When a married person dies owning real property (land, house, condo), the property does not automatically become freely sellable by the surviving spouse. What happens next depends on (a) the couple’s property regime (community/conjugal/separation), (b) who the heirs are, (c) whether there is a will, and (d) whether all heirs can agree and are legally capable.

One of the most common paths—especially when everyone agrees and there is no will—is an Extrajudicial Settlement of Estate (EJS) under Philippine rules on succession, often paired with a later (or simultaneous) sale.

This article explains the concept, when it is allowed, what documents are typically needed, the step-by-step process, taxes and title transfer issues, and the common legal pitfalls.

1) What “Extrajudicial Settlement” Means

An Extrajudicial Settlement is a written agreement among the heirs of a deceased person to settle and divide the estate without going to court.

In practice, it is commonly prepared as:

Deed of Extrajudicial Settlement and Partition (multiple heirs dividing the estate), or
Deed of Extrajudicial Settlement (heirs settling but not necessarily subdividing), or
Affidavit of Self-Adjudication (only one heir), sometimes with a “Deed of Sale” after.

It is used to enable transfer of titles, payment/clearance of estate taxes, and eventual sale of the property.

2) When Extrajudicial Settlement Is Allowed (Core Requirements)

Extrajudicial settlement is generally proper only if ALL of the following are true:

The decedent left no will (intestate succession).
- If there is a will, the typical route is probate (court process), even if uncontested.
There are no outstanding debts of the estate or debts are fully settled/handled.
- If debts exist, the settlement may need safeguards, or judicial settlement may be safer.
All heirs are known, alive, and can participate, and they agree on the settlement.
- Any dispute among heirs can block an EJS.
All heirs are legally capable (or properly represented).
- If there are minors or heirs under legal incapacity, extra protections apply and court authority is often necessary for acts that prejudice a minor’s share (including sales).

If any of these are not met, a judicial settlement (court) may be required or strongly advisable.

3) Why an EJS Is Often “Needed” Before Selling Property

A. The title is still in the deceased spouse’s name (or co-owned with the deceased)

If the property title includes the deceased spouse as owner (alone or with the surviving spouse), the Registry of Deeds and buyers will typically require settlement because:

The deceased cannot sign a deed of sale.
The heirs’ rights must be established and documented.
Taxes and clearances (estate tax, etc.) must be addressed before transfer.

B. Even if the surviving spouse “owns half,” the other half may belong to heirs

In many marriages, property acquired during marriage forms part of:

Absolute Community of Property (ACP) (common default for marriages after the Family Code effectivity unless a pre-nup says otherwise), or
Conjugal Partnership of Gains (CPG) (common for older marriages depending on date and circumstances).

When one spouse dies:

The community/conjugal property is dissolved.
The surviving spouse typically retains his/her share, but
The deceased spouse’s share becomes part of the estate, inherited by heirs (often the surviving spouse + children, or other heirs depending on who survives).

So, even if the surviving spouse is on the title, selling the whole property usually requires the participation of all heirs (or proper authority).

4) Identify the Heirs First (Because They Must Sign)

Before any EJS or sale, determine who the heirs are under intestate succession.

Common scenarios

Surviving spouse + legitimate children
- Children are compulsory heirs.
- Surviving spouse is also an heir (and may also have a property-regime share separate from inheritance).
Surviving spouse, no children
- Parents (if alive) may inherit with the spouse, depending on the exact family situation.
- If no parents, other heirs in the legal order may inherit.
Children from prior relationships / illegitimate children
- These can materially affect who must sign and the shares.
No spouse, no children
- Parents, siblings, or more remote relatives may inherit.

Practical takeaway: If you sell without including all heirs, the buyer risks a defective title and the transaction can be attacked.

5) Understand the Property Regime (ACP, CPG, or Separation)

This matters because it determines:

What portion is owned by the surviving spouse already, and
What portion belongs to the decedent’s estate.

A. Absolute Community of Property (ACP)

Generally, property acquired during the marriage becomes community property, subject to exceptions (e.g., certain gratuitous acquisitions).

