remedial law quickie notes: special proceedings
TRANSCRIPT
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CONTENTS
BONDS ................................................................................... 2NOTICE REQUIREMENTS ..................................................... 4PUBLICATION REQUIREMENTS ........................................... 6VENUE/JURISDICTION .......................................................... 7SPECIAL PERIODS ................................................................ 8
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BONDSBOND WHEN AMOUNT CONDITIONS LEGAL BASIS
Distributees, orany of them
Before distributionbefore payment of theestate obligations
Sum to be fixed by thecourt
Payment of said obligations within suchtime as the court directs
SEC.1, RULE 90
Guardians Before guardian enters
upon the execution ofhis trust
Sum as the court
directs
1. To make and return to the court,
within three (3) months, a true andcomplete inventory of all theestate, real and personal, of hisward which shall come to hispossession or knowledge or to thepossession or knowledge of anyother person for him;
2. To faithfully execute the duties ofhis trust, to manage and dispose ofthe estate according to these rulesfor the best interests of the ward,and to provide for the proper care,custody, and education of theward;
3. To render a true and just accountof all the estate of the ward in his
hands, and of all proceeds orinterest derived therefrom, and ofthe management and dispositionof the same, at the timedesignated by these rules and suchother times as the court directs;and at the expiration of his trust tosettle his accounts with the courtand deliver and pay over all theestate, effects, and moneysremaining in his hands, or duefrom him on such settlement, tothe person lawfully entitledthereto;
4. To perform all orders of the courtby him to be performed.
SEC. 1, RULE 94;
SEC. 14, RGM
Parents who actas guardians incase the actualincome or themarket value ofthe property ofthe child exceeds50,000
Such amount as thecourt may determine,but in no case less than10% of such propertyor annual income
Guarantee the performance of theobligations prescribed for generalguardians.
A verified petition for approval of thebond should be filed
SEC. 16, RGM
Additional bondof guardians thatthe court mayrequire if deemedexpedient
Shall serve as security for the properappropriation of proceeds of the sale orencumbrance of the wards property
SEC. 4, RULE 95;SEC. 22, RGM
Self-adjudicatingheir
Simultaneously withand as a conditionprecedent to the filingof the affidavit
Amount equal to thevalue of the personalproperty involved ascertified under oath by
him.
Conditioned upon the payment of any just claim that may be filed within 2years after such self-adjudication
SEC.1, RULE 74
Heirs party to anextrajudicialpartition
Simultaneously withand as a conditionprecedent to the filingof the publicinstrument, orstipulation in the actionfor partition
Amount equal to thevalue of the personalproperty involved ascertified under oath byhim.
Conditioned upon the payment of any just claim that may be filed within 2years after such self-adjudication
SEC.1, RULE 74
Executor orAdministrator
Before entering uponthe duties of his trust
Such sum as the courtdirects
1. To make and return to the court,within three (3) months, a true andcomplete inventory of all goods,
SEC. 1, RULE 81
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BOND WHEN AMOUNT CONDITIONS LEGAL BASISchattels, rights, credits, and estate ofthe deceased which shall come tohis possession or knowledge or tothe possession of any other personfor him;
2. To administer according to theserules, and, if an executor, according
to the will of the testator, all goods,chattels, rights, credits, and estatewhich shall at any time come to hispossession or to the possession ofany other person for him, and fromthe proceeds to pay and dischargeall debts, legacies, and charges onthe same, or such dividends thereonas shall be decreed by the court;
3. To render a true and just account ofhis administration to the court withinone (1) year, and at any other timewhen required by the court;
4. To perform all orders of the court byhim to be performed.
Special
Administrator
Before entering upon
the duties of his trust
Such sum as the court
directs
Conditioned that he will make and
return a true inventory of the goods,chattels, rights, credits, and estate of thedeceased which come to his possessionor knowledge, and that he will trulyaccount for such as are received by himwhen required by the court, and willdeliver the same to the personappointed executor or administrator, orto such other person as may beauthorized to receive them.
