1) Concept and Legal Framework

What is an extrajudicial settlement

An extrajudicial settlement of estate is a written agreement by the heirs to divide and transfer the properties of a person who died without a will (intestate), without going to court, provided the legal conditions are met. It is commonly used to:

transfer real property titles (land, house, condo);
release bank deposits or other assets;
define each heir’s share and make titles registrable.

Governing rules (high level)

In Philippine practice, extrajudicial settlement is anchored on:

Rules of Court on settlement of estates (the rule allowing extrajudicial settlement when conditions exist);
Civil Code / Family Code rules on succession (who the heirs are, shares, and representation);
Tax rules (estate tax and documentary requirements for transfer);
Registry and notarial rules (acknowledgment, publication, and registration).

This article focuses on the situation where one of the heirs is already deceased and the implications on who must sign and what documents are needed.

2) Core Conditions Before You Can Do It Extrajudicially

Extrajudicial settlement is generally appropriate only if:

The decedent left no will (or no valid will to probate).
No outstanding debts of the decedent, or if there are debts, they are settled/paid and the settlement addresses them properly.
All heirs are known and identified, and all participate through signatures or lawful representation.
If there is a minor/incapacitated heir, additional safeguards apply (see Section 9).

If any of these conditions is not satisfied or is disputed (unknown heirs, contested filiation, hostile co-heirs, unclear property ownership, serious creditor issues), a judicial settlement may be necessary.

3) The Main Issue: An Heir Is Deceased — What Happens to That Share?

When an heir dies, the share that would have gone to that heir does not vanish. The key question is: Did that heir die before or after the decedent? The answer determines the correct legal mechanism.

Scenario A: The heir died before the decedent (Predeceased heir)

If the heir predeceased the decedent, the law may allow representation: the predeceased heir’s descendants step into the heir’s place and inherit the share the heir would have received.

Effect: the “heirs of the predeceased heir” (usually the children/descendants) become heirs of the original decedent, by representation (when applicable under the rules of succession).
Who signs: those representatives (the descendants who inherit in the first decedent’s estate), plus the other heirs.

Scenario B: The heir died after the decedent (Post-deceased heir)

If the heir was alive at the time of the decedent’s death, the heir’s share vested upon the decedent’s death. If that heir later died, the share becomes part of the second decedent’s own estate (the estate of the heir).

Effect: the original estate must recognize that the deceased heir’s share is now owned by the estate of that deceased heir, and will be transferred to the heirs of the deceased heir (or to that heir’s devisees if the heir left a will).
Who signs: generally, the heirs of the deceased heir (or the deceased heir’s duly appointed estate representative if judicially settled), plus the other heirs of the original decedent.

Quick rule of thumb

Heir died before the decedent → likely representation in the original estate.
Heir died after the decedent → two estates are involved in substance: the original decedent’s estate, and the later-deceased heir’s estate.

4) Who Must Sign the Extrajudicial Settlement When an Heir Is Deceased

Baseline rule: all heirs (or lawful substitutes) must sign

An extrajudicial settlement is, in practice and in registries, treated as an agreement that must be executed by all persons who will receive shares (and those who have legal authority to bind them). If an heir is deceased, you do not “skip” their signature; you replace it with the signatures of the persons legally entitled to that heir’s share or empowered to represent them.

4.1 If the heir predeceased the decedent (representation case)

Signatories:

All surviving heirs of the original decedent; and
All descendants who represent the predeceased heir and will inherit that heir’s share in the original decedent’s estate.

Example (simplified):

Decedent D has children A, B, C.
A died before D, leaving children A1 and A2.
In D’s extrajudicial settlement: B, C, A1, A2 sign.

Important: Representation typically follows descending lines and has limits depending on the family structure (e.g., children representing a predeceased child). If there are no qualified representatives, the share goes to others according to succession rules.

4.2 If the heir died after the decedent (the heir’s share became part of the heir’s estate)

Signatories:

All surviving heirs of the original decedent; and
All heirs of the deceased heir (because they are now the owners-in-interest of that deceased heir’s share), or a legally recognized representative of the deceased heir’s estate if required by the circumstances.

