Appointment and Removal of Executor

or Administrator
The central figure in probate administration is the executor or administrator. He acts as the arm of the
court for the purpose of administering the estate for the benefit of the heirs, creditors and other
proper lawful distributees of the estate. His main function is to collect, preserve, and administer this
estate, pay the claims against it and distribute the residue as per order of the court or as may be
agreed upon by the parties. The position of executor or administrator is invested with much power but
naturally his power is proportionate only to the size and quality of the estate (2 Bautista 33).
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 decedents
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

administrators 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 onlybecause 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).
Special administrator. When there is delay in granting letters testamentary or of administration by
any cause including an appeal from the allowance or disallowance of a will, the court may appoint a
special administrator to take possession and charge of the estate of the deceased until the questions
causing the delay are decided and executors or administrators are appointed (Rule 80, Sec. 1, RULES
OF COURT). Prior however to the publication of the notice of hearing on the petition for settlement of
the estate of a decedent, the probate court cannot appoint a special administrator because the court

has theretofore not acquired jurisdiction over persons interested in the estate (De Guzman vs.
Angeles, 162 SCRA 347, 1988).
Sound Discretion of the Court. The statutory preferences in the appointment of a regular
administrator do not apply to the selection of a special administrator. So, the court has discretion,
which however must be sound and not whimsical or contrary to reason, justice and equity, in the
selection of a special administrator (2 Bautista 38).
There is no basis for the appointment of a special administrator pending appeal from the appointment
of a regular administrator because the administrator-appointee should be the administrator pending
appeal from his appointment (Relucio vs. San Jose, 81 Phil. 365, 1952).
There are established factors which should be reckoned with in making the appointment of a special
administrator. For one, the executrixs choice of special administrator is entitled to the highest
consideration (Corona vs. Court of Appeals, 116 SCRA 316, 1982).
Since the appointment of a special administrator is within the discretion of the probate court the order
appointing such special administrator is not appealable (Pijuan vs. Viuda de Gurrea, 18 SCRA 898,
1966). The removal, as the appointment, of a special administrator, is an interlocutory matter
incidental to the main case and lies in the sound discretion of the probate court (Alcasid vs. Samson,
102 Phil. 735, 1956).
Powers and Duties of a Special Administrator. The powers and duties of a special administrator are
almost like those of a regular administrator. Such special administrator shall take possession of the
goods, chattels, rights, credits, and estate of the deceased and preserve the same for the executor or
administrator afterwards appointed, and for that purpose may commence and maintain suits as
administrator (Rule 80, Sec. 2, RULES OF COURT).
Rule: A special administrator shall not be liable to pay any debts of the deceased unless so ordered by
the court.
Corollary Rule: A special administrator may sell only such perishable and other property as the court
orders sold (Rule 80, Sec. 2);
Corollary Exception: The special administrator may properly be authorized to sell the property
regardless of whether it is perishable.
Corollary Exception to the Exception. He cannot be authorized to sell real property of the estate
(Silverio vs. Court of Appeals, 304 SCRA 541, 1999).

 It is not alone the specific property which is to be preserved, but its value as well (Anderson vs.
Perkins, 1 SCRA 387, 1961).
Ancillary administration. Where a deceased left property in another country for which probate
administration has been instituted, an ancillary administration may be had through proper petition in
our courts of his estate in the Philippines (Tayag vs. Benguet, 26 SCRA 242, 1968).
Rationale for Ancillary Administration. The reason for ancillary administration is that a grant of
administration does not ex proprio vigore have any effect beyond the limits of the country in which it
was granted (2 Bautista 40).
Scope of Powers of Administration. Administration extends only to assets of a decedent found within
the state or country where it was granted, so that the administrator appointed in one state or country
has no power over property in another state or country (Leon & Ghezzi vs. Manufacturers Life
Insurance Co., 90 Phil. 459, 1951).
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 deceaseds farm 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 the 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 an 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 estate 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).