MEMORY AIDE FOR SPECIAL PROCEEDINGS

Extent of Jurisdiction of Probate CourtsProbate courts are courts of limited jurisdiction. It may only determine and rule upon issues relating to the settlement of the estate, namely:1. Administration of the estate2. Liquidation of the estate3. Distribution of the estateWHEN PROBATE PASSES UPON QUESTION OF TITLE TO PROPERTY:a. Interested parties who are all heirs consents and 3rd parties not prejudiced (Bernardo v. CA, Feb. 28, 1963);b. Otherwise, only in a provisional manner, to determine whether property should be included in the inventory, without prejudice to the final determination of title in a separate action.c. Question is one of collation or advancementGENERAL RULEProbate court cannot issue writs of execution. EXCEPTION: When probate courts can issues writs of execution:a. To satisfy distributive shares of the devisees, legatees, and heirs in possession of decedents assets;b. To enforce payment of expenses in partition;c. To satisfy costs when a person is cited for examination in probate proceedings.d. To satisfy the claim in summary settlement proceedings of creditors or heirs who appear within 2 years from the distribution.

PRINCIPLE OF EXCLUSIONARY RULEThe Court first taking cognizance of the settlement of the estate of the decedent shall exercise jurisdiction to the exclusion of all other courts

GROUNDS FOR DISALLOWING WILL:a. Not executed and attested as required by law;b. Testator was mentally incapacitated to make a will or insane at the time of execution;c. Executed under duress, influence of fear, or threats;d. Procured by undue and improper influence and pressure on the part of the beneficiary or of some other person for his/her benefit;e. Signature of testator was procured by fraud/trick and she/he did not intend instrument to be will.

IN RE-PROBATE OF WILL PROVEN ABROAD,PROPONENT MUST PROVE:a. Testator was domiciled in the foreign country;b. Will has been admitted to probate in such country;c. Foreign country was, under the laws of such country, a probate court with jurisdiction;d. Law on foreign probate procedure and proof of compliance therewith;e. Legal requirements in said country for valid execution of will.

SERVING AS EXECUTORS OR ADMINISTRATORS:a. A minor;b. A non-resident (of Phils.)c. A person unfit in the opinion of the court to execute the duties of his trust by reason of:i. drunkenness;ii. improvidence;iii. want of understanding and integrity;iv. conviction of an offense involving moral turpitude.

Executor AdministratorADMINISTRATOREXECUTOR

Nominated by the testator and appointed by the courtAppointed by the court in case the testator did not appoint and executor or if the executor refused or if the will was disallowed or there is no will (intestacy)

Must present will to the court within 20 days after knowledge of death or of such appointment, unless the will has reached the court in any mannerNo such duty

Testator may provide that he may serve without a bond (Court may still require but conditioned only in payment of debts)Must always post bond

Compensation may be provided for by testator otherwise, compensation under Rule 85, Sec. 7Governed by Rule 85, Sec. 7

ORDER OF PREFERENCE IN GRANTING LETTERS OF ADMINISTRATION:a. The surviving spouse or the next of kin or both in the discretion of the court, or to such person as such surviving spouse or next of kin request to have appointed, if competent and willing to serve (SURVIVING SPOUSE OR NOMINEE)b. If above be incompetent or unwilling or they neglect for 30 days after death to apply for administration, any one or more of the PRINCIPAL CREDITORS, if competent and willing to servec. If above be incompetent or unwilling, it may be granted to such other person as the court may select (STRANGER).

SPECIAL ADMINISTRATORHe is appointed when there is a delay in granting letters testamentary or of administration by any cause, including an appeal from the allowance or disallowance of the will.

ADMINISTRATORSPECIAL ADMINISTRATOR

May be subject of appealNot subject of appeal

One of the obligations is to pay the debts of the estateCannot pay debts of the estate

Appointed when deceased died intestate or did not appoint an executor in the will or will was disallowedAppointed when there is delay in granting letters testamentary or administration

UNDERTAKINGS OF BOND OF EXECUTOR/ADMINISTRATOR:a. Make and return a complete inventory of the property of the estate which has come to his possession or knowledge, or the possession of any person for him, within 3 months;b. To administer the property of the estate according to the Rules (if administrator) or according to the will (if executor);c. To render an account within 1 year and at any other time required by the court; andd. Perform all orders of the court.

