Dear Attorney,
I hope this message finds you well. I am writing as a concerned heir who wishes to clarify certain matters regarding the inheritance left behind by my late parents. We are six siblings in total; however, two of my siblings have already passed away. My parents died without leaving any last will and testament, and we intend to sell the remaining properties, all of which were considered part of their conjugal estate.
My questions are as follows: Are we required to secure the consent of the spouses of our deceased siblings before proceeding with the sale? Or can the remaining siblings decide independently on the sale? Additionally, we wish to ensure that the share or portion that would have belonged to our deceased siblings rightfully goes to their children. Your guidance would be greatly appreciated, as I want to make certain that we handle everything in accordance with the law.
Thank you for your time, and I look forward to your advice.
Respectfully yours,
A Concerned Heir
LEGAL ARTICLE
Disclaimer: This article is for informational purposes only and does not constitute legal advice. While authored with care and attention to relevant Philippine laws, any specific case should be evaluated by a licensed attorney based on its unique facts and circumstances.
I. Introduction
In the Philippines, when a person dies without leaving a last will and testament, his or her estate is divided according to the rules of intestate succession under the Civil Code. In many families, there arises a need to sell inherited properties for various reasons: to liquidate assets, resolve debts, or simply because maintaining a property has become financially burdensome. However, when multiple heirs are involved—and some have passed away—it can be complicated to determine exactly whose consent is required for a valid sale.
The concern in this particular scenario revolves around (1) whether the consent of the surviving spouses of deceased siblings is necessary, and (2) how the deceased siblings’ shares would devolve to their children or other heirs. This article aims to shed light on these queries by covering relevant rules under Philippine law, including intestate succession, partition, extrajudicial settlement, representation, and spousal rights. A thorough understanding of these rules is critical for any family dealing with the transfer or sale of inherited properties.
II. Governing Laws on Inheritance Without a Will
Civil Code of the Philippines (Republic Act No. 386)
The primary source of the law on intestate succession is the Civil Code of the Philippines. Title IV (Succession), Book III, outlines the rules for distributing a decedent’s estate if he or she dies without a will. Articles 960–1014 detail the hierarchy of heirs, shares of inheritance, and other critical points.Family Code of the Philippines (Executive Order No. 209)
The Family Code pertains more to marriage and property relations but is relevant for determining whether certain assets form part of the conjugal partnership or absolute community of property. This becomes important when clarifying which portion belongs to the surviving spouse or to the estate if a spouse predeceased the decedent.Rules of Court (Rule 74 on Extrajudicial Settlement of Estate)
The Rules of Court, particularly Rule 74, provide the procedure for settling estates through extrajudicial settlement. If the heirs are in agreement, the estate can often be settled out of court through a public instrument known as the “Extrajudicial Settlement of Estate,” thereby saving time and expense.National Internal Revenue Code (NIRC), as amended
Estate tax considerations play a role in determining if an extrajudicial settlement can proceed smoothly. While not directly related to inheritance shares, non-payment of estate taxes can impede the final transfer of titles and the subsequent sale of property.
III. Identifying the Heirs and Their Shares
Surviving Legitimate Children
In intestate succession, the primary heirs in the direct line are the legitimate children. Each legitimate child inherits in equal shares. If there are multiple children, the estate is divided equally among them.Representation of Deceased Children
When a child dies ahead of the parent, the children (i.e., grandchildren of the decedent) “represent” their parent’s share. Under Article 972 of the Civil Code, “the right of representation takes place in the direct descending line, but never in the ascending line.” Thus, if one or more siblings are deceased, their respective descendants inherit their share by representation.Surviving Spouse of the Decedent
If one of the spouses is still alive (in the case of the parents), that spouse is also an heir and may be entitled to a share in the conjugal estate. However, if both parents have passed away, that question does not directly arise. Instead, one looks to see if the spouse of a deceased child has any interest in the inherited property of that child.Spouse of the Deceased Sibling
Under Philippine law, the spouse of a deceased sibling does not automatically inherit from the deceased sibling’s parents. Instead, that spouse inherits from the deceased sibling’s share as it forms part of the deceased sibling’s own estate. This means that if a sibling (child of the decedent) has passed away, leaving behind a spouse and children, the portion that sibling would have inherited from the parents may become part of the sibling’s estate, subject to distribution under the rules of succession applicable to that sibling. The spouse, therefore, may acquire a share if the deceased sibling died with property rights that formed part of his or her own estate.
