Extrajudicial Settlement for the Deceased Spouse of a Transfer Certificate of Title (TCT) Owner in the Philippines
1. What “extrajudicial settlement” means
An extrajudicial settlement of estate (EJS) is the private, out-of-court division of a decedent’s property by the heirs themselves. It is authorized by Rule 74, section 1 of the Rules of Court, but only when all four statutory conditions are present:
| Condition | Practical point |
|---|---|
| No will (intestate estate) | A will—even an unprobated one—triggers compulsory probate instead. |
| No outstanding debts or all debts have been paid | The heirs’ sworn deed must affirm this; otherwise creditors may void the deed. |
| All heirs are of legal age or minors are represented by judicially-appointed guardians | Parents cannot sign for minor children without guardianship or court approval. |
| A public deed is executed and published once a week for 3 consecutive weeks in a newspaper of general circulation | Publication gives creditors and omitted heirs the chance to contest. |
(Conditions paraphrased from Rule 74; see also the Supreme Court’s discussion in Treyes v. Ca G.R. No. 232579, 29 Sept 2020) citeturn10search0
2. Identifying the estate & the heirs
Establish the marital property regime.
- Marriage before 3 Aug 1988 → Conjugal Partnership of Gains.
- Marriage on/after 3 Aug 1988 → Absolute Community of Property (ACP) unless spouses agreed otherwise.
- Exclusive (paraphernal) property of the deceased is settled in addition to his/her share in the community or conjugal mass.
Determine compulsory heirs and legitimes.
- Under Article 996 of the Civil Code, when a surviving spouse concurs with legitimate children, the spouse “has the same share as that of each child.” citeturn8search9
- If there is only a surviving spouse (no descendants, ascendants or illegitimate children), the spouse takes one-half of the estate (Art. 900 Civil Code). citeturn8search2
Common scenario with a titled family home
- TCT is in the deceased spouse’s name alone but the land is ACP/CPG property: ½ already belongs to the surviving spouse by operation of law; only the decedent’s ½ is included in the estate to be partitioned among all heirs (surviving spouse included).
3. Documentary checklist
| Purpose | Key documents | Where typically secured |
|---|---|---|
| Proof of death | PSA-certified death certificate | PSA |
| Proof of marriage & heirs | PSA marriage certificate, birth certificates of children | PSA |
| Description of realty | Owner’s duplicate TCT; latest tax declaration; Real-property tax clearance | Registry of Deeds, Assessor’s Office |
| Draft settlement | Deed of Extrajudicial Settlement (multi-heir) or Affidavit of Self-Adjudication (sole heir) | Prepared by counsel, notarized |
| Tax filing | BIR Form 1801 (Estate Tax Return); ONETT work-sheet; CAR application | BIR RDO of decedent |
| Publication | Three-week newspaper proof | Any newspaper of general circulation |
| Registration | Claim Assessment Slip, official receipts, and other Registry forms | Registry of Deeds / LRA |
(LRA’s Citizen’s Charter & FAQ enumerate the current RD requirements) citeturn11search1
(The BIR’s unified checklist for estate transfers is reproduced in its 2024 documentary-requirements guide) citeturn0search1
4. Drafting the deed
- Caption & parties. Identify all heirs in full, their citizenship and civil status.
- Statement of facts. Date/place of death; absence of will; absence/payment of debts; property regime.
- Inventory & valuation. Describe each parcel exactly as in the TCT; state fair market or zonal values.
- Project of partition. Specify who receives which aliquot shares or undivided interests.
- Publication clause (undertaking to publish in accordance with Rule 74).
- Signed, notarized, with community tax certificates (CTC) & IDs attached.
A sole heir uses an Affidavit of Self-Adjudication following the same elements but with a unilateral declaration. The Supreme Court voids affidavits when the affiant falsely claims to be the only heir (e.g., Marquez v. CA, cited in Treyes, 2020). citeturn10search0
5. Publication, creditors’ lien & the “two-year rule”
Publication: one issue per week for three consecutive weeks; attach the publisher’s sworn proof when registering.
Constructive lien: Section 4 of Rule 74 automatically creates a two-year lien in favor of the decedent’s creditors and any heir who may have been left out. Heirs may file a petition to cancel the lien with the Registry of Deeds after the two-year window, using the LRA’s prescribed form. citeturn11search7
6. Estate-tax compliance
Base rate: 6 % of the net estate (NIRC §84 as amended).
Return & payment deadline: within 1 year from death, unless extended by BIR for meritorious reasons.
Estate-tax amnesty (2025 cut-off).