GROUNDS FOR REMOVAL OF EXECUTORS OR ADMINISTRATORS:a. Neglects to render account and settle the estate according to law;b. Failure to perform order or judgment of the court or duty prescribed by the rules;c. Absconds;d. Becomes insane;e. Incapable or unsuitable to discharge trust.

NOT PROPER EXPENSES OF ADMINISTRATION WHICH ARE NOT CHARGEABLE TO ESTATE:a. Services rendered by administrator which are not beneficial to the estate in favor of an heir;b. Premiums for her/his bond;c. Expenses for repair of property of the estate being used and occupied by him;d. Expenses for keeping ordinary records and receipts involved in his administration;e. Losses incurred in conduct of business with use of funds of the estate.

OPTIONS OF ATTORNEY TO COLLECT ATTORNEYS FEES FROM ESTATE:a. Sue administrator/executor in the latters personal capacity (who may then include any fees so paid in his account); ORb. File a petition in the testate/intestate proceedings asking the court, after notice to all interested persons, to allow his claim and to direct the executor/administrator to pay it as an expense of administration.

CLAIMS WHICH MUST BE FILED WITH THE PROBATE COURT:a. All claims for money against decedent arising from contract;b. Claims for funeral expenses and for the last illness;c. Judgment for money.

ALTERNATIVE REMEDIES AVAILABLE TO MORTGAGE CREDITOR UPON DEATH OF MORTGAGOR:a. Abandon security and prosecute claim in probate court;b. Foreclose mortgage judicially; and recover deficiency thru claim in probate court;c. Rely solely on mortgage or security and foreclose the same within statute of limitations, without the right to recover the deficiency

Claims which should not be filed under the Statute of Non-claims (ACTIONS WHICH DO NOTSURVIVE)1. Money claims, debts incurred by deceased during his lifetime arising from contract:a. express or implied;b. due or not due;c. absolute or contingent;2. Claims for funeral expenses;3. For the last illness of the decedent; and4. Judgment for money against decedent.

CONTINGENT CLAIMIt is a conditional claim or claim that is subject to the happening of a future uncertain event.

ACTIONS WHICH MAY BE COMMENCED DIRECTLY AGAINST THE EXECUTOR ORADMINISTRATOR (These are actions that survive the death of the decedent):1. recovery of real or personal property or any interest therein from the estate;2. enforcement of a lien thereon;3. action to recover damages for any injury to person or property, real or personal (tortuous acts).

REQUISITES BEFORE ACTION MAY BE FILED BY CREDITORS1. there is a DEFICIENCY of assets in the hands of an executor or administrator for the payment of debts and expenses of administration;2. the deceased in his lifetime had made or attempted to make a FRAUDULENT CONVEYANCE of his property or had so conveyed such property that by law the conveyance would be void as against his creditors;3. the subject of the attempted conveyance would be liable to ATTACHMENT in his lifetime;4. the executor or administrator has shown NO DESIRE TO FILE action the action or failed to institute the same within a reasonable time;5. LEAVE is granted by the court to the creditor to file the action;6. a BOND is filed by the creditor;7. the action by the creditor is in the NAME of the executor or administrator.

GENERAL RULE: ORDER OF DISTRIBUTION shall be made AFTER PAYMENTS of all debts, funeral expenses, expenses of administration, allowance of widow and inheritance tax is effected.EXCEPTION: If the distributes or any of them gives a bond conditioned for the payment of said obligation, the ORDER OF DISTRIBUTION may be made even BEFORE PAYMENTS of all debts, etc.

ESCHEATThis is a proceeding whereby the real and personal property of a deceased person in the Philippines, who dies without leaving any will or legal heirs, become the property of the State upon his death.

3 INSTANCES OF ESCHEATS1. When a person dies intestate leaving no heir but leaving property in the Philippines (Section 1);2. Reversion Proceedings Sale in violation of the Constitutional provision; and3. Unclaimed Balances Act (dormant accounts for 10 years shall be escheated).

KINDS OF GUARDIANS:A. According to scope:1. General over the person of the ward or over his property2. Limited over the property only.

B. According to Constitution:1. General Guardian;2. Legal Guardian without judicial appointment;3. Guardian Ad Litem appointed by courts of justice to prosecute or defend a minor, insane or person declared to be incompetent, in an action in court.

