file:spcpro_part2a.htm

2.  SETTLEMENT OF
ESTATE OF DECEASED PERSONS

1.  In General

1. Jurisdiction and Venue

1.1 The settlement of the
estate of deceased persons shall be in the court of the place of residence of the
deceased at the time of his death, whether he is a citizen or an alien.

1.2 If the deceased is an
inhabitant of a foreign country, then the settlement shall be in the court of
any place in which he had estate.

Note: Sec. 1, Rule 73,
Rules of Court which substantially contains the foregoing rules still remain
unamended after the passage of Batas Blg. 129. Said Sec. 1 still
speaks of ‘Court of First Instance,’ instead of ‘Regional Trial Court’ and
‘province’ which in other parts of the Rules had been changed to ‘place.’ But
under Batas Blg. 129, the jurisdiction over settlement proceedings is not
limited to Regional Trial Courts but include Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts, where the value of
the estate does not exceed Php 200,000 outside or in Metro Manila, Php
200,000.15 Outside Metro Manila, the amount was at
first fixed at Php 100,000 but this was increased to Php 200,000. After another
five years, the jurisdictional amount will be Php 300,000 outside Metro Manila
where the amount will become Php 400,000.16

1.3 The jurisdiction of a
probate court is determined by the place of residence of the deceased person or
of the location of his estate, but the matter really constitutes venue.17

1.4 Important rule

The jurisdiction assumed by a
court, so far as it depends on the place of residence of the decedent, or of
the location of his estate, shall not be contested in a suit or proceeding,
except in an appeal from that court, in the original case, or when the want of
jurisdiction appears on the record.18
This is to preclude different courts from assuming jurisdiction.19

1.5 The term ‘resides’ refers
to ‘actual residence’ as distinguished from ‘legal residence’ or domicile.’20

1.6 The liquidation of the
conjugal or community property of a deceased husband or wife shall be made in
his or her estate proceedings, but if both spouses are deceased, then in the
estate proceeding of either.21

1.7 Shari’a Courts have
exclusive original jurisdiction in matters of settlement of the estate of
deceased Muslims.22

2.  Kinds of
settlement

On the basis of the form of settlement, there are
three kinds:

2.1 Extrajudicial settlement;

2.2 Summary settlement of
estates of small value; and

2.3 Judicial settlement
through letters testamentary or letters of administration with or without the
will annexed.

3. 
Extrajudicial settlement

An extrajudicial settlement may be made by the
heirs of a deceased person without having to secure letters of administration.23

3.1 The following requisites
must be present or followed:

3.1.1 The decedent left no
will and no debts.

Note: It shall be
presumed that the decedent left no debts if no creditor files a petition for
letters of administration within two (2) years after the death of the decedent.24

3.1.2 A bond equivalent to the
value of the personal property of the estate is posted with the Register of
Deeds.

Note: The value must be
certified to under oath by the parties concerned and the bond must be
conditioned upon the payment of any just claim that may be filed.25

3.1.3 The fact of settlement
is published in a newspaper of general circulation once a week for three (3)
consecutive weeks.

Note: No extrajudicial
settlement shall be binding upon any person who has not participated therein or
had no notice thereof.26

3.2 The extrajudicial
settlement may follow any one of three (3) ways:

3.2.1 Public instrument.- A
public instrument is executed by all the heirs to be filed with the Registry of
Deeds.

3.2.2 Action for Partition.- If
the heirs cannot agree on the division of the estate, an ordinary action for
partition may be filed.

3.2.3 Affidavit of
self-adjudication.- If there is only one heir, then the heir may execute an
affidavit adjudicating to himself or herself the entire estate, which affidavit
shall be filed with the register of deeds.27

3.3 Minor heirs

If there are minor heirs, they
may be represented by their "judicial or legal representatives duly
authorized for the purpose."28

4.  Summary
settlement of estates of small value

4.1 When the gross value of
the estate of a deceased person does not exceed Php 10,000.00,29 upon a proper petition, the court having
jurisdiction,30 may proceed summarily
to settle the estate, without the appointment of an executor or administrator,
and without delay.

