Extrajudicial Settlement of Estate: Basic Discussion

When a person dies intestate (which means he left no will) the competent court shall appoint a qualified administrator for the estate. The same rule applies even if the person dies testate (which means that he left a will) if the will failed to name an executor in his will, or if the named executor is incompetent, or refuses the trust, or fails to furnish the bond required by the Rules of Court. One exception to this is the extrajudicial settlement of estate.

We have a previous discussion on wills and probate of wills (see Basic Concepts in Estate Proceedings and Basic Discussion on Last Will and Testament). A will must be presented in court, through probate proceedings, and this judicial process may take some time. A much faster way of disposing of properties left behind by the deceased person, known as the decedent, is through an extrajudicial settlement of estate.

An extrajudicial settlement of estate, however, presupposes that the decedent left no will. We already noted that a person who has custody of a will is under obligation to produce it.

Here are the requirements for a valid extrajudicial settlement of estate:

1. The decedent left no will.
2. The decedent left no debts, or if there were debts left, all had been paid.
3. The heirs are all of age, or if they are minors, the latter are represented by their judicial guardian or legal representatives.
4. The partition was made by means of a public instrument or affidavit duly filed with the Register of Deeds.

The affidavit must be executed by the heirs and must contain the necessary allegations to support a valid extrajudicial settlement of estate. The affidavit shall be published in a newspaper of general circulation, once a week for three (3) consecutive weeks.

16 Responses to “Extrajudicial Settlement of Estate: Basic Discussion”


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  1. 15 tiong.go Oct 12th, 2013 at 9:01 pm

    Good day Atty Fred. My father want to sell his inherited property in the province and his wife died recently. The description in in the Title indicates “married to”. Does he still need to get the consent of his children to be able to sell it? Can he sell it directly without his children’s approval?

    It would be very helpful if you can give me an advice on this matter.

  2. 14 Greenpipe03 Mar 13th, 2013 at 10:03 pm

    Good Day!!
    Just want to ask for some advice about the estate left by my grandparents who died in the US in the 80’s and left a small residential lot..it was not partitioned by my father and my relatives after my grandma died in 1987. My grandparents died without a will and left a 864 sqm lot with a zonal valuation of Php 1,150.00/sqm to be partitioned by the heirs…7 parts to be exact…consisting of six legitimate siblings and 1 illegitimate aunt.

    I’m afraid that we will be paying a big amount of estate tax plus penalties since it was not partitioned for more than 25 years. I want to seek some clarification about the rate for the estate tax, the computation of penalties that we might be paying before we can partition the lot and the procedure that we need to go through.

    Thank you in advance and I hope that I can be enlightened on this matter.

  3. 13 petals31 Nov 6th, 2012 at 11:55 am

    hello…just wanted to know: what is the legal right of my husband to my properties as a wife which i acquired through heirship from my dead parents? pls enlighten me on this matter…

  4. 12 jeh Aug 3rd, 2012 at 8:54 am

    good day!

    ako po ay may auntie na namatay na walang naiwang last will. mag 6 na buwan na po mula ng sya ay mamatay. itatanong ko lang po ang hakbang ng pagpapaextra judicial. sino po ba ang magpoproseso nito. kapatid po ng aking ina ang namayapa kong auntie.magkano rin po kaya ang aking magagastos?

    salamat po!

  5. 11 eosales Jun 13th, 2012 at 5:07 pm

    HI,

    This is my story… my friend is the only son wherein his mother died several years ago and his father left them when he was 8 yrs old. Now he wanted to sell their house and lot… what is the procedures to buy that house and is his father has still right for the said property? thanks!