IV. Property Regimes for the Deceased Parents
Before determining each heir’s share, one should clarify how the parents’ estate should be classified. In particular:
Conjugal Partnership of Gains
Under the old Civil Code (if the parents were married before August 3, 1988, and did not opt for a different regime), the applicable regime might be the Conjugal Partnership of Gains (CPG). In this regime, each spouse retains ownership of his or her own capital properties prior to marriage. However, the fruits of those properties and the income generated during the marriage become conjugal. Upon the death of one spouse, half of the conjugal partnership belongs to the surviving spouse, while the other half (the decedent’s half) goes to his or her heirs.Absolute Community of Property
If the marriage took place after the effectivity of the Family Code on August 3, 1988, and no pre-nuptial agreement was executed, the property regime may be Absolute Community of Property (ACP). Under ACP, almost all property acquired before and during marriage, unless expressly excluded, belongs to the community. Upon the death of one spouse, half of the community property belongs to the surviving spouse, while the other half is distributed among the heirs.Separation of Property or Other Regimes
Although not as common, there could be a separation of property regime through a prenuptial agreement or by judicial separation of property. This is less typical and usually does not apply unless there is explicit evidence of such arrangement.
V. The Process of Extrajudicial Settlement
If the deceased did not leave a will and the heirs are all in agreement, they can settle the estate extrajudicially under Rule 74 of the Rules of Court, subject to the following conditions:
No Will and No Debts
The estate should have no outstanding debts or obligations, or if there are any, these must be duly settled prior to the extrajudicial settlement.Publication Requirement
A notice of the extrajudicial settlement must be published once a week for three consecutive weeks in a newspaper of general circulation in the province where the decedent resided at the time of death. This is required to give notice to any potential claimant.Execution of a Deed of Extrajudicial Settlement
All heirs (or their authorized representatives) must execute a public instrument (e.g., a Deed of Extrajudicial Settlement of Estate) before a notary public. This document must specify how the estate will be distributed among them.Payment of Estate Taxes
Estate tax clearance is necessary for the estate to be settled and for new titles to be issued in the names of the heirs or prospective buyers. The Bureau of Internal Revenue (BIR) requires the filing of an Estate Tax Return within a prescribed period from the decedent’s death. Failure to comply may lead to penalties and interest.Transfer of Title
Once the extrajudicial settlement is finalized and estate taxes are paid, the property may be transferred to the heirs. If the heirs wish to sell the property to third parties, they must update the title in their names first or execute a simultaneous deed of extrajudicial settlement and sale, reflecting the new owners.
VI. Requirement of Consent for the Sale of Estate Properties
General Rule: All Heirs Must Consent
In a co-ownership situation—as typically arises when property is inherited—any sale or disposition of a common property requires the consent of all co-owners. This holds true even when some co-owners are minors, in which case judicial approval may be necessary to protect their interests.Consent of the Spouses of Deceased Siblings
Whether the spouse of a deceased sibling must consent depends on whether that spouse is an heir of that deceased sibling’s share. In general, the children of the deceased sibling represent the deceased sibling in inheriting from the grandparents. However, the spouse of the deceased sibling may also have inherited a portion of that deceased sibling’s estate, which could include the inherited share from the grandparents—especially if there was a property regime in place between the deceased sibling and that spouse that automatically forms part of the conjugal or community property of that marriage. The extent of the spouse’s interest is typically a fraction of the deceased sibling’s share, depending on whether the deceased sibling left children, whether there was a will, or whether it was absolute community or conjugal partnership.Importance of Clarifying the Successional Rights of the Deceased Sibling’s Estate
To lawfully transfer title, the portion belonging to the estate of the deceased sibling should first be determined. This usually requires a separate settlement for that sibling’s estate if no extrajudicial settlement or judicial settlement has yet occurred for that sibling’s property. If the sibling’s share is not properly settled and transferred to his or her heirs (including the spouse, if applicable), any sale involving that inherited share might be incomplete or legally questionable.Instances Where the Spouse’s Consent May Not Be Required
If the deceased sibling was single at the time of death, or if the spouse predeceased him or her without leaving children, then obviously no spousal right remains. Otherwise, due diligence calls for verifying the marital status and property regime of the deceased sibling to determine if the surviving spouse indeed has a share.
VII. Partition and Representation
Partition Among Surviving Heirs
Philippine law encourages voluntary partition among heirs. If all heirs agree on how to partition the estate (and the corresponding shares), they may do so extrajudicially. However, complications arise when parties disagree or refuse to sign. In such situations, a judicial partition might be necessary, requiring the court’s intervention to determine each party’s share or to order the sale of the property and distribute the proceeds.Representation of Minor Heirs
If the children of any deceased sibling are minors, they still inherit by representation. However, minors cannot legally sign documents such as deeds of extrajudicial settlement or deeds of sale on their own behalf. They need either a legal guardian or a court-appointed representative to protect their interests. Court approval is generally required for transactions involving a minor’s property, ensuring that the price and terms of the sale are fair.Compulsory Heirs vs. Voluntary Heirs
Under Philippine law, children (legitimate, illegitimate, or adopted), the surviving spouse, and, in certain cases, ascendants, are considered compulsory heirs. They cannot be deprived of their legitime (the portion of the estate reserved by law). Voluntary heirs might include other persons whom the decedent specifically names in a will. Since there is no will in this scenario, we only deal with compulsory heirs via intestate succession.
