SUMMARY SETTLEMENT OF ESTATES When Extrajudicial Settlement is Proper

RULE 74 Recourse to an administration proceeding, even if the

SEC. 1 – Extrajudicial settlement by agreement between estate has no debts, is sanctioned only if the heirs have
heirs good reasons for not resorting to an action for partition
GR: Estate of the decedent should be judicially and the claims of the heirs may be properly ventilated and
administered through an administrator or executor. settled therein.
Exception:
1. Extrajudicial settlement (Sec. 1)
2. Summary settlement of estate of small value
(Sec. 2)

Extrajudicial Settlement Summary Settlement

Does not require court Involves judicial
intervention adjudication although in a
summary proceeding
Value of the estate is Gross estate does not
immaterial exceed P10,000
Proper only when there is Available even if there are
no outstanding debts of the debts, as the court will
estate at the time of make provisions for the
settlement payment thereof
Only in intestate succession Allowed in both testate and
intestate estates
Only at the instance and by May be instituted by any
agreement of all the heirs interested party and even
by a creditor of the estate,
without the consent of all
the heirs

Requisites of Valid Extrajudicial Settlement

1. Decedent died intestate
2. There are no outstanding debts of the estate at
the time of the settlement
3. The heirs all of age, or the minors are
represented by their judicial guardians or legal
representatives
4. The settlement is made in a public instrument,
stipulation or affidavit duly filed with the register
of deeds
5. The fact of such extrajudicial settlement must be
published in a newspaper of general circulation
in the province once a week for 3 consecutive
weeks.

Heirs Cannot Agree (Dissent)

If they cannot agree on the manner of partition, they may
institute an action for partition unless the same is
prohibited by an agreement, by the donor or testator, or
by law (Art. 494, Civil Code).
- Despite the institution, they may still enter into
an agreement. (Sec. 2, Rule 69)
- Dissenting heir cannot insist on instituting
administration proceedings which would be
superfluous and unnecessary, unless he can
establish good reasons for not resorting to an
action for partition.
RULE 75 - Should the newly-discovered will not be allowed
PRODUCTION OF WILL in probate, then the proceedings shall be
ALLOWANCE OF WILL NECESSARY continued as intestacy.
SEC. 1 – Allowance Necessary
Subject of the Probate: refers only to its due execution and It is not proper for the probate court to make a finding in
settles only the formal or extrinsic validity of the will. an intestacy proceeding that a will, discovered after the
1. Testator is of sound mind institution of said proceeding, had been revoked. The
2. Freely executed the will in accordance with the court should order the filing of a petition for the probate
formalities prescribed of said will by the party interested therein.
Note: Such allowance is conclusive and cannot be assailed
in another proceeding, except on the ground of fraud in RULE 76
the procurement of the decree. ALLOWANCE OR DISALLOWANCE OF WILL
SEC. 1 – Who may petition for the allowance of will
Intrinsic validity – determination comes after the 1. Any executor, devisee or legatee named in a will;
allowance of the will. or
Except: The probate court may determine the intrinsic 2. Any other person interested in the estate
validity of the will even before its formal validity is Note: Whether the will is in his possession or not, or is lost
established, as the probate of a will may become a useless or destroyed.
ceremony if the will is intrinsically invalid (Balanay Case)
Ex. Statute of Limitations
a. Completely preterited the heirs of the testator The petition for probate of the will is not subject to bar by
(Acain v. IAC) the statute of limitations and does not prescribe, as such
b. Testator admits in his will the existence of his petition may be file AT ANY TIME and is required by public
mistress policy.
Note: Where, however, there is necessity to resolve the
issue as to whether, under the terms of the will, an heir Creditor
has been preterited or disinherited and in the latter case, He my file a petition for the settlement of the latter’s
whether the disinheritance was valid, the procedure estate as a preparatory step for the filing of the former’s
followed in the Balanay case cannot be allowed. claim therein, but an heir who has assigned or renounced
his hereditary rights has no legal interest as would
Doctrine of Estoppel authorize him to initiate such proceedings.
It does not apply in probate proceedings since the
presentation and the probate of a will are required by SEC. 2 – Contents of Petition
public policy and they involve public interest. (a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs,
SEC. 2-5 – Person in Custody of the Will legatees, and devisees of the testator or
Deliver must be made: decedent;
1. Custodian – within 20 days after he knows of the (c) The probable value and character of the
death of the testator. property of the estate;
2. Executor – 20 days after he knows of the death (d) The name of the person for whom letters are
of the testator/within 20 days after he knows prayed;
that he is named executor if he obtained such (e) If the will has not been delivered to the court,
knowledge after the death of the testator the name of the person having custody of it.
o Unless the will has reached the court in
any other manner, and shall within Jurisdictional Facts:
such period, signify to the court in 1. That a person died leaving a will
writing his acceptance of the trust or 2. In the case of a resident, that he died in his
his refusal to accept it. residence within the territorial jurisdiction of the
court, or, in the case of a non-resident, that he
Where to Deliver: left an estate within such territorial jurisdiction;
Delivery of the will is made to the Clerk of Court of the RTC and
having jurisdiction over the estate. 3. That the will has been delivered to the court