SEC. 4, RULE 81
Trustee Before entering on theduties of the trust
Amount fixed by thejudge of said court
Payable to the government andsufficient and available for theprotection of any party in interest
Conditioned on the following:1. That the trustee will make and return
to the court, at such time as it mayorder, a true inventory of all the realand personal estate belonging tohim as trustee, which at the time ofthe making of such inventory shallhave come to his possession orknowledge;
2. That he will manage and dispose ofall such estate, and faithfullydischarge his trust in relationthereto, according to law and thewill of the testator or the provisionsof the instrument or order underwhich he is appointed;
3. That he will render upon oath atleast once a year until his trust isfulfilled, unless he is excused
therefrom in any year by the court, atrue account of the property in hishands and of the management anddisposition thereof, and will rendersuch other accounts as the courtmay order;
4. That at the expiration of his trust hewill settle his accounts in court andpay over and deliver all the estateremaining in his hands, or due fromhim on such settlement, to theperson or persons entitled thereto.
SEC. 5, RULE 98SEC. 6, RULE 98
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NOTICE REQUIREMENTSCAVEAT: Not exhaustive
NOTICE OF WHAT TO WHOM WHEN LEGAL BASISNotice of Hearing Application for extension of time for
disposing of the estate and payingthe debts and legacies
All persons interested SEC. 15, RULE 88
Notice of Hearing Application for extension of time oftime for payment of debts andlegacies in case the originalexecutor dies
All persons interested SEC. 16, RULE 88
Notice of Hearing Application for assignment of theresidue of the estate to the personsentitled
SEC. 1, RULE 90
Notice of Hearing Petition for the appointment of ageneral guardian
All persons mentionedin the petition,including the minor ifhe is 14 years of ageor over
SEC. 8, RGM
Notice of Hearing Petition for the appointent of aguardian for an incompetent
All persons mentionedin the petition residingin the province,including the
incompetent himself
SEC. 3, RULE 93
Notice Discharge from further liability ofthe sureties of the guardians (of aminor) old bond upon the postingof a new bond [if no injury mayresult therefrom to those interestedin the property]
All interested persons SEC. 15, RGM
Notice of Hearing Application of the guardian forauthority to consent to a partition ofreal or personal property owned bythe ward jointly or in common withothers
Relatives of the ward SEC. 17 RGMRULE 96
Notice Guardian Before removal SEC. 24, RGMSEC. 2, RULE 97
Notice of Hearing Petition for judicial determinatin ofcompetency of the guradian
Guardian of the personso declared
incompetent and theward
SEC. 1, RULE 97
Notice of Hearing Petition for the allowance of willnot filed by the testator
Designated or otherknown heirs, legateesand devisees of thetestator resident in thePhilippines, at theirplaces of residence ifsuch places ofresidence be known
At least 20 days beforethe hearing by mail.Personal service atleast 10 days beforethe hearing isequivalent to mailing
SEC. 4, RULE 76
Executor, if not thepetitioner
Person named ascoexecutor notpetitioning
Notice of Hearing Petition for the allowance of will
filed by the testator
Only to compulsory
heirs
At least 20 days before
the hearing by mail.Personal service atleast 10 days beforethe hearing isequivalent to mailing
SEC. 4, RULE 76
Notice of Hearing Petition for letters of administration Served personally or bymail to known heirsand creditors and toany other personsbelieved to have aninterest in the estate
SEC. 3, RULE 79
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NOTICE OF WHAT TO WHOM WHEN LEGAL BASISNotice of Hearing[personally or byadvertisement in anewspaper/s, or both,as the court directs]
Allowance of account of anexecutor or administrator
Persons interested SEC. 10, RULE 85
Notice Filing of money claims against theestate in the office of the clerk of
court
All persons havingmoney claims against
the decedent
Immediately aftergranting letters
testamentary or ofadministration
SEC. 2, RULE 86
Notice of Hearing Petition for appointment of a trustee All persons Interested SEC. 1, RULE 98