Common practice in transfers:

If the deceased heir’s estate is also settled extrajudicially, the heirs of the deceased heir sign as the successors-in-interest.
If the deceased heir’s estate is under court proceedings or has an appointed administrator/executor, that representative may need to act per court authority.

Example (simplified):

D dies, leaving heirs A, B, C.
A was alive when D died, then A later dies leaving spouse S and child K.
In D’s extrajudicial settlement, B and C sign and S and K sign for A’s share (because S and K are A’s heirs).
In practice, you may need to show A’s death certificate and proof of A’s heirs (marriage certificate, birth certificates).

4.3 If multiple heirs are deceased (layered succession)

If several heirs are deceased, you trace the chain:

Identify who was alive at the moment of the original decedent’s death.
For each person who was already deceased before the original decedent: apply representation where applicable.
For each person who was alive at original decedent’s death but later died: identify their heirs (or estate representative) and have them sign.

This can become a “family tree” exercise with strict documentation (see Section 6).

4.4 If an heir cannot sign personally

If an heir (or substitute heir) cannot personally execute:

Special Power of Attorney (SPA): the heir authorizes an agent to sign the extrajudicial settlement and related documents.
If the signer is abroad: SPA must be properly notarized/consularized or apostilled as required.

5) Types of Instruments Used (and When)

5.1 “Extrajudicial Settlement with Partition”

Most common. It:

identifies the decedent, heirs, and properties;
states no will and no debts (or how debts are addressed);
partitions the estate into definite shares;
often includes adjudication of specific properties to specific heirs.

5.2 “Deed of Extrajudicial Settlement with Sale”

Sometimes heirs want to sell the property during settlement. The deed can combine:

settlement/partition; and
sale to a buyer (or sale of one heir’s share to another).

Registries and tax offices may require additional steps; buyers typically demand clean compliance (estate tax, publication, proof of heirs).

5.3 “Affidavit of Self-Adjudication”

Only used when the decedent has only one heir. If an “heir is deceased” scenario exists, self-adjudication is rarely applicable unless the chain results in only one remaining heir in the end, and the requirements are met.

6) Required Documents: Core, Plus “Deceased Heir” Add-ons

Requirements can vary by registry, bank, BIR office, and LGU, but the following are the typical documentary set for real property transfers and formal settlement. Think in layers:

6.1 Core documents for the original decedent’s estate

Death Certificate of the decedent (PSA copy often preferred).
Proof of properties:
- For land: Transfer Certificate of Title (TCT)/Condominium Certificate of Title (CCT) (owner’s duplicate if available), tax declaration, lot plan if needed.
- For unregistered land: tax declaration, survey records, proofs of possession/ownership as may be required.
Heirship proof / civil registry documents (to establish relationship):
- Birth certificates of children;
- Marriage certificate of surviving spouse (if any);
- If parents/siblings are heirs (no spouse/children): documents proving that relationship (birth certificates of siblings, marriage/birth records of parents, etc.).
Notarized Extrajudicial Settlement (or settlement with partition) signed by all required parties.
Publication requirement:
- Proof that the extrajudicial settlement was published in a newspaper of general circulation as required (commonly once a week for three consecutive weeks), plus affidavit of publication and newspaper clippings/tear sheets as typically accepted.
Estate tax documents (commonly required before title transfer):
- Estate tax return/filing and proof of payment or clearance/release documents as applicable.
Tax clearance / local requirements:
- Updated real property tax clearance, tax receipts, and other LGU certifications depending on locality.

6.2 Additional documents when an heir is deceased (the key additions)

A) If the heir predeceased the decedent (representation)

Death Certificate of the predeceased heir.
Civil registry documents proving the representatives’ relationship to the predeceased heir:
- Birth certificates of the representatives (e.g., the predeceased heir’s children).
If the representatives’ parentage is complicated (late registration, illegitimacy issues, adoption, etc.), expect more proof.

