMESTIC ADOPTION

2O MAY ADOPT1. Any Cilipino "itiDen -

a of legal ageF

b in possession of full ci'il capacity

and legal rightsF

c of good moral characterF

d has not been con'icted of any

crime in'ol'ing moral turpitudeF

e emotionally and psychologically

capable of caring for childrenF

f in a position to support and care

for his@her children in keeping

with the means of the familyFand

g at least 1< EARS older than the

adoptee.

4. Any alien possessing the same

9ualifications as abo'eF pro'ided%

a !hat his@her country has

diplomatic relations with the

&:/&&SF

b !hat he@she has been li'ing in

the &hilippines for at least 3

")!0)0S EARS prior to the

filing of the application foradoptionF

c #aintains residence until the

adoption decree is enteredF

d "ertified to ha'e legal capacity

to adopt, by his@her countryF

and

e !hat his@her go'ernment allows

the adoptee to enter his@her

country as his@her adopted

son@daughter.

3. !he guardian with respect to theward after the termination of the

guardianship and clearance of his

financial accountabilities.

!he re9uirement of 1< EARS difference

between the adopter and the adoptee is

)! applicable if the adopter is%

1. the biological parent of the adoptee

4. the spouse of the adoptees parent





25/36



!he re9uirement on residency and

certification of aliens 9ualification to

adopt may be >A25for the following%1. !he adoptee is a former Cilipino

citiDen who seeks to adopt arelati'e within the thdegree of

consanguinity or affinity.

2. )ne who seeks to adopt the

legitimate son@daughter of

his@her Cilipino spouse.

3. )ne who is married to a Cilipino

citiDen and seeks to adopt $ointly

with his@her spouse a relati'e

within the th degree of

consanguinity or affinity of the

Cilipino spouse.

2O MAY 4E ADOPTED1. Any person below eighteen (1

years of age who has been

$udicially declared a'ailable for

adoption )R 'oluntarily

committed to 5S>5.

4. !he legitimate child of one

spouse by the other spouse.

3. An illegitimate child by a

9ualified adopter to raise the

status to that of legitimacy.

. A person of legal age

regardless of ci'il status, if,prior to the adoption, said

person has been consistently

considered and treated by the

adopters as their own child since

minority.

?. A child whose adoption has been

pre'iously rescinded.

5 and the biological parents

of the adoptee, C G)>.

- if a change in the name of theadoptee is prayed for in the

petition, notice to the Sol. 6en.

Shall be #A5A!)RE.

4) C2ILD 2OME STUDY REPORTS(Sec.13

- social worker 'erifies with the

"i'il Registry the real identity

and the name of adoptee and

the fact that he is legally

a'ailable for adoption.

- social worker may makerecommendations to the court if

he finds some grounds to deny

the petition.

C) 2EARING (sec.1- to be held within < #)!:S from

the date of issuance of the order

EXCEPT:in case of A&&/"A!) C)R":A6 )C A# which hearing

must not be within #)!:S after

/AS! &0B/"A!) nor within 3+

5AESr$or #o ele#$on.





26/36



- the petitioner and the adoptee

must personally appear and the

former must testify in court.

D) SUPERVISED TRIAL CUSTODY ,STC1(Sec.1?

Before issuance of decree of

adoption the court shall gi'e the

adopter trial custody of the adoptee

for at least < #)!:S.

Re$s%n: So the parties will ad$ustpsychologically and emotionally to

each other and establish a bonding

relationship.

"ourt may reduce or e*empt partiesfrom S!".

GENERAL RULE:Alien adopter must complete the /CAR or for

!: >/CAR of said person

4. Such person or one ha'ing

charge of him is opposed or his

being taken to hospital or asylum

DISC2ARGE OF INSANE (Sec. 5irector of :ealth may file this petition

when he is of the opinion that the personis permanently or temporarily cured or

may be released without danger

RULE 0*2A4EAS CORPUS

2$8e$s c%"'-s e;#ends #%:(Sec.11. cases of illegal confinement or

detention by which a person is

depri'ed of his libertyF and

4. cases by which the rightful custody of

the person is withheld from the

person entitled thereto

!he restraint must be actual,effecti'e and material. !he person need

not actually be confined as long as

freedom of action is limited. (onua

vs. /nr$le, No. 61107, Ar. 26, 198!)

