h. Distribution and Partition of the Estate (Rule 90)

Partition in Succession

In intestate succession, partition is the proper remedy for compulsory heirs to get their legitime.

In testate succession, there can be no valid partition among heirs until the will has been probated. (Union Bank v. Santibañez, G.R. No. 149926, 2005)

A. Settlement of Estate of Deceased Persons (part 4 of 4)

Sec. 8. When court may authorize conveyance of realty which deceased contracted to convey. Notice. Effect of deed.— Where the deceased was in his lifetime under contract, binding in law, to deed real property, or an interest therein, the court having jurisdiction of the estate may, on application for that purpose, authorize the executor or administrator to convey such property according to such contract, or with such modifications as are agreed upon by the parties and approved by the court; and if the contract is to convey real property to the executor or administrator, the clerk of the court shall execute the deed. The deed executed by such executor, administrator, or clerk of court shall be as effectual to convey the property as if executed by the deceased in his lifetime; no such conveyance shall be authorized until notice of the application for that purpose has been given personally or by mail to all persons interested, and such further notice has been given, by publication or otherwise, as the court deems proper; nor if the assets in the hands of the executor or administrator will thereby be reduced so as to prevent a creditor from receiving his full debt or diminish his dividend.

Sec. 9. When court may authorize conveyance of lands which deceased held in trust— Where the deceased in his lifetime held real property in trust for another person, the court may, after notice given as required in the last preceding section, authorize the executor or administrator to deed such property to the person, or his executor or administrator, for whose use and benefit it was so held; and the court may order the execution of such trust, whether created by deed or by law.

> Rule 90 DISTRIBUTION AND PARTITION OF THE ESTATE

Section 1. When order for distribution of residue made.— When the debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases. No distribution shall be allowed until the payment of the obligations above mentioned has been made or aided for, unless the distributees, or any of them, give abond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs.

Sec. 2. Questions as to advancement to be determined.— Questions as to advancement made, or alleged to have been made, by the deceased to any heir may be heard and determined by the court having jurisdiction of the estate proceedings; and the final order of the court thereon shall be binding on the person raising the questions and on the heir.

Sec. 3. By whom expenses of partition paid.— If at the time of the distribution the executor or administrator has retained sufficient effects in his hands which may lawfully be applied for the expenses of partition of the properties distributed, such expenses of partition may be paid by such executor or administrator when it appears equitable to the court and not inconsistent with the intention of the testator; otherwise, they shall be paid by the parties in proportion to their respective shares or interest in the premises, and the apportionment shall be settled and allowed by the court, and, if any person interested in the partition does not pay his proportion or share, the court may issue an execution in the name of the executor or administrator against the party not paying for the sum assessed.

Sec. 4. Recording the order of partition of estate. — Certified copies of final orders and judgments of the court relating to the real estate or the partition thereof shall be recorded in the registry of deeds of the province where the property is situated.

Probate Court’s Power to Liquidate the Conjugal Partnership

Only the probate court can competently rule on whether the properties are conjugal and form part of the estate. It is only the probate court that can liquidate the conjugal partnership and distribute the same to the heirs, after the debts of the estate have been paid. (Romero v. CA, G.R. No. 188921, 2012)

There are two requisites before the distribution of estate:

• Liquidation
• Declaration of Estate

The declaration of heirs is undertaken to determine to whom the residue of the estate should be distributed. The declaration is made in the same proceeding, a separate action for the declaration of heirs not being the proper recourse.

Project of partition

The project of partition is a proposal for distribution of the hereditary estimates and determines persons entitled thereto. (Moran, Comments on the Rules of Court, 1997 Ed. Vol. 3, 688-689)

The finality of the project of partition by itself alone does not terminate the probate proceeding. The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same. (Guilas v. CFI of Pampanga, G.R. No. L-22695, 1972)

A judicial partition is not final and conclusive. It does not prevent an heir from bringing an action to obtain his share, provided the prescriptive period has not closed. (Mari v. Bonilla, G.R. No. L-852, 1949)