Buying Inherited Property Not Yet Transferred to the Heirs

(Philippine law and practice, updated April 26 2025)

1. Why this situation is unique

Until the estate is settled and taxes are paid, the decedent’s assets form a single, indeterminate mass called the “estate.” All heirs are mere co-owners of undivided interests, not of specific lots. The Civil Code treats this as a special co-ownership (Arts. 777, 493, 1078). While any heir may sell his/her undivided share under Art. 493, that deed binds the buyer only to the aliquot share ultimately adjudicated in a future partition; it never conveys the entire parcel without the consent of the other heirs (G.R. No. 189420 - The Lawphil Project, G.R. No. 225159 - The Lawphil Project).

2. Legal capacity to sell and the forms of sale

Scenario	Instrument & parties	Effect on buyer
A. Estate still un-settled	Deed of Assignment/ Waiver of Hereditary Rights signed by all heirs OR each heir sells only his/her undivided share	Buyer acquires either (a) the whole estate rights if every heir signs, or (b) a pro-indiviso share that will later be carved out in partition
B. Extrajudicial Settlement (EJS) already executed (Rule 74, Sec. 1, Rules of Court)	1) Deed of EJS w/ Sale (combined); or 2) separate Deed of Absolute Sale after heirs first adjudicate to themselves	Valid so long as: • no outstanding debts • all heirs (or their judicially-appointed guardians/attorneys-in-fact) sign • EJS is published 3× in a newspaper and annotated on the title (G.R. No. 118680 March 5, 2001 - The Lawphil Project, G.R. No. 194366 October 10, 2012 - The Lawphil Project)
C. Judicial Settlement (probate/intestate case)	Court-approved Deed of Sale or Compromise Agreement	Title passes after the decision becomes final and an order of distribution is issued (Rule 90)

Tip: A buyer who cannot get every heir to sign may still purchase hereditary rights from the willing heirs, then later file an action for partition to segregate the share bought.

3. Mandatory tax clearance before any deed can be registered

Estate tax – must be paid and an Electronic Certificate Authorizing Registration (eCAR) issued by the BIR.
- • Estate-Tax Amnesty (RA 11956) may be availed until 14 June 2025 (Official Gazette of the Republic of the Philippines, Estate Tax Amnesty)
Capital Gains Tax / Creditable Withholding (if seller is estate or heirs) – 6 % on the higher of zonal/FMV; withheld if corporate buyer (RR 17-2003).
Documentary Stamp Tax – 1.5 %.
Local transfer tax – 0.5 %–0.75 % (LGU-specific).

Without the eCAR the Register of Deeds will refuse registration even if the heirs have already signed the deed.

4. Minimum due-diligence checklist for buyers

Certified copy of the title (still in decedent’s name).
Death certificate and proof of relationship of each heir.
EJS / Court order / Deed of Waiver and proof of its publication.
BIR eCAR + paid estate-tax/amnesty returns.
Real Property Tax clearance and latest tax declaration.
Certificates of No-Pending Case / No-Improvement from the Clerk of Court & HLURB/LGU.
DAR Clearance if agricultural land (AO 4-2016; sale without it may be nullified) (G.R. No. 176838 - The Lawphil Project).
If minors/heirs abroad: Court-approved guardianship or apostilled SPA.
Notarized Special Power of Attorney from any heir who cannot appear.
Inspection of the property and of any occupants; tenancy rights survive the sale (PD 27 & RA 6657) (G.R. No. 186432 - The Lawphil Project).

5. Typical workflow & timeline

Step	Who acts	Normal duration*
Secure certified copies of title & tax dec records	Buyer/heirs	1 week
Draft & notarize EJS-with-Sale or separate deeds	All heirs	1–2 weeks
Newspaper publication (3 consecutive weeks)	Heirs	3 weeks
Pay estate tax + DST + CGT; secure eCAR	Heirs/Buyer	1-2 months (longer if amnesty)
Register deed & secure new TCT/CCT	Buyer	2-4 weeks
*Government backlogs can extend these periods.

