Spec Pro any other person interested in the estate.

Special proceeding – A remedy by which a party seeks to establish a status, a right or a
particular fact or any other remedy other an ordinary suit in a court of justice.
Example of status. Illegitimate to legitimate
Example of Right. Support
Example of Particular Facts. Subject to special law.
Initiated by petition.
Not based on a cause of action (except habeas corpus)
Testator himself during hid lifetime.
Creditor
Any person having direct and material interest in the will or estate.
WHEN: At any time after the death of the testator,
HOW: By petition the court having jurisdiction to have the will allowed, whether the same be
in his possession or not, or is lost or destroyed.

First on the enumeration is
1. Settlement of Estate of deceased person
2.
Estate - A person's estate is everything comprising the net worth of an individual, including
all land, possessions and other assets. All the property of the decedent whether real or
personal including insurance proceeds, stocks and certificate and the like are included in the
ESTATE.
A person who dies as general term is called a decedent but if he dies living a will he is called
a testator.
In Settlement of an Estate there are two ways to settle an estate.
1. Judicial – Testate and intestate proceeding instituted in the country where
decedent had his residence at the time of this death or had his residence at the letters testamentary or of administration with the will annexed.
time of his death or had estate if a nonresident.
-There is a court intervention, you file a petition.
Section 2. Contents of petition. — A 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; (your request to the court)
(distribution of the property to the rightful heirs ) (issuance of the letters of administrator – no
will) (letters testamentary) – rule 78
(e)If the will has not been delivered to the court, the name of the person having custody of it.
But no defect in the petition shall render void the allowance of the will, or the issuance of
Once you file a petition to the court you will have to pay the filling fee. Uniform ang filing fee.

In judicial there are two way It is a special proceedings – It will be raffled.

A. Testate – There is a will – Proceeding is called probate of the will
B. Intestate – There is no will. After the petition has been filed. Raffled to a particular judge. The clerk of court or officer in
charge will prepare an order stating the date of hearing and place of hearing and directing
2. Extrajudicial – Testate or intestate proceeding where the decedent had left no any interested person who may interpose to the petition to appear to the court.
will and no debts, and the heirs adjudicate the estate among themselves without
The order will be publish to the newspapers of general circulation once a week for 3
seeking letters of administrator (rule 74 sec. 1) consecutive weeks.
-Extrajudicial if the settlement of the estate is done outside the court invention.
Agreements of the parts. The order will be submitted office of the executive judge or the clerk of court to the whole
station and it will be raffled to the newspaper accredited by the courts
INTESTATE MEANING NO WILL
Venue: decedent is a resident of the Philippines where there are citizens of the Philippines In special proceeding where a publication is required it is jurisdictional, without publication
or alien, the venue lies in the province/city or municipality where the decedent resided at the the court cannot proceed in further proceedings.
time of the death.
Khit na raffle na at hndi na publish the court will proceed.
(If the decedent is an alien he resides outside of the Philippines) Resident of Foreign
Country – Court of any province wherein he had his estate. Venue lies in any of the place The date or dates of the hearing is stated sa order, time, place and date.
where he has an estate.
How will you proof that the court has the jurisdiction on the case.
The three issues of the newspaper and the certification of the editor in chief of the
Jurisdiction: Will depends upon the gross value of the estate of the decedent. newspaper. Execute of the an Affidavit of publication.
1. Metro manila – MTC: gross value does not exceed 400,000.00; otherwise, RTC
2. Outside Metro manila – MTC gross value does not exceed 300,000; otherwise, First hearing:
RTC. This will be file as proof of publication to establish jurisdictional requirement. If there are
heirs name in the petition, Proof of notice to them, proof of service to them will need to be
VENUE -Particular country or geographical area in which a court with jurisdiction presented.
may hear or determine a case
-the place where you file the case After that jurisdictional requirement has been established and there being no opposition
-Procedural The court will establish a jurisdictional requirement
-can be agreed upon by the parties
-In civil cases, may be waived or stipulated by the parties During the hearing the judge will issue an letters of administration:
-can be transferred
Section 1. Who are incompetent to serve as executors or administrators. — No person in
competent to serve as executor or administrator who:
JURISDICTION
> Power or authority given by the law to a court or tribunal to hear and determine certain (a)Is a minor;
controversies (b)Is not a resident of the Philippines; and
-Substantive (c)Is in the opinion of the court unfit to execute the duties of the trust by reason of
-Granted by law or by the constitution and cannot be waived or stipulated drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction
-cannot be agreed upon by the parties of an offense involving moral turpitude.
-cannot be transfer
Pyschological fit(physical test), financial fit(ITR, proof of employment, proof of owner of
business, Moral fitness (police clearance
TESTATE – Person who died leaving a will.
When the petitioner is qualified as Administrator, he will be granted and order to be
Section 1. Who may petition for the allowance of will. — administrator the appointment as Administrator He shall be required to take the OATH of
Any executor, service and FILE A BOND (cash, surety, property – annotated in the TCT and file in the
security of deeds)
devisee, or
legatee named in a will, or
Who determines the amount of the BOND – COURTS DISCRETION.
 The support – can be file during probate.. Perishable goods. Personal or Fruits on real
What is the purpose of the bond – Security of the administrator of the property. property.