Who may petition for appointment of guardian for resident INCOMPETENTMINORINCOMPETENT

(a) any relative; or(a) any relative; or

(b) other person on behalf of a minor; or(b) friend; or

(c) the minor himself if 14 years of age or over; or(c) other person on behalf of the resident incompetent who has no parents or lawful guardian; or

(d) the Secretary of Social Welfare and Development AND by the Secretary of Health in case of an insane minor who

(d) the Director of Health in favor of an insane person who should be hospitalized or in favor of an isolated leper (Sec. 1); or needs to be hospitalized (Sec. 2 of A.M. No. 03-02-05-SC)

(e) any one interested in the estate of a nonresident incompetent (Sec. 6)

Contents of PetitionMINORINCOMPETENT

(a) The jurisdictional facts;

(a) The jurisdictional facts;

(b) the name, age and residence of the prospective ward;

(b) The incompetency rendering the appointment necessary or convenient;

(c) the ground rendering the appointment necessary or convenient;

(c) the probable value and character of his estate;

(d) the death of the parents of the minor or the termination, deprivation or suspension of their parental authority;

(d) the names, ages, and residences of the relatives of the incompetent, and of the persons having him in their care;

(e) the remarriage of the minors surviving parent;

(e) the name of the person for whom letters of guardianship are prayed. (Section 2 of Rule 93)

(f) the names, ages, and residences of relative within the 4th civil degree of minor, and of persons having him in their care and custody;

(f) any one interested in the estate of a nonresident incompetent (Section 6)

(g) the probable value, character and location of the property of the minor; and

(h) the name, age and residence of the person from whom letters of guardianship are prayed. (Sec. 7 ofA.M. No. 03-02-05-SC)

NEXT OF KINThis pertains to those relatives who are entitled to share in the estate of the ward under the Law on Intestate Succession including those who inherit per stirpes or by right of representation. GENERAL POWERS AND DUTIES OF GUARDIANS:1. have the care and custody of the person of the ward, and the management of the estate only, as the case may be (Sec. 1);2. pay the debts of the ward (Sec. 2);3. settle accounts, collect debts and appear in actions for ward (Sec. 3);4. manage the estate of the ward frugally, and apply the proceeds to maintenance of the ward (Sec. 4);5. render verified inventory within 3 months after his appointment and annually thereafter upon application of interested persons (Sec. 7); and6. render to court for its approval an accounting of the property for 1 year from his appointment and every year thereafter (Sec. 8).

GROUNDS FOR REMOVAL OF A GUARDIAN (exclusive):1. insanity;2. incapability or unsuitability to discharge functions;3. wastage or mismanagement of the property of the ward; and4. failure to render an account or make a return within 30 days after it was due.

Grounds for Petition (Sec. 4) [THE RULE ON GUARDIANSHIP OF MINORS (A.M. No. 03-02-05-SC, effective May 1, 2003)]1. continued absence, or incapacity or death of his parents;2. suspension, termination or deprivation of parental authority;3. remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority; 4. when the best interest of the minor so requires.

Who may be appointed guardian of the person or property, or both, of a minor (Sec. 6) (A.M. No. 03-02-05-SC, effective May 1, 2003)In default of parents or a court appointed guardian, the court may appoint a guardian of a minor, observing as far as practicable, the following ORDER OF PREFERENCE:1. the SURVIVING GRANDPARENT and In case several grandparents survive, the court shall select any of them taking Into account all relevant considerations;2. the OLDEST BROTHER OR SISTER of the minor over twenty-one years of age, unless unfit or disqualified;3. the ACTUAL CUSTODIAN of the minor over twenty-one years of age, unless unfit or disqualified; and4. any OTHER PERSON, who in the sound discretion of the court, would serve the best interests of the minor. EXECUTOR/ADMINISTRATORGUARDIANTRUSTEE

Accounts are not under oath and except for initial and final submission of accounts, they shall be filed only at such times as may be requiredby the court.Accounts must be under oath and filed annually.

Accounts must be under oath and filed annually.

Court that has jurisdiction may be MTC or RTC.

Court which has jurisdiction is RTC (incompetent) or Family Court (minor).Court which has jurisdiction is MTC or RTC if appointed to carry into effect provisions of a will; if trustee dies, resigns or removed in a contractual trust, RTC has jurisdiction in the appointment of new trustee.