Testate over Intestate SEC. 3-4 – Proving of the Will

If during the pendency of intestate proceedings, a will of The probate of a will is a proceeding in rem and the
the decedent is discovered, proceedings for the probate of publication provided for by this Rule is a jurisdictional
the will shall replace the intestate proceedings even if an requirement.
administrator had already been appointed therein.
 - Personal service of notice upon the heirs is a a. The due execution and formal validity of the will
matter of procedural convenience and not a b. Existence of the will at the time of death of the
jurisdictional requisite. testator or its fraudulent or accidental
destruction in the lifetime of the testator and
Heirs (and their residence) are known without his knowledge; and
Notice of the hearing of the petition in accordance with c. The provisions of said will, to be testified to by at
Sec. 4, Rule 76 must be forwarded to them and such least two credible witnesses.
requirement cannot be satisfied by mere publication.
Contested will
Requirement of 3 Consecutive Weeks All the subscribing witnesses and the notary public must
It does not mean that 3 full weeks or 21 days should be accounted for and available, their testimony must be
intervene between the first publication and the date of secured and all the facts stated in Sec. 6 must be
hearing. It is sufficient that the publication has been made established by them or by two credible witness.
once a week successively three times, even if less than 21
days intervened between the first publication and the Presumption of Destruction or Cancellation
hearing. Where a lost will is shown to have been in the possession
of the testator when last seen, or that the testator had
Testator himself petitions ready access to the will and it cannot be found after his
No publication is required and notice is required only for death, the presumption is that he destroyed or cancelled it
his compulsory heirs. Such notice should, under these and not that it was destroyed by other persons without his
circumstances, be considered a jurisdictional requisite. knowledge.