"i# %& 2$8e$s C%"'-s - a commanddirected to the person detaining

another, re9uiring him to produce the

body of the person detained at a

designated time and place, and to

produce and to show cause and to

e*plain the reason for detention.

PURPOSE!he essential ob$ect and purpose of the

writ of habeas corpus is to in9uire into

all manner of in'oluntary restraint as

distinguished from 'oluntary, and to

relie'e a person therefrom if such

restraint is illegal. (onua vs. /nr$le,

sura)

And any further rights of the parties are

left untouched by decision on the writ,

whose principal purpose is to set theindi'idual at liberty. (>$llav$en$o vs.

Luan)

!he pri'ilege of writ is so sacred that,

according to our ")S!!0!), it shall

not be suspended e*cept in cases of

in'asion or rebellion when public

security re9uires it (Art. , Sec. 1?.

IN CASES OF ILLEGAL CONFINEMENT ORDETENTION

GENERAL RULE: !he release, whetherpermanent or temporary, of a detained

person renders the petition for habeas

corpus moot and academic.

EXCEPTION: >hen there are restraintsattached to his release which precludes

freedom of action, in which case the

court can still in9uire into the nature of

his in'oluntary restraint. (>$llav$en$o

vs. Luan)

!e#!e" #!e S#$#e c$n "ese"e #!e'%e" #% "e>$""es# $ 'e"s%n &%" $n





29/36


30/36



f. hearing on return.

T% !%5 "i# di"ec#ed $nd !$# #%"e-i"e) (Sec.


31/36



b. ither parent, taking into

account all rele'ant

considerations, especially the

choice of the minor o'er se'en

years of age and of sufficientdiscernment unless the parent

chosen unfitF

c. !he grandparent or if there are

se'eral grandparents,

grandparent chosen by the minor

o'er se'en years of age and of

sufficient discernment, unless

the grandparent chosen is unfit

or dis9ualifiedF

d. !he eldest brother or sister o'er

twenty years of age unless he or

she is unfit or dis9ualifiedFe. !he actual custodian of the

minor o'er twenty years of age,

unless the former is unfit or

dis9ualifiedF or

f. Any other person or institution

the court may deem suitable to

pro'ide proper care and

guidance for the minor.

Te5'%"$"9 Visi#$#i%n Ri6!#s (Sec.1?!he court shall pro'ide in its order

awarding pro'isional custody appropriate

'isitation rights to the non- custodial

parent or parents, unless the court finds

said parent or parents unfit or

dis9ualified.

Pe#i#i%n &%" "i# %& 2$8e$s C%"'-s(Sec. 4+

shall be filed with the Camily

court.

shall be enforceable within its

$udicial region to which the

Camily "ourt belongs.

the petition may howe'er befiled with the regular court inthe absence of the presiding

$udge of three Camily "ourt,

pro'ided howe'er that the

regular court shall refer the case

to the family "ourt as soon as its

presiding $udge returns duty.

petition may also be filed with

the S", "A, or with any of its

members and, if so granted the

writ shall be enforceable

anywhere in the &hilippines. !he

writ may be made returnable to

a Camily court or to any regular

court within the region wherethe petitioner resides or where

the minor may be found for

hearing and decision on the

merits.

RULE 03C2ANGE OF NAME

Ven-e (Sec. 1R!" of the pro'ince in which he resides.

C%n#en#s %& Pe#i#i%n (Sec.4t shall set forth%

1. that petitioner is a bonafide

resident of the pro'ince where

petition is filed for at least three

years prior to the date of filingF

2. all names by which petitioner is

knownF

3. cause for change of nameF

4. name asked for.

&etition shall be signed and 'erified by

person desiring his name changed or

some other person in his behalf.

Re9uirement of 'erification is formal,

)! $urisdictional re9uisite. t is not a

ground for dismissing petition.