VIII. Practical Steps to Ensure a Legal and Smooth Sale
Determine the Nature of the Property
Confirm whether the property is indeed conjugal or absolute community property, or separate property. This step ensures proper allocation of shares among the heirs.Conduct a Preliminary Agreement Among All Interested Parties
Before executing any legal documentation, hold a family meeting to discuss the plan for selling the property. Identify all heirs, including representatives of deceased siblings, and confirm the respective shares. Determine if the spouse of any deceased sibling is an heir to that deceased sibling’s share.Secure Necessary Legal Documents
- Certified true copies of property titles
- Death certificates of your parents (and the deceased siblings)
- Marriage certificates (where relevant)
- Birth certificates of the siblings and/or children of deceased siblings for proof of filiation
- Any prenuptial agreements or documents establishing a different property regime, if applicable
Settle Estate Taxes
File the estate tax return with the BIR and pay the corresponding taxes, penalties, or interests (if applicable). You will need to provide the documents listed above, as well as a computation of the estate’s value.Prepare the Deed of Extrajudicial Settlement and/or Partition
All heirs must sign the document. If the heirs cannot agree, a judicial proceeding is necessary. If there are minor heirs, their guardians must sign with court approval if required.Simultaneous or Subsequent Sale
Heirs can either:- (a) Execute a simple Extrajudicial Settlement of Estate, transfer the titles to their names, and then sell the property; or
- (b) Execute an Extrajudicial Settlement with Sale, wherein the heirs convey the property directly to a third-party buyer, with the buyer’s payment distributed among the heirs according to their share.
Notarization and Publication
Have the extrajudicial settlement notarized and publish it in a newspaper of general circulation once a week for three consecutive weeks. Keep receipts, proofs of publication, and other documents.Registry of Deeds and Transfer of Title
Present the notarized deed, proofs of publication, estate tax clearance, and other relevant documentation to the Registry of Deeds. Pay the transfer fees, documentary stamp tax, and other charges to secure new titles or the transfer certificate of title (TCT) in the name of the new owner or owners.
IX. Frequently Asked Questions
1. Must the children of the deceased siblings sign even if they are minors?
No, minors cannot directly sign legal documents. A parent or legal guardian must represent them, and in certain cases, the court’s approval is required to ensure the sale is in the best interest of the minor.
2. If the spouse of a deceased sibling has remarried, does he or she still have an interest in the property?
Remarriage does not typically extinguish the inheritance rights that vested at the time of the deceased spouse’s death. Once a spouse’s share is determined, that right persists regardless of remarriage.
3. Can one sibling sell the property without the others’ consent?
No. Each co-owner must agree to the sale, unless one sibling is only selling his or her undivided ideal share. However, selling just one’s undivided share in an inherited property without the other co-owners’ consent can deter buyers, as it complicates matters regarding the physical partition of the land or property.
4. Do illegitimate children of a deceased sibling inherit from the grandparents?
Yes. Under Article 982 of the Civil Code, an illegitimate child is entitled to inherit by representation from his or her grandparent, provided the parent (the decedent’s child) was entitled to inherit and predeceased the grandparent.
X. Conclusion and Key Takeaways
Handling the estate of deceased parents without a will requires a careful balancing act of legal requirements and familial harmony. When two of the siblings are themselves deceased, their respective shares pass to their children by representation—and possibly to their spouses, depending on the deceased siblings’ own marital and property circumstances. Because the inherited property is held in co-ownership among the living and representative heirs, everyone who holds a stake has to consent to any sale. In practical terms, this often means reaching out not just to the children of the deceased siblings but also to the spouses, if those spouses have a rightful share under the law.
Here are the key takeaways:
All Co-Owners’ Consent is Generally Required
You cannot validly sell inherited property without the express consent of everyone who holds a share or interest in it.Representation in the Direct Descending Line
Children of a deceased sibling step into their parent’s shoes for inheritance from the grandparents, but the spouse may have a right to a portion of the deceased sibling’s estate.Extrajudicial Settlement and Publication
As long as the heirs agree and the estate has no outstanding debts, an extrajudicial settlement is a time-saving, cost-effective method to settle the estate. Notarization and publication are indispensable for validity and notice to potential creditors.Compliance with Estate Tax Laws
Processing estate tax clearance is crucial before titles can be transferred and before any sale can be concluded.Consult a Lawyer for Complex Circumstances
When minors, multiple estates, or spouses’ shares are involved, the assistance of a qualified lawyer is invaluable in ensuring a legally compliant transaction.
By understanding and following the rules set forth by Philippine law, heirs can protect their rights, avoid future disputes, and carry out the sale of inherited properties in a smooth, orderly manner. Should any doubt arise regarding the necessity of securing certain family members’ consent, the best course of action is always to seek professional legal counsel.
This legal article is provided for informational purposes only and does not create an attorney-client relationship. For any specific questions or legal needs regarding your estate settlement process, please consult a qualified legal professional.