May sell, encumber or mortgage property if it is necessary for the purpose of paying debts, expenses of administration or legacies, or for the preservation or property or if sale will be beneficial to the heirs, legatees or devisees.

May sell or encumber property of ward if income of estate is insufficient to maintain ward and his family and educate the minor; the sale or encumbrance is for the benefit of ward upon order of the court.

May sell or encumber property of estate held in trust if necessary for expedient upon order of the court.

Order of sale has no time limit

Order of sale is valid for only 1year after grant of the same.Order of sale has no time limit

Appointed by the court to settle estate of decedent.Appointed as guardian.

Appointed to carry into effect the provisions of a will or written instrument (contractual trust).

Not exempted from filing bond even if such exemption is provided in the will (bond is only conditioned upon payment of debts.

Must always file a bond.

May be exempted from filing bond if provided in the will or if beneficiaries requested exemption.

Services of executor or administrator are terminated upon payment of debts and the estate and distribution of property to heirs.

Guardianship is terminated upon attainment of age of majority of the minor or upon gaining competency in the case of an Incompetent (need court order for the latter).Trusteeship is terminated upon turning over the property to beneficiary after expiration of trust (period may be provided for in the will or trust contract)

Must pay the debts of the estate.

Must pay the debts of the ward.

No obligations to pay debts of beneficiary or trustor.

NATURE AND CONCEPT OF ADOPTIONAdoption is a juridical act, a proceeding IN REM, which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.

JUDICIAL ADOPTIONEXTRAJUDICIAL ADOPTION

Proper in domestic adoption.Proper in inter-country adoption.

Under the jurisdiction of the Family Court (where adopter resides).Under the jurisdiction of the Inter-CountryAdoption Board (but a petition may also be filed with the Family Court [where adoptee resides] which will turn it over to ICAB).

Trial custody is in the Philippines for 6 months (but court may reduce period or exempt parties from trial custody).Trial custody is in the country of adopter and is mandatory before a decree of adoption is issued (expenses are borne by the adopter).

Petition for adoption may include prayer for change of name, rectification of simulated birth or declaration that child is a foundling, abandoned, dependent or neglected child.

Petition for adoption only.

Legitimate or illegitimate child of a spouse or even a person who is of legal age may be adopted.Only a child legally available for domestic adoption may be the subject of inter-country adoption.

Income tax returns, police clearance, character reference, family picture, birth certificate of adopter are not required to be annexed in the petition.Income tax returns, police clearance, character reference, family picture, birth certificate of adopter are required to be annexed in the petition.

Petition must be published for 3 successive weeks in a newspaper of general circulation in the province or city where court is situated.No publication requirement.

Application is through a petition with the FC.Application may be through agency in foreign country and then submit to ICAB.

Decree of adoption issued by FC which has jurisdiction over the case.Decree of adoption issued by a foreign court.

WHO MAY ADOPT (Sec. 4) RULES ON DOMESTIC ADOPTION1. Any Filipino Citizen (a) Of legal age;(b) In possession of full civil capacity and legal rights;(c) Of good moral character;(d) Has not been convicted of any crime involving moral turpitude;(e) Emotionally and psychologically capable of caring for children;(f) In a position to support and care for his/her children in keeping with the means of the family; and(g) At least 16 years older that the adoptee.EXCEPTIONS:(1) If the adopter is the biological parent of the adoptee(2) If the adopter is the spouse of the adoptees parent(3) If the adopter is the sibling of the adoptee (Article IV, 7 of the IRR)

2. Any alien possessing the same qualifications above; provided:(a) That his/her country has diplomatic relations with the Philippines;(b) That he/she has been living in the Philippines for at least 3 continuous years prior to the filing of the application for adoption;(c) Maintains residence until the adoption decree is entered;(d) Certified to have legal capacity to adopt; by his/her country; and(e) That his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter.

3. The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities.

WHO MAY BE ADOPTED (Sec. 5)1. Any person below eighteen (18) years of age who has been judicially declared available for adoption OR voluntarily committed to DSWD;2. The legitimate child of one spouse by the other spouse;3. An illegitimate child by a qualified adopter to raise the status of the former to that of legitimacy;4. A person of legal age regardless of civil status, if, prior to the adoption, said person has been consistently considered and treated by the adopters as their own child since minority;5. A child whose adoption has been previously rescinded;6. A child whose biological or adoptive parents have died;7. A child not otherwise disqualified by law or these rules.