SEC. 5/11-12 – Proof at Hearing Holographic Will

In the absence of any opposition to such probate, the Lost holographic will cannot be proved by bare testimony.
evidence for the petitioner may be received ex parte. It was definitely held that it may be proved by photostatic
or Xerox copies thereof.
Holographic will
1. There is no contest – one witness is required, SEC. 7-8 – Unavailability of Witnesses
and in his absence, expert evidence may be In the case of a notarial will where none of the attesting
resorted to. witnesses are available, the court may admit other
2. Tetstator himself – he need merely affirm his witnesses and admit proof of the handwriting of the
handwriting and signature testator and the attesting witnesses.
It is not mandatory that witnesses be first presented
before expert testimony may be resorted to because HW SEC. 9 – Grounds of Disallowance
are not required to be witnessed and existence of a (a) If not executed and attested as required by law;
qualified witness may be beyond the control or knowledge (b) If the testator was insane, or otherwise mentally
of the proponent of the will. incapable to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of
fear, or threats;
(d) If it was procured by undue and improper pressure and
Contested Notarial Will influence, on the part of the beneficiary, or of some
It is the duty of the petitioner to produce all the available other person for his benefit;
attesting witnesses and the notary public, but he is not (e) If the signature of the testator was procured by fraud
concluded by the testimony of said witnesses, even if or trick, and he did not intend that the instrument
adverse, as the court may still admit the will to probate on should be his will at the time of fixing
the basis of other satisfactory evidence.
- Exception to the rule that a party is generally
bound by the testimony or evidence that he
presents, because here, unlike ordinary actions,
he has no choice in the evidence as he is duty-
bound to account for all the attesting witnesses.
- Testimony of notary public prevails over 2
attesting witnesses.