- Republic Act 11956 extended the amnesty period to 14 June 2025 and covers estates whose decedents died on or before 31 May 2022. citeturn3view0
- File BIR Form 2118-EAM and pay the flat 6 % on the net undeclared estate to obtain a Certificate of Availment in lieu of the usual CAR.
Other taxes/fees:
- Documentary stamp tax on the deed (₱15 per ₱1,000 of FMV).
- Registration & IT fees at the Registry of Deeds and LRA e-services.
7. Registration & issuance of new TCTs
- Present the CAR (or Certificate of Availment), original deed, owner’s duplicate title, tax clearances and IDs to the Registry of Deeds.
- Pay the assessed registration and IT service fees.
- RD annotates the deed on the existing title and issues a new TCT (or co-owner’s titles) in the names of the heirs according to the partition.
- Pick up the new owner’s duplicate copies on the release date printed on the claim stub.
(Flow and time-frames are detailed in the LRA Citizen’s Charter, 2024 edition) citeturn11search3
8. Special situations & common pitfalls
| Scenario | Key rule / remedy | Case- or agency-based guidance |
|---|---|---|
| There are minor heirs | Judicial guardianship required; EJS must be approved by the probate court. | Heirs of Malate (1986) and §163 Family Code |
| Estate has unpaid debts discovered later | Creditor may sue within 2 years; heirs may be solidarily liable up to the value of what they received. | Rule 74 §4; Philippine National Bank v. Abalos (G.R. L-40003, 1986) |
| Fraudulent sole-heir affidavit | Action for reconveyance on constructive trust, prescriptive in 10 years from registration of the TCT. | Marquez v. CA principle, reiterated in Treyes 2020. citeturn10search0 |
| Title in both spouses’ names and one dies | Only the decedent’s ½ share is decedent’s estate; surviving spouse’s share is not taxable. | BIR RMC 94-2019 on conjugal property |
| Heirs want to sell immediately | Execute EJS with Deed of Absolute Sale; pay 6 % CGT & DST in addition to estate-tax obligations. | Practical guide at LawyerPhilippines citeturn0search8 |
9. Typical timeline & cost guide
| Step | Average time* | Typical out-of-pocket (₱) |
|---|---|---|
| Gather docs & draft deed | 1–2 wks | 5,000–15,000 (notary, lawyer) |
| Newspaper publication | 3 wks | 6,000–12,000 (provincial) / 12,000–25,000 (Metro Manila) |
| BIR assessment & CAR | 2–6 wks | 6 % estate tax + DST + minor fees |
| Registry of Deeds | 1–3 wks | 8,000 ↑ (registration & IT fees) |
*Assumes complete papers and no examiner’s queries; pandemic backlogs or e-CAR queues can double the BIR step. Figures are mid-2025 provincial averages.
10. Practical tips for heirs
- Do the publication even if the property seems small; un-published deeds are not binding on third persons and will be rejected by many buyers and banks. citeturn0search2
- Use the estate-tax amnesty while it lasts—after 14 Jun 2025, BIR will again impose surcharges, interest and compromise penalties on old estates. citeturn3view0
- Keep certified copies of the old title with the annotated deed; they are routinely required when disposing of the property later.
- If any heir is abroad, secure apostilled Special Powers of Attorney before drafting the deed to avoid re-notarization.
11. Frequently-asked questions
- Can we settle part of the estate extrajudicially and leave the rest for later?
– Yes, but describe only the properties actually partitioned; BIR will tax only what is declared. Unsettled assets remain co-owned. - Do we need a lawyer?
– The Rules of Court do not impose one, but professional drafting avoids fatal omissions (e.g., wrong technical descriptions). - Is transfer still possible if the title is lost?
– Yes, but file a petition for re-issuance of owner’s duplicate under §109 of the Property Registration Decree before or together with the EJS. - How soon can we sell the inherited property?
– As soon as the CAR is issued and the new TCT reflecting the heirs (or the buyer) is released; many banks require the title to be at least one year old from issuance.
12. Conclusion
For the surviving spouse of a titled property owner, an extrajudicial settlement is the fastest, least expensive route to clear ownership—but only if the statutory safeguards (no will, no debts, proper publication, tax clearance, and registration) are strictly observed. Failing in any one step can lead to void titles, personal tax liabilities, or even criminal charges for falsification. With the estate-tax amnesty running only until 14 June 2025, heirs are well advised to gather the documents, crunch the numbers, and execute the deed sooner rather than later. When done correctly, the process not only transfers the TCT but also gives the family a clean, saleable asset and peace of mind.