When a person passes away owning assets in the Philippines while a probate proceeding is ongoing in a foreign jurisdiction, the intersection of local and international law becomes complex. For heirs seeking to claim or transfer Philippine-based assets (such as real estate or bank accounts), the Affidavit of Heirship—often part of an Extrajudicial Settlement of Estate—is the primary tool used to bridge the gap between foreign proceedings and Philippine requirements.
1. Understanding the Affidavit of Heirship
In the Philippine legal system, an Affidavit of Heirship is a sworn statement executed by the heirs of a deceased person. Its primary purpose is to establish the identity of the legal heirs and their relationship to the decedent.
While a foreign probate court may issue a "Letter of Administration" or a "Grant of Probate," Philippine agencies (like the Register of Deeds) and private entities (like banks) typically require a document executed according to Philippine formalities to recognize these rights.
Key Components of the Affidavit:
- Declaration of Death: Date and place of the decedent's passing.
- Status of the Will: A statement that the decedent died intestate (without a will) or that the will is being processed, but the heirs are settled on the distribution.
- Identification of Heirs: Names, ages, and relationships of all legal heirs.
- Description of Properties: Specific details of the Philippine assets (e.g., TCT numbers for land, account numbers for banks).
2. Philippine Intestacy Laws: The Rules of Succession
Under the Civil Code of the Philippines, if a Filipino citizen dies without a will, their estate is distributed according to the laws of Intestate Succession. If the decedent was a foreign national, Article 16 of the Civil Code dictates that the "national law" of the deceased governs the order of succession and the amount of successional rights.
However, for Filipinos residing abroad or for properties located in the Philippines, the following order of intestate succession generally applies:
The Order of Concurrence and Exclusion
Philippine law follows a strict hierarchy regarding who inherits:
- Legitimate Children and Descendants: They exclude parents and collateral relatives.
- Surviving Spouse: Inherits alongside children or parents.
- Legitimate Parents and Ascendants: Only inherit if there are no legitimate children.
- Illegitimate Children: Inherit alongside the surviving spouse and legitimate children (usually receiving half the share of a legitimate child).
- Brothers, Sisters, Nephews, and Nieces: Only inherit if there are no descendants, ascendants, or surviving spouse.
The Concept of Legitimes
Even if a will exists (testate succession), Philippine law protects "Compulsory Heirs" through Legitimes. A legitime is a part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs.
| Heir Type | Intestate Share (General Rule) |
|---|---|
| One Legitimate Child | 1/2 of the estate |
| Two or More Children | Divide the estate equally |
| Surviving Spouse | Same share as one legitimate child |
| Illegitimate Children | 1/2 the share of a legitimate child |
3. The Requirement for Foreign Probate: Reprobate
If a foreign court has already probated a will, that will does not automatically have effect in the Philippines. It must undergo Reprobate—a local court proceeding where the Philippine court recognizes the foreign probate.
However, many families choose the Extrajudicial Settlement (EJS) route if all heirs are in agreement, as it avoids lengthy court litigation. The Affidavit of Heirship is a core component of this EJS.
4. How to Obtain the Affidavit of Heirship
To validly obtain and use an Affidavit of Heirship for Philippine assets while abroad, heirs must follow a specific legal process to ensure the document is "self-executing."
Step 1: Documentation Gathering
Before drafting the affidavit, you must secure:
- Certified True Copy of the Death Certificate (if died abroad, this must be authenticated).
- Birth Certificates of Heirs (to prove relationship).
- Marriage Contract (for the surviving spouse).
- Title Documents (Certified True Copies of Transfer Certificates of Title or Condominium Certificates of Title).
- Tax Declarations for the current year.
Step 2: Drafting and Execution
The heirs must sign the document. If the heirs are outside the Philippines, the document must be Apostillized (for Hague Convention countries) or Authenticated by the Philippine Consulate in the country of residence.
Step 3: Publication
Under Rule 74, Section 1 of the Rules of Court, an Extrajudicial Settlement/Affidavit of Heirship must be published in a newspaper of general circulation in the Philippines once a week for three consecutive weeks. This serves as notice to any potential creditors or excluded heirs.
Step 4: Payment of Estate Taxes
The Bureau of Internal Revenue (BIR) requires the filing of an Estate Tax Return.
- Tax Rate: Since the Tax Reform for Acceleration and Inclusion (TRAIN) Law, the estate tax is a flat rate of 6% of the net estate.
- Certificate Authorizing Registration (CAR): Once taxes are paid, the BIR issues the CAR, which is the "golden ticket" required by the Register of Deeds to transfer the title to the heirs.
5. Challenges in Foreign Probate Contexts
When dealing with foreign probate, two major hurdles often arise:
- The "Apostille" Requirement: Since 2019, the Philippines has been part of the Apostille Convention. Public documents issued in member countries (like the US, UK, or Japan) no longer need consulate authentication—an Apostille stamp from the foreign government is sufficient.
- The Two-Year Lien: Under Philippine law, any property transferred via an Affidavit of Heirship/Extrajudicial Settlement is subject to a two-year lien (Rule 74, Sec. 4). This means that for two years, the title will bear an annotation stating that other heirs or creditors may contest the distribution. This can make the property difficult to sell or mortgage during that period.
Summary Checklist for Heirs
- Verify the decedent's citizenship at the time of death.
- Draft the Affidavit of Heirship/Extrajudicial Settlement.
- Have all heirs sign and Apostille/Consularize the document if abroad.
- Publish the notice in a Philippine newspaper.
- File and pay Estate Tax at the BIR (RDO having jurisdiction over the property).
- Submit the BIR CAR, Affidavit, and Proof of Publication to the Register of Deeds.