SEC. 6 – Proof of lost or destroyed will

Uncontested will
The witnesses required here, who need not be attesting
witnesses (although the latter is entitled to greater weight)
must clearly establish:
RULE 77 b. where the will was void and not allowed to
ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES probate,
SEC. 1-3 c. where no executor was named in the will,
A will allowed to probate in a foreign country must be re- d. the executor named therein is incompetent or
probated in the Philippines. At the proceedings for re- refuses to serve as such
probate in the Philippine, the proponent must prove:
1. That the testator was domiciled in the foreign Corporation or Association authorized to conduct business
country of a TRUST company in the PHL may be appointed as an
2. That the will has been admitted to probate in executor or administrator of an estate in the same manner
such country as an individual. (Art. 1060, Civil Code)
3. That the foreign court was, under the laws of
said foreign country, a probate court with SEC. 2/4/5 – Several Admin/Executors
jurisdiction over the proceedings Executors
4. The law on probate procedure in said foreign - More than 1 executor may be issued letters
country and proof of compliance therewith; and testamentary in accordance with the nomination
5. Legal requirements in said foreign country for in the will.
the valid execution of the will. Administrators
In the absence of proof of the foreign law, it is presumed - More than 1 may be appointed by the court.
that it is the same as that in the PHL. - The general practice is that co-executors or co-
administrators will exercise joint supervision
Note: over the entire estate, but the court for
If the decedent had properties in different had properties justifiable reason may charge a co-administrator
in different countries, separate administration proceedings with powers over a particular portion of the
must be had in said countries. estate for administration by him independent of
a. Proceeding in his last domicile – principal his co-administrator, but he must act in close
administration cooperation with the latter.
b. Other administration – ancillary administration
The two proceedings are separate and independent, but a SEC. 6 –When and to whom letters of admin granted
Philippine court may grant ancillary letters to the (a) To the surviving husband or wife, as the case may be,
domiciliary representative, if the relatives of the decedent or next of kin, or both, in the discretion of the court, or
mentioned in the order of preference are unsuitable for to such person as such surviving husband or wife, or
next of kin, requests to have appointed, if competent
the trust.
and willing to serve;
(b) If such surviving husband or wife, as the case may be,
SEC. 4 – Estate or next of kin, or the person selected by them, be
Local administrator has power only over the property of incompetent or unwilling, or if the husband or widow,
the decedent in the Philippines. or next of kin, neglects for thirty (30) days after the
- It shall be disposed of in accordance with his death of the person to apply for administration or to
national law, especially on the matter of the request that administration be granted to some other
order of succession, the amount of successional person, it may be granted to one or more of the
principal creditors, if competent and willing to serve;
rights and the intrinsic validity of the provisions
a. (c) If there is no such creditor competent and willing to
thereof (Art. 16, Civil Code) serve, it may be granted to such other person as the
court may select.
Surplus The order of preference in the appointment of an
It shall be remitted to the domiciliary jurisdiction, but the administrator may be disregarded for valid cause. The
SC advised to retain sufficient amount in custodial egis to principal consideration is the interest of the estate.
protect Philippine claimants with contingent claims. - A full-dress hearing to determine the
competence of the person named as
administrator should be conducted.
- The directive of the testator in his will is not
RULE 78 conclusive as supervening circumstances may
LETTERS TESTAMENTARY AND OF ADMINISTRATION have rendered unfit the person named to the
SEC. 1/3 – Who are incompetent as executors/admin trust.
Executor – person named in the will to administer the
decedent’s estate and carry out the provisions thereof. Appointment of Co-Administrators
Administrator – person: The order of preference does not rule out the
a. appointed by the court to administer the estate appointment of co-administrators in the exercise of the
where the decedent died intestate probate court’s sound discretion.