Notice of Hearing Petition of parties beneficiallyinterested to remove a trustee
Trustee SEC. 8, RULE 98
Notice Removal of the court of a trusteewho is insane or otherwiseincapable of discharging his trust orevidently unsuitable therefor
All persons interested Before removal SEC. 8, RULE 98
Notice of Hearing Petition for authority to sell orencumber any real or personalestate held in trust
SEC. 9, RULE 98
Copy Order fixing the date and time ofhearing on the Petition for thehospitalization of an insane person
Served on the personalleged to be insane,and to the one havingcharge of him, or on
such of his relativesresiding in the provinceor city, as the judgemay deem proper
SEC. 2, RULE 101
Notice of Hearing Petition for the appointment of arepresentative or for the declarationof absence and the appointment ofa trustee or administrator
Served upon theknown heirs, legatees,devisees, creditors, andother interestedpersons
At least 10 days beforthe hearing
SEC. 4, RULE 107
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PUBLICATION REQUIREMENTSCAVEAT: Not exhaustive
WHAT WHEN WHERE LEGAL BASISCopy of Order fixing time and placeof Hearing on Petition for Escheat
At least once a week for 6consecutive weeks
Newspaper of general circulationpublished in the province, as thecourt shall deem best
SEC. 2, RULE 91
Notice of Hearing on the Petition forguardianship of a minor residingoutside the Philippines; but noticemay be given thru other means, asthe court deems proper
SEC. 12, RGM
Notice of Hearing on Petition forSummary Settlement of Estate
At least once a week for 3consecutive weeks
Newspaper of general circulation inthe province
SEC. 2, RULE 74
Fact of Extrajudicial Settlement At least once a week for 3consecutive weeks
Newspaper of general circulation inthe province
SEC. 1, RULE 74
Notice of Hearing on Petition for
Letters of Administration
3 consecutive weeks successively,
previous to the time appointed
Newspaper of general circulation in
the province
SEC. 3, RULE 79
Notice of Hearing on Petition forAllowance of Will
3 consecutive weeks successively,previous to the time appointed
Newspaper of general circulation inthe province
SEC. 3, RULE 76
Notice requiring all persons havingmoney claims against the decedent tofile their claims in the office of the
clerk of court
3 weeks seccessively In a newspaper of generalcirculation
SEC. 3, RULE 86
Copy of Order fixing time and placeof Hearing on Petition for Change ofName
At least once a week for 3consecutive weeks
Newspaper of general circulation inthe province, as the court shalldeem best
SEC. 3, RULE 103
Copy of Petition for Change of firstname or nickname
At least once a week for 2consecutive weeks
Newspaper of general circulation SEC. 5, RA 9048
Notice of Hearing on Petition forCancellation or Correction of Entryinunder Rule 108
At least once a week for 3consecutive weeks
Newspaper of general circulation inthe province
Sec. 4, RULE 108
Notice of Hearing on Petition for the
appointment of a representative orfor the declaration and appointmentof a trustee or administrator
Once a week for 3 consecutive
weeks prior to the time designatedfor the hearing
Newspaper of general circulation in
the province or city where theabsentee resides, as the courtdeems best.
SEC. 4, RULE 107
Copy of Order fixing time and placeof Hearing on Petition for Adoption
At least once a week for 3successive weeks
Newspaper of general circulation inthe province or city where thecourt is situated
The newspaper shall be selected byraffle under the supervision of theExecutive Judge
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VENUE/JURISDICTIONSPECIAL PROCEEDING VENUE JURISDICTION
Settlement of the Estate of aDeceased Peron
Residence of the decedent; if non-resident, placewhere he had estate.
MTC if the gross value of the estate does notexceed 300,000, or does not exceed in MetroManila; RTC if over the limit
Escheat Residence of the decedent; if non-resident, place
where he had estate.
RTC
In reversion, place where the land lies in whole orin part.
Appointment of Guradians Residence of minor; if non-resident, place wherehe his property or part thereof is situated.
Family Court
Residence of incompetent; if non-resident, placewhere he his property or part thereof is situated.
