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O. Absence

1. Provisional measures in case of absence

a. COURT-APPOINTED REPRESENTATIVE OR ADMINISTRATOR

When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary.(Article 381, Civil Code)

This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. (Paragraph 2, Article 381, Ibid.)

b. RULES ON GUARDIANSHIP, APPLICABLE

The appointment referred to in the preceding article having been made, the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, regulating them, according to the circumstances, by the rules concerning guardians. (Article 382, Ibid.)

c. PREFERENCE ON SPOUSE PRESENT, IF NO LEGAL SEPARATION

In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. (Article 383, Ibid.)

If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court. (Paragraph 2, Article 383, Ibid.)

2. Declaration of absence

a. WAITING PERIODS

1) The 2-year waiting period

Two years having elapsed without any news about the absentee or since the receipt of the last news, his absence may be declared. (Article 384, Ibid.)

2) The 5-year waiting period

Five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared. (Ibid.)

b. WHO MAY ASK FOR DECLARATION OF ABSENCE

The following may ask for the declaration of absence:

1) The spouse present;

2) The heirs instituted in a will, who may present an authentic copy of the same;

3) The relatives who may succeed by the law of intestacy;

4) Those who may have over the property of the absentee some right subordinated to the condition of his death. (Article 385, Ibid.)

c. THE 6-MONTH WAITING PERIOD FOR EFFECTIVITY

The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation. (Article 386, Ibid.)

3. Administration of the property of the absentee

a. COURT-APPPOINTED ADMINISTRATOR

1) Preference on spouse present, if no legal separation

An administrator of the absentee’s property shall be appointed in accordance with Article 383. (Article 387, Ibid.)

Art. 383. In the appointment of a representative, the spouse present shall be preferred when there is no legal separation.

If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court.

2) Wife as administratrix

a) Judicial authority to alienate or encumber husband’s property or CPG

The wife who is appointed as an administratrix of the husband’s property cannot alienate or encumber the husband’s property, or that of the conjugal partnership, without judicial authority. (Article 388, Ibid.)

b. TERMINATION OF ADMINISTRATION

The administration shall cease in any of the following cases:

1) When the absentee appears personally or by means of an agent;

2) When the death of the absentee is proved and his testate or intestate heirs appear;

3) When a third person appears, showing by a proper document that he has acquired the absentee’s property by purchase or other title.(Article 389, Ibid.)

In these cases the administrator shall cease in the performance of his office, and the property shall be at the disposal of those who may have a right thereto. (Paragraph 2, Article 389, Ibid.)

4. Presumption of death

a. PURPOSES FOR PRESUMPTION OF DEATH

1) For non-succession purposes

a) The 7-year absence

After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. (Article 390, Ibid.)

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (Paragraph 2, Article 390, Ibid.)

2) For succession purposes

a) The 10-year absence

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. (Paragraph 2, Article 390, Ibid.)

b) The 5-year absence: after 75 years of age

If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (Paragraph 2, Article 390, Ibid.)

3) For all purposes

The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;

2) A person in the armed forces who has taken part in war, and has been missing for four years;

3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (Article 391, Ibid.)

b. REAPPEARACE OF ABSENTEE

1) Recovery of property or price if sold

If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith. (Article 392, Ibid.)

2) No recovery of fruits or rents

But he cannot claim either fruits or rents. (Ibid.)

c. CONTINGENT RIGHTS OF ABSENTEE

1) Claimant to a right pertaining to absentee

a) Proof of life of absentee at time necessary for existence to acquire right

Whoever claims a right pertaining to a person whose existence is not recognized must prove that he was living at the time his existence was necessary in order to acquire said right. (Article 393, Ibid.)

2) Opening of succession

a) Representation via heirs or assigns/representative

b) If none, co-heirs

Without prejudice to the provision of the preceding article, upon the opening of a succession to which an absentee is called, his share shall accrue to his co-heirs, unless he has heirs, assigns, or a representative. They shall all, as the case may be, make an inventory of the property. (Article 394, Ibid.)

3) Non-prejudicial to petition for inheritance or other rights

The provisions of the preceding article are understood to be without prejudice to the action of petition for inheritance or other rights which are vested in the absentee, his representatives or successors in interest. These rights shall not be extinguished save by lapse of time fixed for prescription. In the record that is made in the Registry of the real estate which accrues to the coheirs, the circumstance of its being subject to the provisions of this article shall be stated. (Article 395, Ibid.)

4) Appropriation of fruits in good faith

Those who may have entered upon the inheritance shall appropriate the fruits received in good faith so long as the absentee does not appear, or while his representatives or successors in interest do not bring the proper actions. (Article 396, Ibid.)

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