The administrator will assume his duties and responsibility as administrator. Distribution of SECOND MEETING
the property to the heirs
ESCHEAT – is the falling of a decendent ‘s estate into the general property of the state on
Once the property was distributed and there are property in excess that is CALLED -
his death intestate without lawful heirs, and is applied indifferently to all his rights to property
RESIDUE
of whatever nature.
RULE 84
ISSUED BY THE COURT FOR THE REVERSAL OF THE ESTATE OF THE
General Powers and Duties of Executors and Administrators DECEDENT WHO DIED WITHOUT A WILL WITHOUT HIERS AND NO DEBTS. If there
debts they should not be claim.
Section 1. Executor or administrator to have access to partnership books and property.
How right enforced. — The executor or administrator of the estate of a deceased partner NO HEIRS
shall at all times have access to, and may examine and take copies of, books and papers NO DEBTS
relating to the partnership business, and make examine and make invoices of the property NO WILL
belonging to such partnership; and the surviving partner or partners, on request, shall exhibit
to him all such books, papers, and property in their hands or control. On the written Who can file a petition?
application of such executor or administrator, the court having jurisdiction of the estate may Solicitor General and/or its authorized representative.
order any such surviving partner or partners to freely permit the exercise of the rights, and to
exhibit the books, papers, and property, as in this section provided, and may punish any
partner failing to do so for contempt. WHERE?
1. PHIL Resident – RTC of the province where the deceased last resided
Section 2. Executor or administrator to keep buildings in repair. — An executor or 2. Non PHIL -Resident – RTC of the place where his estate is located.
administrator shall maintain in tenable repair the houses and other structures and fences
belonging to the estate, and deliver the same in such repair to the heirs or devisees when For whose be benefit is this Escheat
directed so to do by the court. 1. If personal property – to the municipality or city where he last resided.
2. Real property - municipality or city where the property is situated
Section 3. Executor or administrator to retain whole estate to pay debts, and to administer 3. Deceased never resided in pinas - municipality or city where the property may
estate not willed. — An executor or administrator shall have the right to the possession and be found.
management of the real as well as the personal estate of the deceased so long as it is Petition – order – publication – proof of publication
necessary for the payment of the debts and the expenses of administration.
When the petition is granted – The estate will be decedent shall be given to the government.
2 kinds of will

Notarial will – It must be written, subscribed and attested and subscribed by three or more TO What agency that estate go?
credible witnesses in the presence of the testator and of one another. This must contain an To the govt where the property is located.
attestation clause
Benefit of CHARITABLE institution, Public schools and center in the said municipality.
Holographic will – entire written. Requirement it is at least one person knows his hand
writing If the property escheated was already distributed to the CHARITABLE institution, Public
schools and center and here cames an heir claiming the Property - The municipality or govt
What is the will - Art. 783. A will is an act whereby a person is permitted, with the formalities will pay for the that share.
prescribed by law, to control to a certain degree the disposition of this estate, to take effect
after his death. (667a) GUARDIANSHIP – is the power of the protective authority given by the law and imposed in
an individual who is free and in enjoyment of his rights over one whose weakness on
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by
account of his age or other infirmity renders him unable to protect himself.
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 or more credible
witnesses in the presence of the testator and of one another. Purpose : to safeguard the right and interests if minors and adult (incompetent person)