4.2 The petition may be filed
by an interested person which should make such value appear to the court.

4.3 The hearing on the
petition shall be held not less than one (1) month nor more than three (3)
months from the date of the last publication of the notice.

4.4 The notice shall be
published once a week for three (3) consecutive weeks in a newspaper of general
circulation in the province. Notice shall also be given to all interested
persons as the court may direct.

4.5 After hearing, the court
may grant, if proper, allowance of the will, if any there be, determine the
persons legally entitled to participate in the estate, and apportion and divide
it among them after payment of the debts of the estate.

4.6 Those who are entitled to
the estate, if they are of age and with legal capacity, or by their guardians
and trustees legally appointed and qualified, shall be entitled to receive
their share of the estate.

4.7 The court may issue an
order respecting the costs of the proceedings.

4.8 All orders and judgments
shall be recorded in the office of the clerk, and the order of partition or
award, if it involves real estate, shall be recorded in the proper register’s
office.

No longer the Court of First Instance as provided
in Sec. 2, Rule 74 but a Metropolitan or Municipal Court because the value of
the property does not exceed Php 200,000 for both Metro Manila and outside
Metro Manila (B.P. Blg. 129, Sec. 33[1]; R.A. No. 7691, Sec. 5.).

5.   Judicial
settlement with letters testamentary or with letters of administration

Settlement shall otherwise be in court in special
proceedings through a full-blown procedure with either a testator or an
executor managing the estate of the deceased until partition and distribution after
the payment of debts, legacies and devises.

2. Probate of Wills

1. Will, explained

A will is an act whereby a person is permitted
with all the formalities prescribed by law to control to a certain degree the
disposition of his estate, to take effect after his death.31 It is otherwise called a ‘last will and
testament.’

1.1 It may be a notarial will
with certain important requisites.

1.1.1 Every will must be in
writing and executed in a language or dialect known to the testator.32

1.1.2 Every will, other than a
holographic will, must be subscribed at the end thereof by the testator himself
or by the testator’s name written by some other person in his presence, and by
his express direction, and attested and subscribed by three (3) or more
credible witnesses in the presence of the testator and of one another.33

1.1.3 The attestation shall
state the number of pages used upon which the will is written, and the fact
that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and
all the pages thereof in the presence of the testator and of one another.34

1.1.4 Every will must be
acknowledged before a notary public by the testator and the witnesses.35

1.1.5 If the will is not
contested, only one (1) subscribing witness needs to testify;36 if the will is contested, all
subscribing witnesses and the notary must testify.37

1.2 It may be a holographic
will if it is in the handwriting of the testator, but it must be entirely
written, dated and signed by him.

1.2.1 It is subject to no
other form, may be made in or out of the Philippines, and needs no witnesses.38

1.2.2 At least one witness
should testify that the will and the signature thereon are in the handwriting
of the testator.39 If the holographic
will is contested, at least three (3) witnesses who know the handwriting of the
testator must testify but in the absence of any competent witness, if the court
deems it necessary, expert testimony may be resorted to.40

2.  Time to submit
to the court

2.1 Reglementary periods

2.1.1 Within twenty (20) days
from knowledge of the death of the testator, the custodian of a will shall deliver
it to the court having jurisdiction or to the executor named in the will.41

2.1.2 On the other hand, the
executor has twenty (20) days from knowledge of the death of the testator or
knowledge of the fact that he is named executor to submit the will to the court
unless the will has reached the court already. Within the same period, he shall
signify to the court in writing whether he accepts or refuses the trust.42

2.2 Penalties

2.2.1 A person who neglects to
comply with the foregoing two provisions, without excuse satisfactory to the
court, shall be fined not exceeding Php 2,000.00.

