Appointment of Executor or Administrator

Appointment of executor or administrator

Persons not allowed to serve as executor or administrator . –  “No person is allowed to serve as executor or administrator who: 1) is a minor; 2) not a resident of the Philippines; and 3) 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 (Rule 78, Sec. 1, RULES OF COURT);

When no executor named in the will; Statutory Order of Preference. – – 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, (obligatory force) administration shall be granted: 1) 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, as the case may be, or next of kin, requests to have appointed, if competent and willing to serve; 2) 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; and 3) if there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select (Rule 78, Sec. 6)

Principal consideration; Test of Highest Interest and Most Influential Motive. –  The principal consideration in the appointment of the administrator is the interest in the estate of the one to be appointed. The underlying assumption behind the order of preference in the appointment of an administrator is that those who will reap the benefit of a wise, speedy, economical administration of the estate or, on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the highest interest and most influential motive to administer the estate correctly (Gonzales vs. Aguinaldo, 190 SCRA 112, 1990). “Next of kin”.

–  those persons who are entitled under the statute of distribution to the decedent’s

property (Gabriel vs. Court of Appeals, 212 SCRA 413, 1992). The nearest of kin is preferred in the choice of administrator because his interest in the estate is more preponderant (Ventura vs. Ventura, 160 SCRA 180, 1988). The Supreme Court does not look with favor on the practice of clerks of court or other court employees being appointed as administrators of estates of decedents pending settlement before the probate court. The objectivity or impartiality of such clerks of court or other employees in discharging their regular functions may be easily compromised by extraneous considerations. Furthermore, selfinterest may intrude in the prompt and expeditious settlement of the estate because of the administrator’s fees and compensation payable to them (2 Bautista 36, citing Medina vs. Court of Appeals, 53 SCRA 206, 1973). An order appointing an administrator is appealable, because it is a final determination of the rights of the parties thereunder (Viuda de Biascan vs, Biascan, 347 SCRA 621, 2000) Co-administrators. – Two or more administrators may be appointed for an estate, especially when

it is large and its administration complex. Co-administration should however be resorted to in exceptional cases only because it may lend to conflict between or among the co-administrators and diffusion of responsibility. The appointment of co-administrators has however been upheld for various 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 one to settle; 4) to have all interested parties satisfied and the representatives to work in harmony for the best interests of the estate; and 5) when a person is entitled to the administration of an estate desires to have another competent person associated with him in the office (Gabriel vs. Court of Appeals, 212 SCRA 413, 1992). Although a co-administrator is designated to administer a portion of the estate, he is no less an administrator of the whole because of his judicious management of a mere parcel enhances the value of the entire estate, while his inefficient or corrupt administration thereof necessarily diminishes the value of the whole estate (2 Bautista 37). Removal of executor or administrator. – If after letters of administration have been granted on

the estate of a decedent as if he had died intestate, his will is proved and allowed by the court, (obligatory force) the letters of administration shall be revoked and all powers thereunder cease, and the administrator shall forthwith surrender the letters to the court, and render his account within such time as the court directs (Rule 82, Sec. 1, RULES OF COURT). Grounds for Removal. – If an executor or administrator 1) neglects to render his account and settle the estate according to law, 2) or to perform an order or judgment of the court, or a duty expressly provided by the Rules, 3) or absconds, 4) or becomes insane, 5) or otherwise incapable or unsuitable to discharge the trust the court may remove him, or, in its discretion, may permit him to resign. When an executor or administrator dies, resigns, or is removed the remaining executor or administrator may administer the trust alone, unless the court grants letters to someone to act with him. If there is no remaining executor or administrator, administration may be granted to any suitable person (Rule 82, Sec. 2).

An administratrix may be removed for her failure in six (6) years and three (3) months from the time she was appointed to render an accounting of her administration (Lim Kalaw vs. Intermediate Appellate Court, 213 SCRA 289, 1992). So may an administrator be properly removed: – where he failed to pay the estate tax and render an accounting of the estate – and where he involved the heirs in a transaction which caused them to be sued (Mendiola vs. Court of Appeals, 190 SCRA 421, 1990) An executor was held to have been properly removed for the following reasons: 1) withdrawal of money from a joint current account maintained in a bank in his name and that of the deceased and the deposit of the withdrawn amount in a joint account in his name and that of his brother; 2) the executor omitted to include, as income of the estate, the sum of P6,000.00 which he received from a hacienda of the deceased and the deposit of other proceeds from deceased’s f arm in his joint account with his brother; 3) the executor claimed as his own certain shares in a gas company in the name of the deceased on his assertion that the deceased was merely his “dummy.”  Conflict between the interest of the executor and t he interest of the deceased is ground for removal or resignation of the former who thereby becomes unsuitable to discharge the trust. An executor is a quasi-trustee who should be indifferent between the estate and claimants of the property, except to preserve it for due administration (2 Bautista 43, citing Borromeo vs. Borromeo, 97 Phil. 549, 1955). Effect of Removal on Prior Acts of Administrator. – The lawful acts of a n executor or administrator before the revocation of his letters testamentary or of administration, or before his resignation or removal, (obligatory force) shall have the like validity as if there had been no such revocation, resignation, or removal (Rule 82, Sec. 3, RULES OF COURT). Like Powers of Subsequent Executor/Administrator. – The person to whome letters testamentary or of administration are granted after the revocation of former letters, or the death, resignation, or removal of a former executor or administrator, (obligatory force) shall have the like powers

1) to collect and settle the est ate not administered that the former executor or administrator had, 2) and may prosecute or defend actions commenced by or against the former executor or administrator, 3) and have executions on judgments recovered in the name of such former executor or adminsitrator. An authority granted by the court to the former executor or administrator for the sale or mortgage of real estate may be renewed in favor of such person without further notice or hearing (Rule 82, Sec. 4, RULES OF COURT).