Thus, the appointment of co-administrators has been upheld for SEC. 4-6
various reasons, viz.: Preference Disregarded
(1) to have the benefit of their judgment and, perhaps, at Preference given to the surviving spouse or next of kin
all times to have different interests represented;
may be disregarded by the court where said persons
(2) where justice and equity demand that opposing parties
or factions be represented in the management of the
neglect to apply for letters of administration for 30 days
estate; after decedent’s death.
(3) where the estate is large or, from any cause, an
intricate and perplexing one to settle;
(4) to have all interested persons satisfied and the RULE 80
representatives to work in harmony for the best
SPECIAL ADMINISTRATOR
interests of the estate; and
(5) when a person entitled to the administration of an
SEC. 1 – Appointment of Special Administrator
estate desires to have another competent person When there is a delay in granting letters testamentary or
associated with him in the office of administration by any cause, the court may appoint a
special administrator.
Next of Kin – those persons who are entitled under the - The other instance is when the regular
statute of distribution to the decedent’s property. administrator or executor has a claim against the
Generally, the nearest of kin, whose interest is more estate, in which case a SA shall be appointed by
preponderant, is preferred in the choice of administrator. the court with respect to such claim.
- The order appointing an SA is an interlocutory
Party Indebted order and is not appealable.
They cannot compatibly perform the duties of an The order of preference in appointment of regular
administrator and should not be appointed. administrators does not apply to the appointment of a
Exception: special administrator.
Such indebtedness was only subsequently discovered after
his appointment, absent any other lawful ground. Grounds for Removal
Grounds for removal of regular administrator do not apply
Clerks of Court and other Court Personnel strictly to the SA as he may be removed by the court on
They should not be appointed as administrators or other grounds in its discretion.
receivers of estates of deceased persons so as not to
compromise their objectivity and impartiality in the SEC. 2-3 – Powers and Duties of SA
performance of their regular functions. Special Administrator shall:
1. Take possession and charge of the goods,
chattels, rights, credits, and estates of the
deceased
RULE 79
o May sell only such perishable and
OPPOSING ISSUANCE OF LETTERS TETAMENTARY
other property as the court orders sold
SEC. 1-2 – Opposition to issuance
2. Preserve the same for the executor or
A person interested in the estate is authorized not only to
administrator afterwards appointed
challenge the qualifications of the person nominated
3. For that purpose may commence suits as
therein as executor but, at the same time and in
administrator
anticipation of such disqualification, to file a petition for
4. Duty to submit an inventory and to render an
administration with the will annexed.
accounting of his administration as required by
the terms of his bond (Sec. 4, Rule 81).
Interested Person – a person must have material and
5. May commence and maintain suits
direct, and not one that is only indirect or contingent,
o But cannot be sued by a creditor for
interest.
the payment of a debt of the
deceased. Such suit must await the
Assignment of Rights by an Heir
appointment of a regular
a. Before the institution – heir has no longer the
administrator.
requisite interest to participate therein.
Exception:
b. During pendency – requires the approval of the
a. Where the creditor would suffer
court for its validity.
the adverse effects of the running
o Even if that assignment has been
of the statute of limitations
approved by the court, such approval
against them if the appointment
is not deemed final until the
is delayed
proceeding over the estate is closed, as
b. A mortgagee ay bring an action
such approval can still be vacated,
for the foreclosure of a mortgage
hence the assignor remains as an
interested party.
 of a property of the estate against RULE 82
a special administrator. REVOCATION OF ADMINISTRATION, DEATH,
RESIGNATION, AND REMOVAL OF EXECUTORS AND
ADMINISTRATORS
RULE 81 SEC. 1 – If will discovered
BONDS OF EXECUTORS AND ADMNISTRATORS It is only when the newly-discovered will has been
SEC. 1-2 – Bond to be given admitted to probate that the letters of administration may
Before an executor or administrator enters upon the execution of be revoked by the probate court.
his trust, and letters testamentary or of administration issue, he