B) If the heir died after the decedent (post-deceased heir)

Death Certificate of the deceased heir.
Proof of who inherits from the deceased heir (the deceased heir’s heirs):
- Marriage certificate of the deceased heir (if married);
- Birth certificates of the deceased heir’s children;
- If no spouse/children, documents proving parents/siblings, as applicable.
If the deceased heir left a will and it affects the share, that typically pushes you toward judicial or at least probate-related concerns; in practice, registries may require clarity that the transfer is legally sound.

C) If the deceased heir’s heirs include minors/incapacitated persons

See Section 9 for guardianship/representation rules.

6.3 ID and capacity documents (always expect these)

Government-issued IDs of all signatories (often multiple IDs requested).
Tax identification numbers (TIN) where needed.
Community Tax Certificates (cedula) if required by notarial practice in the locality.
If signing through attorney-in-fact: SPA and IDs of the principal and agent.

7) Heirship Determination in the Philippine Context (Practical Rules)

The correct signatories depend on who the heirs are. While the exact shares depend on family structure, the practical workflow is:

7.1 Identify the decedent’s compulsory heirs, if any

Common intestate priority (simplified):

Legitimate children and descendants (with surviving spouse sharing);
If none, legitimate parents/ascendants (with surviving spouse sharing);
If none, collateral relatives (siblings, nieces/nephews, etc., subject to rules);
The State in very limited circumstances.

7.2 Apply “moment of death” test

Succession opens at death; rights vest at that moment. So always list:

who was alive on the decedent’s date of death; and
for any person dead at that time, whether representation applies.

7.3 Confirm legitimacy/recognition where relevant

If there are:

illegitimate children;
adopted children;
children from prior marriages;
recognition issues; the determination of heirs and shares can change and becomes document-heavy. Settlement should not omit any heir with a legal claim.

8) Drafting Essentials for the Deed When There Is a Deceased Heir

A well-prepared deed typically includes:

Complete identification of the decedent (name, citizenship, residence, date/place of death).
Statement of intestacy (no will).
Statement on debts (none, or how satisfied).
Full list of heirs with civil status, addresses, and relationship to decedent.
Specific explanation of the deceased heir situation:
- whether the heir predeceased or post-deceased;
- who replaces them (representatives or heirs of the deceased heir);
- how the share is allocated accordingly.
Property descriptions matching titles and technical descriptions.
Partition/adjudication stating exact shares and which properties go to whom.
Undertaking/indemnity clause (commonly included): heirs agree to settle claims if a creditor or omitted heir later appears, and to hold third parties harmless as appropriate.
Notarial acknowledgment and compliance clauses for publication and registration.

For post-deceased heirs, many practitioners explicitly phrase:

“X was an heir of the decedent and survived the decedent but later died on [date]. The parties Y and Z are the lawful heirs of X and are substituted as parties-in-interest for X’s hereditary share.”

9) Special Cases That Change Who Must Sign

9.1 Minor heirs

If any heir (or substitute heir) is a minor, they cannot generally sign on their own.

A parent may sign as legal guardian in certain contexts, but transfers that prejudice the minor’s property rights often require safeguards.
In many real-property transfers, registries and tax offices may require court authority (e.g., judicial approval for sale/encumbrance of a minor’s property) depending on what the deed does.
If the settlement is purely declaratory of shares and preserves the minor’s share, requirements may still be stricter than usual.

9.2 Incapacitated heirs

If an heir is judicially declared incompetent, a guardian with authority must act.

9.3 Heir is missing, abroad, or refuses to cooperate

Missing/unknown whereabouts may force judicial settlement or a court petition depending on circumstances.
Abroad: can sign via SPA, but formalities matter.

9.4 Illegitimate, adopted, or late-registered heirs

Often triggers extra documentation and risk. Omission can later invalidate or cloud the transfer, and banks/registries may reject incomplete proof.

