Allowance of will

Probate or allowance of will defined 

Probate or allowance of will is a special proceeding mandatorily required for the purpose of establishing the validity of a will in accordance with Article 838 of the Civil Code which provides that “No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.” Probate is therefore mandatory.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional circumstances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will (Ajero v. CA, GR 106720, Sept. 15, 1994, 236 SCRA 488).

Grounds for Removal of Administrator

Removal of the administrator 

Concerning complaints against the general competence of the administrator, the proper remedy is to seek the removal of the administrator in accordance with Section 2, Rule 82 of the Rules of Court. While the provision is silent as to who may seek with the court the removal of the administrator, it is beyond doubt that a creditor, even a contingent one, would have the personality to seek such relief.

After all, the interest of the creditor in the estate relates to the preservation of sufficient assets to answer for the debt, and the general competence or good faith of the administrator is necessary to fulfill such purpose (Hilado. v. CA, GR 164108. May 8, 2009, 587 SCRA 464). 

Grounds for removal of an executor or administrator 

The court may remove an executor or administrator or, in its discretion, permit him to resign based on the following grounds:

  1. Insanity or incapability or unsuitability to discharge the trust;
  2. Neglect to render accounts within one (1) year and when required by the court;
  3. Neglect to settle the estate according to law;
  4. Neglect to perform an order or judgment of the court or a duty expressly provided by the rules;
  5. Absconding; or
  6. Becoming insane or otherwise incapable or unsuitable to discharge the trust (Sec. 2, Rule 82, RoC).

Other grounds for the removal of an administrator 

The other valid grounds for the removal of an executor or administrator are:

  1. Acquisition of interest adverse to that of the estate that makes the administrator unsuitable to discharge the trust (Garcia v. Vasquez, GR L-26615. Apr. 30, 1970, 32 SCRA 489);
  2. Physical inability and consequent unsuitability to manage the big estate under administration (De Borja v. Tan, GR L-6108. May 25, 1953, 93 Phil. 167);
  3. Being burdened with criminal charges for falsification in other fora which may bring about conflicts and possible abuse (Co v. Rosario, GR 160671. Apr. 30, 2008, 553 SCRA 225); and
  4. False representation by an administrator in securing his appointment (Cobarrubias v. Dizon, GR L-225. Feb. 26, 1946, 76 Phil. 209).




Special administrator defined 

A special administrator is but a temporary administrator who is appointed to act in lieu of the general administrator (Vda. De Roxas v. Pecson, GR L-2211. Dec. 20, 1948, 82 Phil. 407). 

A special administrator is a representative of a decedent appointed by the probate court to care for and preserve his estate until an executor or general administrator is appointed (Fule v. CA, GR L-40502, Nov. 29, 1976, 74 SCRA 189).

Special administrator as administrator of the estate and officer of the court

When appointed, a special administrator is regarded not as a representative of the agent of the parties suggesting the appointment but as the administrator in charge of the estate and, in fact, as an officer of the court (De Guzman v. Guadiz, Jr., GR L-48585, Mar. 31, 1980, 96 SCRA 938).

As such officer of the court, the special administrator is subject to the supervision and control of the probate court and is expected to work for the best interests of the entire estate, especially its smooth administration and earliest settlement (Valarao v. Pascual, GR 150164, Nov. 26, 2002, 392 SCRA 695).

Instances when a probate court may appoint a special administrator 

The probate court may appoint a special administrator:

  1. when there is delay in granting letters testamentary or of administration by any cause, including an appeal from the allowance or disallowance of a will (Sec. 1, Rule 80, RoC); and
  2. when the executor or administrator is a claimant of the estate he represents (Sec 8, Rule 86, RoC). 

In the second instance, the administrator shall have the same powers as that of a general administrator (Sec 8, Rule 86, RoC). 

Appointment of a special administrator; when justified 

The appointment of a special administrator is justified only when there is delay in granting letters, testamentary (in case the decedent leaves behind a will) or administrative (in the event that the decedent leaves behind no will) occasioned by any cause.