  6. 10 Joseph Madrigal Velasco Nov 30th, 2011 at 2:48 pm

    Good day to you Atty.Fred and to everyone else. I would like to ask for advice regarding my grandfather’s property.
    My grandfather owns a lot here in the metro. Unfortunately he died last month without leaving behind a will and testament regarding who can have a share in his properties. Now my grandfather left behind his legal spouse and 5 children which are all of legal ages.
    If the civil law states that any conjugal partnership regime will be dissolved once one of the spouses dies,will the legal spouse be the one who will take over the administration of the property left?
    My grandfather has illegitimate children though, so I have another question to ask, do they have a share in the property even though they do not have legal documents to support their claims and when the property is small that it’s enough for the spouse and the legitimate children only? Depending on the civil law of the Philippines, how can my grandmother protect her rights because she is already a senior citizen? Can I please expect an immediate answer because this might happen anytime soon. Thanks Atty.Fred. We hope to hear from you!

  7. 9 brat Aug 5th, 2011 at 7:36 am

    I need your help. My mother died without leaving a will. She owned several properties before she married my father and had 5 kids. Together, they acquired other properties during their marriage. Soon after her death, my father (who also had properties before he married my mother) remarried and had 2 kids. He and his second wife also acquired several properties. A year ago, my father died without leaving a will. Our problem now is how do we proceed in dividing my father’s estate? His second wife is still living and my father has 7 kids – 5 from the first marriage and 2 from the second marriage. Will an agreement as to who gets what among us heirs suffice? i.e. execute an extrajudicial settlement, have it published with the payment of the corresponding bond? how many extra judicial settlement forms do we prepare? Thank you so much for your help.

  8. 8 kramsa Feb 7th, 2011 at 2:14 pm

    Good day to everyone need advice po here’s the situation;
    ?My wife’s parents passed away few years back and wala po iniwan na last willing testament para sa mga anak nila, 6 po silang magkakapatid including my wife, yung 5 po they decided na ibenta sa aming mag asawa yung property kaso yung titulo po ng lupa is nakapangalan pa po sa parents nila,Payag naman po kaming bilhin kesa sa iba pa mapunta ang problema po ay kung paano namin mapapatransfer yung name na nasa title and paano magkakaroon ng deed of sale kung pumanaw na po yung parents nila, sabi po nung mga hipag at bayaw ko is pipirma na lng daw po sila dun sa deed of sale pwede po ba yung ganun? Thank you in advance po sa mga mag bibigay ng advice. God bless.

  9. 7 gelay Dec 6th, 2010 at 9:50 am

    Hi,

    Kailangan ko lang po ng konting kaalaman patungkol sa extra judicial setttlement. 2 years ago bumili ako ng small portion ng lot, since hiwalay ako sa asawa ko (not yet annulled) pinangalan ko po sa parents ko ang lupa. after 2 years term of payment fully paid ko na ang lupa.. pero namatay ang tatay ko almost 2 years na din.

    2 weeks ago ng kunin ko ang deed of absolute sale ng lupa, para pirmahan ng nanay ko(for notarize), nakasulat pa doon ang name ng tatay ko. sabi ko sa costumer care nila dapat wala na ang name ng father ko kase patay na sya..but before that pinaalam namin sa developer’s costumer care agent na deceased na nga si tatay…

    ngayon need ko pa daw magpagawa ng extra judicial settlement at need ko din ipublish ang obituary ng father ko kahit pa almost 2 years ng namatay..

    1.Kailangan pa ba talaga ipublish kahit may death certificate na galing NSO?

    2. Paano ang gagawin ko at saan ko pwede i-process ang extra Judicial settlement?

    3. Mga magkano kaya ang magagastos ko para sa lahat?

    Please help.. and thank you so much for your time.

  10. 6 legalese Oct 2nd, 2010 at 9:43 am

    Hi..im new here.

    I have this question to anybody who cares to answer.

    Can the heirs of a certain parcel of land execute an extra-judicial partition of the land even while their widowed mother (future “decedent”) is still alive? If so, will they give their mother a share in the partition – considering that she’s still alive?

    Thanks!

