How to Execute an Extra-Judicial Settlement Deed for Burial Plots

How to Execute an Extra-Judicial Settlement Deed for Burial Plots (Philippine Context)

Disclaimer: This article is for informational purposes only and does not constitute legal advice. For specific concerns, you should consult a qualified lawyer.

I. Introduction

Under Philippine law, when a person dies leaving property—including burial plots—his or her heirs have the option to settle the estate either judicially (by court order) or extrajudicially (outside of the court process), provided certain conditions are met. Burial plots, like other real or personal properties, can be the subject of succession. An extra-judicial settlement is typically faster, more cost-effective, and less adversarial than going through the courts, but it can only be done if all heirs are in agreement and if the estate meets specific legal requirements.

This article provides a comprehensive discussion on how to execute an extra-judicial settlement deed for burial plots in the Philippines, covering its legal basis, procedural steps, requirements, and other relevant points.

II. Legal Basis

A. The Civil Code of the Philippines and Related Laws

  1. Civil Code Provisions on Succession

    • Book III of the Civil Code governs succession. It recognizes that, upon a person’s death, all the properties, rights, and obligations of the decedent not extinguished by death pass to his or her heirs.
    • Burial plots, although not always common in succession discussions, are deemed part of the decedent’s property if they are duly owned or have been purchased in perpetuity (or for a specified term according to cemetery or memorial park regulations).

  2. Rule 74 of the Rules of Court

    • Rule 74 provides guidelines for summary settlement of estates of small value and extrajudicial settlement by agreement among heirs.
    • One of the major requirements: the estate has no outstanding debts OR if there are debts, they must be settled or provision must be made to settle them prior to or through the extrajudicial settlement.

  3. Estate Tax Requirements

    • The Tax Reform for Acceleration and Inclusion (TRAIN) Law and subsequent amendments govern estate taxation. Even though a burial plot may not have a high monetary value, it is still important for heirs to be aware of estate tax implications and comply with the Bureau of Internal Revenue (BIR) requirements.

III. When Can an Extra-Judicial Settlement Be Used?

An extra-judicial settlement is only possible if:

  1. No Will Is Probated

    • If the deceased left a will and it needs to be probated (i.e., validated by a court), an extrajudicial settlement is generally not allowed. However, if the decedent left a will but all heirs agree not to present it for probate (and the will is not being contested), consult a lawyer if the situation might still allow for an extrajudicial arrangement. Normally, though, the existence of a notarial will triggers probate requirements.

  2. All Heirs Are in Agreement

    • All heirs must agree on how the property—here, the burial plots—will be divided or assigned. If there is even one heir who disagrees, judicial settlement will be necessary.

  3. No Debts or All Debts Have Been Settled

    • If the estate has outstanding debts, it might bar the use of an extra-judicial settlement unless the heirs first settle or make arrangements to settle the debts.

  4. Estate Value and Other Requirements

    • Rule 74 also discusses that if the gross value of the estate is small (not exceeding a threshold set by law, currently up to $10,000 equivalent or its Philippine Peso equivalent if you follow older guidelines), the estate may qualify for summary settlement. However, the threshold has been interpreted loosely in practice.
    • For an extra-judicial settlement, the most important aspect is the mutual agreement of the heirs and satisfaction of creditors.

IV. Step-by-Step Procedure

Below is a general guide on how to proceed with executing an extra-judicial settlement deed for burial plots in the Philippines:

Step 1: Identify the Heirs and the Extent of the Estate

  1. Identify All Legal Heirs

    • Under Philippine law, compulsory heirs include the surviving spouse, legitimate children (and, in certain cases, illegitimate children), ascendants (parents), and collateral relatives under certain conditions.
    • Make sure you have accounted for everyone with a legal claim.

  2. Inventory the Burial Plot(s)

    • Secure the original certificate or contract of ownership or the deed of sale from the cemetery or memorial park.
    • Verify whether these plots are in the decedent’s name and whether any fees or obligations remain unpaid.

Step 2: Draft the Extra-Judicial Settlement Agreement

  1. Engage a Lawyer (Recommended)

    • While it is legally permissible to draft the document without a lawyer, having one helps ensure the deed meets all legal requisites and protects all parties’ interests.

  2. Structure and Content

    • Title: “Extrajudicial Settlement of Estate of the Late [Name of Decedent] with Partition of Burial Plots”
    • Introduction: Identify the decedent, the date of death, and mention that he or she died without leaving a will or that the will is not subject to probate.
    • Statement of Heirs: List all heirs, their legal relationship to the decedent, and personal details (e.g., complete name, age, civil status, address).
    • Description of the Property: Provide details of the burial plots, including location, cemetery name, lot/block number, and reference to any pertinent documents.
    • Terms of Agreement: State the agreed distribution—whether all plots go to one heir, or each plot is subdivided among heirs, or if they decide to sell the plots and split the proceeds.
    • Waiver Clauses: If some heirs are waiving their rights, indicate this expressly.
    • Affidavit of Self-Adjudication (If Only One Heir): If there is only one legal heir, the settlement may be done by self-adjudication, subject to compliance with Rule 74.
    • Signatures and Notarization: All heirs must sign the deed in the presence of a notary public to make it legally binding.

Step 3: Publication in a Newspaper of General Circulation

  1. Publication Requirement

    • Philippine law (Rule 74, Section 1) requires that the extra-judicial settlement or a summary of it be published in a newspaper of general circulation once a week for three consecutive weeks.
    • This informs any other possible heirs or creditors who may have claims to come forward.

