ArticuLaw Primo

Rule 78 

Letters Testamentary and of Administration

 

Prepared by: Bartolome Mercado

 

 

    Letters testamentary is the appointment issued by a probate court, after the will has been admitted to probate, to the executor named in the will to administer the estate of the deceased testator, provided the executor named in the will is competent, accepts the trust and gives a bond (Sec. 4).

 

Question: When and to whom letters of administration granted?

 

Section 1 0f Rule 78 states that:

 

(1) No person is competent to serve as executor or administrator who:

 

(a) Is a minor;

 

(b) Is not a resident of the Philippines; and

 

(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude 

 

     In drunkenness it should be something more gross than occasional must appears in order to preclude the appointment of the person entitled.

 

   Improvidence is the want of care and foresight in the management of property which would likely to render the estate and effects of the instestate unsafe

 

Want of Understanding is a disqualification where it amount to lack of intelligence

 

   Want of Integrity means a soundness of moral privilege and character to sustain judgment of want of integrity the accusation shld be certain and grave in its nature and must be established by proof of which atleast required for conviction in a criminal prosecution.

 

 

Section 2  Executor of executor not to administer estate

 

     The executor of the first executor shall not, as such, administer the estate of the first testator.

 

 

Section  3 Married Women May Serve

 

     Married women may serve as executrix or administratrix, and the marriage of a single woman shall not affect her authority so to serve under a previous appointment.

 

 

Section  4  Letters testamentary issued when will allowed. 

 

    When a will has been proved and allowed, the court shall issue letters testamentary thereon to the person named as executor therein, if he is competent, accepts the trust, and gives bond as required by these rules.

 

 

Section  5  Where some co-executors disqualified others may act. 

 

    When all of the executors named in a will cannot act because of incompetency, refusal to accept the trust, or failure to give bond, on the part of one or more of them, letters testamentary may issue to such of them as are competent, accept and give bond, and they may perform the duties and discharge the trust required by the will. 

 

 

Letter of Administration - refer to letter granted to a person not named in the will as an executor

 

 

Section  6   When and to whom letters of administration granted. 

 

    If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted:

 

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;

 

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve;

 

(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select 

 

 

Order of preference

Priority in selecting an Administrator

 

(a)   Surviving spouse, or next of kin, or both, or person as such surviving spouse, or next of kin, requests;

 

(b)   One or more of the principal creditors – if such surviving spouse, o next of kin, or the person selected, be incompetent or unwilling, or if or to request that administration be granted to some other person, it may be granted to, if competent and willing to serve;

 

(c)   Such other person as the court may select.  If  they neglect for 30 days after the death of the decedent to apply for administration

 

 

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See  JULITA RELUCIO vs. HON. RAMON R. SAN JOSE, G.R. No. L-4783 (May 26, 1952)