J-"isdic#i%n$( Re-i"e5en#s1. the 'erified petition should be

published for three successi'e

weeks in some newspaper of

general circulation in the

pro'inceF

2. that both the title and caption ofthe petition and its body shall

recite%

a name @names or aliases of

the applicantF

b cause for which the change

of name is soughtF

c new name asked for. ("ean

o vs. eul$, 52 "CA

!22).

2e$"in6 - shall not be within 3+ daysprior to an election nor within #)!:S





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after the /AS! &0B/"A!) of notice of

hearing.

E&&ec#s %& Disc"e'$nc9 in #!e Pe#i#i%n

$nd P-8(is!ed O"de"!he defect in the petition and the order,

as to the spelling of the name of the

petitioner, is substantial, because it did

not correctly identify the party to said

proceedings.

G"%-nds &%" c!$n6e %& n$5e1. name is ridiculous, tainted with

dishonor and e*tremely difficult

to write or pronounceF

2. conse9uence of a change of

statusF e.g. legitimated childF3. necessity to a'oid confusionF

4. ha'ing continuously used and

been known since childhood by a

Cilipino name, unaware of her

alien parentageF

5. a sincere desire to adopt a

Cilipino name to erase signs of

former alienage, all in good faith

and without pre$udicing

anybody.

TITLE OF PETITION MUST CONTAINED

T2E FOLLONG1. )fficial name (birth certificate 8

be 'ery particular with the

spelling because it may a'oid or

annul the proceedingsF it is

$urisdictionalF

2. all aliasesF and

3. name asked for.

All the names or aliases must appear in

the title or caption of the petition,

because the reader usually merely

glances at the title of the petition andmay only proceed to read the entire

petition if the title is of interest to him.

("ean o vs. eul$,sura).

A decree of adoption grants the adoptee

the right to use the adopters surname

but not to change the formers first

name which relief must be sought in a

discrete petition under Rule 1+3.

(eul$ vs. 'ernande3, N:.

117209, Feruar 9, 1996.

Cor administrati'e procedure for"hange of ame, refer to Administrati'e

)rder 1, Series of 4++. t only applies

to%

1. clerical errorsF and4. innocuous errors.

RULE 07A4SENTEES

A4SENTEE CONSEUENCE

+-4 years --------

4 years to ; years &etition fordeclaration of

absence may be filed

Beyond ; years

(absence of years

under e*traordinary

circumstance

"onsidered dead for

all intents and

purposes e*cept for

purposes of

succession

Cor purposes of

marriage% years

continuous absence

shall be sufficient for

present spouse to

remarry, 4 years only

under e*traordinary

circumstance

PURPOSE OF PETITION > to appoint anadministrator o'er the

properties of the absentee.

:ence, if absentee left no

properties, such petition is

unnecessary.

GROUNDS FOR TERMINATION OF T2E

ADMINISTRATION1. absentee personally appears

through an agent

4. absentee death is pro'en and

heirs appear

3. third person appears showing

that he ac9uired title o'er the

property of the absentee

. Actual or presumpti'e death

cannot be the sub$ect if it is the

onlt 9uestion or matter in'ol'ed

in a case or upon which a

competent court has to pass.





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(Luan vs. eul$, No.

8492, Feruar 29, 1956)

N% inde'enden# $c#i%n &%" Dec($"$#i%n%& P"es-5'#i%n %& De$#!E;ce'#i%n: the need for declaration ofpresumpti'e death for purposes of

marriage (Article 1 of the Camily "ode.

RULE 0CANCELLATION OR CORRECTION OF

ENTRIES IN T2E CIVIL REGISTRY

Republic Act o. =+ which was passed

by "ongress on Cebruary , 4++1substantially amended Article 14 of the

ew "i'il "ode, to wit%

SECTION 0)Authority to "orrect "lericalor !ypographical rror and "hange of

Cirst ame or ickname.Lo entry in a

ci'il register shall be changed or

corrected without a $udicial order,

e*cept for clerical or typographical

errors and change of first name or

nickname which can be corrected or

changed by the concerned city or

municipal ci'il registrar or consulgeneral in accordance with the

pro'isions of this Act and its

implementing rules and regulations.

