BONDS OF EXECUTORS AND ADMINISTRATOR
SECTIONS 6-7
SECTIONS 6-7
SECTIONS 6-7
SECTIONS 6-7
SECTIONS 6-7
SECTIONS 6-7
LSPU College of Law
RULE 87
ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS
SECTIONS 1-3
SECTION 1: ACTIONS WHICH MAY AND WHICH MAY NOT BE BROUGHT AGAINST EXECUTOR OR ADMINISTRATOR
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No action upon a claim for the recovery money or debt or interest thereon shall be commenced against the executor or administrator;
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But actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal may be commenced against him.
ACTIONS WHICH MAY BE BROUGHT AGAINST THE EXECUTOR & ADMINISTRATOR:
a. Independent and separate of the probate proceeding:
b. Recovery of real or personal property or any interest therein from the estate;
c. Enforcement of lien thereon;
d. Action to recover damages for any injury to person or property, real or personal (tortuous acts)
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Note: The above enumerations are actions that survive the death of the decedent.
Sample cases that may be commenced against executors & administrators:
a) An action for quieting of title with damages. It is an action involving real property. Pursuant to Section 1, Rule 87, it is an action that survives as the claim is NOT EXTINGUISHED by the death of a party.
b) A civil case which is an action for the recovery of a motor vehicle, a personal property. Pursuant to Section 1, Rule 87, it is an action that survives, because it is not extinguished by the death of a party.
SECTION 2: EXECUTOR OR ADMINISTRATOR MAY BRING OR DEFEND ACTIONS WHICH SURVIVE.
For the recovery or protection of the property or rights of the deceased, an executor or administrator may bring or defend, in the right of the deceased, actions for causes which survive.
SECTION 3: HEIR MAY NOT SUE UNTIL SHARE ASSIGNED.
When an executor or administrator is appointed and assumes the trust, no action to recover the title or possession of lands or for damages done to such lands shall be maintained against him by an heir or devisee until there is an order of the court assigning such lands to such heir or devisee or until the time allowed for paying debts has expired.
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Note:
General Rule:
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Before distribution is made or before any residue is known, the heirs and devisees HAVE NO CAUSE OF ACTION against the executor or administrator for recovery of the property left by the decedent.
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The heirs have no standing in court to sue for the recovery of property of the estate represented by an executor oradministrator. However, the heirs may sue in the following instances:
(Exceptions)
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If the executor or administrator is unwilling to bring suit;
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When the executor or administrator is made a party defendant where he is alleged to have participated in the act complained of;
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When there is no appointed administrator(Rioferio, et al. v CA)
SECTIONS 4-6
SECTION 4. EXECUTOR OR ADMINISTRATOR MAY COMPOUND WITH DEBTOR.
With the approval of the court, an executor or administrator may compound with the debtor of the deceased for a debt due, and may give a discharge of such debt on receiving a just dividend of the estate of the debtor
SECTION 5. MORTGAGE DUE ESTATE MAY BE FORECLOSED
A mortgage belonging to the estate of a deceased person, as mortgagee or assignee of the right of a mortgagee, may be foreclosed by the executor or administrator.
There is no need of a special authority from the court for the administrator or executor to bring an action for foreclosure on behalf of the estate.
SECTION 6. MORTGAGE DUE ESTATE MAY BE FORECLOSED
If an executor or administrator, heir or legatee, creditor, or other individual interested in the estate of the deceased, complains to the court having jurisdiction of the estate that a person suspected of having concealed, embezzled, or conveyed away any of the money, goods, or chattels of the deceased, or that such person has in his possession or has knowledge of any deed, conveyance, bond, contract, or other writing which contains evidence of or tends to disclose the right, title, interest, or claim of the deceased to real or personal estate or the last will and testament of the deceased, the court may cite such suspected person to appear before it and may examine him on oath on the matter of such complaint; and if the person so cited refuses to appear, or to answer on such examination or such interrogatories as are put to him, the court may punish him for contempt, and may commit him to prison until he submits to the order of the court. The interrogatories put to any such person, and his answers thereto, shall be in writing and shall be filed in the clerk's office.