2.2.2 The custodian who
refuses to comply with the order of the court to deliver the will, when he is
ordered to do so, may be committed to prison until he delivers the will.

3.   Procedure
In The Probate of A Will

3.1 The contents of a petition for the allowance
of a will are:

3.1.1 The jurisdictional
facts;

3.1.2 The names, ages, and
residences of the heirs, legatees, and devisees of the testator or decedent;

3.1.3 The probable value and
character of the property of the estate;

3.1.4 The name of the person
for whom letters are prayed;

3.1.5 If the will has not been
delivered to the court, the name of the person having custody of it.

Note: But no defect in the petition shall
render void the allowance of the will, or the issuance of letters testamentary
or of administration with the will annexed.43

3.2 Time for proving the will

The court shall fix a time and place for proving
the will when all concerned may appear to contest the allowance thereof.44

Note: However, the court need not go
through the probate of a will that preterited a compulsory heir since
preterition invalidates the will.45

3.3 Publication of notice

The court shall cause notice of such time and
place to be published three (3) weeks successively, previous to the time
appointed, in a newspaper of general circulation in the province.46

Note: Where the petition for probate has
been filed by the testator himself, no newspaper publication shall be made.47

3.4 Persons entitled to notice483.4.1 Heirs, devisees, legatees, and
executors should be notified by mail or personally.

3.4.2 The mail should be
deposited in the post office with the postage thereon prepaid at least twenty
(20) days before the hearing, if the places of residence be known.

3.4.3 Personal service of
copies of the notice at least ten (10) days before the day of hearing shall be
equivalent to mailing.

3.4.4 If the testator asks for
the allowance of his own will, notice shall be sent only to his compulsory
heirs.

3.5 Proof at hearing49

At the hearing, compliance with the provisions on
notice and its publication must be shown before the introduction of testimony
in support of the will. All testimony shall be taken under oath and reduced to
writing.

3.6 Lost or destroyed will50

No will shall be proved as a lost or destroyed
will unless:

3.6.1 the execution and
validity of the same be established; and

3.6.2 the will is proved to
have been in existence at the time of the death of the testator, or is shown to
have been fraudulently or accidentally destroyed during the lifetime of
the testator without his knowledge; nor

3.6.3 unless its provisions
are clearly and distinctly proved by at least two (2) credible witnesses.

3.7 Deposition51

If none of the subscribing witnesses resides in
the province, the court may, on motion, direct a deposition to be taken, and
may authorize a photographic copy of the will to be made and to be presented to
the witness on his examination.

3.8 Unavailable witnesses52

If the subscribing witnesses are dead or insane,
or none of them resides in the Philippines, the court may admit the testimony
of other witnesses to prove the sanity of the testator; the due execution of
the will; and proof of the handwriting of the testator and of the subscribing
witnesses, or of any of them.

3.9 Contesting a will53

Anyone appearing to contest the will must state
in writing his grounds for opposing its allowance, and serve a copy thereof on
the petitioner and other parties interested in the estate.

3.10 Grounds for disallowing a will54

The will shall be disallowed in any of the
following cases:

3.10.1 If not executed and
attested as required by law;

3.10.2 If the testator was
insane, or otherwise mentally incapable to make a will, at the time of its
execution;

3.10.3 If it was executed
under duress, or the influence of fear, or threats;

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

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

3.  Executors and
Administrators

1.  
Requirements For The Issuance Of Letters Testamentary And Of Letters Of Administration55

Probate proceedings may be opened by a petition
for the allowance of a will and the issuance of letters testamentary, as
previously discussed or letters of administration.