!he abo'e law speaks clearly. "lerical or

typographical errors in entries of the

ci'il register are now to be corrected

and changed without need of a $udicial

order and by the city or municipal ci'il

registrar or consul general. !he ob'ious

effect is to remo'e from the ambit of

Rule 1+ the correction or changing of

such errors in entries of the ci'ilregister. :ence, what is left for the

scope of operation of Rule 1+ are

substantial changes and corrections in

entries of the ci'il register. (Lee vs. CA,

.. No. 118!87, :#oer 11, 2001).

Re-isi#es %& Ade"s$"i$( '"%ceedin6s1. &roper petition is filed where the

"i'il Registrar and all parties

interested are impleaded.

4. !he order of the hearing must be

published once a week for three

consecuti'e weeks.

3. otice thereof must be gi'en to the

"i'il Registrar and all partiesaffected thereby.

. !he ci'il registrar and any person

ha'ing or claiming any interest under

the entry whose cancellation or

correction is sought may, within 1?

days from notice of the petition or

from the last date of publication of

such notice, file his opposition

thereto.

?. Cull blown trial.

&roceedings for the correction ofentries should not be considered asestablishing ones status in a manner

conclusi'ely beyond dispute. !he status

corrected would not ha'e a superior

9uality for e'identiary purposes. !here is

no increase or diminution of substanti'e

right. (C+$ao Ben L$ vs. osa, L- 40252,

eeer 29, 1986)

PETITIONS FORC2ANGE OF

NAME

PETITIONS FORT2E CORRECTION/CANCELLATION OF

ENTRIES

&etition to be filed

in the R!" where

the petitioner

resides

2erified petition filed

in the R!" where the

corresponding "i'il

registry is located

Solicitor 6eneral

must be notified by

ser'ice of a copy of

the petition.

"i'il registrar

concerned is made a

party to the

proceeding as a

respondent. !he

Solicitor 6eneral

must also be notified

by ser'ice of a copyof the petition.

&etition is filed by

person desiring to

change his name

&etition is filed by

any person interested

in any A"!, 2!,

)R5R or 5"R

)rder for hearing

shall be published

once a week for

three consecuti'e

weeks

)rder shall also be

published once for

three consecuti'e

weeks and court shall

cause reasonable

notice to persons

named in petition





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Ser'ice of $udgment shall be upon the ci'il

register concerned

&etition for change of name ,R-(e 031and petition for cancellation or

correction of entries are 5S!"!&R)"56S.

:ence, a party cannot change name and

correct an entry in a single petition

without satisfying the $urisdictional

re9uirements. (eul$ v. Balore)

RULE 0APPEALS IN SPECIAL PROCEEDINGS

O"de"s %"


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VENUE AND JURISDICTION OF SPECIAL PROCEEDINGS

SPECIAL PROCEEDING VENUE JURISDICTION

1. Settlement of the state Resident of the 5ecedent orif the decedent is a non-

resident, place where he

had an estate

#!" if the gross 'alue of theestate does not e*ceed &4++,+++,

or &++,+++ in #etro #anila

R!" if the gross 'alue of the

estate e*ceeds the abo'e amounts

4. scheat a. Pe"s%n dies in#es#$#e

(e$in6 n% !ei"8 Resident of

the decedent or if non-

resident, in the place where

he had an estate.

R!"

b. Ree"si%n8 >here the

land lies in whole or in part

R!"

c. Unc($i5ed 4$($nce8

>here the dormant deposits

are located

R!"

?. Appointment of

6uardians

>here the minor or

incompetent resides

Camily "ourt (in case of #inors

R!" (Regular courtsLin cases

other than minors

here the will was allowedor where the property or

portion thereof affected by

the trust is situated

R!"

;. Adoption >here the adopter resides Camily "ourt

. Rescission of Adoption >here the adoptee resides Camily "ourt

=. :abeas "orpus >here the detainee is

detained (if the petition is

filed with the R!"

S", "A, R!", #!" in the pro'ince

or city in case there is no R!"

$udge





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Documents

SpecProc Memory Aid