How to Draft an Affidavit of Heirs for Property Subdivision
(Philippine legal context, 2025 update)
1. Introduction
When a Filipino dies without leaving a will (intestate succession) and the heirs agree to divide the estate among themselves, they may do so through an extra-judicial settlement. An Affidavit of Heirs—often called an extrajudicial settlement by heirs—is the simplest instrument for this purpose when all heirs are of age, there are no outstanding debts, and the estate is composed solely of personal property.
However, when the estate includes real property that the heirs intend to subdivide—for example, splitting a 1 000 m² residential lot among three siblings—the Affidavit must be drafted with additional care so that:
- the subdivision plan is described clearly;
- estate-tax clearance is attainable; and
- the Registry of Deeds (RD) can issue separate Transfer Certificates of Title (TCTs) for each heir.
This article walks you through the governing law, the required allegations, the attachments, tax compliance, registration workflow, and a practical template.
2. Governing Law & Regulations
| Source | Key Points Relevant to Affidavit/Subdivision |
|---|---|
| Civil Code, Book III (Succession) | Identifies legitimate heirs and order of intestate succession. |
| Rule 74, Rules of Court | Allows extra-judicial settlement of estates without court intervention if (i) no debts, or debts fully paid; (ii) all heirs are of legal age or duly represented. |
| Estate Tax Reform Act (TRAIN, R.A. 10963) | Imposes a flat 6 % estate tax on net estate; shortened filing period to one year from death. |
| BIR Revenue Regs. 12-2018 & 17-2023 | Detail filing of BIR Form 1801, issuance of Electronic Certificate Authorizing Registration (eCAR), and documentary-stamp tax (DST) on deeds. |
| DENR-LMB Admin. Order 2007-13 | Approval process for subdivision plans of titled lands. |
| DHSUD (formerly HLURB) rules | Development permit if the subdivision will be sold to the public; not required for simple partition among heirs. |
| Land Registration Authority (LRA) Memo Circulars | Technical guidelines for annotating extra-judicial settlements and issuing new TCTs. |
3. Is an Affidavit Enough?
| Scenario | Proper Instrument |
|---|---|
| Personal property only (bank accounts, shares) | Pure Affidavit of Self-Adjudication (sole heir) or Affidavit of Heirs (multiple heirs) |
| Real property and heirs wish to remain co-owners | Affidavit of Heirs + annotate “undivided share” |
| Real property and heirs want individual lots | Affidavit of Heirs WITH Subdivision Agreement (focus of this article) |
| Estate has debts or minor heirs | File a settlement case in the proper Regional Trial Court |
4. Parties & Signatures
- All compulsory heirs (spouse, legitimate, legitimated, illegitimate children, parents if no children, etc.).
- Judicially appointed guardian for any minor or incapacitated heir.
- Executor/administrator if already appointed (rare in intestacy).
- Two credible witnesses for notarization (best practice, though not mandatory under Rule 74).
Tip: Include community-property consent of the surviving spouse for conjugal assets, even if the spouse is also an heir, to avoid RD queries.
5. Essential Allegations
A well-drafted Affidavit of Heirs for subdivision contains four clusters of statements:
| Cluster | Must State… | Practical Drafting Notes |
|---|---|---|
| A. Facts of Death & Heirship | Name of decedent, date/place of death, last residence, no will executed; enumerate heirs and relationships. | Attach PSA-issued death certificate and heirs’ IDs. |
| B. No Debts or Debts Paid | A positive declaration that the estate has no outstanding obligations or that such obligations have been fully settled. | Creditors may still sue within 2 years under Rule 74 §4, so honesty is critical. |
| C. Inventory & Subdivision Plan | Exact technical description of real property (Lot & Block No., TCT No., area)… plus “as per Subdivision Plan PSD-____ dated ____, prepared by Geodetic Engr. ___”. | Secure a DENR-certified subdivision plan before notarization so lot descriptions are final. |
| D. Manner of Partition | “Heirs have agreed to divide the estate as follows: Lot 1 (___ m²) to Juan Dela Cruz; Lot 2 (___ m²)….” | Use a table of allocation; reference Sketch Plan. |
6. Required Attachments
- Subdivision Plan (blueprint + two survey returns) stamped “Approved” by DENR-LMB / LRA.