shall give a bond, in such sum as the court directs, conditioned as SEC. 2 – Other causes
follows: 1. Neglect to render his account and settle the
(a) To make and return to the court, within three (3) estate according to law, or to perform order or
months, a true and complete inventory of all goods,
judgment of the court, or a duty expressly
chattels, rights, credits, and estate of the deceased
provided by these rules
which shall come to his possession or knowledge or to
the possession of any other person for him; 2. Absconds
(b) To administer according to these rules, and, if an 3. Insane or otherwise incapable or unsuitable to
executor according to the will of the testator, all discharge the trust
goods, chattels, rights, credits, and estate which shall 4. Death
at any time come to his possession or to the 5. Resignation
possession of any other person for him, and from the 6. Removal by the court
proceeds to pay and discharge all debts, legacies, and
The remaining executor or administrator may administer
charges on the same, or such dividends thereon as
shall be decreed by the court;
the trust alone, unless the court grants letters to someone
(c) To render a true and just account of his administration to act with him. If there be none remaining, it may be
to the court within one (1) year and at any other time granted to any suitable person.
when required by the court;
(d) To perform all orders of the court by him to be SEC. 3. – Acts before removal
performed. The lawful acts shall have the validity as if there had been
The bond posted by administrators and executors is no such revocation, resignation or removal.
intended as an indemnity to the creditors, the heirs and
the estate. SEC. 4 – Powers of New Executor/Admin
He shall have the same powers. An authority granted by
Enforcement the court to the former executor or administrator for the
The enforcement of such liability may be sought by motion sale or mortgage of real estate may be renewed in favor of
in the administration proceedings or in a separate civil such person without further notice or hearing.
action.
Discovery of Indebtedness
Testator’s direction that executor serve w/o bond The mere fact that it was subsequently discovered that the
The court may still require him to file a bond conditioned duly appointed administrator was indebted to the
only to pay the debts of the testator and to answer for decedent is not a ground for his removal, absent any other
breaches in his administrations. circumstance indicative of bad faith or lack of integrity on
his part.
SEC. 3 – Bond of Joint Executors or Administrators
The court may take a separate bond from each, or a joint No Right to Intervene
bond from all. The fact that the administratrix was later held to be
without the right to intervene in the settlement of the
SEC. 4 – Bond of Special Administrator estate as an heir is not a ground for her removal as such
Bond is conditioned that he will make and return a true administratrix, since even a stranger can be appointed as
inventory of the goods, chattels, rights, credits and estate such.
of the deceased which come to his possession or
knowledge.
RULE 83
INVENTORY AND APPRAISAL
SEC. 1 – Inventory and appraisal
The 3-month period provided herein is not mandatory and
the court retain jurisdiction even if the inventory is filed
after said period, but such delay, if not satisfactorily
explained, may be a ground for the removal of the
administrator under Sec. 2, Rule 82.
SEC. 2-3 – Certain articles not to be involved personal estate of the deceased, or neglects to
Property claimed by 3P pay over the money he has in his hands, the
It may be included in the inventory as part of the assets of same shall be deemed waste and the damage
the assets of the estate and the probate court my order sustained may be charged and allowed against
such inclusion, but such order of the probate court is only him in his account, and he shall be liable on his
a prima facie determination and does not preclude the bond
claimants from maintaining an ordinary civil action for the 6. The amount paid by an executor or
determination of title. administrator for costs awarded against him
shall be allowed in his administration account
Support
Sec. 3 allows support to be given to the surviving spouse SEC. 7 – Expenses and fees allowed executor or
and the minor or incapacitated children of the decedent administrator
during the settlement of the estate. It is ruled that The administrator or executor is entitled to charge in his
allowances should include even the children of legal age as accounts all expenses of administration incurred by him.