GENERAL RULE:Husband and wife shall jointly adopt.EXCEPTIONS:1. If one spouse seeks to adopt the legitimate son/daughter of the other;2. If one spouse seeks to adopt his/her own illegitimate son/daughter;3. If the spouses are legally separated from each other.

WRIT OF HABEAS CORPUSThe writ of habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, submit to, and receive whatever the court or judge awarding the writ shall consider in that behalf.

THE WRIT OF HABEAS CORPUS MAY BE OBTAINED IN TWO INSTANCES:1. cases of illegal confinement or detention by which a person is deprived of his liberty; and2. cases by which the rightful custody of the person is withheld from the person entitled thereto.

WHEN THE WRIT MAY BE AVAILED OF AS A CONSEQUENCE OF A JUDICIAL PROCEEDING:1. There has been a deprivation of a constitutional right resulting in restraint of person;2. The court had no jurisdiction to impose the sentence;3. An excessive penalty has been imposed, the sentence being void as to the excess;4. Where the law is amended, as when the penalty is lowered.

PRELIMINARY CITATIONWhere a person detained under governmental authority and the illegality of his detention is not patent from the petition for the writ, the court may issue a citation to the government officer having the person in her/his custody to show cause why the writ should not issue.

PEREMPTORY WRITIt is issued when the cause of detention appears to patently illegal and the non-compliance therewith is punishable

RULE 103CHANGE OF NAMERA NO. 9048CORRECTION OF CLERICAL OR TYPOGRAPHICAL ERROR

Judicial (RTC)Extrajudicial (local civil registrar or consul general in case of non-resident citizen)

Includes change in surnameCovers clerical or typographical error and change of first name or nickname

PETITIONS FOR CHANGE OF NAMEPETITIONS FOR THE CORRECTION, CANCELLATION OF ENTRIES

Petition to be filed in the RTC where the petitioner resides.Verified petition filed in the RTC where the corresponding civil registry is located.

Solicitor General must be notified by service of a copy of the petition.Civil registrar concerned is made a party to the proceeding as a respondent. The Solicitor General must also be notified by service of a copy of the petition.

Petition is filed by person desiring to change his name.Petition is filed by any person interested in any ACT, EVENT, ORDER OR DECREE.

Order of the hearing shall be published once a week for three consecutive weeks order shall be published once a week for three consecutive weeksOrder shall be published once a week for three consecutive weeks and court shall cause reasonable notice to person named in petition

First name or last name (there must be valid around with respect to the letter) may be changedOnly typographical errors may be changed.

Service of judgment shall be upon the civil register concernedService of judgment shall be upon the civil register concerned

GROUNDS FOR CHANGE OF FIRST NAME:1. First name is ridiculous, tainted with dishonor or extremely difficult to write or pronounce2. New first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community3. Change will avoid confusion

RA 9048RULE 108

Administrative proceedingSummary judicial proceeding

Affidavit is filedPetition is filed

Penalty clauseNo penalty clause

Publication requirement: once a week for 2 consecutive weeksPublication requirement: 3 consecutive weeks

Posting in conspicuous placeNo posting

Change of name is based on 3 enumerated groundsChange of name is to correct clerical / innocuous errors

APPEAL IN ORDINARY CIVIL ACTIONAPPEAL IN SPECIAL PROCEEDINGS

15 days30 days

Notice of Appeal and docket feesRecord on appeal and docket fees

No extensionMay extend on territorious grounds

THE RULE ON THE WRIT OF AMPAROThe petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof.

EXTRALEGAL KILLINGSKillings committed without due process of law, i.e. without legal safeguards or judicial proceedings

ENFORCED DISAPPEARANCESAttended the following characteristics:a. An arrestb. Detention or abduction of a person by a government official or organized groups of private individuals acting with the direct or indirect acquiescence of the governmentc. The refusal of the State to disclose the fate or whereabouts of the person concerned or a d. Refusal to acknowledge the deprivation of liberty with places such persons outside the protection of law

SUBSTANTIAL EVIDENCESuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion THE RULE ON THE WRIT OF HABEAS DATAThe writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

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