The testator or the person requested by him to write his name and the instrumental Subject : Minor
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered correlatively in letters placed on VENUE – FAMILY COURT WHERE THE GUARDIAN RESIDES
the upper part of each page.
RESIDENT - RTC – of the ward’s residence.
The attestation shall state the number of pages used upon which the will is written, and the NON – RESIDENT - RTC of the place where the ward’s property is located.
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, Depending as to what type of guardianship
and that the latter witnessed and signed the will and all the pages thereof in the presence of 1. Guardian of the person
the testator and of one another.
2. Guardian of his property/ ESTATE
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to 3. BOTH
them. (n)
If there are properties owned by the MINOR the bond will be atleast 10% (minimum) of the
Art. 806. Every will must be acknowledged before a notary public by the testator and the total value of the property.
witnesses. The notary public shall not be required to retain a copy of the will, or file another
with the Office of the Clerk of Court. If after the hearing the court finds the petition is sufficient in form and substance – The
petitioner is qualified to be a guardian. (Qualification of the guardian is similar to that of an
How do you find the petition for probate? If there is a named executor in the will he has the administrator). Physical, psychological, moral, financial
duty to fill a probate. He will turn off to the clerk of court the will for probate.
SAME PROCEDURE… COURT WILL ISSUE OF LETTERS OF GUARDIANSHIP
-after the said Issuance GUARDIAN WILL FILL A BOND. In cash surety or property.
This will be prolong when there is oppositors. -after that where may now act as guardian.

TAKE NOTE : if the guardian has to encumber the properties of the WARD
We call now the subject as WARD. A guardian has to seek court order otherwise he can be If the child is a foundling, heshould be registered as such.
liable to the court. It has a contempt power even the court can remove him as guardian.
The birth certificate should reflect the word “foundling”.
TAKE note: that a parent is already a LEGAL GUARDIAN, he need not seek court The person who found the child should not register the
appointment. However, if the minor child owns a property over 50,000 pesos ABOVE and
the parent has to encumber or sale the property. He has to post a BOND and file a petition child in his name. Otherwise, if he does, it would be a
in the court in fixing the BOND. simulation of birth.
Like insurance proceeds, same procedure – the company will not give it to you unless you
Upon finding a child, his duty is to report the matter to
have an appointment by the court. When you receive in there behalf
DSWD then the child could be registered as a foundling.
Kinds of guardianship.
Q: Suppose the child was given to Mr. X who is childless,
Legal guardian – without a need of judicial appointment.
Judicial Guardian – Appointed in pursuance to law. when he registers the child under his family name. Is that
Guardian Ad Litem – appointed by the courts. – This is for limited purpose, (to prosecute or valid?
defend the minor, ward, incompetent person in a court action.
A: That would be simulation of birth. The law provides that
How does guardianship terminated?
1. Death of ward it a falsification of public document.
2. Death of guardian
3. Guardianship is no longer necessary *The court is not just strict on filing falsification cases
4. Competency of the ward.
5. Remove by the court and replace by another guardian
against those adoptive parents
6. An attempt on the live of the ward or to the guardian.
Q: What will be the remedy if the birth was in effect
What is the reason for guardianship is minority and the ward already attained his age of simulated?
majority – the guardianship will be terminated However, you are to inform the court that the
ward is already of Legal age why?
A: Today, the petition for adoption can be filed praying for
1. The court may not be aware ratification of the simulated birth for change of name in
2. In order to withdraw the BOND for cash, Cancel the bond for surety, Remove
the annotation in the title of the encumbrance
adoption. That is what we call 3 in one petition. Before,
those petitions should be filed separately.
You are to fill in the court the motion informing it the ward is of Legal age.
When we say prayer for change of name, that is only for the
If the reason for guardian ship incompetency.
If the incompetency is temporary and if the ward has already redeem his competency. You change of FIRST NAME. It is because the MIDDLE NAME and
are to inform the court of the case. SURNAME are necessary consequences of adaption.
SPEC PRO – FEB 4 If you don’t pray for the change of the first name, you need
not include the prayer for a change of name.
Trustee
Let’s say FILIPINO CITIZEN would want to adopt. What are
- There are 3 persons involved in a trustee.
the disqualifications?
- Trustor
- Trustee – to whom something is entrusted Similar to an administrator:
- Beneficiary -
 Physical – medical certificate
2 kinds of Adoption  Moral - by way of testimony
 Psychological – psychological report
1. Domestic Adoption
 Financial – income, employment or ownership of a
- Jurisdiction upon the residence of the adoptive
properties.
parents
2. Inter-country Adoption Where will you file?