  11. 5 tigger612 Dec 28th, 2009 at 2:45 pm

    Hi,

    Gusto ko rin pong mag-consult kung ano yung dapat kong gawin sa properties ng mama ko sa Philippines. My mom is no longer a Filipino citizen and she married a foreigner. Me and my siblings want my mom to sign a document that I will be the sole heir to her properties. I want to know what kind of document do we need to make and is my step-father has a right to my mom’s properties in the Philippines? May i have a sample document?

    Please help me.

    Thanks.

  12. 4 antok1015 Dec 3rd, 2009 at 8:14 am

    Hi po,

    Gusto ko lang pong iconsult yung problem namen sa lupain na naiwan ng lolo ko. Bali ganito po ang sitwasyon.

    Ang lolo ko pong namatay ay meron naiwang mga 6 na pintong apartment.Yung anim na anak ay meron kanya-kanyang pinto or share doon sa 6 na pintong apartment. Yung dalawa po sa anim na magkakapatid ay patay na(Kasama po sa patay ang tatay since 2005 pa po siya wala). About 1-2 years ago, mga 90 years old na yung lola ko noon, nagexecute po ng extra-judicial settlement of state ang bayaw ng tatay ko. Ginawa nya po ito ay para just in case mawala na yung lola namen or hindi na makagawa ng last will ang lola ko ay meron na kanya-kanyang parte ng bahay/apartment yung mga maiiwan nya. yung extra-judicial ay pirmahan ng mga magkakapatid. Yung sa part po namen,Bali ang nanay ko ang nakapirma at kameng 5 magkakapatid.Ito po ang mga tanong ko.

    1. AS per sa tiyuhin(bayaw ng tatay ko) ay wala pa rin daw karapatan ang ni isa sa aming pamilya sa partihan kase patay na ang tatay ko.

    2. Napalathala na po namen ang extra-judicial sa dyaryo ng 3 beses, maari na po ba nameng gamitin itong extra-judicical document and yung certificate sa kumpanya ng dyaryo na kung saan nailathala ng 3 beses ang extra-judicial docs para sa pagkuha ng titulo ng lupa para sa apartment namen(as per sa tiyahin ko na kapatid ng tatay ko ay nawawala daw ang original titulo ng lupa).

    3. Anu-ano pa po ba ang kailagang gawin o isumite para magkaroon ng titulo or right kame para mapatayuan namen ng building para sa aming 5 magakakapatid

    Maramin pong salamat

  13. 3 foxnight Aug 17th, 2009 at 10:41 am

    Good day,

    I’m buying a portion of lot from my grandmother’s residential lot. She is already been widowed for almost 25 years now. I’ve been ask by the register of deeds to submit an “Extrajudicial settlement”

    The Lot was just newly fully paid from GSIS this year. Does my grandmother have the right to sell a portion of her estates without the extrajudicial settlement? According to the law she has 50% ownership of the said lot. Does she?

  14. 2 det Jul 18th, 2009 at 1:32 am

    my grandfather died. he left no will, some of his properties are mortgaged to secure his loans. these loans are unpaid. his estate is now being settled. my grandmother and father executed an extrajudicial settlement, as the only heirs. i was advised they can do this because the mortgage annotations on the title of the mortgage properties can be carried over on the transfer of titles after the estate has been settled. is this correct? thank you

  15. 1 gigipasia Jun 9th, 2009 at 6:27 pm

    im 41 and an only child,my parents were having a one property which happened to sold it temporarily to one of our neightbors here the title is on the hands of our neighbor ,until they can paid back the principal amount of 130,000 pesos and an interest of 6 percent per month,i dnt know wat to do about it,please help,suggestions from ur side is really a big help,the property consist of renting houses and sari-sari stores,we own one sari-sari store but my parents managed it and they dnt want me to erfer with their properties up to now.they r old enough to handle those kind of business but they r so “pasaway” they r 70 and 75 years old now…i cnt do anything about it taking all this things they have done,still they dnt let me handle their business and left me with nothing ..thank you..

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