the right and duty to support, especially the right to
education, subsist even beyond the age of majority. Not proper to be expenses of administration (not
- Allowance for support are subject to collation chargeable against the estate):
and deductible from the share in the inheritance (a) The services rendered by an administrator in favor of an heir
of said heirs insofar as they exceed the fruits or which services were not beneficial to the estate (Sison vs.
rents pertaining to them. Teodoro, 100 Phil. 1055);
(b) Premiums for his bond (Sison us. Teodoro, supra);
(c) Expenses for the repair of property of the estate being
occupied and used by him (De Borja us. De Borja, 101 Phil.
RULE 84 911);
GENERAL POWERS AND DUTIES OF EXECUTORS AND (d) Expenses for the keeping of ordinary records and receipts
ADMINTRATORS involved in his administration work (De Borja vs. De Borja,
SEC. 1-3 – supra); and
(e) Losses incurred in the conduct of business with the use of
An administrator or executor has all the powers necessary
the funds
for the administration of the estate and which powers he
can exercised without leave of court. (Ex. Lease over
The compensation of the executor shall primarily be that
property)
fixed in the will and if there is no such provision or he
- An interested party who desires to impugn the
renounces the same, then it will be as provided in Sec. 7.
same must do so in an ordinary civil action as the
probate court has no jurisdiction over the lessee.
SEC. 8-11
- If it exceeds 1 year, no longer considered act of
Even if the final accounts of the executrix had already
administration, leave of court required.
been approved but said executrix subsequently received
Note:
funds of the estate, she must account for the same and
Sale and mortgage are regulated by Rule 89.
this duty cannot be waived by the act of the heirs in
receiving dividends from said funds without requiring said
accounting.
RULE 86
ACCOUNTABILITY AND COMPENSATION OF EXECUTORS
AND ADMINISTRATORS
RULE 86
SEC. 1-7 – Accountability of administrators
CLAIMS AGAINST ESTATE
1. Every executor or administrator is chargeable in
SEC. 1-2 – Notice and Time to claim
his account with the whole of the estate of the
Statute on Non-claims
deceased
The period fixed by Sec. 2 for the filing of claims is
2. No executor or administrator shall profit by the
sometimes referred to as the statute of non-claims and
increase, or suffer loss by the decrease or
supersedes the ordinary statute of limitations.
destruction, without his fault, of any part of the
- Time of Filing: it shall not be more than 12 nor
estate
less than 6 months after the date of the first
3. No executor or administrator shall be
publication of the notice.
accountable for debts due the deceased which
- Period starts to run from the date of the first
remain uncollected without his fault
publication of the notice referred in Sec. 1 and
4. If the executor or administrator uses or occupies
runs even against the State.
any part of the real estate himself, he shall
account for it
5. Neglects and unreasonable delays to raise
money, by collecting debts or selling real or
Extension This is deemed included in the concept of claims under
The court, for good cause shown, may grant a one-month Sec. 5 which speaks of “implied” contracts.
period for a creditor to file a claim which he failed to file
during the original period granted for the filing of claims. Contingent claim – one which depends for its
- Allowed provided no order of distribution has demandability upon the happening of a future uncertain
yet been entered. event. Claims which are not yet due, or are contingent,
- The one month period does not necessarily may be approved at their present value but as no payment
commence from the expiration of the original thereof can yet be authorized by the court until their
period. What it means is that said claims must be demandability arises, a portion of the estate may be
filed within a time not exceeding one month reserved for the payment of such claims as provided in
from the order of the court allowing the filing of Sees. 4 and 5, Rule 88.
such particular claim.
Administrator or Executor Sues
SEC. 3-4 Publication of Notice/Filing of Printed Notice If the claimant is sued by the administrator or executor,
Special Administrator; Filing of Claims either within the period for filing claims or thereafter, such
A notice to creditors to file their claims is not proper if only claim may be availed of by the defendant as a
a special administrator has been appointed. (generally, not counterclaim and if he proves the same, he may recover
empowered to pay the debts of the deceased) thereon against the estate.