What are the kinds of Children? 1. If the petitioner lives in Pasay and if the child is a
minor he shall file with the Family Court. (A family
1. Legitimate
court is always in the RTC. If no family court, you
2. Illegitimate
can file it with RTC)
3. Abandoned
4. Voluntarily committed Who can be adopted?
5. Foundling
 1. An illegitimate child of his biological parent can be
adopted by his own parent.
2. Legitimate Child.
a. Ex. My child with my former husband
supposing that first marriage got annulled.
Should my husband wished to adopt my
child, the petition can only be filed by him
because the child is already my legitimate
child.
 Unlike when the petitioners are
husband and wife who were
adopting a child other than a child
of either spouse.
3. If the child sought to be adopted is not their child
and if the petitioners are married, the petition
should always be a JOINT PETITION.
o Why?
o Because of the use of the surname of the
husband in the successional right.
 Take note that when the person shall adopt is
single, the person who shall inherit from him
should give written consent.
Ex. My possible heir is my mother then she
should give written consent.
Supposed that I have children who are already If granted by the court what are the consequences of
of legal age, and then their written consent is adoption?
required.
o Should the biological parents are alive,
their written consent must also be
given
o If they can’t be located despite efforts
given, the petitioner should seek the
intervention of DSWD. The DSWD will
conduct an investigation on whether
the petitioner is qualified and will issue
a certification that the child is available
for adoption. Without which, there
can’t be adoption.
4. If the child is voluntarily given.
Ex: teenager who voluntarily given her child
and then dies. Same process with the
previous situation, seek the intervention of
DSWD.
If the petition is already filed in court and the petition is
already sufficient in form and substance. The court will
issue an order. The court summarizes and stating the date
and time when the petition will be heard. Any person who
may interpose an objection for the adoption may appear.
During the hearing, what are the pieces of evidence that
may present in court?
1. If the petitioner is married, marriage certificate.
2. Certificate of live birth of the child.
3. Proof of Qualification – NBI/proof of income/
clearances/medical certificate
During the first hearing, the petitioners should establish the
jurisdictional requirements
1. Publication – 3 issues plus the affidavit of the
publisher (editor of chief)
2. Proof of Receipt of the petition in the order of the
court thru the civil registrar office where the court
is. (as a nominal public)
3. Proof of the receipt of OSG
1. Use of the Surname
2. Legitimated
3. Relationship with Biological Parents are severed
Except when the adoptive parents died and the
child has nowhere to go.
In adoption of minor children, the counsel should consider
the country where the child should be taken.
Person working abroad may also file a petition for adoption
as long as he or she is not a resident abroad.
If the petitioner is already a permanent resident abroad,
that would be inter country adoption.
Suppose a child is taken from an institution, the petitioner
has to go to that institution and describe the kind of child
he would like to adopt such as the physical appearance and
other qualification.
Should a child matched to such description, the child will be
sent to them only for a trial custody. That trial custody has
the minimum period of 6 months which is under the
supervision of the social worker.

w/n the parent – child relationship was established.

It can be extended depending circumstances.

There is no limit as to the number of children as long as the

petitioner is capable.

INTERCOUNTRY ADOPTION

Requirements:

1. 3yrs residence in the Philippines. If the petitioner is

working abroad, it is not necessary that it should be
continuous.
2. As to the age, no age limit to the adoptive parent

*It can be filed in court. However…

*No trial custody required here in the Philippines.

Accredited agencies abroad are in charge. They have their
own procedure.

**There can be an adoption of an adult provided that there

is 16 years gap.

**The jurisdiction will be in the Family Court