10) Publication and Registration: Why It Matters Even More With Deceased Heirs

Publication

Publication is meant to notify potential creditors and other interested parties. Where a deceased heir is involved, the chance of:

overlooked heirs (e.g., children of the deceased heir from another relationship);
disputes over representation;
creditor claims against the deceased heir’s estate; can be higher. Proper publication and careful heir listing reduce (but do not eliminate) risk.

Registration (real property)

To transfer a title, you typically need:

the notarized deed;
proof of publication;
estate tax compliance documents;
transfer tax and local clearances;
registry fees and supporting IDs.

Registries often scrutinize:

completeness of heirship proof;
death certificates of both the decedent and any deceased heir;
consistency of names (spelling variations, middle names, suffixes).

11) Typical Step-by-Step Workflow (Practical)

Gather civil registry documents (decedent death certificate; deceased heir death certificate if applicable; birth/marriage records to prove heirship).
Assemble property documents (titles, tax declarations, tax receipts).
Prepare the family tree and determine the correct signatories based on who was alive at the decedent’s death.
Draft and notarize the extrajudicial settlement (with partition/adjudication).
Publish as required; secure affidavit of publication and clippings.
Process estate tax compliance and secure the documents required for transfer.
Pay local transfer taxes/secure clearances as required by the LGU.
Register at the Registry of Deeds for issuance of new titles to heirs (or to a buyer if sold).
Update tax declarations at the Assessor’s Office.

12) Common Pitfalls (Especially With a Deceased Heir)

Wrong substitute signatories Treating a post-deceased heir as if they predeceased the decedent (or vice versa) leads to incorrect parties and defective transfers.
Omitting heirs of the deceased heir If the deceased heir had children/spouse, they must be accounted for when that heir’s share is being acted upon.
Incomplete civil registry proof Missing a marriage certificate or a child’s birth certificate can derail processing.
Name discrepancies Differences in spelling across certificates and titles cause delays; supporting affidavits/corrections may be needed.
Minor heirs involved without proper authority This can cause rejection at registries, banks, or later legal challenge.
Ignoring debts/creditors A settlement that declares “no debts” when debts exist creates legal risk; creditors may pursue remedies.
Assuming extrajudicial settlement automatically transfers title The deed is only one component; taxes, publication, and registration complete the transfer.

13) Practical Checklist: “Who Must Sign?” Summary

If an heir is deceased:

Step 1: Determine timing

Heir died before decedent → possible representation.
Heir died after decedent → heir’s share goes to the heir’s own heirs/estate.

Step 2: Identify required signers

Always include all living heirs of the original decedent.
Plus:
- Representation case: the qualified descendants who represent the predeceased heir.
- Post-deceased case: the heirs of the deceased heir (or authorized estate representative).

Step 3: Prepare proof

Death certificates (decedent + deceased heir).
Birth/marriage documents to prove relationships through the chain.

14) Practical Checklist: “Documents Needed” Summary

Always (typical)

Decedent’s death certificate
Proof of heirship (birth/marriage certificates; other relationship proofs)
Property documents (title, tax declaration, RPT receipts/clearances)
Notarized extrajudicial settlement (with partition/adjudication)
Publication proof (affidavit + clippings)
Estate tax compliance documents and receipts/clearances
Transfer tax/local clearances
Valid IDs, TINs; SPAs if applicable

Additional when an heir is deceased

Deceased heir’s death certificate
Proof of who steps into the deceased heir’s place:
- Representation: birth certificates of the representatives
- Post-deceased: marriage/birth certificates establishing the deceased heir’s heirs
If minors/incapacitated heirs: guardianship/authority documents as required by the transaction

15) Final Notes on Legal Effect and Risk

An extrajudicial settlement is powerful because it can enable transfer without court, but it is highly sensitive to mistakes in heirship. When an heir is deceased, the settlement becomes a chain-of-succession document. The most important practical rule is: the deed must be signed by everyone who legally owns a share (or by those authorized to represent them), supported by civil registry proof that matches the family tree and the timing of deaths.