Where a claimant with a claim under a judgment for Waiver

money against the deceased files a petition for the Under certain circumstances, such filing may be waived by
issuance of letters of administration over the estate of the the act or conduct of the estate’s representative, as where
decedent within the ten-year period from the finality of its after the death of the decedent in a civil case he was
judgment, and after said ten-year period filed a claim substituted by the administrator who proceeded to trial
against the estate of the deceased under administration, and even appealed from the decision therein, in which
said claim retroacts to the date of the filing of the petition case the estate is deemed to have notice of such claim.
for letters of administration and, therefore, has not - The fact that plaintiffs claim should have been
prescribed. litigated in the probate court does not affect the
validity of the decision since the court therein
SEC. 5-6 – Claims which must be filed under had jurisdiction over the subject matter and the
notice/Solidary Obligation of Decedent parties.
Claims of Money
The claims referred to in Sec. 5 must be for money which is Action pending upon death of Decedent
not secured by a lien against property of the estate. The case shall not be dismissed but shall continue until
Otherwise, an action should be instituted for that purpose entry of judgment.
against the executor or administrator. a. Pending but not for the primary purpose of
- These claims must have arisen from liability recovery of money, debt or interest – heirs or
contracted before decedent’s death and money other legal representatives will merely be
claims arising after his death cannot be substituted for the decedent without
presented, except funeral expenses and appointment of an executor or administrator
expenses of his last illness. b. Final judgment already rendered but without
levy on execution – judgment for a sum of
Types of Money Claim money must also be filed as a claim against the
1. Arising from contract, express or implied, estate in the manner provided by this Rue
entered into in his lifetime – required to be filed
under this section (ex. Contract of carriage) SEC. 7 – Mortgage debt due from Estate
2. Arising from a crime or quasi-delict – not Three Alternative Remedies Available to a mortgage
included in the concept of claims which have to creditor upon the death of the mortgagor:
be filed but should be the subject of an action 1. Abandon his security and prosecute his claim –
against the executor or administrator or against by filing his claim against the estate as a money
the heirs. clam, he is deemed to have abandoned the
o Unpaid taxes – not covered by the mortgage and he cannot thereafter file a
statute of non-claims as these are foreclosure suit in the event he fails to recover
monetary obligations created by law. his money claim against the estate.
2. Institute a foreclosure suit and recover upon the
Implied Contracts – include liabilities both ex lege and ex security.
quasi contractu, hence the obligation to return money o It should be against the executor or
gained at gambling is ex lege and is an implied contract. administrator as party defendant. If he
 fails to recover fully, he may obtain a RULE 87
deficiency judgment and file it as a ACTIONS BY AND AGAINST EXECUTORS AND
claim against the estate in the manner ADINISTRATORS
provided by this Rule, provided it is SEC. 1 – Actions which may and may not be brought
within the period for filing of claims against executor or administrator
against the estate. GR: the executor or administrator is to be sued in his
o Safer recourse, to file a claim for any representative capacity if the action would result in the
PROBABLE deficiency (considered as direct charge upon the estate.
contingent claim) Except:
3. Rely solely upon his mortgage and foreclose the 1. Recover real or personal property, or any
same at anytime within the statute of interest therein;
limitations. 2. Enforcement of a lien thereon; and
o Before distribution – party-defendant 3. Actions to recover damages for an injury to
is administrator or executor person or property, real or personal, may be
o After order distribution – party- commenced against him.
defendants are the heirs. For violations of or non-compliance with the duties of his
The mortgage creditor can avail only one of the 3 remedies trust, such executor or administrator shall be sued in his
and if he fails to recover under that remedy, he cannot personal capacity.
avail of any of the other remedies.
Revival of Judgment
Mortgagor died during pendency of judicial foreclosure This section does not bar a suit against the administratrix
The decision therein shall be enforced by the trial court by for the revival of a judgment for a sum of money angst the
writ of execution in the foreclosure proceeding. decedent whose estate she represents, as its object is not
- Such enforcement cannot be delegated to to make the estate pay said sums of money adjudged in
probate court since probate court has limited that judgment but merely to keep alive said judgment.
jurisdiction and no authority to enforce lien.
SEC. 2 – Executor or administrator may bring or defend
Preliminary Attachment actions which survive
Where the mortgaged property is insufficient to satisfy the Action against Executor
mortgage account and the properties of the mortgagor are The heirs may maintain such action if the executor or
being disposed of in fraud of creditors. administrator is unwilling or refuses to bring suit, or when
he himself is alleged to have participated in the act
SEC. 8 – Claims of Executor and Administrator against complained and the executor or administrator may be
estate made a party defendant.
This section provides for the second instance wherein a - Executor or administrator would be in the
special administrator may be appointed by the court. The position of an unwilling co-plaintiff.
special administrator shall have authority to act only with
respect to the claim of the regular administrator or the Appeal Allowed
executor. The judgment of the court, ordering the possessors to
surrender the property and to account for the fruits
SEC. 9-14 – Procedure thereof, is a final and appealable judgment, even before
Absence of Instrument the accounting ordered therein has been complied with.
In the absence thereof, the claim cannot be proved. This
appears to be sustained by Sec. 23, Rule 130 (Dead man SEC. 3-5 –
Statute), which disqualifies surviving parties under the Prohibition under SEC. 3
circumstance provided therein from testifying to any It only applies to heirs and devisees and not to a donee
matter of fact occurring before the death of the decedent. inter vivos who may sue the administrator for the delivery
of the property donated or a reserve who can use to
Claim of Estate Against 3P recover the property which the deceased was bound to
Probate court has no jurisdiction to entertain a claim in reserve.
favor of the estate against a third person as the same
should be the subject of an ordinary action generally to be SEC. 6-8 – Concealed, Embezzled, or fraudulently
prosecuted by the executor or administrator under the conveyed
provisions of Sec. 2, Rule 87. The proceedings are merely in the nature of fact finding
Exception: inquiries. If in the proceedings authorized under this
Counterclaim (Sec. 10 of this Rule), regardless of its basis, section the persons alleged to have converted property of
is treated like a compulsory counterclaim since the failure the estate assert title thereto, the probate court cannot
to file it shall bar the claim forever. determine the issue.
Remedy: The executor or administrator must file an
ordinary action for the recovery of the properties or
damages thereto.

SEC. 9-10 – Fraudulent Transfers

The executor or administrator may, on his own initiative or
on motion of the creditors and is directed by the court to
institute an action for the recovery of said property, but
since said action is for the benefit of the creditors, the
court may direct the creditors to defray part of the costs
and expenses of the suit.

Failure to Bring Action

Any of the creditors may bring suit in his own name, with
leave of court, upon the filing of an indemnity bond for
such costs and expenses as may arise from the suit.
- if the actions is against the executor or
administrator himself, the suit shall be in the
names of the creditors and leave of court and
the indemnity bond shall not be required.