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Selling Encumbered Property of Ward

The document discusses the rules regarding a guardian selling or encumbering the property of a ward. It states that a guardian may only do so with a court order, and that the court can grant such an order if: (1) the ward's income is insufficient to support themselves and their family, (2) the income cannot support and educate the ward if they are a minor, or (3) it would benefit the ward to sell/encumber the property and invest the proceeds. The document also outlines the requirements for notice to next of kin when petitioning the court for a sale or encumbrance, and that the hearing will determine if the sale is in the ward's best interest.

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John Rey Bantay Rodriguez
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481 views10 pages

Selling Encumbered Property of Ward

The document discusses the rules regarding a guardian selling or encumbering the property of a ward. It states that a guardian may only do so with a court order, and that the court can grant such an order if: (1) the ward's income is insufficient to support themselves and their family, (2) the income cannot support and educate the ward if they are a minor, or (3) it would benefit the ward to sell/encumber the property and invest the proceeds. The document also outlines the requirements for notice to next of kin when petitioning the court for a sale or encumbrance, and that the hearing will determine if the sale is in the ward's best interest.

Uploaded by

John Rey Bantay Rodriguez
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd

SELLING AND ENCUMBERING

PROPERTY OF WARD
Rule 95
Section 1 Rule 95

1.When Guardian May Sell or Encumber the Estate of


the Ward

2. Necessity of Order Authorizing the Sale or


Encumbrance of the Estate
Section 1 Rule 95

1. When Guardian May Sell or Encumber the Estate of the Ward


The guardian may sell or encumber the property of the ward when:
(1) the income of the estate of the minor or incompetent under guardianship
is insufficient to maintain the ward and his family; or
(2) the income is insufficient to maintain and educate the ward when a
minor; or
(3) it appears that it is for the benefit of the ward that his real estate or
some part thereof be sold or mortgaged or otherwise encumbered, and the
proceeds thereof put out at interest or invested in some productive
security, or in the improvement or security of other real estate of the ward.
Section 1 Rule 95

2. Necessity of Order Authorizing the Sale or Encumbrance of the


Estate
In order to enable the guardian to sell or encumber the estate of the
ward, a petition must first be filed before the court for such sale or
encumbrance. If the ground for the sale or encumbrance is among the
grounds provided for under the Rule, the court may issue an order for
that purpose. Otherwise, the guardian has no authority to sell the estate
of the ward without such order.
A guardian has no authority to sell real estate of his ward merely by
reason of his general powers; and in the absence of any special authority
to sell conferred by will, statute or order of court, a sale of the ward's
realty by the guardian without authority from the court is void.
Section 2 Rule 95

1. Next of Kin Defined


2. Notice as a Jurisdictional Requirement
3. Contents of Notice
4. Opposition to Sale or Encumbrance, By Whom Filed
Section 2 Rule 95

1. Next of Kin Defined

"Next of kin" is defined to mean not the next of kindred but


those relatives who share in the estate according to the statute
of distribution, including those claiming per stripes or by
representation.
Section 2 Rule 95

2. Notice as a Jurisdictional Requirement

The notice to the next of kin mandated under the provision is a


jurisdictional requirement which may not be dispensed with.

However, notice is not necessary where the next of kin to the


ward and all persons interested in the estate are her mother
and guardian, uncles and aunts who agreed to make the transfer
of their respective shares in the property to the corporation to
be organized.
Section 2 Rule 95

3. Contents of Notice
The notice is sufficient when it recites substantially that notice
is thereby given, that a petition to sell the ward's real estate
will be presented to a named court, at a named place, on a
named date, and when and where all persons interested may,
appear and show cause, if they have any, why such petition
should not be granted.

If the notice omits to state the time or states a time subsequent


to that at which the application was acted on, the court
acquires no jurisdiction to order the sale, and the sale is void
Section 2 Rule 95

4. Opposition to Sale or Encumbrance, By Whom Filed

Only the children have an interest in the land of their father,


besides the creditors, and only they or the creditors who may
have been prejudiced by the sale have a right to object thereto.
Section 3 Rule 95

1. Nature of Hearing for Sale of Ward's Estate

The sole object of the inquiry on an application to sell a ward's


real property is whether it is to the interest of the ward that
the sale shall be made. The court should ascertain and
determine whether the facts requisite to the granting of the
petition exist, and should select the part or parts of the
property which can be disposed of with the least injury to the
ward. The court however, may not inquire into the title of the
property.

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