Right of Representation & Guardianship in Extrajudicial Settlement (Philippine Law)
1. Foundations
| Key concept | Core legal basis |
|---|---|
| Extrajudicial settlement (EJS) | Rule 74, Rules of Court – summary settlement when the decedent died intestate, left no outstanding debts, and all heirs are of age or the minors are duly represented |
| Right of representation | Arts. 970-986, Civil Code; allows descendants (and, in the collateral line, nephews/nieces) to “stand in the shoes” of a pre-deceased heir and take that person’s hereditary share |
| Guardianship of minors/incompetents | Art. 225, Family Code (natural guardianship of parents); A.M. No. 03-02-05-SC (Rule on Guardianship of Minors); Title XIII, Rules of Court; recent doctrinal restatement in G.R. 268643 (2024) |
2. The Right of Representation in Detail
How it operates
- Fiction of law. The representative “is raised to the place and degree of the person represented” – i.e., grandchildren inherit the share their deceased parent would have received.
- Permitted branches
- Direct descending line – unlimited (children → grandchildren → great-grandchildren).
- Collateral line – only for the children of brothers & sisters of the decedent (nephews/nieces).
- Not allowed for ascendants; nor can it defeat the legitime of compulsory heirs.
- Accretion vs. representation – when one branch is empty (e.g., a lone surviving child), the vacant share accrues to remaining heirs. Representation applies only when there is a living descendant in the lower degree.
Recent jurisprudence: expanding inclusivity
- Aquino v. Aquino (2021, En Banc) abandoned the old “iron-curtain rule” (Art. 992) and allowed non-marital grandchildren to represent their parent and inherit from grandparents on equal footing with marital grandchildren, citing the best-interest-of-the-child doctrine.
- Post-Aquino cases continue to apply this liberal view, so practitioners must now count all grandchildren—regardless of parents’ marital status—in the branch computations.
3. Guardianship Essentials for EJS
| Scenario | Who may sign the deed? | Supporting papers |
|---|---|---|
| Minor heir with both parents alive | Either parent may sign; both preferable. They are legal guardians ex lege (Art. 225, Family Code). | PSA birth certificate of child + ID of parent; cite Art. 225 in the deed. |
| Minor with one or both parents dead, absent, or in conflict of interest | Petition for letters of guardianship under A.M. 03-02-05-SC or Rule 97 RC. | Certified true copy of Letters of Guardianship & court-approved bond. |
| Adult heir judicially declared incompetent | Same guardianship rules (Rule 97). | Letters of Guardianship + medical proof of incapacity. |
| Foreign-resident heir who cannot appear | Issue a special power of attorney notarised abroad & authenticated, authorising a local representative to sign. |
Practice tip: If any heir is a minor and no court-appointed guardian exists, the settlement must be judicial; a purely notarised deed will be voidable at the minor’s instance upon reaching majority.
4. Step-by-Step Interaction of Representation & Guardianship in EJS
Map the heirs and branches.
- List all compulsory heirs; apply representation where needed.
- Example: Decedent leaves two children A and B; B pre-deceases leaving minors C & D. A gets ½; C & D (as representatives) split B’s ½ share equally (¼ each).
Secure guardianship documents (if any heir is a minor/incompetent).
Draft the Deed of Extrajudicial Settlement.
- Recite compliance with Rule 74 §1; describe branch shares; attach guardianship papers and proof of representation.
- All signatories (including guardians/attorneys-in-fact) appear before the notary.
- Best practice: annex a family tree diagram and a table of shares for clarity.
Publication & bond.
- Publish once a week for three consecutive weeks in a newspaper of general circulation.
- If there is only one heir/self-adjudication, file an affidavit of self-adjudication and post a bond equal to the estate value.
Taxes & registration.
- File the estate-tax return (BIR Form 1801); guardians sign on behalf of wards.
- Secure the eCAR, pay transfer & registration fees, and present the deed—plus newspaper clippings and guardian’s letters—to the Registry of Deeds.
5. Common Pitfalls & How to Avoid Them
| Pitfall | Consequence | Cure / Prevention |
|---|---|---|
| Omission of an heir or branch | Deed may be annulled; omitted heir can sue for reconveyance within 2 years from registration (Rule 74 §4). | Due diligence on family tree; require sworn genealogical affidavit. citeturn20view0 |
| Guardian without court authority signs | Partition voidable; guardian personally liable. | Always attach certified Letters of Guardianship or cite Art. 225 basis. |
| Ignoring representation and giving branch a lesser share | Lesion >¼ allows rescission under Art. 1397 Civil Code. | Compute legitimes carefully; use accountant / estate planner. |
| Signing before debts are paid | Heirs become solidarily liable to creditors for two years. | Secure creditor quitclaims or pay debts first. |
| Estate tax amnesty deadline (June 14 2025) lapses | Higher surcharge/interest. | File amnesty return early; guardians may apply for wards. |
6. Checklist for Practitioners
- Collect documents – death certificate, titles, tax declarations, ID’s, birth/marriage certificates, guardianship orders.
- Ascertain heirs & branches – apply right of representation; prepare share matrix.
- Guardianship compliance – verify if parental authority suffices or if court appointment needed.
- Draft & notarise deed – include branch allocations, guardian authority, publication clause, indemnity bond where required.
- Publish notice – 3 × weekly; keep clippings.
- Settle estate tax & obtain eCAR.
- Register deed & secure new titles.
- Keep originals – store deed, titles, and guardianship orders for at least ten (10) years.
7. Final Thoughts
The right of representation ensures that bloodlines—not mere survival—govern intestate succession; guardianship safeguards the interest of heirs who cannot yet or can no longer protect themselves. In an extrajudicial settlement, these two doctrines intersect: representation tells us who gets what, while guardianship tells us who may validly sign. Observing both scrupulously prevents costly post-distribution litigation and honours the decedent’s family in law and in fact.