6. Common risks and how to manage them

Risk	How it arises	Buyer’s protection
Omitted heir surfaces within 2 yrs after EJS publication (Rule 74 §4)	Non-participation or lack of notice	• Require sworn declaration that list of heirs is complete • Keep indemnity clauses & escrow • File Adverse Claim during the 2-year window (PD 1529 §70)
Unknown estate debts	Estate settled extrajudicially without creditors’ check	Demand heirs’ affidavit of “no debts”; purchase creditor clearance when possible
Co-ownership dispute persists**	Heir sells without authority of others	Accept only a deed signed by all heirs or buy undivided shares consciously and be ready for partition suit
Agrarian or ancestral domain coverage	Agricultural/ancestral land	Check DAR master list & NCIP certification; get DAR Clearance before paying full price
Minor/incapacitated heir	Needs court-approved guardian to sign	Verify Special Proceedings order (Rule 97)

7. Selected jurisprudence & principles you should cite in contracts

Case	G.R. No.	Key takeaway
Heirs of Malate v. Gamboa	189420 (2014)	Art. 493 allows a co-owner to sell only his undivided share (G.R. No. 189420 - The Lawphil Project)
Rol v. Urdas	246096 (2021)	Sale without other heirs’ consent valid pro-indiviso only (G.R. No. 246096 - The Lawphil Project)
Spouses Abucay v. Cabahug	186432 (2019)	Tenancy rights attach to the land and bind the buyer (G.R. No. 186432 - The Lawphil Project)
Segura v. Segura	118680 (2001)	EJS not binding on non-participating heirs despite publication (G.R. No. 118680 March 5, 2001 - The Lawphil Project)
Estate settlements doctrine	232579 (2020)	Only EJS, judicial summary, or probate confer world-binding effect (G.R. No. 232579 - Dissenting Opinion - The Lawphil Project)

8. Drafting tips for the purchase documents

Recitals should acknowledge the death, list all heirs, and attach civil-registry proofs.
Insert a “No-Other-Heirs” and “No-Creditor” warranty with liquidated damages.
Stipulate that the full price is released only upon eCAR issuance (use escrow).
Have each heir execute a tax-clearance undertaking to cooperate until title transfer is complete.
Register the deed within 30 days (Sec. 53, PD 1529) to beat subsequent adverse claims.

9. Special situations

Foreign heirs – may inherit but must execute deeds through Philippine Consulate or apostilled SPA; if the buyer is foreign, remember the 40 % constitutional limit on land.
Unregistered (Original Certificate of Title “OCT-0”) land – transaction must be followed by Original Registration under LRA; buyer bears heavier due diligence.
Condominium units – same succession rules but covered by the Condominium Act; annotate EJS on the master deed.
Estate with ongoing court case – buyer should intervene or wait for finality; a pending lis pendens on the title is a red flag.

10. Practical buyer’s one-page checklist

☐ Confirm all heirs & civil status
☐ Get BIR eCAR (estate taxes paid / amnesty by 14 Jun 2025)
☐ Verify EJS publication & annotation
☐ Have ALL heirs (or their valid attorneys-in-fact) sign a single notarized deed + seller’s tax IDs
☐ Secure DAR/NICP clearance if needed
☐ Pay CGT/DST, local transfer tax, and register within 30 days
☐ Inspect actual possession/tenancy
☐ File adverse claim or caveat if in doubt

Bottom line

You can validly buy property that is still in the decedent’s name if you:

obtain the unified consent of all heirs (or buy their individual hereditary rights with eyes open),
ensure the estate taxes (or tax-amnesty dues) are settled and an eCAR is issued, and
register the deed promptly with the Register of Deeds after completing publication and other statutory formalities.

Skipping any of these steps may let an overlooked heir, a creditor, or the government undo your purchase years later. Approach each acquisition as a two-part transaction—estate settlement first, conveyance second—and you will navigate this complex but perfectly lawful route with confidence.