- Owner’s duplicate TCT/OCT.
- Tax declarations and latest real-property-tax receipts.
- Death certificate (PSA).
- Valid government IDs of all signatories.
- BIR computation sheet (if estate tax already assessed).
7. Tax Compliance & Clearances
| Stage | Form / Payment | Pitfalls |
|---|---|---|
| Estate-tax filing | BIR Form 1801 + attachments within 1 year from death. | Late filing ⇒ 25 % surcharge + 12 % interest p.a. |
| Estate-tax rate | 6 % of net estate (gross less deductions—funeral expenses, debts, family home exemption up to ₱10 M, standard deduction ₱5 M). | Remember to deduct any mortgage still on the property. |
| DST on settlement deed | ₱15 for every ₱1 000 of fair-market value (FMV) of property pro-rata each heir acquires. | FMV is higher of zonal value or assessed value. |
| Transfer tax (LGU) | 0.5 %–0.75 % of FMV within 60 days of notarization. | Pay in the LGU where the property lies; secure tax-clearance certificate. |
| BIR eCAR | Released after estate-tax and DST are paid; required by RD before it processes title transfer. | eCAR is one per heir per lot—request multiple prints. |
8. Workflow from Draft to Issuance of New Titles
graph TD
A[Gather docs & draft Affidavit] --> B[Notarize]
B --> C[Publish in newspaper 3 consecutive weeks]<br>Rule 74 §1
C --> D[File Form 1801 & pay estate tax]<br>BIR
D --> E[Receive eCAR + DST tax stamps]<br>BIR
E --> F[Pay LGU transfer tax]<br>City/Municipality Treasurer
F --> G[Present at Registry of Deeds]<br>TCT + eCAR + Affidavit
G --> H[RD cancels old TCT]<br>Issues separate TCTs
H --> I[Update tax declarations with Assessor]Publication note: The three-week newspaper publication is mandatory only when the settlement covers real property. Attach the publisher’s Affidavit of Publication when filing at the RD.
9. Special Regulatory Concerns
| Issue | Action |
|---|---|
| Agricultural land >5 ha | Secure DAR Clearance (CARPER) prior to subdivision. |
| Property in a Condominium Project | Check Master Deed restrictions; subdivision ordinarily prohibited—use “partition by undivided shares” instead. |
| Estate with foreign heirs | Apostille their Special Power of Attorney (SPA) for local attorneys-in-fact to sign the Affidavit. |
| Land still covered by Mother Title (OCT) | May need judicial re-issuance or reconstitution before it can be subdivided. |
10. Drafting Template (Skeleton)
Use single-space typewritten format on long bond paper, with a ₱100 documentary stamp affixed before notarization.
REPUBLIC OF THE PHILIPPINES )
_____________________________ ) S.S.
JOINT AFFIDAVIT OF HEIRS WITH SUBDIVISION AGREEMENTOpening & Personal Details
“We, JUAN DELA CRUZ, of legal age, married, Filipino, resident of …; MARIA DELA CRUZ …, after being duly sworn, depose and state:”
Paragraph 1: Death & Intestacy
“That our father, PEDRO DELA CRUZ, died intestate on 10 March 2024 in Quezon City, leaving no last will and testament.”
Paragraph 2: Heirship
Enumerate relationship and confirm there are no other heirs.
Paragraph 3: No Debts
“The decedent left no outstanding debts to any person or entity.”
Paragraph 4: Property Inventory
“He left the following real property: Lot 123, Psd-00-123456, covered by TCT No. 12345, situated in ______, containing an area of 1 000 square meters.”