The principal object of the appointment of a temporary administrator is to preserve the estate until it can pass into the hands of a person fully authorized to administer it for the benefit of creditors and heirs (De Guzman v. Guadiz, Jr., GR L-48585, Mar. 31, 1980, 96 SCRA 938).

Appointment of a special administrator discretionary on the probate court

The appointment of a special administrator lies in the sound discretion of the probate court (De Gala v. Gonzalez, GR L-30289, Mar. 26, 1929, 53 Phil. 104).

Powers and duties of executors and administrators; restrictions

Powers and duties of executors and administrators; restrictions 

An executor or administrator shall have the following powers and duties:

  1. To have access to, and examine and take copies of books and papers relating to the partnership business (Sec. 1, Rule 84, RoC);
  2. To examine and make invoices of the property belonging to the partnership (Sec. 1, Rule 84, RoC);
  3. To maintain in tenantable 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 directed to do so by the court (Sec. 2, Rule 84, RoC);
  4. To make improvements on the properties under administration with the necessary court approval except for necessary repairs; and
  5. To possess and manage the real as well as the personal estate of the deceased so long as it is necessary for the payment of the debts and the expenses of administration (Sec. 3, Rule 84, RoC).

Restrictions on the power of the executor or administrator

An executor or administrator cannot:

  1. acquire by purchase even at public or judicial auction, either in person or mediation of another, the property under administration (Art. 1491, CC);
  2. borrow money without authority of the court;
  3. speculate with funds under administration (Sec. 2, Rule 85. RoC);
  4. lease the property for more than one (1) year (Art. 1878, CC);
  5. continue the business of the deceased unless authorized by the court (Sec. 1, Rule 84, RoC);
  6. profit by the increase or decrease in the value of the property under administration (Sec. 2, Rule 85, RoC); and
  7. exercise the right of legal redemption over the portion of the property owned in common sold by one of the other co-owners.



Interested persons may oppose the issuance of letters testamentary

Any person interested in a will (interested person) may state in writing the grounds why letters testamentary should not issue to the persons named therein executors or any of them and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds.

A petition may, at the same time, be filed for letters of administration with the will annexed (Sec. 1, Rule 79, RoC).

“Interested person” defined

Under the provision of Section 1, Rule 79 of the Rules of Court, the term “interested person” is held to mean as:

  1. one who would be benefited by the estate such as an heir; or
  2. one who has a claim against the estate such as a creditor whose interest is material and direct and not merely incidental or contingent (Teotico v. Del Val, GR L-18753. Mar. 26, 1965, 121 Phil. 392).Principal issue to be resolvedThe main issue up for determination in a petition for letters of administration is who is the person rightfully entitled to the administration of the estate. 

Appointment of co-administrators

Appointment of co-administrators allowed under certain circumstances 

The appointment of co-administrators has been allowed but as an exception to the requirement of observation of the order of preference in the appointment of administrator of a decedent’s estate.

Section 6(a), Rule 78 of the Rules of Court specifically states that letters of administration may be issued to both the surviving spouse and the next of kin. In addition and impliedly, Section 2 of Rule 82 of the Rules of Court says that “x x x when an executor or administrator dies, resigns, or is removed, the remaining executor or administrator may administer the trust alone, x x x” (Suntay III v. Cojuangco-Suntay, GR 183053. Oct. 10, 2012, 683 SCRA 439).

The appointment of co-administrators has been upheld for the following reasons:

  1. to have the benefit of their judgment and perhaps at all times to have different interests represented;
  2. where justice and equity demand that opposing parties or factions be represented in the management of the estate of the deceased;
  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 representatives to work in harmony for the best interests of the estate; and
  5. when a person entitled to the administration of an estate desires to have another competent person associated with him in the office (Gabriel v. CA, GR 101512, Aug. 7, 1992, 212 SCRA 413).


Order of preference

Order of preference 

The rule lists a sequence to be observed, an order of preference, in the appointment of an administrator. This order of preference in the appointment of an administrator categorically seeks out:

  1. the surviving spouse;
  2. the next of kin; and
  3. the creditors (Uy v. CA, GR 167979. Mar. 15, 2006, 484 SCRA 699).