B. Conjugal Partnership of Gains (CPG)

Generally, properties acquired during marriage by onerous title are conjugal; exclusive properties remain exclusive, but fruits/income are treated differently.

C. Complete Separation of Property (with a pre-nup)

Each spouse owns separately; inheritance deals mostly with the deceased’s titled share.

Why this matters in selling: Even if the surviving spouse is “allowed” to sell his/her share, selling the entire property often requires the heirs’ consent for the deceased’s portion.

6) Key Forms of “Extrajudicial” Documents You’ll See

1) Deed of Extrajudicial Settlement and Partition

Used when multiple heirs settle and specify who gets what.

2) Deed of Extrajudicial Settlement (without detailed partition)

Used when heirs settle but may keep property co-owned.

3) Affidavit of Self-Adjudication

Used only when there is truly a single heir (rare in married-with-children situations).

4) EJS “with Sale” vs. EJS “then Sale”

Two common structures:

Two-step (cleaner in many cases): (1) EJS (settle/transfer to heirs) → (2) Deed of Absolute Sale (heirs sell to buyer)
One-step / combined deed: A deed that settles the estate and sells to the buyer in one workflow. This can be efficient but is more sensitive to errors: heir identification, signatures, authority, and tax handling must be meticulous.

Practical note: Many buyers, banks, and registries prefer a clear chain: settle first, then sell—unless there’s a strong reason to combine.

7) Publication Requirement (Often Overlooked)

Extrajudicial settlement generally requires publication in a newspaper of general circulation (commonly once a week for several consecutive weeks, depending on accepted practice and local requirements).

Purpose:

To notify possible creditors or omitted heirs.
To reduce later challenges.

Failure to publish can create serious problems in registrability and future disputes.

8) Bond Requirement (When Personal Property Is Involved)

In some situations (commonly when the estate includes personal property and there are concerns about claims), a bond may be required or demanded by authorities as a safeguard.

Real-world handling varies, but the core idea is: extrajudicial settlement is allowed only when it won’t prejudice creditors or rightful heirs.

9) If There Are Minors or Incapacitated Heirs

This is a frequent deal-breaker for a quick sale.

Minors can inherit, but they cannot simply sign away rights like adults.
A parent/guardian may sign in representation, but selling a minor’s inherited share often requires court authority to ensure the minor is protected.
Without proper authority, the sale can be challenged later.

Practical takeaway: If any heir is a minor, expect added steps and time, and consider judicial settlement or court approval for the sale.

10) Step-by-Step Workflow (Typical)

Step 1: Gather facts and documents

At minimum, expect to secure:

Death certificate
Marriage certificate
Birth certificates of children (to prove heirship)
TCT/CCT (title) and tax declaration
IDs of heirs, TINs, and sometimes proof of address
If applicable: pre-nup documents, proof of property being exclusive, etc.

Step 2: Determine heirs + shares + property regime

This is where many mistakes happen. If you get the heir list or shares wrong, everything downstream becomes risky.

Step 3: Prepare and notarize the EJS (and partition, if any)

All heirs sign. If an heir is abroad:

they may sign at a Philippine consulate or execute a Special Power of Attorney (SPA) (properly authenticated).

Step 4: Publication

Arrange publication as required; keep affidavits/proof of publication.

Step 5: Tax compliance and clearances

Before the Registry of Deeds will update titles and before buyers will feel safe, you usually need:

estate tax compliance/clearance (often involving an “electronic Certificate Authorizing Registration” or equivalent proof of tax clearance), and
payment of applicable transfer-related taxes and fees depending on the transaction structure.

Step 6: Transfer title to heirs (or directly to buyer if combined)

File with the Registry of Deeds for title annotation/issuance.
Update tax declarations with the local assessor.

Step 7: Execute the sale (if not already done)

All registered owners (heirs and/or surviving spouse) sign the deed of sale, unless validly represented.

11) Taxes and Cost Traps (Big Ones)

A. Estate tax and transfer requirements

The estate generally must comply with estate tax rules before properties can be cleanly transferred. Title transfer without tax clearance is typically blocked.