Paragraph 5: Subdivision Plan
Reference Subdivision Plan Psd-2024-000001 approved by DENR-LMB on 15 May 2025, which divides the property into Lots 123-A (400 m²), 123-B (300 m²), 123-C (300 m²).
Paragraph 6: Manner of Partition
| New Lot | Area | Heir-Allottee |
|---|---|---|
| 123-A | 400 m² | JUAN DELA CRUZ |
| 123-B | 300 m² | MARIA DELA CRUZ |
| 123-C | 300 m² | JOSE DELA CRUZ |
Paragraph 7: Undertaking
“We undertake to pay the estate tax and all related fees, and to hold ourselves solidarily liable to any creditor pursuant to Rule 74, Section 4.”
Signatures & Witnesses
Acknowledgment by a notary public within the province where executed.
Doc-stamp imprint & receipt number.
11. Common Pitfalls (and How to Avoid Them)
| Pitfall | Avoidance Strategy |
|---|---|
| Missing heir discovered after title transfer | Conduct a diligent heir search, attach PSA CENOMARs to show no other surviving spouse. |
| Subdivision plan rejected because of wrong technical description | Have a Geodetic Engineer tie-point the original corners and re-check approved plan numbers. |
| Minors’ shares questioned later | Secure court-approved Compromise Agreement or deposit minors’ shares in trust with annual guardianship accounting. |
| RD refuses registration due to unpaid estate tax | Present original eCAR and Form 0605 proof of DST; keep photocopies. |
| Publication requirement overlooked | Arrange newspaper publication immediately after notarization; keep tear sheets & publisher’s affidavit. |
12. Quick Fee Checklist (NCR typical figures, 2025)
| Item | Typical Cost |
|---|---|
| Geodetic survey & plan approval | ₱20 000 – ₱40 000 |
| Estate tax (6 %) | Depends on net estate |
| DST (₱15/₱1 000 FMV) | ~ 1.5 % FMV |
| Transfer tax (LGU) | 0.5 %–0.75 % FMV |
| RD registration fee | ≈ ₱8 000 per title |
| Newspaper publication (3 weeks) | ₱11 000 – ₱18 000 |
| Notary public (special deed) | ₱2 000 – ₱5 000 |
Always request official receipts, as these become deductible expenses against the estate and may be examined by the BIR.
13. Frequently Asked Questions
Q1. Can the heirs waive publication to save costs? No. Rule 74 explicitly requires publication when real property is involved. Omission renders the Affidavit voidable at the instance of creditors or omitted heirs within two years.
Q2. What if one heir lives abroad and cannot come home? Have the absentee heir execute an SPA before the nearest Philippine Consulate or local notary, then have it apostilled under the Hague Convention. Their attorney-in-fact may sign the Affidavit and the RD deed of partition.
Q3. Must we open an estate bank account? Not mandatory, but advisable when the estate includes liquid assets; it simplifies estate-tax deductions for funeral and medical expenses and keeps accounting transparent among heirs.
Q4. Is a barangay certification required? Some RDs ask for a barangay certificate of non-tenancy for agricultural lands; check local practice early to avoid repeat visits.
14. Conclusion
A meticulously crafted Affidavit of Heirs with Subdivision Agreement allows Filipino families to settle and partition inherited land without a lengthy court proceeding. The keys are:
- Full disclosure of heirs and debts;
- Technical accuracy in the subdivision plan;
- Strict compliance with estate-tax, DST, and LGU transfer-tax rules; and
- Timely registration and publication to protect the subdivision from later challenges.
Handled properly, the process converts ancestral property into individually titled lots, ready for each heir’s personal use, mortgaging, or sale—unlocking value while preserving family harmony. Should doubts arise, consult a Philippine lawyer experienced in estate and land-registration law; a few hours of professional review can avert years of litigation.