6. Reopening of Proceedings

Remedy of an heir entitled to residue but not given his share.

• A heir entitled to the reside of the estate may demand his share through the following causes of action:
• A motion in the same probate or administration proceedings; or
• A motion to reopen the settlement proceedings if it had been closed.

If an heir has not received his share, his proper remedy is to file a motion with the probate court for delivery to him of his share or if the estate proceedings had been closed, he should file a motion for reopening of the proceeding, within the prescriptive period, and not to file an independent action for annulment of the project of partition. (Guilas v. Judge of CFI, G.R. No. L-26695, 1972)

As long as the order or distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated, because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed.

The better practice, however, for the heir who has not received his share, is to demand his share through proper motion in the same probate or administrative proceedings, or for the reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or judge which may thus reverse a decision or order of the probate or intestate court already final and executed and reshuffle properties long ago distributed and disposed of. (Timbol v. Cano, G.R. No. L-15445, 1961)