RTC
Appointment of Trustees Where will was allowed; or where the property orportion thereof affected by the trust is situated
RTC
Adoption Domestic: residence of adopter; Family Court
Inter-country: residence of adoptee or where hemay be found; or ICAB
Family Court or ICAB
Rescission of Adoption Residence of adoptee Family Court
Habeas Corpus If filed with the RTC, where detainee is detained SC, CA, RTC, MTC in the case there is no RTC judge, Sandiganbayan in the aid of its appellatejursidiction
For the custody of minors, residence of minor orwhere he may be found
Family Court, CA, SC
Habeas Data Where the petitioner or respondent resides, or thatwhich has jursidiction over the place where thedata or information is gathered, collected, orstored, at the option of the petitioner
RTC; may be filed with the SC, CA orSandiganbayan, when the action concerns publicdata files of government offices
Amparo Where the threat, act or omission was committedor any of its elements occured
RTC, Sandiganbayan, CA, SC or any justice thereof
Change of Name Rule 103: residence of petitioner RTC
Change of First Name RA 9048:1. Local civil registry where the record sought to
be changed is kept2. Local civil registry of the place of residence of
the interested party , if the petitioner migratedto another place in the Philippines and it isimpractical to file it in person in the former
3. Nearest Philippine Consulate for non-residents
Local Civil Registrar or nearest PhilippineConsulate
Appointment ofRepresentive/ Declaration ofAbsence
Residence of absentee before disappearance RTC
Cancellation/correction ofentries
Rule 108: where the corresponding civil registry islocated
RTC
RA 9048:1. Local civil registry where the record sought to
be changed is kept2. Local civil registry of the place of residence of
the interested party , if the petitioner migratedto another place in the Philippines and it isimpractical to file it in person in the former
3. Nearest Philippine Consulate for non-residents
Local Civil Registrar or nearest PhilippineConsulate
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SPECIAL PERIODSPROCEEDING WHAT PERIOD NOTE
Extrajudicial Settlement ofEstate of Deceased
Presumption that decedent leftno debts if no creditor files apetition for letters ofadministration
2 years after the death ofdecedent
Extrajudicial Settlement ofEstate of Deceased
Liability of Bond of Distrubutees 2 years after the settlement anddistribution
Bond remains charged within theperiod, notwithstanding anytransfers of real estate that mayhave been made
Extrajudicial Settlement ofEstate of Deceased Prescription of recovery of shareof excluded heir based on
constructive or implied trust
10 years
In case of fraud, 4 years from thediscovery of fraud
This would be from the date ofregistration of the partitionagreement because suchregistration is constructive noticeto the world
Extrajudicial Settlement ofEstate of Deceased Filing of claim by a minor,mentally incapacitated, or is in
prison, or is outside thePhilippines
Within 1 year after disability isremoved
Allowance of Will Delivery of will by custodian to
the court having jurisdiction orexecutor named in the will
Within 20 days after he knows of
the death of the testator
Allowance of Will Presentation of will to the courthaving jurisdiction; acceptace orrefusal of the trust
Within 20 days after he knows ofthe death of the testator, ow 20days after he knows that he isnamed executor
Letters of Administration Spouse, next of kin of testatorshould apply for administration orrequest that administration begranted to some other person
Within 30 days after the death ofthe testator
Failure to comply results in theissuance of the Letters ofAdministration to one or more ofthe principal creditors of thetestator, if competent and willingto serve
Letters of Testamentary orAdministration
Return of Inventory to the Court Within 3 months fromappointment
Fact that an inventory is filed afterthe 3-month period does notdeprive the probate court ofjurisdiction to approve it.
Guardianship Within 3 months fromappointment; annually afterappointment; whenever requiredupon the application of aninterested person
Letters of Testamentary orAdministration
Account of administration Within 1 year, and at any othertime when required by the court
Unless the court otherwisedirects because of extensions oftime for presenting of claimsagainst, or paying the debts of,the estate, or for disposing theestate
Guardianship Annually after appointment;whenever required upon theapplication of an interestedperson
Claims against the Estate Statute of Non-claims Period fixed by the court, which
shall not be more than 12 monthsnor less than 6 months after thedate of the first publication of thenotice
At any time before an order of
distribution is entered, onapplication of a creditor who hasfailed to file a claim may, forcause shown and on such termsas are equitable, allow such claimto be filed within a time notexceeding 1 month
Settlement of Estate Disposition of estate andpayment of debts and legacies
Shall not exceed 1 year But the court may, on applicationof the executor or administrator,after hearing and notice, extendtime as the circumstances requirenot exceeding 6 months for
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PROCEEDING WHAT PERIOD NOTEsingle extension nor so that thewhole period allowed to theoriginal executor shal exceed 2years
Settlement of Estate Extension for disposition of estatewhen executor or administratordies and a new administrator is
appointed
Not exceeding 6 months at atime and not exceeding 6 monthsbeyond the time which the court
may have allowed to suchoriginal executor or administrator
Escheat Filing of claim 5 years from the date theproperty was delivered to thestate
Guardianship Reporting of property of ward notincluded in the inventory laterdiscovered, succeeded to, oracquired
Within 3 months after discovery,succession, acquisition
Adoption Supervised trial custody At least 6 months
Adoption Rescission Within 5 years after reaching ageof majority; if incompetent at thetime of adoption, within 5 yearsafter recovery from suchincompetency
Change of name Residency requirement of
petitioner
Bona fide residence in the
province where petition is filedfor at least 3 years
RA 9048 Impugning the decision of City orMunicipal Civil Registrar
10 working days from receipt Failure on the part of the CivilRegistrar General to impugn suchwithin the period will result in thedecision becoming final andexecutory