1.1 The petition may be opposed
and a petition may at the same time be filed for letters of administration with
the will annexed.56

1.2 The contents of a petition
for letters of administration are:

1.2.1 The jurisdictional
facts;

1.2.2 The names, ages, and residences
of the heirs, and the names and residences of the creditors, of the decedent;

1.2.3 The probable value and
character of the property of the estate; and

1.2.4 The name of the person
for whom letters of administration are prayed;

Note: But no defect in
the petition shall render void the issuance of letters of administration.57

1.3 No person is competent to
serve as executor or administrator who is (a) a minor; (b) not a resident of
the Philippines; and (c) in the opinion of the court, unfit to execute the
duties of the trust by reason of drunkenness, improvidence, or want of
understanding or integrity, or by reason of conviction of an offense involving
moral turpitude.58

2.  Appointment
of Executors (who may become executors)59

2.1 After a will is proved and allowed, the court
shall issue letters testamentary thereon to the person named as executor
therein, if he is competent, accepts the trust, and gives bond as required by
the rules. It is clear that an executor is one who is named in a will.

2.2 There may be several executors named in the
will. Letters testamentary may issue to such of them as are competent, accept
and give bond. If no executor named qualifies, then an administrator is
appointed.60

3.  
Appointment Of Administrators; Priorities61

Administration may be granted:

3.1 To the surviving spouse,
or next of kin, or both, or to such person as such surviving spouse or next of
kin, requests to be appointed, if competent and willing to serve.

3.2 To one or more of the
principal creditors, if competent and willing to serve, in default of the
foregoing or if the surviving spouse or next of kin neglects for thirty (30)
days after the death of the deceased to file a petition for administration or
the request that administration be granted to some other person.

3.3 To such other person as
the court may select, in default of the foregoing.

Note: The court may disregard the
preference above enumerated in its sound discretion and its decision will not
be interfered with on appeal unless it appears that it is in error.62

4.  Appointment Of
Special Administrators

A special administrator may be appointed ‘(w)hen
there is delay in granting letters testamentary or of administration by any
cause including an appeal from the allowance or disallowance of a will."63 The special administrator shall take
possession and charge of the estate of the deceased until questions causing the
delay are decided and executors or administrators appointed.

4.1 While the qualifications
of a special administrator are not spelled out in the rules, the appointment
should be within the sound discretion of the court and such discretion should
not be a whimsical one. There is no reason why the same fundamental and legal
principles governing the choice of a regular administrator should not be taken
into account in the appointment of a special administrator.64 However, the court is not bound to
follow the order of preference set up for the appointment of a general
administrator.65

4.2 Only one special
administrator at a time may be appointed, since the appointment is merely
temporary.66

4.3 Powers and duties

The special administrator
shall take possession and preserve the goods, chattels, rights, credits, and
estate of the deceased and for that purpose may commence and maintain suits as
administrator. He may sell only such perishable and other property as the court
orders sold. He is not liable to pay any debts of the deceased unless so
ordered by the court.67

4.4 The court has no power to
order a special administrator to sell real property of the estate pending
resolution of the issue of the appointment of the regular administrator.68

4.5 A special administrator
does not have the power to close the estate because he normally does not pay
the debts of the deceased. However, he can be sued. There is no express
prohibition; otherwise, prescription may set in if the appointment of the
regular administrator is delayed.69

4.6 Termination

The special administrator may
be removed on grounds other than those mentioned in Rule 82.70 When an executor or administrator is
appointed, the powers of the special administrator cease. He shall immediately
deliver the estate to the executor or administrator who may prosecute to final
judgment suits commenced by the special administrator.71

5.  Bond of
Administrator or Executor 72

5.1 Before an executor or
administrator enters upon the execution of his trust, he shall give a bond, in
such sum as the court directs, conditioned as follows:

5.1.1 To make and return within
three (3) months, a true and complete inventory;

5.1.2 To administer the estate
and pay and discharge all debts, legacies, and charges on the same, or
dividends thereon;

5.1.3 To render a true and
just account within one (1) year, and at any other time when required by the
court; and

5.1.4 To perform all orders of
the court.

5.2 Further bond

The executor may serve without bond if the
testator so directs, or with only his individual bond, conditioned only to pay
the debts of the testator; but the court may require a further bond in case of
a change in his circumstances, or for other sufficient cause.73