  2. Secure an Affidavit of Publication

    • After publication, obtain a certificate or affidavit of publication from the newspaper to show that the requirement has been fulfilled.

Step 4: Filing with the Register of Deeds or Relevant Government Agency

  1. Notarize and Register

    • Have the notarized extra-judicial settlement deed registered with the Register of Deeds that has jurisdiction over the location where the burial plots are recorded.
    • If the cemetery or memorial park maintains its own registry or requires certain documents, ensure compliance with those requirements as well.

  2. Pay the Required Fees

    • Registration fees may apply, often based on the assessed value of the property or a standard rate set by the local government or the Register of Deeds.

Step 5: Settlement of Estate Taxes (If Applicable)

  1. File the Estate Tax Return

    • Under the Philippine tax laws, heirs are required to file an estate tax return if the gross estate exceeds the threshold set by the Bureau of Internal Revenue (BIR).
    • Even if the burial plot’s value is minimal, it is good practice to clarify with a certified public accountant or to visit the local BIR office regarding estate tax obligations.

  2. Obtain Certificate Authorizing Registration (CAR) or eCAR

    • If required, the BIR will issue a Certificate Authorizing Registration (CAR) or eCAR after you have settled estate taxes. This document is sometimes necessary to legally transfer the property in the name(s) of the heir(s).

V. Additional Considerations

A. Potential Disputes Among Heirs

  • If there is any uncertainty or conflict among the heirs—such as disagreements on who owns which burial plot—an extrajudicial settlement may not be advisable. Seek mediation or judicial intervention if needed.

B. Liabilities and Unpaid Dues to the Cemetery or Memorial Park

  • Ensure that all monthly or annual dues, perpetual care fees, or other charges are up to date before finalizing the settlement. Otherwise, the cemetery may refuse recognition of the transfer.

C. Waiver of Rights

  • Sometimes, an heir may choose to waive his or her right to the burial plot in favor of another heir. Such waiver must be clearly and explicitly stated in the deed of extrajudicial settlement and must be notarized.

D. Notices to Creditors

  • If the deceased left unpaid debts, provide notice to creditors. Creditors who are not satisfied with the settlement may challenge the extrajudicial settlement in court within two (2) years from the time of the deed’s registration. This is crucial, as ignoring creditors could lead to complications or the invalidation of the deed.

E. Recording the Settlement with the Cemetery Management

  • After the deed has been notarized, published, and registered, it is good practice to also provide a copy to the cemetery or memorial park management. This ensures that their records reflect the new registered owners or the updated status of the burial plots.

VI. Common Pitfalls and How to Avoid Them

  1. Failure to Identify All Heirs

    • Missing even one legitimate heir can lead to the nullification of the entire settlement. Exercise diligence in finding all possible heirs.

  2. Failure to Comply with Publication Requirement

    • Skipping publication invalidates the extrajudicial settlement. Ensure compliance with the three-week publication in a newspaper of general circulation.

  3. Non-Payment of Proper Taxes

    • If estate taxes are not settled, the Register of Deeds and other agencies may refuse to process or acknowledge the transfer.

  4. Lack of Due Diligence with Cemetery or Park Management

    • Some cemeteries have their own rules or require approval before any transfer can take effect. Consult with the cemetery office in advance.

  5. Incorrect or Incomplete Property Description

    • Always ensure that the burial plots’ lot number, block number, and location are precisely indicated. Inaccuracies may cause confusion or disputes later.

  6. Failure to Secure Legal Counsel When Needed

    • While heirs can theoretically execute an extrajudicial settlement on their own, mistakes in drafting, failing to identify heirs, or overlooking tax obligations are common pitfalls. Engaging an attorney minimizes these risks.

VII. Sample Outline of an Extra-Judicial Settlement Deed

Below is a concise outline for a deed of extrajudicial settlement:

  1. Title: “Extrajudicial Settlement of the Estate of [Name of Decedent] With Partition of Burial Plots”
  2. Preamble:
    • Date of death, place of last residence, and a statement that decedent died intestate (without a will).
  3. Heirs:
    • List of all heirs with personal details.
  4. Property Description:
    • Full description of each burial plot, references to title or ownership documents, location, and relevant fees.
  5. Agreement for Partition:
    • Manner of partition or distribution among heirs, including any waiver of rights.
  6. Declaration of No Outstanding Debts (or Settlement Thereof):
    • Affirmation that all debts of the estate are either non-existent or have been settled.
  7. Acknowledgments:
    • Statements that the heirs assume responsibility for any claims arising within two years from the deed’s registration.
  8. Signatures and Notarial Acknowledgment:
    • All heirs sign in the presence of a notary public, who then notarizes the deed.

VIII. Conclusion

Executing an extra-judicial settlement deed for burial plots in the Philippines can be a straightforward way to settle the estate of a deceased loved one—provided all heirs are in agreement, any debts are settled, and proper legal procedures are strictly followed. The key steps include identifying and notifying all heirs, drafting a thorough and clear deed, complying with publication requirements, registering the deed, and settling any pertinent estate taxes.

While this process can be done without going to court, it is important to consult with a legal professional to ensure compliance with all relevant laws and regulations. Meticulous attention to detail—such as verifying the existence of all heirs, ensuring that the property description is accurate, and meeting publication and tax requirements—will help ensure a smooth extrajudicial settlement and avoid future disputes or legal complications.

Note: Philippine laws and regulations are subject to amendments and revisions. Always consult the latest rules, and if in doubt, seek the advice of a qualified attorney to guide you through the process.

Disclaimer: This content is not legal advice and may involve AI assistance. Information may be inaccurate.

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