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Third persons to whom the decedent's assets have been fraudulently conveyed may be cited to appear in court and be examined under oath as to how they came into the possession of the decedent's assets.
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The purpose of examination under this rule is to elicit information or secure evidence from the persons suspected of having possession or knowledge of the property or will of the deceased, or ofhaving concealed, embezzled, or conveyed away any of the property of the deceased. In such proceeding, the court has no authority to decide whether the property, real or personal belongs to the deceased or the persons examined. If after examination there is good reason for believing that that the person so examined has property in his possession belonging to the estate, it is the duty of the administrator, by ordinary action, to recover the same.
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Such proceedings are intended merely to investigate and take testimony for use in an independent action. The court in such proceedings lacks power to adjudicate titles or determine controverted rights.
SECTIONS 7-10
SECTION 7. Person entrusted with estate compelled to render account.
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The court, on complaint of an executor or administrator,
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may cite a person entrusted by an executor or administrator with any part of the estate of the deceased to appear before it, and may require such person to render a full account, on oath, of the money, goods, chattels, bonds, accounts, or other papers belonging to such estate as came to his possession in trust for such executor or administrator, and of his proceedings thereon;
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If the person so cited refuses to appear to render such account, the court may punish him for contempt as having disobeyed a lawful order of the court.
SECTION 8. Embezzlement before letters issued
If a person, before the granting of letters testamentary or of administration on the estate of the deceased, embezzles or alienates any of the money, goods, chattels, or effects of such deceased, such person shall be liable to an action in favor of the executor or administrator of the estate for double the value of the property sold, embezzled, or alienated, to be recovered for the benefit of such estate.
SECTION 9 Property fraudulently conveyed by deceased may be recovered; when executor or administrator must bring action
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When there is deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration, and the deceased in his lifetime had
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Conveyed real or personal property, or
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A right or interest therein, or
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A debt or credit, with intent to defraud his creditors or to avoid any right, debt, or duty; or
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Had so conveyed such property, right, interest, debt, or credit that by law the conveyance would be void as against his creditors, and the subject of the attempted conveyance would be liable to attachment by any of them in his lifetime,
-the executor or administrator may commence and prosecute to final judgment an action for the recovery of such property, right, interest, debt, or credit for the benefit of the creditors; but he shall not be bound to commence the action unless:
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On application of the creditors of the deceased,
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Nor unless the creditors making the application pay such part of the costs and
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Expenses, or give security therefor to the executor or administrator, as the court deems equitable.
SECTION 10 When creditor may bring action; Lien for costs
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When there is such a deficiency of assets, and the deceased in his lifetime had made or attempted such a conveyance, as is stated in the last preceding section, and the executor or administrator has not commenced the action therein provided for, any creditor of the estate may, with the permission of the court, commence and prosecute to final judgment, in the name of the executor or administrator, a like action for the recovery of the subject of the conveyance or attempted conveyance for the benefit of the creditors. But the action shall not be commenced until the creditors has
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Filed in a court a bond executed to the executor or administrator,
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In an amount approved by the judge,
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Conditioned to indemnify the executor or administrator against the costs and expenses incurred by reason of such action.
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Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and other expenses incurred therein as the court deems equitable. Where the conveyance or attempted conveyance has been made by the deceased in his lifetime in favor of the executor or administrator, the action which a creditor may bring shall be in the name of all the creditors, and permission of the court and filing of bond as above prescribed, are not necessary.
REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED BY THE DECEASED
1) 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 real or personal property, or a right or interest therein, or a debt or credit, with intent to defraud his creditors or to avoid any right, debt or duty; or had so conveyed such property, right, debt, or credit that by law the conveyance would be void as against his creditors;
3) The subject of the attempted conveyance would be liable to attachment by any of them in his lifetime;
4) The executor or administrator has shown to have no desire to file 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 as prescribed in the Rules;
7) The action by the creditor is in the name of the executor or administrator.