B. Capital gains tax / documentary stamp tax (sale)

A sale of real property triggers taxes/fees (the exact tax mechanics depend on whether it’s a sale of capital asset, etc.). Buyers often require proof that the seller handled the necessary BIR steps.

C. “Waiver of inheritance” can trigger donor’s tax if done wrong

If an heir “waives” a share:

A general waiver in favor of the co-heirs can be treated differently than
A waiver in favor of a specific person (which may be treated as a donation).

This is a common area where families unintentionally create donor’s tax exposure.

D. Late compliance penalties

Delays can lead to penalties, interest, and documentation headaches. Even when the family agrees, tax timing can become the biggest barrier to selling.

12) Common Sale Scenarios and How They’re Usually Handled

Scenario 1: Title is solely in deceased spouse’s name

Heirs (including surviving spouse if an heir) typically execute EJS.
Title is transferred to heirs (or buyer).
Then sale proceeds.

Scenario 2: Title is in both spouses’ names

Surviving spouse already has a titled share, but the deceased’s share must be settled to identify heirs’ rights.
Sale of the whole property generally requires signatures of:
- the surviving spouse, and
- the heirs who inherited the deceased’s share.

Scenario 3: Surviving spouse wants to sell but children disagree

Extrajudicial settlement is not workable.
Options often include judicial settlement, negotiation/buy-out, or partition approaches.

Scenario 4: One heir is abroad

Use consular notarization or SPA with authentication.
Be meticulous about apostille/consular requirements depending on where it’s signed.

Scenario 5: Property is mortgaged or being sold through bank financing

Banks are strict: they will require clean title, proper settlement, and tax clearances.
Any defect in heirship documents, publication, or authority can kill the loan.

13) The “2-Year” Risk Window and Claims Issues

Extrajudicial settlement is not a magic shield. Typical risks include:

Omitted heirs (a child not acknowledged, a prior marriage, etc.)
Creditors of the deceased
Fraud/forgery in signatures or SPAs

There is commonly a period during which the settlement can be challenged under rules intended to protect those prejudiced by an extrajudicial settlement. Even beyond that, fraud and lack of due process can remain litigation risks.

Practical takeaway: Buyers often demand extra comfort (complete documents, publication proofs, warranties, sometimes escrow) to manage this.

14) Checklist: What a Buyer or Registry Commonly Looks For

Correct identification of all heirs
Proof of relationships (civil registry documents)
Notarized EJS + proof of publication
Tax clearances / authority to register
Proper SPAs for absent heirs
If minors involved: court authority where needed
Clean title (no adverse claims, lis pendens, mortgages not addressed)
Updated real property tax payments
Clear chain from decedent → heirs → buyer

15) Mistakes That Commonly Invalidate or Endanger a Sale

Leaving out an heir (even unintentionally)
Assuming the surviving spouse can sell everything alone
No publication / defective publication proofs
Unsigned or improperly notarized SPA for an overseas heir
Selling despite minor heirs without proper authority
Confusing “exclusive property” vs “community/conjugal property”
Improper waiver language triggering donor’s tax
Skipping estate tax compliance steps and expecting the Registry to transfer anyway
Inconsistent names/identities across birth/marriage/death certificates and title (spelling errors can stall everything)

16) Practical Guidance: When to Consider Court Instead

Court settlement (judicial) is often the safer path when:

there’s a will,
heirs disagree,
there are complicated heirship issues (children from different relationships, unclear legitimacy, missing heirs),
there are significant debts/creditors,
minors’ interests are heavily involved and a sale is urgent,
the property history/title has defects that need judicial clarity.

17) Bottom Line

An Extrajudicial Settlement is often the key legal instrument that allows families to regularize ownership of property when a spouse has died—so the property can be properly transferred and ultimately sold. But it is only appropriate when the legal conditions are met and all heirs are correctly identified and properly represented.

If you want the safest possible sale outcome, focus on three things:

Correct heirs and correct shares
Proper publication and documentation
Tax and registration compliance before closing

If you share a concrete fact pattern (who is listed on the title, who the heirs are, whether any heir is a minor/abroad, and whether the property was acquired during marriage), the steps can be mapped into a clean “what to do first, second, third” plan tailored to that situation.